Canada Court Says Ottawa May Allow Gay Marriage
Thu Dec 9, 2004 10:09 AM ET

By Randall Palmer

OTTAWA (Reuters) - The Supreme Court of Canada gave the federal government the go-ahead on Thursday to legalize gay marriage, but stopped short of saying that this was required by the constitution.

The Liberal government had hoped the court would require it to allow gay marriage across Canada, making it politically easier to push draft legislation through Parliament, but the high court refused to give an opinion on this issue.

Instead, the court declared only that the government had the authority to legislate on marriage and that its proposed definition of marriage as "the lawful union of two persons" would not violate the constitution.

The court also said that the constitution protected the right of religious officials to refuse to perform homosexual marriages.

The marriage question is a political hot potato that has divided all four parties in Parliament, and the battle will now be joined on the legislation, which the Liberals had pledged to introduce quickly regardless of the court's opinion.

Its eventual passage seemed likely, particularly since Prime Minister Paul Martin has decided to require all his cabinet members to support it, but fierce campaigns were planned on both sides for legislators' votes.

Lower courts had already made gay marriage legal in six of Canada's 10 provinces and one of its three northern territories, but it remains illegal in the rest of the country, leaving an inconsistent patchwork.

During the Oct. 6-7 oral hearing, justices had suggested the government was trying to get them to do its political heavy lifting, and they said in their written decision that it would serve no legal purpose to rule on whether the traditional definition was unconstitutional.

"The government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this question," they said in their 9-0 opinion on Thursday.

But they also rebuffed gay marriage opponents who had said that a redefinition would violate the country's 1867 constitution, which referred to marriage at a time when it was assumed to be exclusively heterosexual.

"Canada is a pluralistic society," the court said.

"Our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life," it said.

It added that "a large and liberal, or progressive, interpretation" of the constitution was required.

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