Mutability and Method in the Marriage Reference

19 Pages Posted: 3 May 2013

See all articles by Carissima Mathen

Carissima Mathen

University of Ottawa - Common Law Section

Date Written: January 1, 2005


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

Suggested Citation

Mathen, Carissima, Mutability and Method in the Marriage Reference (January 1, 2005). Available at SSRN: or

Carissima Mathen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5

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