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The courts in each case suspended the effect of the declarations of invalidity for two years, to allow the Federal Government to consider legislative responses to the rulings. Instead, the Government would propose a draft Civil Marriage Act and refer it to the Supreme Court for an advisory opinion. Canada appealed the decision, requesting that the decision take effect immediately instead of after a delay.

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.

The introduction of a federal gender-neutral marriage definition made Canada the fourth country in the world, and the first country outside Europe, to legally recognize same-sex marriage throughout its borders.

Before the federal recognition of same-sex marriage, court decisions had already introduced it in eight out of ten provinces and one of three territories, whose residents collectively made up about 90% of Canada's population.

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.

According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the Federal Government; this interpretation was upheld by a December 9, 2004 opinion of the Supreme Court of Canada (Re Same-Sex Marriage).

Until July 20, 2005, the Federal Government had not yet passed a law redefining marriage to conform to recent court decisions.

Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it was very likely that any challenges to legalize same-sex marriage in the remaining four jurisdictions would be successful as well.

Indeed, federal lawyers had ceased to contest such cases A draft of what would become Bill C-38 was released on July 17, 2003, by the Liberal Minister of Justice, Martin Cauchon.

Defeat of the bill in Parliament would have continued the status quo and probably incremental legalization, jurisdiction by jurisdiction, via court challenges. However, this decision stopped short of giving them the right to full legal marriage.

This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite-sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms or by amending the Canadian Constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative religious groups and politicians. Most laws which affect couples are within provincial rather than federal jurisdiction.

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.

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