By Pete Williams Justice correspondent
NBC News
updated 12/9/2004 5:04:07 PM ET 2004-12-09T22:04:07

Canada's highest court Thursday said that allowing same-sex marriage would be consistent with the Canadian Constitution, clearing the way for an expected vote in parliament on whether to permit gay marriages throughout the country.

In the United States, legal experts and advocates on both sides of the issue said the ruling would have only a limited effect.

In sweeping language, the unanimous opinion brushed aside objections that allowing same-sex couples to marry would violate the traditional definition of marriage stretching back several centuries.  Such a view was valid at one time, the court said, in "a society of shared social values where marriage and religion were thought to be inseparable."

But, said Thursday’s opinion, "This is no longer the case. Canada is a pluralistic society.  Marriage, from the perspective of the state, is a civil institution."

Times change, the court said, and the Canadian Constitution, "is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life."

Without taking account of such changes, laws dating from Roman times would still be valid that deemed women unqualified for public office, the opinion said. 

Religious groups had urged the court to uphold the traditional definition of marriage, arguing that recognizing same-sex marriage would clash with their deeply held views.  But, the court said, "The mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another."

However, the opinion said the guarantee of religious freedom protects church officials from being compelled by the government to perform same-sex marriages that are contrary to their religious beliefs

The court dodged a question about the constitutionality of the current national law, which defines marriage as the union of a man and woman.  The court said same-sex marriages have already been performed in three local jurisdictions, with four more recently deciding to allow them.  To rule on the question now, it said, could affect the rights of couples already married.

The decision comes under an unusual procedure in Canada that allows the government to ask its Supreme Court whether proposed legislation would be constitutional. The U.S. Constitution bars federal courts here from issuing such advisory opinions.

Push for a bill after opinion
The issue now goes to the Canadian parliament. The government Thursday vowed to push forward a bill permitting gay marriage.

Some gay rights advocates in the United States predicted the decision would help their cause.

"It only helps. Americans see Canada as a similar country, one close to home. The more people here see normal, everyday gay couples getting married, the better they'll understand the issue," said Carrie Evans of the Human Rights Campaign Fund.

But Peter Sprigg of the Family Research Council, which opposes same-sex marriage, said the decision would do just the opposite.

"It would be likely to add more fuel to the backlash that we're seeing here in the United States," such as the recent state votes to ban gay marriage.

As for the effect of the Canadian court's legal reasoning, U.S. Supreme Court justices might find some interest in it, "if the desire of some members of the Supreme Court to shape American law in part by looking to other nations applies even to highly controversial issues," said Lyle Denniston, a Supreme Court expert who writes for a legal Web site, SCOTUSblog.

Some members of the U.S. Supreme Court, however, would find the notion that a federal constitution is "a living tree" highly objectionable. Justice Antonin Scalia has been especially critical of the idea that the Constitution must be reinterpreted in light of modern developments.

Pete Williams is the NBC News justice correspondent.


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