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Group B: Reference re Same Sex Marriage

Traditional Natural Law Theory: Law for the Common Good

Natural Law

The Court’s reasoning in answering the Same Sex Reference question incorporates some main themes from the natural law perspective, adapted to modern times. Natural law in the modern context of a pluralistic society such as Canada can be equated with the values transplanted into the Charter of Rights and Freedoms and more broadly, the Constitution, for which all law must adhere. Considering the Constitution as our natural law, the court determines whether the proposed legislation in the Same Sex Reference is required to meet the standard set out to be valid law. The approach of natural law, as well as the court involves determining whether the law is valid by its content rather than its structure and according to what is just. Natural law theorists say “an unjust law is no law at all,” which is similar to the effect courts have when they strike law down under s. 52 of the Constitution as being of “no force and effect” because they find laws invalid according to a standard of “natural law” which we are not obliged to follow as they are not law.

Natural law theorists hold that while natural law is static, human-made law is not and is impacted specifically by people in a time and space, all of which the court agrees with. It recognizes that proposed legislation must reflect the current social realities of Canada which require a change in law. The law once recognized marriage from the point of view of Christianity, but changed to accommodate for diverging views of different households that exist today. The court was confronted with different notions of natural law because while the Constitution and the Charter can be viewed as the natural law of Canada, the opposition to legalizing same sex marriage was largely rooted in the conceptions of natural law coming from religion. However, the court decided that the proposed legislation was valid based on natural law being embodied in the Constitution and the Charter as a higher source of law for which the goal is achieving a common good of universal happiness by harmonizing a variety of interests in a society. The judgement demonstrates Aquinas’ belief that human law can function as inducing a habit whereby people become virtuous because although many people may disagree with the legalization of same sex marriage, as law, this right must be accepted which enforces equality through the law even if the value is not within one’s conscience regarding this matter. Therefore,the 'Reference re Same sex' represents how human law evolves to match a dynamic society while the natural law of the Constitution remains fairly consistent.

Natural law theorists hold that law comes from a higher outside source such as God and human law should reflect this natural law based on morality. The opposition to same sex marriage made arguments in line with this natural law perspective. For example, they asserted that if same sex couples can legally marry, religious officials will be forced to perform such marriage ceremonies which conflicts with their religion and is contrary to the Charter right which protects religious freedoms. The court committed to accommodate this perspective by affirming that these religious rights will be protected. It was held that any law which will require religious officials to conduct such ceremonies or require the use of sacred places for the celebration of such marriages will be invalid. This ruling illustrates how natural law according to original theorists like Aquinas continues to play a role in Canadian law.

The Supreme Court of Canada followed the four elements of natural law to some extent in approving the legalization of same sex marriage. They promoted individual rights in attempting to reach the modern common good of equality to allow for stability and universal happiness. In their pursuit of this objective, they reject the claims made by the opposition to same sex marriage that conferring rights to one group like same sex couples will necessarily take away the rights of another such as religious groups because the rights are embraced by the Charter to enhance the whole of society. Therefore, in aiding the legislature in making law, they relate law to the common good as having a rational link, in ways similar to natural law theorists. It is reasoned that this law provides a path toward a more egalitarian society and thus is teleological. The principle that law must be made by a valid lawmaker is insisted on by this court as demonstrated by their adherence to the division of powers noted in the Constitution as they allocated matters to each level of government for which they are the valid law makers. However, they do not think of a natural ruler as the only valid law maker in the same way natural theorists believe. In terms of promulgation, the judges rely on written law of the Constitution in their reasoning and approve the proposed legislation to be officially written and pronounced. Therefore, the ruling incorporated aspects of the formula natural law theorist’s use in determining valid law.

Inconsistency with Natural Law

The analysis in the Same Sex Reference presents a number of problems for the natural law perspective even when placed in a modern context. The court discusses the Constitution as a “living tree” which may extend to accommodate society as it advances. If we accept the Constitution as the natural law of Canadian society, the notion that it can change is contrary to the natural law theory which holds that while human laws change, natural law does not. Furthermore, the Charter and the Constitution do not lay out the steps to the common good which challenges whether it can legitimately be called law as per the requirements of natural law. The natural law is also to be independent of human Construction, but our Constitution changes as judges interpret and extend it according to the social setting. The role of judges is further complicated because natural law theorists would disagree with judges doing anything but interpreting written law as it appears rather than the more active role taken by this court. Finally, the law in Canada is to be applied to all people which include law-makers who are also not viewed as inherently superior to others. The court demonstrated this by confining law-makers powers to the Constitution through the division of powers and the Charter. Such limitations on rulers are in stark contrast to Aquinas view of rulers who are above the law and placed by God. The natural law perspectives are in these ways inconsistent with the rulings of this court.

Thomas Aquinas

Thomas Aquinas would approach the current case very differently from the Supreme Court of Canada. Aquinas may argue that same sex marriage is not for the common good because it may be a barrier to procreation and self-preservation in comparison to a traditional heterosexual arrangement. The law would not be teleological because practical reason is not leading society through such laws to the common good. Aquinas may find the legalization of same sex marriage as an invalid law because the relationship is contrary to many religions. Aquinas believes that religion and God is the source of natural law and therefore, human laws which are contrary, such as one which allows for same sex marriage will be invalid law and should not be followed. He would not consider the Charter the natural law because it is not made by God and it does not necessarily set out the reasonable steps to the common good, but only the values that are debatable as to whether they are for the common good. Aquinas also has conceptions of certain people being naturally superior as chosen by God and thus justified social class distinctions and would not advocate for an egalitarian approach adopted by this court. Aquinas would also challenge the legitimacy of the court based on its wide interpretation of the Constitution rather ruling from the written word of a valid law-maker who is enlightened by God. Therefore, Aquinas would likely declare the law on the legalization of same sex marriage as invalid because it is contrary to the common good, natural law derived from religion and is outside the scope of judicial power.

The Positivist Response: Law as Command

The Positivist response to Natural Law would begin by criticizing the very idea that same-sex marriage should be achieving some higher purpose. A leading proponent like Austin was say that there need not be a search for some higher purpose for law to fulfill. While Aquinas would first ask what greater good is being served by the extension of marriage, Austin would respond that the search for one is futile, since one need not exist to recognize the law as valid.

The court adopted an approach to the issue of same sex marriage which sought to separate religious and moral considerations from those based upon legal concerns. The Positivist school of legal reasoning advocates such an approach and describes it using the ‘separation thesis’. Within the Positivist approach the separation thesis is used to express the principle that law is a separate entity from morality and ought to be applied and discussed absent any considerations of its moral merit or demerit. This is in stark contrast to the approach of the natural law theorists which seeks to have all laws based upon an external, objective morality, and then measures the status of the law as ‘law’ by whether the legislation upholds applicable moral values.

Positivist Influence

The holding of the Supreme Court of Canada embraces the Positivist view of law as a social fact rather than a rigid construct. Positivists believe that laws ought to adapt to meet the needs of a changing society. The court interpreted the Constitution as a living tree which is to expand to accommodate for social changes and extended the definition of marriage to include same sex couples. This approach to change in the law, as in response to changing social values must be approached carefully as Positivists separate social mores and conventions known as Positive morality which arise from tradition and tend to be inflexible, from legislatively created law known as Positive law which is law as set out by the sovereign and is capable of changing in response to social values.The court’s reasoning reflects the Positivist view that law is not external and static, rather law is informed by society and evolves when it abandoned the common law definition for a modern view on marriage which itself is a social construction.

The Same Sex Reference arose within a context in which lower courts were having to address the legality of same sex marriage and upheld it. This background to the reference question reflects Austin’s ideas of customary law because though same sex marriage was not legalized by the state, citizens were living in such marriage-like relationships as custom which can be said to be “Postive law” because the courts legally allowed such conceptions of family life even though there was no state command explicitly allowing for it.Therefore the ruling of the courts that upheld rights for same sex couples reflect tacit commands of the sovereign which the the legislature and the Supreme Court of Canada purport to make explicit Postive law in the Same Sex Reference.

John Austin

John Austin, a prominent Positivist theorist from the 19th century, would likely approach the issues considered by the Supreme Court of Canada in a manner which rigidly adhered to Positivist ideology. The proposed legislation does not fit exactly within a Positivist formula for a valid law because although it is passed by the sovereign, and is binding on the people governed by them. The law redefining marriage does not come with a threat of punishment. There is also no command within the Act, only a right conferred to those who choose to exercise it. However, Austin provides for an exception to the standard formula of Positive law whereby law that creates rights can deviate from his formula of law which supports that Austin may recognize the right for same sex couple to marry as valid law.

When Austin is situated within the context in which he theorized, his likely conclusions in this case will be based on his personal values and those of the society at the time in which he lived. It is possible that as a religious man living in a religious oligarchy, he would have been conflicted when seeking to separate his personal feelings from the facts of the case. This argument, however, does not seem as convincing as that which proposes he would adhere to his Positivist values. Austin was confronted with the values of society, and his own, while he lived and yet he still became a prominent advocate of a Positivist legal philosophy which advocates separating religion and morality from the law. This would not have been done without considerable thought and it seems uncertain that he would abandon his carefully reasoned approach when confronted with a question about same sex marriage. If Austin was considering whether the proposed legislation was consistent with the Charter, he would have adopted the same considerations as the court in this case, and concluded the law is not in violation of the Charter.

Austin’s advocacy of the ‘Separation Thesis’ would also have arisen during his analysis of whether s. 2(a) of the Constitution Act 1982 would protect religious practitioners from the effects of this law. Austin would have sought to ensure the law did not encroach upon any areas of religious practice; the principle that law and religion ought to remain separate and distinct was of great importance to him. Austin would have constructed the new law in such a way as to avoid any encroachment upon the area he dubbed ‘positive morality’.

Had Austin’s Positivism been rigidly applied to the same sex marriage reference, the outcome would likely have looked very similar to that reached by the Supreme Court. Parliament, acting as the sovereign, is free to pass whichever laws it wishes without regard for morality. Any concerns regarding equality rights based in a sense of moral entitlement would not have entered into the analysis. Accordingly the court would have ruled the creation of marriage provisions is within Parliament’s jurisdiction, and that the proposed Act is good law from a Positivist perspective.

The Separation Thesis (Hart)

While the Positivist struggle to define what the underlying motivation for a law is, Hart would intervene and agree that while that motivation is not external morality as Aquinas would suggest, but instead founded in his separation thesis. Hart would argue this aids in developing a coherent support for what law should be, and avoid pitfalls leading to such ends as Nazi Germany.

In the Penumbra

The Supreme Court of Canada's reasoning in the reference approaches the right to same sex marriage as a law, distinctly from the discussion of the right upon moral grounds. This division of an issue into distinct legal and moral considerations is representative of HLA Hart’s Separation Thesis. The Separation Thesis is used to describe the belief that while laws and morals may express the same values, laws themselves are separate from morality.

In the Same Sex Reference, the court was confronted with an unsettled question of law: whether the federal government had jurisdiction in s.91(26) to legislate upon the legality of same sex marriage. The proposed provision would expand the legal definition of marriage to include same sex couples. This is a ‘gap’ within the settled meaning of the law as it has been understood by the courts and thus an example of the ‘penumbra’. The penumbra is HLA Hart’s term for situations and questions of law which are outside the settled meaning of law; they fall into a shadow-zone of unclear meaning, which judges must illuminate through application of the rules which govern the rest of the legal system. Marriage law in regard to same sex couples has not been constitutionally litigated in the manner this reference has been brought and thus there is a gap in the common law that the court is required to close in making a judgment. Thus it would fit well within the penumbra, where Hart suggests judges decide cases based on 'terms of the rule governed practice.'

By applying Thomas Aquinas’ idea of the morality of law, we can consider the Charter as embodying the moral common good, expressed by the sovereign, and use this to assess other laws. This is consistent with the style of analysis that the court adopted in referring to the Charter principles of “equality” and “religious freedom”. Unlike Aquinas, however, Hart would view this as an adoption of the rules of law governing our legal system. The judge does not apply his personal morality as discretion in this conception. As such, Hart would consider this as the proper process through which a judge is to resolve issues in the penumbra. While not explicitly defined by Hart, the terms of the rule governed practice could be seen expressed through the Constitution, including the Charter. The Constitution also benefits from ‘ought claims’ and social buy-in from the public at large. As such, Hart would approve of analyzing the proposed law under the Constitution for validity.

Religious Accommodation

When considering the question of whether religious officials would be bound to perform same sex marriages, the court maintained the Charter-based analysis, and thus, remaining within Hart’s description of jurisprudence as a rule-governed practice. The court’s reasoning through the Charter values reflects a consistent set of principles, which mirrors Hart’s view that laws are understood by the principles underlying the legal system as a whole. Hart’s theory states that all rule-governed practices must be understood in terms of the rules which gave rise to them. The result is that while the court is considering the question of same sex marriage under s.15(1) of the Charter, they are obliged to consider the concerns of religious officials under s.2(a) of the Charter.

The decision that religious officials are not compelled to perform same sex marriages is an effort by the court to conform to both s. 2(a) and s.15(1) of the Charter when resolving the issue. This balancing of the terms which govern our legal system would likely find acceptance by Hart, who would see it as emblematic of an amoral analysis of a penumbral issue through the application of the governing rules of our legal system. The final analysis by Hart would be for potential immorality in the law, as being ‘too evil’. While law should be considered separately from morality, it may still drift too far into oppression and despotism. As extending marriage to same sex couples only increases the rights of individuals, it is very unlikely it would be seen as ‘too evil’. The only possible infringement of others’ rights comes from application to religious officials, which the proposed law explicitly exempts.

Hart's approach would thus likely yield the same outcome as the one reached by the court.

The Morality of Law

An analysis of same sex marriage law under Morality of Law would begin by criticizing all the failed attempts to justify the law under Positivism. A Moralist approach would specifically focus on the Separation Thesis' failure to define what is a good law, and when it should be obeyed. Through the search for rules of the governed practice under which to justify the extension of marriage, a Moralist would highlight this is actually a search for externally grounded morality. Thus further criticizing the ability to view cases though the penumbra, a Moralist would reject the separation of morality from the analysis, and argue only acknowledging both the external and internal morality of the law can guide one to a correct outcome.

Given the case at hand is a reference question inquiring into the legality of proposed legislation, there are two potential lenses through which to view the application of the legal philosophy. The first application would be as with any other judicial decision, to view the proposed legislation as being on trial, and apply the legal philosophy to determine the constitutionality of the statute. This approach would center on the laws, and reasoning used to determine their constitutionality. The alternate application would be to the proposed legislation itself, and consider its congruence with a legal philosophy. This approach would focus on the statue itself, within the context of greater Canadian society.

Constitutionality Analysis

For the constitutional analysis, the Constitution Act 1867 S.51 and S.52, along with the Charter sections 1, 2, and 15 are all employed to answer the four questions posed about the new legislation. The sections of the Constitution Act employed in the analysis cover the separation of powers between the Federal and Provincial Legislatures. It is very unlikely Fuller, or any legal philosopher for that matter, would have much to say about the content of each government's jurisdiction. However, the Constitution Act itself, and particularly sections 51 and 52, fit well within Fuller's conception of producing order and promoting societal goodness. Additionally, they arguably contain all of Fuller's required eight components of inner morality. The Constitution is a collection of rules, very well publicized, and given it's nature as the founding law of Canada, is not retroactive. While there may be some ambiguity between the section 51 and 52 of the Act, they have been sufficiently interpreted to be well understood and not contradictory. Finally, the Constitution does not require any impossible conduct, it changes at a glacial pace, and the application of the division of powers is highly congruent with how it is written. As such, Fuller would likely find a high level of internal morality within the Constitution. As for external morality, the allocation of responsibilities between Federal and Provincial governments is accepted because this division of powers produces good order by creating laws that reflect both national and local interests. Overall, Fuller would likely see the Constitution as good law, that was properly created, and applicable.

Turning to the Charter, Fuller would much more carefully weigh it against his philosophy. Compared to the Constitutional divison of powers, the Charter is intrinsically liked to the external morality of Canadian society. In this respect, Fuller would see a strong grounding of the Charter in this morality, particularly in sections 2 and 15, which guarantees freedom of religion and equality under the law. Canadian society values both of these freedoms very highly, and they play a defining feature in the Charter.

As for internal morality of the Charter, it would satisfy almost all of Fuller's criteria. The only issue that could arise is the question of contradictory laws. The nature of rights is that they may conflict, and this conflict is what the reference questions are about. This potential conflict between Charter rights was considered by its framers, which led to the inclusion of section 1. This section serves the purpose of allowing the government to override any Charter right, given proper justification and form. Through section 1, it could be argued that potential conflicts can be legislated, however the provisions of the Charter do contradict themselves in many scenarios. It is noteworthy that Fuller did not require complete adherence to the 8 principles for a law to be valid, acknowledging that tradeoffs and compromises would sometimes need to be made. It is very likely that the enumeration of rights is precisely one of those times, and coupled with section 1 allowing for legislative reconciliation, the Charter would likely contain a sufficient internal morality.

Once the substantive laws are found to be valid under Fuller's Morality of Law, he would next consider their application, and particularly the justices' fidelity to the law. Following through the judgment, there is a high level of coherence and logical reasoning in the decision. The conclusions reached flow from an application of the Constitution and Charter. This thorough explanation would be seen by Fuller as a valid path along the collaborative search for what the law ought to be. It would also have the effect of drawing the conclusions towards societal goodness. Overall, Fuller would likely approve of the statues, and their application to rule on the reference questions.

Proposed Legislation Analysis

Fuller's Morality of Law could also be applied to the proposed legislation itself.

The proposed Act is both consistent and inconsistent with Fuller's concept of internal morality. Fuller's first requirement is that a law should be general, and apply equally to all. The proposed Act is general because it extends marriage to all couples. However, the proposed legislation is not of general application in regard to its potential exclusion of religious officials having to perform those marriages.

The proposed legislation will pass Fuller's second requirement which holds that laws must be promulgated, so citizens know the standard they are being held. The reference was very public, and the decision is recorded and broadcasted. Furthermore, the legislation will be drafted and publicly available like all other laws when it is to come into effect. However the exception for religious officials is still left open to decide how broad the exception will be, and who will be covered. Therefore, this aspect of the legislation undermines the promulgation requirement.

Fuller held that a law must be understandable, and must not be retroactive or contradictory. The new Act is in no way retroactive and is clear as to the right of same sex couples to marry. However, the exception for religious officials is unclear in scope. This could also be seen as creating contradictory requirements for religious officials, as obligations under the Act may conflict with religious freedom, and the tenants of a given religion. This is also an issue for Fuller's sixth requirement, that laws should not impose impossible requirements on people. If there is a contradiction in the obligations of religious officials, then it would also impose impossible requirements on them.

Finally, Fuller requires that laws must be relatively constant through time, and administered consistently. The evolution of the definition of marriage goes against stability in the law, but given the incremental changes over a long period, it would likely not go so far as to violate Fuller's principles. The religious interveners argued that inconsistency with the common law definition went against extending marriage to same sex couples, but this was expressly rejected by the court. As for administration, there were no cases decided under the new marriage law, so there is no issue in the reference with congruence between the law as announced and as applied.

All of Fuller's eight criteria are satisfied by the proposed legislation for extending marriage to same sex couples. The legislation embodies inner morality of law, however, the potential exception carved out for religious officials will likely fail Fuller's conception of inner morality.

The change in law that the Same Sex Reference sets into motion can be seen as improving marriage law's consistency with external morality. A large segment of the Canadian public now supports same sex marriage as a principle of equality while respecting religious freedom, and the updated law brings it closer to both. The fact that the Government brought the reference forward also betrays public pressure, and changing household opinions on same sex marriage. Provided the proposed Act is applied in a consistent manner, it would likely hold up to Fuller's view of internal morality, along with being well received by the majority of the Canadian public.

Overall, Fuller would also support the general theory of a reference, as requiring explanation and justification of the decision to extend marriage to same sex couples. Through this, Fuller would argue the court arrives at a more just decision, and compelling the thought through reasoning furthers this goal and pulls the decision towards good. He would also support the application of the Constitution, as the court had a moral duty to follow the accepted law of Canada, that has the support of the public.

Law as a System of Rights

Ronald Dworkin would begin his discussion by criticizing the Positivists including Hart, as they provide an unsatisfying justification either for or against same sex marriage. Through the Positivists discussion of marriage law being a command, and Hart's search for terms of the rule governed practice in the Constitution, Dworkin would highlight how none of these fully decide that the law should be. While possibly explaining that same sex marriage is or is not a valid law, the positivists cannot explain why it should be or not be the law. Dworkin would suggest that unlike the higher morality espoused by Aquinas, no supernatural explanation is required to decide what principles should decide if same sex couples should be allowed to marry.

Principles of Law

The Reference re Same Sex Marriage incorporated Ronald Dworkin’s Rights Thesis by applying principles of justice and fairness as part of the law to discover new rules. The principle of equality the court relied on in their legal reasoning came from the Charter of Rights and Freedoms which falls within the ambit of Dworkin’s principles of justice and fairness. The Charter reflects a political decision and policy which confers political rights and by this court enforcing the Charter, it is in line with Dworkin’s Rights Thesis because it distributes existing political rights. Legal principles led to the right to same sex marriage which the government has the corresponding obligation to make institutions accommodate this new rule. Similarly, the competing principles of freedom of religion from the Charter which is encompassed in justice and fairness required the court to find the rule that religious officials should not be compelled to perform such marriages and the government has the duty to ensure this right. The court in this case also fulfilled Dworkin’s view of the judicial role of applying policy and political decisions of the legislator which in this case is the Charter while using its legal principles to arrive at the right decision about rights and duties. Therefore, the court’s discovery of the new rules of the legality of same sex marriage and not forcing religious officials to perform marriages reflects Dworkin’s Rights Thesis through justice and fairness principles embodied in the Charter

Dworkin’s Chain Novel approach was taken by the court as it engaged in looking at historical developments in the law and to the future to find the new rules. The Reference re Same Sex Marriage disclosed how law develops based on current community values yet is to be consistent with past. The judges examined the past common law definition of marriage and found that although it excluded same sex couples, the Constitution Act of 1867 did not define marriage and recognized that the Constitution allows evolution to meet society’s needs which here is to accommodate the changes in Canadian families. It discovered the rule of legalizing same sex marriage which was consistent with the Constitution Act of 1867, the Charter and acceptance of same sex couples in Canada. The common law definition of marriage as being only between a man and woman no longer held. Since the court faced the impact of the rule on religious freedom which is also historically and presently significant for Canada as evidenced by its inclusion in the Charter, the right of religious officials to refuse to perform same sex marriages was incorporated. This court reconciled the interests on the basis that both rights are supported by principles of justice and fairness. Therefore, they created what Dworkin would contend is a chapter of law in the chain novel that encompassed both rules to make the law the best it could be in reference to past and future legal developments.

Ronald Dworkin

Ronald Dworkin would approach the question as to whether same sex couples should have a right to marry by weighing the principles of justice and fairness as well as community values which he purports judges do. The parties in a case invoke principles and establish their weight through other principles as well as legislative and judicial history. In the present case, the argument for same sex marriage was based on the principle of equality which is also encompassed in justice and fairness. Its weight was established as being part of the Charter which is a policy decision of the legislature as well as an embodiment of Canadian values. The opposing arguments to same sex marriage reflect these justice and fairness principles for religious groups who believe a change the definition of marriage and potentially being compelled to perform same sex marriages will undermine their religious rights. The weight of this principle is suggested in reference to precedents of the definition of marriage in common law as being between a man and woman as well as the freedom of religion under the Charter. Since the Reference re Same Sex reveals competing principles, Dworkin would argue that they must be weighed to uncover existing rights. He would likely hold that principles of justice and fairness would require the legalization of same sex marriage and right of religious officials not to be compelled to perform such marriage ceremonies because they are of equal weight according to the legal principles and are both in line with community values. However, Dworkin would likely hold that the past common law definition of marriage failed to establish the principles of fairness and justice would be undermined by including same sex couples. Rather, the exclusion of same sex couples would be inconsistent with the principles and the past common law definition of marriage should be abandoned. Therefore,Dworkin would discover the rules that the Supreme Court of Canada found through balancing legal principles.

Dworkin’s approach would yield the same outcome as the Supreme Court of Canada because they used the same approach as Dworkin’s perspective is the dominant view in jurisprudence. The court used Dworkin’s Integrity of Law Theory in its interpretation of Charter rights as it looked to the past and the future law to identify rights that are an expression of the principles of justice and fairness. It did not limit itself to historical law but recognized that law changes over time and found rules in the form of rights that added to the chain of common law. The court came to the right rules through weighing legal principles and not by discretion. Finally, it showed deference to the legislature by applying its political and policy decisions. Dworkin’s perspective appears to be directly applied by the Supreme Court of Canada in the Reference re Same Sex Marriage whereby the equality and religious rights were discovered through the process he outlined and thus, Dworkin would come to the same conclusions.


Writing before Hart, Fuller, and Dworkin, Stuart Mill would nonetheless disagree with each philosopher's approach to deciding whether legal marriage should be extended to same sex couples. Mill would see no room for a discussion on morality, or even recognition of what a valid law is. For Mill, the discussion by Hart and Fuller about whether the same sex marriage law would meet the external standards of recognition is irrelevant, if the law should not exist in the first place. He would argue that the only deciding factor of a law is the Harm Principle.

J.S. Mill and the Harm Principle

JS Mill’s approach to legal reasoning was rooted in the ideology of liberal individual rights, subject only to the harm principle. Mill believed that the only acceptable form of state interference with individual autonomy was to prevent individuals from harming others and that any other restriction would be unjustified. According to Mill, the purpose of authority was to prevent society from returning to its natural state of violent anarchy, however he considered the authority required to do this to be inherently tyrannical and despotic and therefore in need of limitations. The limitations on the authority of the state to interfere with individual liberty arise through the recognition of the liberties and rights of the individual; this serves to create regions of individual autonomy which are immune from government interference. The methods which these individual liberties arise may be in several forms including the Constitution Act and the Charter, as these documents clearly set out areas of individual autonomy which must not be infringed by the state. Mill would support the entrenchment of these rights, particularly many of the restrictions on government set out in the Constitution.

JS Mill would consider s.91(26) of the Constitution Act to be secondary in his assessment of whether the state can legislate upon same sex marriage. Mill’s primary inquiry would be whether, by legislating upon same sex marriage to permit homosexual couples to marry, Parliament was preventing individuals from harming themselves. While some members of society view same sex relationships, and marriage, as harmful to those engaging in it, Mill would reject any action on this ground. He believed that society was unable to determine what is best for an individual; he considered the individual to be the best judge of his own interests. As there is no harm to be found in two people marrying each other. Mill would consider same sex marriage to be an inappropriate subject to ground an infringement of liberty. However, this legislation is designed to permit individuals who had previously been prevented from being legally married, to engage in the practice. On this ground, Mill would likely accept Parliament’s actions, regardless of whether they were based in s.91(26) or not, as being a legitimate rectification of an unjustified infringement on individual autonomy.

By moving from the historical common law definition of marriage between a man and women, the court is rejecting an application of previously acceptable morality. This shift would be endorsed by proponents of Liberty, as laws should not be based on morality of the public. While any restriction on marriage would be seen as an infringement of liberty, a libertarian would endorse further extending the law and encompassing previously excluded groups, as a reduction of infringement in individual liberty.


Applying a Paternalistic approach to this case reveals an underlying judgment upon the desirability of same-sex marriage within society. Paternalism considers government interference with people’s rights to be justified only when it is for their own good; the goal is to protect one from harming oneself. This approach must be distinguished from Legal Moralism. Where Legal Moralism justifies infringement upon the basis that an individual’s actions are conflicting with the moral values of society at large. Paternalism seeks to interfere with a person's liberty as a result of society’s view that the individual is harming himself.

The power of the federal government to legislate upon same sex marriage under s.91(26) of the Constitution Act 1982 may be viewed in two different ways when approached via a Paternalistic perspective.

The original law which defined which couples were able to marry excluded same sex couples which may be seen as the result of Parliament's desire to interfere with liberty, in order to curtail a behavior it saw as inherently harmful to the people engaging in it. While this is possible, given the historic prejudice against same sex relationships, it is more appropriately considered under Legal Moralism. If parliament's true intention was to address perceived harm of same-sex relationships, it could have directly legislated against them. Instead, same sex relationships were not illegal but the option of marriage was not extended to them. Unless there is something inherently harmful with same-sex marriage, and not same sex relationships, it would be very unlikely the a Paternalism argument could be made for banning same sex marriage to avoid self harm.

The willingness of Parliament to alter the legislation regarding same sex relationships to permit marriage is more easily fit into a Paternalistic worldview when seen as a recognition of its harmless effect upon society. By including same-sex couples, Parliament is effectively removing an infringement on liberty, with an implied acceptance that there is no harm to prevent.

The court’s ruling that s.2(a) of the Charter exempts religious officials from being compelled to provide same sex marriage ceremonies contains an element of Paternalism. Certain religious officials may consider homosexuality to be a sin, and may refuse to perform weddings for same sex couples as they see the behavior as harmful to those involved. As religious officials are unable to pass laws, Parliaments acceptance that religious officials do not need to condone behavior they see as harmful to the person engaging in it is an arms-length application of the Paternalistic approach to infringement of liberty.

Legal Moralism

Legal Moralism considers an infringement upon an individual’s liberty to be justified when it serves to prevent behavior which undermines or conflicts with a particular group's moral values. In traditional Western society, the dominant moral group held a conservative Christian ideology. The values of which the religious institution imported into both the legal system and society as a whole were pervasive and the law regarding who could be married reflected this influence.

The power of the federal government to legislate same sex marriage under s.91(26) of the Constitution Act 1982 is considered acceptable within a Legal Moralist framework, provided that the legislation is in line with the dominant mores of society, with the purpose of protecting those values. Modern Canadian society has become much more pluralistic in its value structure; the dominant values are no longer those of Christianity and have become much closer to those of traditional liberalism. This change has resulted in a Legal Moralist view of the law to permit same sex marriage as there is no longer a single dominant social value structure which views the behaviour as offensive or threatening.

Offense Principle

The offense principle will accept an infringement of an individual’s liberty provided it is serving to prevent an offense to others. Offense is considered to be established when one person’s actions are distasteful to others, without being harmful to the person engaging in the behavior.

While some may consider same sex relationships and marriage to be offensive such as some of the intervening parties, the Supreme Court did not consider this to be grounds to prohibit same sex couples from marrying. By ruling the federal government had the power under s.91(26) to include same sex couples in the law permitting marriage, the Supreme Court permitted Parliament freedom to include same sex couples in marriage. Through their later ruling that same sex marriage does not infringe S.7, but instead flows from it. Therefore, the court implicitly rejected an offense principle approach to the issue of samesex marriage.

Law and Economics: Law as Efficiency

An Economic Analysis approaches any question of law through a question of efficiency. Through the model of a rational actor pursuing their own best interest, economists believe law should create an environment for efficient transactions, where individuals maximize their social wealth and that of society.


One line of analysis for the economic efficiency of same sex marriage comes from approaching the problem from a perspective of pure efficiency. When approaching the same sex marriage, the courts consider how to balance religious rights with marriage rights, to ensure an efficient outcome. By extending marriage, the courts facilitated Pareto superior moves. Pareto superiority is achieved when one party increases its social wealth, without diminishing the wealth of another. In same sex marriage, clearly the individuals getting married are increasing their social wealth. By entering a mutually desired contract, the married couple moves to a Pareto superior position. Through the legislative exemption for religious officials, the court requires only those who desire to be part of the contract. This avoids imposing participation on unwilling parties, which would have the affect of reducing their social wealth. This careful balance of rights and obligations under the act allows Pareto superior moves, ideally moving Canadian society towards an overall Pareto optimal state. This optimization of law through removal of negative externalities is required after the court's ruling on Federalism, which imposes the restriction on Parliament to not legislate on the solemnization of marriage. As Parliament cannot legislate a protection for religious officials, it is instead up to the courts to protect against this externality by extending the protection from the Charter. This is in line with an economist's view that elected officials are generally not able to make efficient laws, since they are more concerned with reelection or there may be other legal impediments, and instead the balancing of social benefit needs to be done by the courts.

Contract Law

Another line of reasoning is to view marriage as a state sanctioned contract between parties. Recognition of the contract by the state brings with it the force of law, which includes all the benefits of governing legislation, case law, and access to arbitration through the courts. Economic theory supports contract law, as it increases efficiency in transactions by creating a framework for efficient transactions. By bringing a framework for agreements to be made under, including basic rules governing when there is a contract, what the rights and obligations of each party are, and what happens upon dissolution, contract law facilitates efficient trade. This efficiency moves society towards an optimal state by reducing transaction costs by clarifying obligations, and repercussions.

Previously, there was a patchwork of legislation that covered same sex couples relationships. While all marriage law differs between provinces, there is some consistency, and couples can in different geographies have similarly reasonable expectations under the law. Without the right to marry acknowledged at the national level, same sex couples could not have equal access to such laws. The few laws covering same sex couples differed across provinces, and was at the whim of legislatures. From an economics perspective, this made for very inefficient transactions. By not understanding the various implications of their relationships, same sex couples were unable to fulfill their destiny as rational actors.

The proposed Act extends to same sex couples the ability to enter into marriage contracts. This is economically efficient since it extends contract law, and all of the above benefits, to individuals in these relationships. By entering into these agreements, same sex couples will understand what rights and obligations each party has. Additionally, by recognizing these marriages, it opens the applicability of a variety of other laws concerning marriages. By allowing marriages between same sex couples, all the other laws concerning married couples are imported. This greatly increases the protection of rights same sex couples have. It also clarifies the rights and obligations. All of this supports efficient transactions, and moves society closes towards a Pareto optimal state.

Overall, extending marriage to same sex couples is an economically efficient outcome. It is likely most proponents of the philosophy would consider it a just outcome.

Feminist Theory

Feminism would criticize many of the previous theories, as attempting to present a single unified theory of law. The main contention with these single theories is that they impose a uniform actor which is to characterize society but it does not represent all of society, as in the economist's rational man, or Dworkin's neutral bearer of rights. Feminists would argue that the legalization of same sex marriages would be a step toward the deconstruction of the dominant view of marriage against patriarchy. However, Feminists would argue that the first step is to view society, and same sex marriage from a different perspective, and one that acknowledges the historic domination of women.

Feminist Theory Applied

By analyzing the Same Sex Reference through a Feminist jurisprudence lens, the decision to extend the definition of marriage to same-sex couples reflects a shift in favour of Feminist theory. Feminists would consider marriage a patriarchal institution when viewing it from the historically lived experiences of women. Marriage is just one institution in a society structured around patriarchy. The Supreme Court of Canada decision represents a break from such norms in constructing an alternative conception of marriage. The Court’s departure from the common law definition of marriage between a man and woman represents a victory for same-sex couples but also women more generally, regardless of whether they fit into that group. The reconceptualization of an institution that has long silenced women is a step toward equality for all and one which liberal Feminists prefer because it reorganizes social life to provide equality within the current institutions of law and marriage.

The Supreme Court of Canada suggests that law and our Constitution are not “frozen concepts” but that they are to be interpreted to extend to the “modern realities” of society. This is in line with Feminist’s rejection of abstract and grand theories of law and in favour of an approach to law grounded in social realities which reveal inequalities. However, Feminists like Catharine MacKinnon would likely be critical of the court’s viewing rights as owing to neutral beings that are to be applied evenly without consideration of the patriarchal environment in which they operate. By failing to recognize how men have dominated women in the institution of marriage, the court was blind to the fact that the exclusion of same sex couples stems from this social fact. Same sex couples present a contradiction to the status quo and allowing a different conception of marriage would be a challenge to male domination because it would allow equality generally. Feminist theory according to MacKinnon advocates viewing powerful structures in society including law through the specific lives of people and in particular women because gender relationships inform the way society is structured in all respects. The court, however, continued to view Charter rights as rights for neutral individuals which allowed them to separate the concept of inequality by de-contextualizing it and therefore, sustaining patriarchy.

While the different theorists within the Feminist jurisprudence would approach the case differently, they would likely yield the same outcome as the one reached by the Supreme Court of Canada. Specifically, the Liberal Feminist would believe that the Same Sex Reference was decided correctly because it provides for equality within the current system. The Marxist Feminist would support the decision because same sex couples within the institution of marriage present a challenge to men and women having to be constrained in their respective public and private spheres of social and economic life. The Radical Feminist would agree with the outcome because it can aid in reconstructing a patriarchal institution, however, would call for more systemic changes in society. Finally, the Relational Feminist would support the court’s decision but would find that the court took a male-centred “ethic of justice” approach of abstract legal principles rather than the perspective of the “ethic of care” required for equality in the law.

Critical Legal Studies and Critical Race Theory

Critical Theory would take the ideas of Feminism, and broaden their application to a variety of minority groups. Critical Legal Studies approve of the Feminism conception that previous ideas of marriage are based on male patriarchy, and that the imposition of those ideas facilitate and reinforce gender roles. Critical Theory would take the discussion further to consider the other roles which are imposed on individuals. Critical Legal theorists would view the extension of marriage rights from the perspective of homosexual individuals and same sex couples.

Critical Legal Studies

The Supreme Court of Canada endorsed the Critical Legal Studies approach to law in the Same Sex Reference when it overturned the historical common law definition of marriage. It challenged the norms of a long standing doctrine and used their legal power as the means to achieve justice. It stated that the meaning of marriage was not static or determined in law and therefore refused to see this law as neutral. The court suggested that the definition of marriage may be fixed in religions like Christianity, a reference to religion that demonstrated that the court was mindful of the law’s tendency to mirror the interests of the powerful groups in society such as dominant religious groups. However, the Supreme Court made it clear that religious groups could not continue to dictate the law of the land because Canada is a pluralistic society which is to take into account a variety of perspectives in the law. The court’s reasoning further supported the theory when it rejected religious opposition to the proposed legislation on the basis that granting same sex marriage rights would result in discrimination against religious groups who do not religiously recognize these rights. The Supreme Court of Canada stated that the recognition of the rights of group does not violate another’s. The Same Sex Reference reveals that legal actors like the judiciary are conscious of the political and power dimensions of law and can be part of the project of social changes which is necessary for substantive equality and democracy.

Critical Race Theory Adapted

Wacks, a Critical Race Theorist, would approach the issue of same sex marriage rights from a perspective grounded in the social realities that surround homosexual individuals. The theorist advocates against seeing laws and the legal system neutrally, as Liberal theory would represent the law to be. Wacks would argue that the storytelling of homosexual individuals is relevant to determining same sex couples' rights because Canada has an official discourse which often indicates it has not had a discriminatory past. Wacks believes that a confrontation is required for society to get the truth which will lead to an understanding and accommodation of minority groups. This interaction is said to problematize current power relations which will reveal social change but also recognize the diversity of voices that exist within the group. The theorist would be conscious of the ways in which homosexual individuals and same sex couples experience oppression because they may be disadvantaged due to a number of characteristics that are socially constructed and ascribed. Homosexual peoples' oppression may be intensified by the intersectionality of their race, gender and class which are relevant to a political discussion about their individual rights. Finally Wacks would advocate for the inclusion of historically excluded groups into the mainstream society in all institutions to enhance social change.

Wacks would agree with the outcome of the Supreme Court of Canada. Although Wacks would normally critique Liberalism and the state of law as it is for applying the law under a neutral guise when legal doctrines usually exist to benefit the dominant class. However, in the circumstances of the Same Sex Reference, Wacks would likely support the extended rights to same sex couples to marry. The case is in a context in which the voices of this minority have been responded to by the government in its proposed legislation. The story of oppression of same sex couples and homosexual individuals have been told and therefore, this seemingly “neutral” law would be acceptable to Wacks. It can be argued that “revisionism” has occurred and the general accepted stories that there were no discrimination based on sexual orientation is effectively challenged and recognized by society. Wacks would support the decision reached in the Reference re Same Sex because including same sex couples and other vulnerable groups in social institutions like marriage is essential to a democratic and egalitarian society.