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Federal/Provincial Jurisdiction

There is some confusion about the roles of different levels of government involved in the marriage issue. The bounds of marriage, who can marry, are in federal hands, but the regulations around the solemnization of marriage are a provincial responsibility.

Provinces are required to provide a process by which people can be married, but they do not have the freedom to choose which marriages may be solemnized.

What can a province do?
A province must recognize any marriage that is valid in Canada. For this reason it is doubtful whether even the notwithstanding clause can be used to prevent a redefinition of marriage from affecting a province. Bill C-38, passed in July 2005, redefines marriage for all provinces and territories in Canada. This means that provincial governments must provide a process for the solemnization of same-sex marriages.

But provincial governments do have the responsibility to protect religious freedom within their area of jurisdiction, that is, the solemnization of marriage. The EFC has therefore urged provincial governments to pass legislation that will protect religious freedom for clergy and for marriage commissioners, who solemnize civil marriages. Only the province of Alberta has agreed to protect religious freedom for civil officials.

What can the federal government do?
The federal government has the responsibility over "marriage and divorce." This means that it can pass legislation to define marriage and to set out who can marry whom. The federal government cannot protect religious freedom for the solemnization of marriage: only provincial governments can do that.

The Supreme Court of Canada made it clear in the Marriage Reference that any protection for clergy and churches in Bill C-38 was invalid.

 

Issue: Marriage & Family

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Protecting Religious Freedom 
Federal/Provincial Jurisdiction


Helpful Links

Marriage Declaration signed by 50 Evangelical, Roman Catholic, and Orthodox Christian as well as Muslim Leaders in defense of the traditional definition of marriage. Disponible en francais.

Chronology

EFC Statement "What Is Marriage?"

Developing Church Policies on Marriage Handbook

EFC President Responds to Civil Marriage Act

   
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