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FUMARE

Law, culture, and Catholicism...up in smoke!

Wednesday, June 29, 2005

Oh, Canada!

The Canadian Parliament passed a bill yesterday that would legitimize same-sex "marriage" in Canada. Among the gems in the recitals:

WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;

Nothing quite like an advisory opinion from the Supreme Court informing Parliament of the reach of its power, eh? Now we know where the Massachusetts Supreme Court is coming from:

We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at par. (36), quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).

* * *

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).

Goodridge v. Dept. of Pub. Health, 440 Mass. 309 (2003).


Legislative information on the Canadian same-sex bill can be found here.

Incidentally, yesterday's first reading recounted the destruction of Sodom: "Then the LORD rained on Sodom and Gomorrah brimstone and fire from the LORD out of heaven; and he overthrew those cities, and all the valley, and all the inhabitants of the cities, and what grew on the ground." Gen. 19: 24-25. Let those with ears hear.

Now if they can just figure out how to legalize same-sex divorces.

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