Summary of the Factum Filed on the Marriage Reference in the Supreme Court of Canada by the Canadian Conference of Catholic Bishops

Thursday, August 05 2004

The traditional definition of marriage as “the lawful and voluntary union of one man and one woman to the exclusion of all others” is constitutional.

  1. Marriage between a man and a woman is a natural institution as it predates all recorded, formally structured systems.  It has accommodated many sets of legal, social, religious, spiritual and moral values so long as they did not conflict with the state interest in marriage.
  2. Catholics treat marriage as both a vocation and a sacrament, the celebration of the sacred commitment and interrelationship between a man and a woman which is at the heart of family life as it is the point of origin and the central locus of responsibility for the rearing and education of most of each new generation of citizen. This view coincides with the state interest in marriage which is protecting and promoting the traditional family for the benefit of current and future generations of children and, consequently, for the benefit of society as a whole.
  3. While the institution of marriage has accommodated many different values, it is a mistake to look at marriage as a number of institutions contained within a larger one as the Ontario Court of Appeal did in theHalperncase. Civil or religious ceremonies are simply different gateways to one institution; they are not, themselves, institutions.
  4. The Roman Catholic Church teaches that homosexual persons must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. While promoting human rights and preventing discrimination are laudable goals, they should not be employed, as the Ontario Court of Appeal did in Halpern to contravene Charter rights of others, or undermine an institution that has proven its worth over time, especially when that institution does not implicate human rights and is not discriminatory.
  5. The exclusion of same-sex unions from the institution of marriage is not based on an irrelevant personal characteristic, sexual orientation, but from the lack of sexual complementarity elemental to the state purpose which is the creation and nurturing of the next generation.

The definition of marriage contained in section one of the Government’s draft legislation which extends capacity to marry to persons of the same sex is unconstitutional.

  1. Once theHalperncase eliminated procreation as the compelling state interest, the Court made it impossible to confine marriage to conjugal relationships. There are many conjugal and non-conjugal adult relationships that are marked by love, commitment and interdependency which are not recognized as marriage and which have been excluded from marriage because they do not meet the compelling state interest as always understood.
  2. If theHalperndecision is followed, it would be equally valid for these other non traditional adult relationships, conjugal and non-conjugal, to seek symbolic approval of their relationships through marriage. If same sex relationships were to clear marriage’s gateway, other adult relationships based solely on the wishes of the individuals involved and having no connection to the state interest will inevitably follow rendering marriage meaningless.

The Government’s draft legislation does not go far enough in protecting freedom of religion.

  1. All individuals, because of their inherent dignity, are entitled to respect but it does not follow that all their consensual sexual acts are entitled to respect and moral approval. At the heart of the demand for same sex marriage is a demand for respect and moral approval of the underlying sexual relationship, a demand that could only be met by many Canadians through abrogation of their religious beliefs.
  2. Public officials who conscientiously disapprove of homosexual sexual conduct would face a Hobson’s choice if required to solemnize a same-sex marriage: they could perform the marriage and deny their conscience; or they can follow their conscience and refuse to celebrate the marriage but lose their jobs. Forcing such a choice would be a violation of freedom of conscience and religion as guaranteed under the Charter.


  1. The Federal government’s proposed legislation would result in two grave harms: it would eliminate the state’s interest in protecting and promoting, for its benefit, the institution of marriage and it would impose an orthodoxy that contravenes freedom of conscience and religion.

The CCCB factum may be read in its entirety by clicking here.

The factum is presented in Adobe PDF format.