Is marriage protected under the constitution?

"Is a constitutional amendment required to change the common law definition of marriage, or can a reformulation be accomplished by Parliament or the courts?" This is one of the six questions that the Court of Appeal for Ontario (CAO) raised in making its judgement on the same-sex dispute. This question is framed because the Association for Marriage and Family in Ontario argued that the legal definition of marriage--the union of one man and one woman is a constitutionally entrenched term, defined in the Constitution Act/1867. In other words, neither Parliament nor the courts have jurisdiction to reformulate the meaning of marriage.

The Court of Appeal's reasoning rejected the argument on two grounds, which respectively refer to Parliament and the courts' jurisdictions. First, marriage is a matter of capacity. Whether or not same-sex couples can marry essentially depends upon their capacity. Since the Constitution Act of 1867 gives Parliament authority to make laws regarding the capacity to marry, redefining marriage is clearly within Parliament's jurisdiction.

Second, freezing the definition of marriage to whatever meaning it had in 1867 is contrary to the country's jurisprudence of progressive constitutional interpretation. To establish this proposition, the CAO distinguishes between constitutions and statutes. A statute defines present rights and obligations, and therefore can be enacted and repealed easily. However, a constitution is drafted with an eye on the future, meaning that it is difficult to amend once enacted. Thus, the constitution must be capable of growth and development to meet new social, political and historical realities, often unimagined by its framers, and the judiciary, as its guardian, must carry these considerations in interpreting its provisions.

Accordingly, the judges stated that under the doctrine of progressive constitutional interpretation, the courts have permitted many activities, although they were not performed in 1867. An example is the term, 'banking.' Under section 91(15) of the Constitutional Act 1867 the federal government enjoys exclusive jurisdiction on "Banking, Incorporation of Banks, and the Issue of Paper Money." The Alberta government challenged this federal authority in 1947, arguing that certain credit activities did not fall within the scope of section 91 (15), because 'banking' at the time of Confederation did not include these activities. This notion was rejected by arguing that the term banking was not confined to the extent of businesses actually carried on by banks in Canada in 1867.

Thus, CAO rules that 'marriage' does not have any constitutionally fixed meaning. Rather, like 'banking', the term 'marriage' as used in the Constitution Act 1867 has the constitutional flexibility necessary to meet changing realities of Canadian society without recourse to constitutional amendment.

Author's Comment

Both reasons for rejecting the Association's argument seem problematic. First, the statement--marriage is a matter of capacity--is faulty. From the individual perspective, marriage is indeed a matter of capacity, but from the social perspective, marriage must be more than capacity. Since it is a social institution, it must serve a social purpose, which, in this case, is procreation. Individuals can have many reasons to marry, but society's main reason to protect and promote this institution is procreation. Without it, society will cease to exist. In this sense, the Christian justification of marriage--the natural purpose--and the modern social purpose of protecting and promoting the institution of marriage are the same. And since the whole debate is about social recognition, society's purposes must be the standard for making any judgement.

Then, if capacity is the only criterion to marry, there seems little reason to prohibit polygamy or polyandry in Canada. In fact, this restriction can be treated as discriminatory on the basis of 'sexual orientation'. Further, there are very valid reasons to restrict marriage between one man and one woman, which hardly apply to homosexuals.

Second, it is not obvious whether the doctrine of jurisprudential progressive constitutional interpretation applies to the case of marriage. The CAO justifies its position by comparing it with the term banking. But banking and marriages are very different kinds of conceptions. Banking is an economic idea that is evolving continuously with the development of science and technology. Marriage, on the contrary, is a social concept that is related to social and religious values and beliefs, customs and traditions. Therefore, social and political consequences of changing the definition of banking and marriage are substantially different.

It appears that the CAO's ruling on constitutional amendment is questionable.

The author--a former Associate Professor of agricultural economics at the Bangladesh Agricultural University--is a freelance writer and researcher. He lives in Guelph, Ontario.