Reference Re Same Sex Marriage

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Reference Re Same Sex Marriage

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Question:
Discuss about the Reference Re Same-Sex Marriage 2004 SCC 79.

Answer:

Citation and docket number of judgement
The case, Reference re Same-Sex Marriage 2004 SCC 79 and its docket number is 29,866. The court heard a proposed reference of federal authority on recognition of same sex marriage in its Proposed Act that is “an Act regard to recognize aspects of Legal Capacity for civil marriage”. Such proposed act of federal government recognized by hon’ble McLachlin C.J and his bench of J. Major, J. Bastarache, J. Binnie, J. LeBel, J. Deschamps, J. Fish, J. Abella and J. Charron.
Facts of the case
The case recalled a time when same-sex marriage controversy became a valid recognition in Canada. It was path of progress which formerly was a tortured stage for same sex due to the provision of Canadian religious Charter who only belief for traditional recognition of different sex marriage. Such progressive path ultimately weakens the federal government traditional beliefs too. However, Proposed Act of federal government came into light by changing stage of civil marriage in Canada. Before passing the proposed act, a matter covered by political mask by demanding the Supreme Court of Canada, through reference to allowing such Proposed Act (Fairlie and Sworden, 2017).
Significant discussion on issue of “division of powers”
It discusses a dispute on a subject of division of power between parliament and province as specified s. 91(26) and s. 92(12) of Constitution Act, 1867. Such dispute of distribution of legislative powers is examined by a doctrine on pith and substance (Oliver, Macklem and Rosiers, 2017).

Legislation at issue
In the matter of section 53 of the Supreme Court Act, the Canadian Parliament referred four issues concerning such Proposed Act to the Supreme Court of Canada in order to guarantee constitutional validity on same sex. Prior to this case, the issue regard to constitutional validity on same sex marriage had been accepted by several courts verdict by providing constitutional recognition to same sex marriage (Gerstmann, 2017).
Analysis of the case
The four submitted issues to Canadian Supreme Court analyses:

Whether the Proposed Act lies within the exclusive legislative authority of the Parliament of Canada or not?
Whether the section 1 of the Proposed Act, also extends to persons of the same-sex marriage and lies with a consistency with the Charter provisions or not?
Is freedom to religion guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms protecting to religious officials from being obliged to perform same-sex marriages which are opposing to their own religious principles?
Is the civil marriage of different sex consistent with the Canadian Charter of Rights and Freedoms?

Identifies challenged legislation
In response to issue number one, the Court held that section 1 of the Proposed Act was intra vires (lies) within the exclusive legislative authority of federal government whereas section 2 of proposed act was ultra vires (beyond) the exclusive legislative authority of federal government.
In response to issue number 2, the Court ruled that section 1 of the Proposed Act, which state the definition of civil marriage as the union of two individuals, was held to be consistent with the provision of Charter of Rights and Freedoms
In response to issue number three, the Court decided that provision of Canadian charter ensures guarantee to freedom of religion and their belief. It would protect an interest of religious officials being compelled to discharge their official duty under section 2(a) of the Canadian Charter. Such performance of same sex marriage by religious officials shall not be contrary to their religious beliefs.
The court decided to exercise its discretion not to respond towards a problem of the last issue as it may lead to ambiguity in a procedure of law.
Review of the legal concepts as discussed in the judgment
As per the outline of the present case, the judgement of Supreme Court throws a light on proper interpretation of constitutional norms and its values. Such affirmative ruling of Supreme Court ensures a proper weightage to the concept on division of power between federal government and province states of Canada by an examination of doctrine of pith and substance and concept of Canadian constitution as living tree under section 91(26) and 92(12) of Constitution Act,1867.
Merits of the judgment
Such rulings of courts lead to affirmative presentation of mainly four disputes to Supreme Court in respect of constitutional recognition to proposed marriage statute on same sex by federal government. Such proposed act consists of two provision that is section 1 of Proposed Act provide for (sanctity of marriage) as the legal union of two different individuals and excludes an association of all others. Section 2, Proposed Act states that this act shall not affect the principle of secularism that is every individual religious freedom or their belief will not infringed or violates under section 15(1) of Constitution Act, 1987 and Canadian Charter of Rights and Freedoms (Hogg, 2007).
Conclusion
Supreme Court places a safe zone by not interfering with a hypothetical benefit of federal government on its Proposed Act and traditional religious belief and practices of religious officials.

References
Oliver, P., Macklem P., Rosiers, N.D. (2017). The Oxford Handbook of the Canadian Constitution. Oxford University Press.
Hogg, P. W. (2007). Constitutional Law of Canada. Thomson Carswell.
Fairlie, J. and Sworden, P.J. (2017). Introduction to Law in Canada. Emond Montgomery Publications.
Gerstmann, E. (2017). Same-sex Marriage and the Constitution. Cambridge University Press

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