
HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
ONTARIO COURT CASE; PART 6

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Background:
This is the case that legalized same-sex marriage (SSM) in Ontario,
Canada:
The Ontario Court of Appeals issued a
decision on 2003-JUN-10 requiring the province
of Ontario to provide marriage licenses to, and to register the marriages
of, same-sex couples. Both the provincial and federal
governments decided that, as the defendants in the case, they would
not appeal that ruling to the Supreme Court of
Canada. The federal government then prepared legislation to legalize
same-sex marriage across Canada and sent it to the Supreme Court of
Canada for a review of its constitutionality. Two conservative groups who had intervener status at the
Court of Appeals sought permission to appeal the case to the Supreme Court of
Canada. They are supported by three members of parliament.


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Continuing events:
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2003-OCT-6: Groups attempt to appeal case to
Supreme Court: Two groups have been involved in the Ontario SSM case
since 2001-NOV:
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The Interfaith Coalition on Marriage and Family, is composed
of four conservative religious groups: the Evangelical Fellowship of Canada, the Catholic
Civil Rights League, the Islamic Society of North America and
the Ontario Conference of Catholic Bishops. |
 |
The Association for Marriage and the Family, is composed of
three religious and social conservative groups,
including Focus on the Family Canada, REAL Women of Canada
and the Canadian Family Action Coalition. |
|
The Toronto Star referred to them as "so-called" pro-family
groups, 1 presumably because the Coalition and Association are both
attempting to deny the right of loving, committed same-sex couples and families to marry,
and to have themselves and their children protected under law. These two groups
had "party intervener" status during the appeal before the
Ontario Court of Appeals. However, they were not the main parties to
the litigation. Many observers believed that once the federal government
decided to not appeal the decision to the Supreme Court of Canada,
that the case was closed. However, the Coalition and the Association
decided to try to obtain leave from the Supreme Court to appeal the
ruling themselves. This is an rare occurrence. There are legal precedences for both allowing and denying
the right of appeal by interveners.
Some responses:
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David Brown, lawyer for the Association for Marriage and the Family in
Ontario feels that the Court should grant their request. He said: "The
court is focused on hearing cases of public importance, and I don't think
there has been one more important than this that has come up in the last
few years." 2 He also said: "This
is not the case of a stranger coming off the street. The nation is
saying this [marriage] is our biggest institution. Parliament has
not spoken. There is confusion. The court should speak on this
issue." 4 |
 |
Michael Martens, a spokesperson for Focus on the
Family Canada said: "Quite frankly, this is action the federal
government should be taking. However, because they have abdicated their
leadership and ignored the will of the public, we have no choice but to
step in and appeal this fundamental issue to the Supreme Court of
Canada....We have intervened at every level of the case, representing
millions of Canadians and talking about an issue that society and
Parliament as a whole are divided upon. This is something that the court
is taking seriously, and that's good news."
2 |
|
Also asking the court to allow an appeal were
two Liberal members of parliament: Derek Lee, John McKay, and the Canadian
Alliance's justice critic, Vic Toews.
The case was heard by the Supreme Court on
2003-OCT-6.
The five senior judges who attended the hearing appeared critical of some
of the points raised by lawyers for
the Coalition and the Association:
 |
Justice Frank Iacobucci asked the groups' lawyers how the court could
reasonably be expected to force the government to "battle until the end" now
that they have concluded that restricting marriage to opposite-sex couples
is unconstitutional. Apparently responding to arguments by the two groups that the federal government is going
beyond what is "constitutionally required" in letting gays and
lesbians marry, Justice Iacobucci asked lawyer Peter Jervis: "Is it not the
government's discretion to pass laws that go beyond the minimum requirements
of the constitution?" |
 |
Chief Justice Beverley McLachlin noted that it would be "quite
unprecedented" for the court agree with the groups' recommendation to "reach out and take jurisdiction"
away from the federal government even as the latter is in the process of crafting legislation. |
|
The same-sex couples who initiated the lawsuit and the
federal government were, for once, on the same side. Both asked the
court to reject the request of the
Coalition and Association:
 |
Graham Garton, a lawyer for the
federal government, said: "The whole purpose of this proposed exercise
is political and not legal." He said that the religious groups want an
advisory opinion from the court that they can then carry to Parliament and
"use it in political debate." |
 |
Douglas Elliot, a lawyer for the
Metropolitan Community Church of Toronto said the groups' sole raison
d'être is to oppose equality for same-sex couples. He said that it was
hypocritical of these groups to criticize judicial activism when the
courts rule in favor of equality for gays and lesbians, and then to use the
courts to force the issue after the government's dropped it. |
 |
Martha McCarthy, lawyer for the same-sex couples said that the judicial clock
should not be turned back now that more than a thousand gay and lesbian
couples have married in Ontario and British Columbia. She told reporters: "This
would be an unheard-of expansion of the role of an intervener in a Charter
case." 1 |
|
The Supreme Court of Canada reserved its decision on whether "to allow religious and so-called pro-family groups to revive an appeal
of the Ontario court decision..." 1
 |
2003-OCT-9: Groups' attempt to appeal case
rejected: The Supreme Court of Canada acted in what must be
unprecedented speed by denying the OCT-6 request of the Interfaith Coalition on Marriage and Family
and the Association for Marriage and the Family. By
convention, the Court gave no reason for denying the petition. The vote
among the five most senior judges of the court was unanimous.
Some responses:
 |
Justice Minister Martin Cauchon said that the Coalition
and Association were not losers in the original case and thus
should not be allowed to appeal. 3 |
 |
Gianluca Ragazzini, a gay man who was married this June said
that he was "thrilled [with the decision] because finally we are
sure that there is no chance that our union can be revoked." 3 |
 |
Vic Toews, member of parliament for the far-right Alliance party
and justice critic, said: "One more door has now been slammed to
the public on the same-sex marriage debate." 3
He also said: "Canadians who support the traditional definition
of marriage placed a lot of hope in this appeal being heard. Today's
court decision effectively disenfranchises these Canadians from
participating in a debate that will result in far-reaching social
change." 4 |
 |
Alex Munter, spokesperson for Canadians for Equal Marriage,
said: "The practical effect of the Supreme Court's ruling ...is
to say that same-sex marriage in Ontario and British Columbia are
here to stay." However, he noted that until a same-sex marriage
bill passes Parliament and becomes law, SSM will not be available in
the rest of the country. 3 |
 |
Bruce Clemenger, president of the Evangelical Fellowship
of Canada (EFC; a member of the Interfaith Coalition)
said: "We have lost an important opportunity to express the
concerns of millions of Canadians...When challenges to the
definition of marriage were started in 2000, it was expected that
they would eventually be decided by the Supreme Court of Canada."
5 |
 |
Janet Epp-Buckingham, counsel for the EFC said: "We're
profoundly disappointed that they're refusing to hear the
appeal...We all expected when these cases started the Supreme Court
of Canada would make the final ruling on" the constitutionality
of traditional heterosexual marriage. She said that the two groups
will now try to intervene in the reference sent to the Supreme Court
by the federal government. That reference currently asks for the
Court to assess the constitutionality of same-sex marriage. The
Coalition and Association will ask the court to broaden
the government's reference. They will ask that the court also rule
on whether restricting marriage to opposite-sex couples is
constitutional. 3 |
 |
Darrel Reid, president of Focus on the Family Canada said
that the Court did "a disservice to Canadians.....The Supreme
Court of Canada should have taken the opportunity to debate the
fundamental issue and not just the minor details." 6 |
 |
Gwen Landolt, vice-president of REAL Women said: "Nothing
has been resolved." 6 |
 |
Derek Rogusky, vice-president of family policy for Focus on the
Family, Canada said that MPs who had hoped to avoid this politically
volatile issue now have no choice but to tackle it themselves. "They
won't be able to look to the courts to solve it for them." 6 |
|


References:
-
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.
- "Supreme Court hears case for marriage appeal," Today's Family News,
2003-OCT-7.
-
Tonda MacCharles, "Gay-marriage foes to lose fight: Top court turns
sown their appeal bid. Religious, family groups undaunted," The
Toronto Star, 2003-OCT-10, Page A8.
-
Kirk Makin, "Top court refuses coalitions' same-sex appeal bid,"
The Globe and Mail, 2003-OCT-10, Page A4, at:
http://www.globeandmail.com/
- Janice Tibbetts, "Gay marriage is here to say: Supreme Court throws
out appeal of same-sex unions," CanWest News Service. Published by
Kingston Whig Standard, Kingston, ON, 2003-OCT-10, Pages 11 & 18.
-
"Supreme Court rejects marriage appeal," Today's Family News,
Focus on the Family Canada, 2003-OCT-14.

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Copyright © 2003 by Ontario
Consultants on Religious Tolerance
Latest update: 2003-OCT-16
Author: B.A. Robinson 

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