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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

2003-September to October

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Topics covered:

Opinion poll
Catholic archbishop warns of incestuous marriages.
Alliance party's anti-SSM motion shelved by Parliament
Two groups attempt to appeal Ontario course to Supreme Court
Private member bill shelved

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Earlier developments are described in another essay

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Overview:

On 2003-JUN-17, the federal government decided to create legislation that would legalize same-sex marriage (SSM) across Canada. This decision stirred up a hornets' nest of controversy during the first week after the government's decision was announced. Developments proceeded rapidly for the next three months. By early 2003-SEP, they show no signs of diminishing.

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2003-SEP-8: Public opinion poll: SES-Research released data from a ten-day poll of 1,000 Canadian adults. They found that 47% support SSM; 44% are opposed. Of particular note is the finding that 60% of those Canadians who oppose SSM plan to vote against politicians who support the SSM legislation. As expected, support was strongest in Quebec and weakest in Alberta. Margin of error is 3.1 percentage points. 1 More data

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2003-SEP10: Archbishop warns of incestuous marriages: Jean-Claude Cardinal Turcotte, Roman Catholic Archbishop of Montreal, talked to the press about SSM at a news conference arranged by the Canadian Conference of Catholic Bishops. He is quoted as saying: "When you change the definition of the institution, you open the door to things you can't foresee. If marriage is a union between two persons who love each other - that's the new definition, without the allusion to sex - where does the notion stop? Will you recognize the marriage between a father and his daughter? Between a brother and his sister? Or two brothers or two sisters?...It's very dangerous because we don't know the consequences." 2 Justice Minister Martin Cauchon responded to the Archbishop's concerns. He told reporters in Calgary AB that both marriage and sex between a parent and child or two siblings is illegal. "The question that they raise is an offence based under the Criminal Code....I see no connection to what we are doing." 2 The Archbishop's comments moved Shelley Sullivan of Oakville ON to write a letter to the editor of the Toronto Star which said: "If the marriage of two persons could lead to incest through the marriage of brother and sister, or father and daughter, how is it that the current definition of marriage, a man and a woman, does not exclude the possibility?...The answer is quite simple: The law excludes it and that would not change." 3 Kathleen Lahey, a law professor at Queen's University at Kingston, who was involved in the British Columbia SSM case said that the Archbishop is trying to reduce the concept to "its most absurd extreme...It is not a credible argument...I know of no example anywhere in the world in which opening marriage to same-sex couples has led to opening marriage to incestuous relationships, or the other argument that is often made, polygamous relationships." 2

At the same news conference, Most Rev. Jacques Berthelet, president of the Canadian Conference of Catholic Bishops said that equality should not be confused with uniformity. He said: "It is not discriminatory to treat different realities differently." He is apparently unaware of the many same-sex married couples who have children, because he described marriage is a social commitment in which a central component is having children -- thus implying that only opposite-sex couples can have children. He disputed the concept of separation of church and state, saying: "We can not have a complete separation between our faith and our profession." Apparently referring to Prime Minister Chrétien, he said: "A politician is human, is Christian, is Catholic." 2

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2003-SEP-12: Leader of the Alliance party condemns SSM: Stephen Harper, leader of the Canadian Alliance -- Canada's far-right political party -- had his letter to the editor of the Toronto Star published. He criticized earlier reports that he accused the Liberal Party of a massive conspiracy to promote SSM by appointing radical judges. In his letter he explained that he believes that the Liberal Party has secretly been plotting to introduce SSM via the courts, thus avoiding the involvement of Parliament and the public. He did not explain how the Liberal government's consistent actions prior to 2003-JUN to oppose every advance in gay rights would have furthered their secret agenda to advance gay rights. Harper expressed concern that individuals who campaign against SSM are "increasingly being portrayed...as either bigoted or batty. Given that the proponents of traditional marriage make up a clear majority of Canadians, that is truly bizarre. 4

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2003-SEP-15: Alliance Party submits motion: As expected, the Alliance Party has introduced a motion to the House of Commons to be voted upon late on SEP-16. It appears to be a duplicate of the 1999 motion. It calls on Parliament to "take all necessary steps" to restrict marriage to opposite-sex couples "to the exclusion of all others." Since the courts have determined that the marriage act violates the Charter of Rights and Freedoms, the only step that Parliament could take would be to implement the infamous "notwithstanding" clause. This clause permits a government to pass new legislation, or retain old legislation, that violates the Charter. 5

Alliance may have made a strategic mistake with the wording of this motion. Many members of Parliament might vote for a simple motion in favor of one-man-one-woman marriage. But those same members might be very reluctant to vote for a motion which implies that they favor implementing the notwithstanding clause. 

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2003-SEP-15: Prime Minister pleads for support: Prime Minister Jean Chrétien pleaded with his backbenchers to defeat the Alliance Party's motion. He pointed out that the motion includes an implicit endorsement of the use of the Constitution's notwithstanding clause. He said: "This resolution calls in reality for use of the notwithstanding clause. That is something that we, promoters of the Charter of Rights and Freedoms, never use - the notwithstanding clause." Alliance Leader Stephen Harper recommended that Members of Parliament ignore the Prime Minister. He said: "My message is: vote your conscience. When the dust settles on your political career, you'll never have any regrets. When you're a powerless backbencher, that's all you have is your conscience." 6

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2003-SEP-16: Motion goes down in flames -- barely: The Alliance Party submitted their motion as expected. It read: "That in the opinion of this House, it is necessary in the light of public debate around recent court decisions to reaffirm that marriage is, and should remain, the union of one man and one woman to the exclusion of all others, and that parliament take all necessary steps within the jurisdiction of the Parliament of Canada to preserve the definition of marriage in Canada." An amendment was proposed that would delete all the words after "others." If the amendment and the motion were passed, then Parliament would be not be committed to invoke the "notwithstanding" clause to over-ride the Canadian constitution. The vote on the amendment was a tie: 134 votes for, and 134 votes against. This is apparently the first tie vote in over 40 years of Parliamentary voting. The speaker of the House, Peter Milliken, gave the casting vote against the amendment. He explained that he opposed the amendment so that the matter could more easily be resubmitted to the Parliament at some future time. The vote on the motion itself followed. It was narrowly defeated: 137 against and 132 in favor. 7 A very similar motion had passed in 1999 by a vote of 216 to 55. 7 Among the 75 members of parliament from Quebec, 62 voted against the motion, "in a sharp rebuke to the province's Roman Catholic establishment..." 8

During the debate:
Neither the Prime Minister, nor the main contenders for his position -- Sheila Copps and Paul Martin -- spoke on the motion. Only one cabinet minister discussed it in Parliament: Justice Minister Martin Cauchon.
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Stephen Harper, the head of the Alliance party, accused the Liberal party of dishonesty and a lack of political integrity. 9

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Richard Marceau, justice critic of the Block Québécois said that just as anti-semitism concerns everyone -- not just Jews, and racism concerns everyone -- not just blacks, that equality rights for gays and lesbians is of general concern. He said: "If we suspend the rights of a minority now, what will be the next minority? What will be the next target? I dream of a world where my children who are five years old live in a generous, open society, not just a tolerant one."

This essay continues below.

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bullet2003-SEP-17: Reactions to the defeat of the Alliance Motion:
bulletTonda MacCharles of the Toronto Star said: "The win clearly showed opinions within Liberal ranks have evolved in favour of gay marriage over the past four years, but the closeness of the vote highlighted the divisions that exist in the Commons -- and the governing party itself." 9 One might add that similar divisions also exist within the country at large.
bulletJim Munson, spokesperson for Prime Minister Jean Chrétien, said: "Parliament is spoke and spoke in the same way the nation is speaking -- it's split. Parliament is split and the country is split." In the end, about one third of the Liberal members of parliament voted against the Alliance motion. 9
bulletRobert Hepburn, the editor of the Toronto Star's editorial page, wrote in part: "...the stage is set for a long and possibly ugly debate. Religious leaders have waded into the fray. Before yesterday's vote, Cauchon said Alliance 'rejects equality and human rights.' Harper, the Opposition leader, called the government 'dishonest.' In the end Harpers stunt was a futile one. Ottawa is showing admirable leadership in its drive to enshrine in law the right of same-sex couples to marry. Rather than scoring quick political points, Harper and Alliance simply reinforced their image as narrow-minded." 10
bulletAlex Munter, spokesperson for Canadians for Equal Marriage -- a pro-SSM group -- said: "The closeness of this vote is a wakeup call to the millions of Canadians who believe in Canadian values of inclusion and dignity and respect...It's not enough that the cause is just, that the Constitution is clear, that public opinion has changed. The message today is we can never take our basic rights for granted." 9
bulletStephen Harper, leader of the far-right Alliance party, promised that he will shortly introduce a private-member's bill which would enshrine marriage as an exclusively heterosexual union. Such a bill appears to be redundant, because the current marriage act already performs this function. 9
bulletJack Layton, leader of the socialist New Democratic Party said that Parliament was only a few votes away from authorizing the use of the notwithstanding clause "to wipe out human rights for lesbians and gays." 9
bullet2003-OCT-6: Two groups attempt to appeal case to Supreme Court: The Toronto Star reported on OCT-7 that "The Supreme Court of Canada reserved a decision yesterday on whether to allow religious and so-called pro-family groups to revive an appeal of the Ontario court decision legalizing same-sex marriage even though the federal government dropped that legal battle." 11 More details.
bullet2003-OCT-8: Private member's bill shelved:  A member of parliament from the far right Alliance party, Grant Hill (Macleod, Alberta), introduced Bill C-447: "An Act to protect the institution of marriage." It was seconded by the leader of the Alliance party, Stephen Harper (Calgary Southwest, Alberta). It would restrict marriage to a union of one man and one woman. The bill received Its first reading on 2003-SEP-18. 12 The bill was subsequently rejected as "non-votable" by the parliamentary subcommittee that first deals with private members' bills. On OCT-9, the Procedure and House Affairs Committee -- the group that processes such bills -- will hear an appeal of the sub-committee decision.

In its present wording, the bill states:

Whereas marriage has from time immemorial been recognized as the union of one man and one woman to the exclusion of all others;

Whereas, because of certain court decisions, it is now necessary to clarify the meaning of marriage;

Whereas the Parliament of Canada, representing all Canadians, must be the final authority with respect to social policy decisions;

Whereas, because of certain court decisions, it is now necessary to clarify the meaning of marriage;

Whereas the Parliament of Canada, representing all Canadians, must be the final authority with respect to social policy decisions;

Whereas it is within the constitutional jurisdiction of the provinces to provide appropriate legal recognition to relationships other than marriage;

AND Whereas the protection of marriage as an institution is a matter of great public concern;

NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. This Act may be cited as the Marriage Act.

2. Marriage is the lawful union of one man and one woman to the exclusion of all others."

The bill appears to contain two errors:
bulletMarriage has not always been a "union of one man and one woman."
bulletThe Bible describes a total of eight different marriage and family formats.
bulletPolygyny was legal in Utah until the late 19th century and is still practiced there with minimal state interference.
bulletPolygyny is also practiced among some Mormons in British Columbia where it is illegal but ignored by the provincial government.
bulletPolygyny is also practiced in Muslim countries.
bulletThe federal government cannot be "the final authority" on social policy or in any other area of legislation. Only the courts can determine if a given law is constitutional. The courts have determined that federal legislation or regulations which deny same-sex couples the right to marry conflict with equality guarantees of the Canadian Charter of Rights and Freedoms and are thus unconstitutional.

Focus on the Family, Canada stated in its Today's Family News that if the bill passes it: "would conclusively define marriage under Canadian law." 13 It is difficult to see how this can be considered accurate. The Ontario and British Columbia Courts of Appeal have already independently declared that the existing federal marriage regulations are unconstitutional because they prohibit same-sex couples from marrying. If Bill C-447 became law, it would simply be an unconstitutional law restricting marriage to opposite-sex couples.

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Later developments are described in another essay

The probable future path forward to legalize same-sex marriage is described in another essay

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References:

  1. "Political Crossfire -- Legalizing Same-sex Marriages; Generation and faith divide Canadians," SES-Research, 2003-SEP-7, at: http://www.sesresearch.com/ You need software to read these files. It can be obtained free from:
  2. Michelle MacAfee, "Catholic bishops say same-sex marriage could open door to incest," 2003-SEP-10, at: http://www.recorder.ca/
  3. Shelley Sullivan, "Catholic's logic badly confused," The Toronto Star, 2003-SEP-12, Page A27.
  4. Stephen Harper, "Liberals dodging marriage debate," The Toronto Star, 2003-SEP-12, Page A27.
  5. "Urgent Action needed on Alliance Vote!," Canadians for Equal Marriage, 2003-SEP-15 press release.
  6. Alexander Panetta, "PM pushes same-sex vote," Canoe, 2003-SEP-15, at: http://cnews.canoe.ca
  7. From live coverage of the House of Commons on 2003-SEP-16 on CPAC.
  8. Chantal Hebert, "Neither side can force the issue," The Torronto Star, 2003-SEP-17, Pages A1 & A17.
  9. Tonda MacCharles, "PM wins same-sex vote, but only just," The Toronto Star, 2003-SEP-17, Pages A1 & A8.
  10. Robert Hepburn. "A House divide on gay marriage," The Toronto Star, 2003-SEP-17, Page A26.
  11. Tonda MacCharles, "Gay marriage back in court: Pro-family group faces top justices. Wants traditional marriage examined." The Toronto Star, 2003-OCT-7, Page A8.
  12. "Bill C-447: An Act to protect the institution of marriage," at:  http://www.parl.gc.ca/
  13. "Special action update," Focus on the Family, Canada, Today's Family News for 2003-OCT-8.

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Copyright © 2003 & 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-MAY-14
Author: B.A. Robinson

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