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Same-sex hearings begin at top court

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OTTAWA - Supreme Court of Canada justices asked federal lawyers Wednesday why they are being asked to rule on the constitutionality of current laws banning same-sex marriage, given that Ottawa has not appealed lower-court decisions on the matter.

  • INDEPTH: Supreme Court reference

Justice Michel Bastarache was among several justices who suggested Paul Martin's government is trying to use the court to do the politically charged work of introducing gay marriage across the country.

Bastarache said the role of the nine Supreme Court of Canada justices is to carry out legal work, not political work.

The Supreme Court of Canada began three days of hearings Wednesday morning, as it reviews draft federal legislation that would legalize gay marriage across the country.

  • INDEPTH: Same-sex rights
  • The reference from the federal Attorney General's Office to the top court contains four questions:

  • 1. Is the proposed law within the power of the federal Parliament?
  • 2. Is the proposed law constitutional?
  • 3. Does the Charter protect clergy who would refuse to perform same-sex marriages?
  • 4. Is the existing opposite-sex requirement for marriage consistent with the Charter of Rights?
  • Justice Ian Binnie asked government lawyer Peter Hogg why the federal government was asking the fourth question, when it could have appealed lower court rulings and got its answer that way.

    Courts in Ontario, Quebec, British Columbia, Yukon, Manitoba, and Nova Scotia have all ruled that prohibiting same-sex marriages is unconstitutional.

    Under former prime minister Jean Chr├ętien, the federal government decided not to appeal the lower court decisions, choosing to accept the seeming inevitability of the top court also endorsing same-sex marriage in such an appeal.

    Instead, the government wrote a proposed new law, which says a marriage does not have to be between a man and a woman in order to be valid, and referred it to the court for review.

    Incoming Prime Minister Paul Martin's justice minister, Irwin Cotler, later added the fourth question to the federal government's referral, asking whether the existing law that limits marriage to a union between one man and one woman is constitutional. Replying to the court's questioning Wednesday, Hogg replied that the federal government would find it useful to have the court's opinion on the question as it moves forward with its proposed legislation, especially with the government in a minority position in Parliament.

    Some supporters of same-sex marriage don't want the court to answer the contentious fourth question.

    Lawyer Cynthia Peterson, representing gay rights group Egale Canada, said the court shouldn't address the question, and asked it to order the Attorney General of Canada to pay the legal costs of her clients when it came to addressing the fourth topic now under review.

    On the first two questions, Hogg said the government's position is that it does have the power to pass the law, and that the new bill fixes the discrimination found by the lower courts

  • FROM OCT. 5, 2004: Foes gear up for gay marriage debate
  • Many of the groups opposed to same-sex marriage are concerned about their freedom of religion, fearing ministers from churches opposed to gay marriage would be forced to perform same-sex ceremonies. The third question on the reference is meant to deal with their concerns.

    The court will hear from 28 groups on both sides of the debate. A ruling isn't expected until next year.

    The parties who will argue in favour of gay marriages include the attorney general of Canada, the Canadian Human Rights Commission, various gay rights groups, the United Church of Canada and a coalition of liberal rabbis.

    Among the opponents are the attorney general of Alberta, REAL Women and the Canadian Council of Catholic Bishops.

    Read more info on: CBC.ca

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    Page last updated December 16 2004.

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