Same-sex marriage didn't have to be "legalized" in Canada -- IT WAS NEVER ILLEGAL -- at least not since the adoption of the 1982 Constitution and the coming into effect of the equality provisions in 1985 (to give govts time to bring legislation into line).
If Parliament passed a law defining pizza as a breakfast food, would that mean that eating pizza for breakfast had previously been
illegal??
The Courts started recognizing the right to same-sex marriage, and such marriages were validly performed, long before this Bill passed the House. It's a bit of a paradox ... but when the SCC or another court recognizes that something is unconstitutional, it isn't
making it unconstitutional, it's "realizing", on our behalf, that it's unconstitutional.
Allow me to repeat what I said yesterday in LBN:
Canada was the third country to legalize same sex marriages, earlier this week, following the Netherlands and Belgium, and followed by Spain, today, which is the fourth country to do so.
There are two problems with this.
The first is that in a federal state, with divided jurisdictions over different matters, it may not be possible for the
country to do something. "Canada" could not make all its municipalities bilingual, for instance, because municipalities are under provincial jurisdiction.
"The solemnization of marriage in the province" is under provincial jurisdiction, under the 1867 bit of Canada's constitution. "Marriage and divorce" are under federal jurisdiction.
There actually was never a law that made it
illegal for same-sex couples to marry -- either by any definition of "marriage", federally, or by any rule regarding the issuance of marriage licences and performance of marriages, provincially. There was just the common law, which was superceded by the Constitution.
There were a couple of judicial decisions a number of years ago holding that same-sex couples could not require provincial authorities to issue marriage licences (based on the common law that preceded the Charter -- and so the decisions were plainly *wrong*); that's all.
The Canadian court cases, beginning in 2002, held that it was
unconstitutional for provincial and territorial authorities to refuse to issue marriage licences to same-sex couples. Like any other unconstitutional practice, it was unconstitutional even before the courts said it was.
But the bottom line is: a
Canadian jurisdiction was the first in the world to "solemnize" (perform) valid same-sex marriages.
http://www.samesexmarriage.ca/evolution/timeline.htm 2003 ... The Court of Appeal for Ontario decision (June10) changed the common-law definition of marriage, effective immediately and the January 14, 2001 marriages were declared legal and the government was ordered to register the marriages.
Those 2001 marriages were "legal"
when they took place! As has been every same-sex marriage that has taken place since then.
"Canada" couldn't "legalize" them, because it had no jurisdiction to do so. (And note that the provincial courts had the authority to interpret and apply, or strike down, any federal jurisdiction on marriage that existed, as well, but they did not find that federal legislation prohibited same-sex marriages.)
The Netherlands wasn't first, and Belgium wasn't second, even though
http://www.samesexmarriage.ca/equality/bel013003.htm and
http://www.samesexmarriage.ca/equality/nthl010301.htm say they were:
On April 1, 2001, The Netherlands became the first country in the world to legalize marriage for gays and lesbians.
On January 30, 2003, Belgium became the second country to open marriage to same-sex couples (marriages are expected to begin June 16, 2003 in the city of Ghent).
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