Mutability and Method in the Marriage Reference

Abstract

The Reference re Same-Sex Marriage has caused a headache for the federal government. Instead of resolving the issue, the Supreme Court arguably left the federal government in an even worse position. At the time of writing, it is not clear whether the proposed legislation will pass. Given the importance of the issue and the fact that the government decision to support same-sex marriage appears to represent a rare triumph of principle over political opportunism, the reference's aftermath is regrettable. This article argues that the Court's mutable analysis, combined with the government's questionable choice of method, have only partially advanced the important social goal of arriving at a defensible definition of "marriage". Following a brief overview of the reference's history the article discusses the opinion. It then proposes a modest theory of reference utility against which the government's decision to pursue the reference is assessed and, ultimately, found wanting.

Keywords: Same-sex marriage, Religious aspects, Government policy, Canada, Supreme Court