rnment can change the legal rules about "capacity" tomarry and could enact legislation amending the common law and allowing same sex partners to "marry", and that if it did so,this change would be binding for all purposes of provincial (or territorial) law. (And as noted above, there is a strongargument that under the Charter the federal government is obliged to do this, but this argument has yet to succeed in thecourts.) While I think that the federal government could simply enact legislation that allows partners of the same sex to "marry," if itwished to do so it would also be constitutionally permissible for the federal government could use a different term for aformalized same sex relationship. Clearly the parties to a "same sex marriage" would not be called "husband" and "wife,"though these gendered terms are used at common law and in some provincial marriage statutes, and could still be used foropposite sex spouses.(14) So I think that the federal power could extend to the recognition of the rights of same sexpartners(15) to enter a relationship that is called something other than marriage, such as a "domestic partnership," as longas the rights and obligations conferred by the status are fully equivalent to marriage for all purposes of Canadianlaw.(16) The relationships would then be formalized in accordance with a process determined by provincial law, enactedunder the "solemnization of marriage" power. Such full legal recognition of same sex marriage in "all but name" wouldaddress some of the political, religious and psychological concerns reflected in the recent House of Commons resolution.Having a legally equivalent formally recognized same sex partnership with a distinct name may also help address some of thelegal concerns that will arise in the international context, since some jurisdictions will not recognize Canadian same sexmarriages.(17) I think that the federal government could validly legislate under s. 91(26) to give s...
