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Before introducing it into Parliament, the Federal Cabinet submitted the bill as a reference to the Supreme Court (Re Same-Sex Marriage), asking the court to rule on whether limiting marriage to heterosexual couples was consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions are an acceptable alternative.

On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the Federal Government has the sole authority to amend the definition of marriage, and the charter's protection of freedom of religion grants religious institutions the right to refuse to perform marriage ceremonies for same-sex couples.

Following the Supreme Court's decision, Liberal Justice Minister Irwin Cotler, introduced Bill C-38 on February 1, 2005, to legalize marriage between persons of the same sex across Canada.

The Paul Martin Government supported the bill but allowed a free vote by its backbench MPs in the House of Commons. 3 that same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with marriage.

Same-sex marriage was originally recognized by law as a result of cases in which courts in eight out of ten of Canada's provinces, and in one of its three territories, ruled existing bans on same-sex marriage unconstitutional.More than 3,000 same-sex couples had already married in those areas before the Civil Marriage Act was passed.Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.Thereafter, many same-sex couples obtained marriage licences in those provinces; like opposite-sex couples, they did not need to be residents of any of those provinces to marry there.The legal status of same-sex marriages in these jurisdictions created an unusual jurisdictional issue.

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