Class 5 handout: Marriage – Customary and Same-sex



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Class 5 handout: Marriage – Customary and Same-sex
We will discuss two types of marriage that have historically been treated as not meeting the formal requirements of marriage:

  1. Aboriginal customary marriage

  2. Same-sex marriage

Think about how these forms of marriage relate to the formal and essential validity of marriages in Canada.
1. Customary marriage
There is limited legal commentary and case law on the recognition of Aboriginal customary marriages. On the whole, Canadian law has accepted the validity of Aboriginal marriage by custom where the necessary elements identified in Connolly v. Woolrich exist: validity in the community, voluntariness, exclusivity, and permanence.
Could you argue that marriage by Aboriginal custom is an Aboriginal right protected by s. 35 of the Constitution Act, 1982, and that a claim based on the resulting marital status is an exercise of that right?


  • Manychief v Poffenroth (1994, Alberta Court of Queen’s Bench): held that for s 35 to apply there needs to be an “Aboriginal quality” to the marriage.


2. Same-sex marriage
i) The provincial marriage cases
The issue in the provincial same-sex marriage cases:

  1. Is there is a common law bar to the marriage of same-sex couples?

  2. If there is, does that bar contravene s 15(1) of the Charter?

  3. Can it be justified by s. 1?


Is procreation the pressing and substantial objective of marriage (as the trial judge and Attorney-General argued in the EGALE case)?
Is there a rational connection between the importance of procreation and restricting marriage to opposite sex couples?
ii) Bill C-38 – the Civil Marriage Act, 2005 (conflicting rights?)
In Reference re Same Sex Marriage (2004), the Supreme Court of Canada found that s. 1 of the proposed Civil Marriage Act (extending the definition of marriage) was in the exclusive jurisdiction of federal Parliament. But s. 2 (on refusal of religious officials to perform same sex marriages) was not.
The new definition of marriage is contained in the Civil Marriage Act. It states:

s. 2 – Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

s. 3 – It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
How has the potential clash between equality rights and the right to freedom of religion been dealt with? (see Smith & Chymyshyn v Knights of Columbus, 2005 BCHRT, 544). What about marriage commissioners who, because of religious convictions, do not wish to officiate over civil same sex marriages?
iii) The critique of same sex marriage (from within)
“Key proponents of same-sex marriage understand marriage as the ideal liberal contract, and this paradigm downplays the inequality and subordination that are just as basic to Western marriage as, and much more long standing than, love and intimacy.”

(Shane Phelan, Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship (2001) at 74).


“Many sexual dissidents, and in particular gay, lesbian and queer academics, have critiqued the legal struggle for same sex marriage as a strategy that bolsters hetero-normativity by tying our identities to the domesticated space of the monogamous nuclear family form. From the perspective of critics, to equate inclusion in marriage with the achievement of equality is to define equality narrowly as access to the privileges of heterosexuality, while the power relations that flow from institutionalized heterosexuality remain both uncontested and uninterrogated.”

(Lise Gotell, University of Alberta, “Queering Political Science” Panel, Canadian Political Science Association, University of Toronto, 2002)


Why marriage? Why fight for inclusion in an institution that has a rather shameful past, particularly with respect to the treatment of minorities and women?
Does framing the debate in terms of formal equality (or “sameness”) simply reinforce the status quo? Does it reinforce heterosexual marriage as the norm against which other relationships should always be measured?
iv) Exporting same sex marriage
What happens when a couple who are citizens of another country are married in a same sex civil marriage performed in Canada, and then go back to their own country, which does NOT recognize same sex marriage?
Reading for next class: What is a legal parent?

- pp. 125-157

- Vital Statistics Act (BC), ss 3, 5, 6, 36

- Adoption Act (BC), parts 1, 2 & 3





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