Ottawa — The federal government is considering broadening its same-sex marriage reference to the Supreme Court to ask if a non-marriage form of civil union would violate the Charter of Rights, a senior government source says.
The government still wants to legalize same-sex marriages, but would put civil unions before the court in a bid to make it clear that marriages are the only option that does not violate the Constitution, sources said.
Changing the reference questions would be a shift of strategy to counter rising concerns from Liberal MPs, 50 of whom are now publicly opposed to legalizing same-sex marriages. Some have proposed some other form of legally recognized same-sex union.
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The high court is looking at three questions related to proposed legislation that would redefine marriage as the union of two persons.
The idea of civil unions, as opposed to same-sex marriages, has resonance with many Canadians, a new poll suggests.
The Ipsos-Reid survey, done for CTV and The Globe and Mail, found a group of people who support civil unions between those who support and oppose same-sex marriages.
A total of 38 per cent said the word "marriage" should apply to any two people regardless of gender, 37 per cent said marriage should apply only to the union of a man and a woman. About 24 per cent said marriage should refer only to a man and a woman and another legal term should be used for the formal union of same-sex couples.
Over all, the poll found support for same-sex marriage has dropped 5 per cent since the federal government announced earlier this summer that it would make gay unions legal.
Canadians are evenly split, with 49 per cent supporting and 49 per cent opposing the concept of allowing same-sex couples to get legally married, the poll found.
An Ipsos-Reid poll conducted one week before Prime Minister Jean Chrétien announced in June that the federal government would introduce same-sex marriage legislation found 54 per cent supported the concept while 44 per cent were opposed.
The huge debate boils down to one word: marriage. "This debate is not about tolerance," said John Wright, senior vice-president of Ipsos-Reid Public Affairs. "It's about a word. What is being challenged now is the actual label itself. What's revealing in this poll is terminology means a lot."
The federal government has not made a final decision on changing the questions before the Supreme Court, but officials believe the court would knock down a proposal for separate, but equal, same-sex unions as discriminatory.
MPs would be left with the stark choice between overriding the Charter of Rights with the notwithstanding clause or legalizing same-sex marriage.
"Legal experts say it's a no-brainer, but there may still be some utility to doing that," the source said.
Many Liberal MPs seem to be clinging to the hope that there is a "middle-ground" solution that would not be called marriage but would provide equal rights and not violate the Charter, the source said. Expanding the reference could prove same-sex marriage is the only option.
Civil union would be marriage in all but name; same-sex couples would be legally joined with all the benefits and responsibilities of married persons, but it would not be called marriage.
Many Liberal MPs who oppose the existing draft legislation say they would vote in favour of the bill if there was another term for same-sex unions other than marriage.
The federal government announced it would legalize same-sex marriages after several courts ruled it is unconstitutional to limit marriage to male-female unions.
In its reference to the Supreme Court, the government asked the top court three questions: if Parliament has the exclusive legislative authority to change the legal definition of marriage; if extending the capacity to marry to persons of the same sex is consistent with the Charter of Rights and Freedoms; and if the Charter protects religious officials "from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs."
Even the Pope waded into the debate last week when the Vatican issued a worldwide edict to Catholic politicians to vote against sanctioning same-sex marriage.
Yesterday's poll found 59 per cent of Canadians opposed to church directives to politicians on lawmaking while 54 per cent said politicians should vote on the issue based on the wishes of his or her constituents, not faith.
The Supreme Court's opinion is not due until next year, meaning that Paul Martin, the front-runner to replace Mr. Chrétien, will most likely have to steer the debate in the Commons.
But long before the bill comes to a vote, MPs will have to take a stand on the issue. The Canadian Alliance plans to put forward an exact copy of a 1999 motion in which the Commons, including most Liberals, voted to retain the traditional definition of marriage as a union between a man and a woman.
Northern Ontario Liberal MP Benôit Serré said the government should use the notwithstanding clause to override the Charter, "or amend the Constitution" if need be to limit marriage to a man and woman.
Mr. Serré was one of two MPs who added their names yesterday to the list of Liberals who in a Globe and Mail survey said they will vote against the bill — along with Mississauga South MP Paul Szabo. Two others, Jim Peterson and John Finlay, came forward to say they are undecided.
That brings the total of Liberals MPs against to 50, compared with 60 who say they will vote for the same-sex marriage bill, 27 who are undecided, 27 who won't say, and seven who could not be reached.
