Justice Mesbur declared parts of the Divorce Act to be unconstitutional because it defined "spouse" as a "man" or a "woman." She reserved her decision on how to remedy the constitutional defect in the law that had prevented the couple from ending their marriage.
She decided to rewrite the federal law by declaring that "spouse" is to be replaced by the phrase "two persons" married to each other. The federal government urged her to not take this route, but to leave the task to Parliament when SSM was eventually introduced. Tracey Tyler of the Toronto Star newspaper wrote: "Unlike previous decisions from provincial and territorial appeal courts reformulating the common-law definition of same-sex marriage, Mesbur's ruling applies to a federal statute, passed by Parliament." It therefore applies across Canada.
Her ruling was handed down on 2004-NOV-19. On that date, "spouse" became "two persons" married to each other in federal law.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.
In forming a marital union, two people become something greater than once they were.
As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.
It would misunderstand these men and women to say they disrespect the idea of marriage.
Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.
Their hope is not to be condemned to live in loneliness, excluded from one of civilizationâ€™s oldest institutions.
They ask for equal dignity in the eyes of the law.
The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.