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Abbreviated translation of the press conference, Henri Laberge, President of the MLQ, 2003-09-03 :
Position of the MLQ Concerning Proposed Marriage Legislation
For the
original French-language document, consult the
web site of the MLQ.
2003-09-17
The Mouvement laïque québécois (MLQ, Quebec Secular Movement) strongly supports the expressed intention of the government of Canada to make civil marriage accessible to same-sex couples as well as its desire to respect the freedom of religious groups to establish their own definition of religious marriage in accordance with their particular convictions. The MLQ nevertheless disagrees with the text of the proposed legislation as drafted by the Minister of Justice in order to achieve these two goals. Firstly, the proposed definition of marriage is not in fact a definition. Secondly, and more importantly, the proposed legislation encroaches upon exclusive provincial jurisdiction with regard to the celebration of marriages and thus would, in its current form, give federal sanction to the right which provinces have granted to religious authorities to celebrate civil marriages.
The Essential Distinction between Marriage and Legitimate Fertility
The civil institution of marriage does not require that the wedded partners be fertile. Furthermore, no law forbids fertility among unmarried couples. Marriage is not compulsory for anyone. It exists essentially to protect the freedom of couples who wish to use this institution to obtain official recognition of their consensual union and to invite society as a whole to respect their life choice. The definition of marriage which the federal legislator must establish in order to conform to the Charter of Rights and Freedoms should be consistent with this approach and must not compromise the freedom of persons and couples in choosing to have or not to have children.
Married couples can be very good parents, just as they can also be very bad parents. The same observation can be made with respect to unmarried couples. In the course of the last thirty years, we have witnessed an increasing separation, both in word and deed, between marriage and parenting. Marriage is no longer defined as the only place or the compulsory bond for the procreation and education of children. It has become the expression of two adult persons' free choice to seek official recognition of their desire to live together and to declare publicly their mutual commitment. In light of this, there is no reason to deny the accessibility of civil marriage to couples of the same sex. Furthermore, we know very well that, regardless of how marriage is defined, the great majority of couples which will be formed throughout the coming decades and centuries (whether married or unmarried) will, as usual, be heterosexual.
As for the definition of marriage, current legal provisions say almost nothing about it. A great deal of patience and a well honed ability to read between the lines are required in order to find in federal legislation any substantive definition of marriage. The Law on Marriage (L.C. 1990, Ch. 46) contains neither a definition of marriage, nor any attempt at a definition, nor any indication that marriage should be restricted to couples consisting of one man and one woman. In a law whose title does not even contain the word marriage (L.C. 2000, Ch. 12), and whose intent is to modernise programs of benefits and responsibilities in Canadian legislation, there is an attempted definition of marriage as "the legitimate union of a man and a woman to the exclusion of all others." This tells us nothing about the criteria for legitimacy of a such a union, only that it must be legitimate.
The courts also cite articles 5, 6 and 7 of the Law to Harmonise Federal Law with Quebec Civil Law (L.C. 2001, Ch. 12) in which article 5 refers to free and informed consent, article 6 mentions a minimum age of 16 years and article 7 refers to the impossibility of being married to more than one person. As ingredients of a definition, this is already an improvement. However article 4 of this law stipulates that articles 5, 6 and 7 apply only in the province of Quebec and are to be interpreted as if they were provisions of the Quebec Civil Code. These elements of a definition should be included in the Law on Marriage. Indeed, this Law should give a complete, coherent and generally applicable definition of the institution it was meant to regulate. An act of legislation should not be evasive or obscure.
In the proposed bill submitted by minister Martin Cauchon, the words "a man and a woman" have simply been replaced by "two persons" in the definition of marriage in L.C. 2000, Ch. 12. This is perhaps a step in the right direction, but it is rather inadequate. The Mouvement laïque québécois asks that a substantial definition be included in the bill; it therefore proposes that the federal legislator model its definition of marriage on that of civil union given in article 521.1 of the Quebec Civil Code. Furthermore, the new marriage legislation should indicate clearly that a marriage is not valid until it has been performed in accordance with the relevant laws of the appropriate province or territory. The result would be similar to the following:
1. Marriage is a civil union contract between two adult persons who express freely their mutual informed consent to become life partners as well as their commitment to respect the rights and obligations implied by that condition.
2. A marriage contract may be established only between persons who are free of any former marriage ties (or any ties which are civilly equivalent to marriage) and provided that neither of the two persons is a descendant, ancestor, brother or sister of the other.
3. A marriage is only valid after having been performed in accordance with the relevant laws of the appropriate province or territory. A failed marriage may be dissolved by a court on the request of one or both of the two persons.
Freedom of Religion and Civil Marriage
Addressing the Canadian Bar Association last August 18, the Minister of Justice Martin Cauchon, referring to the second article of his proposed bill, stated that it "protects the right of religious groups to refuse to perform marriages which are inconsistent with their beliefs." This is an admission of an attempt by federal legislation, in this case the marriage bill, to encroach upon an area of exclusive provincial jurisdiction. Such a provision could be interpreted as an implicit confirmation and official sanction of the right, given by provinces to religious authorities, to continue to perform civil marriages whenever those authorities are willing to do so. Freedom of belief and freedom of religion as guaranteed by the charters of rights and freedoms of both Canada and Quebec do not imply the right of religious authorities to perform civil marriage.
The Mouvement laïque québécois considers that real religious freedom requires a clear separation between matters of civil law and civil authority on the one hand, and matters of faith and religious authority on the other. That is why the MLQ supports the principle of a complete separation between the civil performance of civil marriage and the religious celebration of religious marriage. As long as the religious celebrant is authorised to perform both civil and religious marriages, there exists a conflict of interest and of conviction for those who must deal with two distinct institutions (civil marriage and religious marriage) which are based on two different definitions and have different effects. The best way to protect the freedom of conscience of religious celebrants with regard to civil marriage is to assign the performance of that ceremony to civil officers designated by the state as its representatives. It is thus our position that Quebec legislation should impose that complete separation, and we are concerned that it not be prevented from doing so by a federal law which illegitimately encroaches upon an area of exclusive provincial jurisdiction.
If the federal legislation wants to protect religious freedom with regard to the definition of religious marriage, it must do so clearly and it can do so without stipulating how marriages should be performed. It could, for example, say the following:
This bill has no effect on the freedom of religious groups to define religious marriage as they wish to remain consistent with their particular convictions. However, the bill recognizes, for civil purposes, only civil marriages which correspond to the definition given in this bill and are performed in accordance with provincial and territorial legislation.
The federal legislator can no longer base its considerations purely and simply on Common Law when defining an institution such as marriage which has undergone profound modifications over the centuries. We need a substantive legal definition which corresponds to the mentality and aspirations of the men and women of today. We require a legislative definition which respects the letter and the spirit of the Charter of Rights and Freedoms. We want federal marriage legislation which respects the limits of federal jurisdiction and in particular which does not prevent the provincial legislator from assigning exclusive responsibility for the performance of civil marriage to civil officers.
Henri Laberge, President
Mouvement laïque québécois [Quebec Secular Movement]
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