Supreme Court reference

In most other countries a court cannot rule on an issue unless it hears a relevant case which has made its way through the judicial hierarchy. However, Canada is unusual in permitting its governments to refer a question to the Supreme Court for a ruling in the abstract. Two famous reference decisions were (1) the Patriation Reference of 1981 respecting the legality of Pierre Trudeau's effort to patriate the constitution without the backing of the provinces; and (2) the 1998 Reference re Secession of Quebec, in which the right of a province to secede unilaterally from confederation was at issue. Reference decisions are not strictly legally binding, but they are usually treated as if they were.

Today the Supreme Court handed down its long awaited reference decision on the federal government's same-sex marriage legislation. Here is the high court's decision in response to the federal government's four questions:

First question: Does Parliament have the exclusive legislative authority to change the legal definition of marriage?

Supreme Court's answer: Yes

Second question: Is extending the capacity to marry persons of the same sex consistent with the Charter of Rights and Freedoms?

Supreme Court's answer: Yes

Third question: Are religious leaders protected under the Charter of Rights from having to marry same-sex couples?

Supreme Court's answer: Yes

Fourth question: Is the traditional definition of marriage between a man and a woman constitutional?

Supreme Court's answer: The Court exercises its discretion not to answer this question.

From the court's ruling: "Several centuries ago, it would have been understood that marriage be available only to opposite-sex couples." Several centuries ago? Judging from this statement, the justices on the court must be very, very young indeed. I myself remember this ostensibly long-ago era, and I'm not quite at the half-century mark.

The issue will continue to be debated, most notably in the House of Commons itself.