A row about civil and religious marriage in Québec is quite unnecessary
In early February, Québec’s Superior Court delivered what should have been a fairly routine judgment dismissing a weak constitutional challenge to provisions of the province’s Civil Code that have usually ― although not always ― been regarded as requiring a person celebrating a marriage to notify the registrar of civil status. Instead, Justice Alary’s decision, Droit de la famille — 16244 has, not unlike some trivial incidents in a couple’s life, sparked a furious row. The row is, as usual, meaningless ― though it can make us reflect on the institution of marriage.
The case before Justice Alary involved a man who objected to the financial consequences of a divorce, and argued that he had been unconstitutionally compelled to enter into a civil as well as a religious marriage. Unbelievers, he said, have the option of simply cohabiting if they do not wish their relationship to have the legal and economic consequences the law attaches to a marriage. People of the “Judeo-Christian faith” (his terminology) lack that option, as their religion requires them to get married in order to live together. So the legal consequences of a marriage are, in his view, an infringement of the believers’ freedom of religion and of their equality rights. They should have the option of getting married religiously without incurring the legal consequences of a civil marriage.
Justice Alary easily dismissed this argument. She held that while the plaintiff’s belief that he had to be (religiously) married to cohabit with his (formerly) beloved was sincere, he had not shown that the state had interfered with this belief. “The impugned provisions,” she observed, “certainly [did] not prevent [him] from holding beliefs having a nexus with religion. Nor did they prevent him from ‘engaging in a practice’ having to do with religion, that is to say, from getting married.” [45; translation mine] Indeed, the reason for the plaintiff’s objections is not so much his faith as his economic assessment of the family law regime. As a result, there is no infringement of freedom of religion. Subsequently, Justice Alary also finds that there is no infringement of equality rights.
This strikes me as quite obviously correct. When the law forces a person to do something that his or her religion prohibits, or prohibits him or her from doing something religion requires, that person’s religious freedom is infringed. But nothing of the sort is happening here. As Justice Alary notes, neither the plaintiff or anyone else is prevented from entering into a religious marriage. Nor is anyone required to do so. What’s happening here is that the law attaches some (unpleasant) consequences to the plaintiff’s choice to do something ― namely, to get married. This choice is religiously determined, to be sure, but I don’t think that law can take notice of that, any more than it could take notice of the fact others might get married simply because their prospective spouse pressures them to do so and they feel that they have no meaningful choice. The law simply does not look into people’s reasons for getting married. The plaintiff’s argument is identical to a religious person’s claim to a tax rebate on the ground that he or she is required, by his or her faith, to spend money on charity or tithes while non-believers need not do so. The believer chooses to comply with religious obligations, and has to live with the civil consequences of that decision.
Perhaps unfortunately, Justice Alary was not content with this conclusion. She went further and, in an obiter, opined that a religious officer who celebrates a religious marriage need not perform a simultaneous civil ceremony and notify the registrar of civil status. A religious marriage can be purely religious ― without civil consequences. It is this obiter that provoked ― about a month after the decision was published! ― furious reactions in large sections of Québec’s legal community, which saw it as exposing women and children to detrimental consequences. Some are even calling for the notwithstanding clause of the Canadian Charter of Rights and Freedoms and its provincial equivalent to be invoked to defend “Québec’s family law” and the “collective values of Québec’s society” (translation mine).
I find these reactions perplexing. Religious marriages without civil consequences are not exactly a shocking, unheard-of thing. As Yves Boisvert pointed out in a (somewhat flippant, but fundamentally correct) column in La Presse, there are all manner of religious groups in Québec. Some of them may perform marriage ceremonies that do not comport with the Québec Civil Code’s requirements for authorizing religious officers to perform civil marriages, and these ceremonies will, then, result in religious marriages without civil consequences. Before same-sex marriage was recognized by law, some religious groups blessed same-sex unions. (Indeed, one such group was a plaintiff in the case of Halpern v. Canada (Attorney general), in which the Court of Appeal for Ontario struck down the opposite-sex definition of marriage.) Such marriages also could not have any civil consequences. As Anne-Marie Savard asks in a thoughtful post over at À qui de droit, “why must we regard this possibility as nothing more than a way for men to avoid their civil obligations,” (Translation mine) rather than a way for couples to organize their own affairs as they wish? As for calls for the notwithstanding clause to be invoked, they simply ignore the fact that Justice Alary found no infringement of freedom of religion. It is difficult to avoid the impression that the issue is simply being used, the facts be damned, by a cadre of nationalist jurists who seek for other reasons to break the existing taboos on the resort to the notwithstanding clause.
All that said, we can take the occasion for reflecting on the relationship between state, religion, and marriage. To me at least, it illustrates the folly of entangling the state in intimate relationships between men, women, and God (not all three being necessarily involved, of course). Why exactly do we need to attach civil consequences to marriage ― the sacrement, the ceremony that is? If it is the case that intimate relationships or cohabitation invariably produce unique dependency and require legal protections for their vulnerable members, then these protections should attach to cohabitation ― as indeed they already do in every province other than Québec. If this it is not the case that people involved in such relationships are incapable of meaningful choice, as Québec believes, then they should be free to contract into, or perhaps out of, an optional legal regime based on cohabitation. (For what it’s worth, I prefer the Québec position, but that doesn’t really matter now.) Either way, there is no need, and no reason, to attach civil consequences to a ceremony, whatever its name, and whether performed by a civil servant or a religious officer. If people believe that God attaches importance to a ceremony, that’s their right of course. But civil marriage simply has no raison d’être.
Attempts to point out to parties to a family row that they are fighting over trifles and should stand down seldom end well. I don’t suppose that my own belated intervention in this debate is going to change anything. Still, I thought that it was important take a calm look into what is going on.
NOTE: My apologies for the lack of posting in the last few weeks. I do have something to show for it though. More on that in a few days, hopefully.
Double Aspect 
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