HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
ONTARIO COURT CASE; PART 1
From 2000-DEC to 2002-AUG:
From the "reading of the banns" to the
Ontario Divisional Court's decision
Two couples get married:
Gays and lesbians have repeatedly been refused marriage licenses in Ontario.
However, there appeared to be an ambiguity in the province's marriage act which
some lawyers felt might allow
gay and lesbian marriage. Section 5 defines an alternative processes by
which a couple may have the banns read at a church at which at least one of them is a
member. The section does not specify that the couple must be composed of
one man and one woman. Two lesbians or two male
gays would appear to qualify. Elaine Vautour and Anne
Vautour attend the Metropolitan Community Church in Toronto ON (MCCT). So
do Kevin Bourassa and Joe Varnell. Both couples had their banns read during 2000-DEC and 2001-JAN.
In an editorial on 2000-DEC-7, the Toronto Star commented:
"...public attitudes are evolving. Marriage is not the
societal mainstay it once was. Millions of couples choose to live in
common-law relationships. Four out of every 10 legally married couples
end up divorcing. Hollywood has even turned marriage into a form of
game-show entertainment. Against this backdrop, it is hard to see how a
union of two loving, committed gay people would degrade the institution
of legal matrimony. Toronto's Christian gay community has taken a bold
and provocative step. It will make a lot of people uncomfortable. But
this is often how progress begins." 1
The two couples were married on 2001-JAN-14 by senior pastor Rev. Brent
Hawkes of the MCCT. The spouses each
wore a single red rose in memory of the late Pierre Elliot Trudeau. He was
a very highly respected former Justice Minister and Prime Minister of Canada who initiated
legislation to decriminalize homosexual activity in private between two
consenting adults. His famous statement was: "The state has no place
in the bedrooms of the
nation." 6 Gail Donnelly and Barbara McDowall would also been
married on that day. However, they did not qualify for the reading of the
banns because the process is only available to individuals who had not
previously been married. Some 80 representatives of the media were on hand to
record the event, including reporters from Agence France Press,
Associated Press, Christian Broadcasting Network, Mother Jones, Ms.
Magazine, Newsweek, Salon Magazine, Time, and a Japanese television
network. Police were faced with one bomb threat and six protestors who were
dressed in devil masks outside the church. Erika Kubassek, 57, was charged
with assault. Evangelical pastor Rev. Kenneth
Campbell called the weddings "blasphemous." A picture of
the double marriage ceremony was published on the front page of the
Toronto Star for 2001-JAN-15. Six hundred guests, family, friends and spectators
gave the couples a standing ovation.
A political hot potato:
An interesting exchange of letters occurred prior to the wedding:
||Kevin Bourassa sent an e-mail to Canada's Governor-General, Adrienne
Clarkson, inviting her to attend his wedding.
||One of her staff members replied, saying that Ms. Clarkson was
unable to attend, but that she conveyed best wishes.
||Bishop Gerald Wiesner of Prince George, B.C., the president of the Canadian
Conference of Catholic Bishops, then wrote a strongly worded
complaint to the Governor-General and the Prime Minister. He wrote, in
"Canadians should be able to expect the Governor-General to
respect and uphold their basic values and laws. However, this
controversial action by the office of the Governor-General offends most
faiths, almost all of which believe that marriage by definition is the
sacred union of a man and a woman, and is also at odds with Canadian
civil and legal tradition."
||Douglas Elliott, lawyer for the Metropolitan Community Church (MCC), said
it is unfortunate that the Catholic bishops are trying to draw Ms.
Clarkson into controversy.
Refusal to register the marriage:
The legality of the reading of the
banns was disputed. The
provincial and federal governments debated who has authority in this
case. 2 The provincial government announced that it
will refuse to register the marriage. Howard Hampton, leader of the NDP
(Socialist) party in Ontario urged the Provincial and Federal governments
to register the marriages. He commented: "The state has no place
in the chapels of the nation." Rev. Hawkes asked guests to
contribute to a legal fund to fight the expected court battle.
Court cases initiated:
Two similar cases involving a total of ten couples were combined into a single court hearing, which started
||Lawyers Martha McCarthy and Joanna Radbord represented 8 gay and
lesbian couples who had asked that the City of Toronto be required to
issue marriage licenses to them.
||Lawyers Douglas Elliot, represented the Metropolitan Community Church of Toronto
(MCCT). Patricia LeFebour, and Trent Morris represented the couples who
were married by the MCCT. They
are seeking that the two same-sex marriages at the Metropolitan
Community Church described above be
A press conference, called by John Fisher, Executive Director of EGALE, went well except for repeated interruptions
by a representative of the Evangelical Fellowship of Canada.
McCarthy started the hearing by discussing two main themes: love (on the
part of ten couples who are "real people who love each other and wish
to manifest their love through marriage") and hate (the continuing
discrimination against gays and lesbians by the government). Lawyer
Joanna Radbord then summarized why the government's action must be
considered discriminatory under section 15 of the Charter of Rights
and Freedoms. She said: "The definition of spouse as an opposite
sex only couple sends a message that denies status and benefits - it
reinforces prejudicial attitudes. Exclusion from marriage reinforces
this stereotype and prejudice." 3
On the second
day of the hearing, Martha McCarthy argued that:
||The "frozen rights" view of marriage, expressed by a
lower court judge in British Columbia, was invalid. This view
asserts that the definition of marriage was frozen for all time in 1867
when the constitution was written.
||The court can write new common law concerning marriage.
||The civil union solution of Vermont is unacceptable. The plaintiffs
seek full access to marriage.
Lawyer Douglas Elliott spoke for the MCCT. He asserted that any
government refusal to recognize the weddings was an interference with
his clients' freedoms of religion and equality. He argued that the first
inhabitants of Canada, the First Nations peoples had recognized same-sex
Trent Morris argued against the "frozen view" of marriage. To view the
Constitution as stuck at its 1867 wording ignores the fact that the
constitution is a living document that must change to meet the needs of
Canadian society. He concluded with the statement: "the limitation of
our religious freedom diminishes us as a just society." After lunch,
Morris attacked the views of the Attorney General's office. They argued that
marriage is about procreation, that marriage has always been between one
man and one woman, and that heterosexual marriages would be adversely
affected if gays and lesbians were permitted to marry. Drawing an
analogy between segregated schools in the U.S. and civil unions, he
commented: "The U.S. Supreme Court did not order black schools to
look as nice as white schools; they ordered an end to segregation - we
expect nothing less."
Lawyer Cynthia Petersen represented EGALE,
Canada's largest gay/lesbian human rights organization.
She presented herself as representing the gays and lesbians who could
not be present in court. Most of her presentation was an attack on the
government's arguments which she regarded as inaccurate, possessing
faulty reasoning, or just plain wrong. She described an abusive criminal
who married his common-law wife in order to prevent her from testifying
against him in court. The Supreme Court ruled that this abusive marriage
of convenience was still a valid, legal marriage with a bond that had to
be protected. Cynthia asked why the loving relationships of stable, same
sex couples were given less respect.
On the third day of the hearing,
Roberto Zuech, representing the City of Toronto spoke. He explained that
the province's Ministry of Commercial Relations had informed the City
that they would not register same-sex marriages. The city asked for an
application to the Divisional Court of Ontario, which was stayed. They then joined
Rosalyn Levine, representing the Attorney General of Canada,
said: "This case is about our humanity...There are different
aspects, but at its core is our femaleness and maleness. The issue
before this court is a legal one. It is whether government action,
embodied in common law, and statutes, meets the charter rights that the
applicants possess....It's a unique institution, and the court has to
decide whether to change marriage forever...The purpose of marriage has
nothing to do with excluding the applicants. That is an effect, but the
purpose of marriage, outside the law, at its roots, was to define an
institution that would bring together the two core aspects of our
humanity; our maleness and our femaleness, because at its essence this
is the basis for humanity. If you take that purpose away, we have
something else; the institution has changed. Marriage doesn't exist
without procreation. If you take it away, marriage doesn't
exist...Marriage is by nature heterosexual. I can't give you a more
basic statement....Same sex marriage is an oxymoron."
[Author's personal comment: I am personally outraged by
the statement that "Marriage doesn't exist without procreation. If
you take it away, marriage doesn't exist." This statement invalidates my own
marriage. My wife and I were married in 1990 when we were both well
beyond the age at which we could have children. Levine is saying that my
marriage doesn't exist. It also invalidates the marriages of one woman
to one man in which one is sterile. One wonders whether
the Federal Government is secretly in support of same-sex marriage, and
has decided to make totally absurd and incompetent arguments against
it, knowing that their opinion will be rejected by the court. This way, they will be
seen as having made an attempt to maintain the law, and thus will not
lose the support of the substantial minority of Canadian adults who are opposed to same-sex marriage.]
On the fourth day of the hearing, Levine discussed whether the
government was placing constraints on the MCC. She explained that: "The
fact that the state won't register the church's marriages is a
Government inaction, not a constraint against the church." She then
discussed the freedom of gays and lesbians to marry: "What is at the
core of humanity is that which makes us human. The fact that we do
become two genders - that is what makes us human. I may have belabored
that point, but that is the Attorney General's position....There is no
right to same sex marriage in international law. There is no freedom to
marry in the international documents, nor in the body of international
law. There has been no violation of any of the rights, under the
Charter, against the applicants or the church. The law must serve
humanity. That is the role of the law. If the law cannot reference the
essence or core of our humanity, without engaging in a violation of
charter rights, than how can the law ever serve our humanity?..."There
is no evidence, that is reliable, or that merits weight, to say that
marriage, in the form of a man and a women, has caused the
marginalization of same sex couples. It is true that the Church used
this valuable institution for its own purposes to try to marginalize
same sex couples, but that is not the circumstance today...There is no
evidence that same sex couples would benefit in a way that would rectify
the marginalization, that may objectively be there, by changing the
Lisa Sand, representing the Attorney General of
Ontario, asserted that: "The capacity to marry in not determined
by the province but rather by the federal government. The issue raised
in this matter is beyond the jurisdiction of Ontario and the application
should be dismissed against the Attorney General of Ontario."
Attorney David Brown represented the conservative Christian Association
for Marriage and the Family in Ontario. He argued a number of
||That the definition of who can marry is both a federal and provincial
||That the court does not have the power to declare the existing marriage
||That couples who must make use of medically assisted technology, like
in-vitro fertilization, are not in a real marriage, and their children are not
We are unaware of any constitutional experts who share his first two
beliefs. He said that:
"Parliament, acting alone does not have the authority under our
constitution to change the definition of marriage," Brown said. "This
must be done by combination of parliamentary approval, and provincial
approval. Our argument is one of process, and the courts can't do it,
and therefore this applicant must fail." He then discussed the
matter of procreation: "I have no quarrel that a same sex couple can
raise children after they are born, but that is not procreation. A same
sex couple, through an act of sexual intimacy cannot conceive a child."
When challenged by Justice Blair, he admitted that a lesbian couple
can use in-vitro fertilization. Brown replied: "They have conceived a
child, but that is not procreation. Words, in the eyes of the law have
very important meanings."
Peter Jervis represented the
Interfaith Coalition on Marriage & Family -- a coalition of
conservative Protestants, Orthodox Jews, Roman Catholics and Muslims. He
gave the opinion that if same sex marriage were allowed that the couple
"...will not be husband and wife, they will be common-law partners or
conjugal partners...This is very new stuff, and the court is not
competent to do this fundamental social engineering." He appeared to
assume that two gay men would not be each considered each other's husbands in a same-sex
marriage. He expressed concern about the many religious folks in Canada
who could not accommodate to the idea of same-sex marriage. "These
people are people of good conscience. What is going to happen to them?
They may be marginalized." His latter belief has merit. In past
generations, those who supported human slavery, rejection of inoculation of
children, voting rights for women, accessibility to birth control, equal
rights for women, and a continuation of racial segregation on religious
grounds were marginalized.
Ian Benson also represented the
Interfaith Coalition started the fifth day of the hearings. He
maintained that the gay agenda is to use the same-sex issue to gain "further
recognition and acceptance." He said that "the Catholic community
would not be able to relate" to marriage if gays and lesbians were
allowed to marry. If the court ruled in support of the plaintiffs, then
many religious folks would find themselves "confused."
final stage in the hearing involved replies by the applicants. Douglas Elliott said: "My learned friend says marriages provide a
stable environment for children, that marriages are more stable
relationships and therefore better for society. We agree. Aren't more
marriages better for society, and better for all children? Do our
children deserve less?" He said later that: same-sex marriage would
not "disrupt anything other than religious sensibilities." He
cited a definition of marriage by the Catholic Church. "in 1909,
[they] said the word marriage may be taken to mean the action, contract,
formality or ceremony by which the conjugal union is formed or the union
itself is an enduring condition."
On 2002-JUL-12, "three Ontario Superior Court judges unanimously ruled
in a Divisional Court decision that the current legal definition of marriage
[in Ontario] is discriminatory, and ordered it changed to include
recognition of same-sex marriage. 2,5 Their decision
filled 129 pages. The judges all agreed that prohibiting gays and lesbians
from marrying is unconstitutional because it conflicted with, and is a violation of, the
Canadian Charter of Rights and Freedoms -- Canada's constitution.
||Mr. Justice Harry Laforme wrote: "The restriction against same-sex
marriage is an offence to the dignity of lesbians and gays because it
limits the range of relationship options available to them. The result is
they are denied the autonomy to choose whether they wish to marry. This in
turn conveys the ominous message that they are unworthy of marriage....I
find that there is no merit to the argument that the rights and interests
of heterosexuals would be affected by granting same-sex couples the
freedom to marry. I cannot conclude that freedom of religion would be
threatened or jeopardized by legally sanctioning same-sex marriage."
||Noting that the Federal Government had defended the existing law
because it believes that procreation is the basis of marriage, Mr. Justice
Robert Blair wrote: "There is much more to marriage as a societal
institution, in my view, than the act of heterosexual intercourse leading
to the birth of children. Moreover, the authorities are clear that
marriage is not dependent upon the presence of children."
||Madam Justice Heather prepared the ruling. She wrote that the current definition of marriage as
involving "one man and one woman" is constitutionally invalid
because it violated the equality guarantees in the Canadian Charter of
Rights and Freedoms. She
wrote that the definition should be changed to "two persons."
However, she suspended the order for two years to allow Parliament and the
Provincial Legislature to change their laws.
Although their decision was unanimously in favor of the plaintiffs, the
court split 2-1 on the question of the remedy. The majority gave the
Canadian Parliament until 2004-JUL to rewrite the legislation which defines
marriage to include same-sex couples. However, Mr. Justice Harry LaForme
wrote a dissenting judgment. He said that the definition of marriage must be
extended to same-sex couples immediately.
Lawyer for the plaintiffs, Martha McCarthy, said "If no steps are
taken by the government at the expiration of the two-year period, the common
law will be written and gays and lesbians will have the right to marry."
"Test of marriage is commitment," The Toronto Star,
Toronto ON, 2000-DEC-7, Page A36.
Siobhan Roberts, "Loophole may allow gay marriages,"
National Post, 2000-DEC-5, Pages A1 & A2
"Legal Challenges: Ontario," Equal Marriage for same-sex couples,"
Tracey Tyler, "Gay couple hope to get married today," The
Toronto Star, 2003-JUN-10, Page A4.
- The judgment of the Divisional Court, dated July 12, 2002, is reported
at 60 O.R. (3d) 321.
Christine Overall, "Trudeau Was Right. State Should Stay Out Of Nation's Bedrooms," Kingston Whig Standard, Kingston
ON, 2004-JUN-28, at: http://www.christiangays.com/
Copyright © 1998 to 2003 incl., by Ontario
Consultants on Religious Tolerance
Latest update: 2003-JUL-30
Author: B.A. Robinson