Before introducing it into Parliament, the federal Cabinet submitted the bill as a reference to the Supreme Court (Re Same-Sex Marriage), asking the court to rule on whether limiting marriage to heterosexual couples was consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions are an acceptable alternative.On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the Federal Government has the sole authority to amend the definition of marriage, and the Charter's protection of freedom of religion grants religious institutions the right to refuse to perform marriage ceremonies for same-sex couples.
Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.
According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the Federal Government; this interpretation was upheld by a December 9, 2004 opinion of the Supreme Court of Canada (Re Same-Sex Marriage).
Until July 20, 2005, the Federal Government had not yet passed a law redefining marriage to conform to recent court decisions.
Defeat of the bill in Parliament would have continued the status quo and probably incremental legalization, jurisdiction by jurisdiction, via court challenges. However, this decision stopped short of giving them the right to full legal marriage.
This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite-sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms or by amending the Canadian Constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative religious groups and politicians. Most laws which affect couples are within provincial rather than federal jurisdiction.
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