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Same-sex marriage: A case commentary

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  1. Introduction
  2. Background to the decision
  3. The changes in the definition of marriage
  4. Public opinion polls
  5. The provincial legislatures
  6. The necessity for equality within all legal institutions
  7. Conclusion
  8. Works cited

The case to be reviewed concerns the legality of Same-Sex Marriage, which was designed to instill and protect certain aspects of legal capacity for marriage for civil purposes. Introduced in July, 2003, the constitutional law was intended to encourage the distribution of legislative power, specifically the solemnization of marriage. The proposed legislation provided that marriage for civil purposes could be recognized as the lawful union between two persons while excluding all others. Furthermore, the legislation provided that nothing in the Act would consequently affect the freedom of officials of religious groups. Specifically, those individuals who refused to recognize or perform a same-sex marriage under the tenets of their religious beliefs would not be affected by the legislation. This case was extremely important for the gay and lesbian community in Canada. Prior to the introduction of this legislation, same-sex couples were excluded from both the social and economic benefits of marriage based solely upon their sexual orientation. In actuality, the resistance to same-sex marriage stemmed from a religious subtext, as the collective social attitude towards the institution of marriage is derived from religion.

[...] The legislation actually functions as an extension of the government's policy in regards to equality concerning same-sex couples. The government also stipulated that the equality rights of one group cannot, in itself, violate the rights of another. Therefore, since the proposed legislation was not in violation of the Charter of Rights and Freedoms and the tenets it was meant to uphold: ?Although the right to same-sex marriage conferred by the proposed legislation may potentially conflict with the right to freedom of religion if the legislation becomes law, conflicts of rights do not imply conflict with the Charter; rather, the resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation. [...]

[...] A multitude of benefits, which were once reserved exclusively to heterosexual couples (such as dependant's relief, death benefits under no-fault auto insurance regimes, survivor benefits under workers' compensation and victims' compensation regimes, etc.) are now equally available to same-sex couples who satisfy the provinces' minimum cohabitation requirements where applicable, who co-parent a child)? (Equal Marriage for Same-Sex Couples, par. 23). Thus it would seem that the Canadian approach to same- sex unions has been a slowly evolving concept, one that has taken many forms and manifested itself in different ways before the Supreme Court of Canada. [...]

[...] In addition, employers, governments, insurers and other service providers refused to acknowledge same-sex relationships and these individuals were consequently exempt from any spousal benefits that were typically granted to those in heterosexual relationships without a problem. As such, this legislation is about more than just marriage, but instead serves as a public affirmation of homosexuality, as the government and any other institution within Canada (with the exception of religious institutions) are required by law to acknowledge same-sex couples. Canada has undergone significant evolution in this area considering the homosexual McCarthyism of the 1960s, and this legislation is an important step forward in the ongoing effort to quell any further human rights violations: Many same-sex couples now live together openly, accepting spousal responsibilities and receiving spousal benefits from employers, service providers, and all levels of government. [...]

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