Analysis of the submission ofthe Interfaith Coalition to the Supreme Court

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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

An analysis of the submission by the Interfaith Coalition on Marriage and the Family to the Supreme Court of Canada
2004-MAY

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Background:

During the week of 2004-MAY-14, the Interfaith Coalition on Marriage and the Family submitted a brief as an intervener before the Supreme Court of Canada. ₁ The brief dealt with a "reference" on same-sex marriage (SSM) which had been sent to the court by the Government of Canada. The Coalition is a joint effort of three conservative religious groups: Evangelical Fellowship of Canada, the Catholic Civil Rights League, and the Islamic Society of North America. The three groups strongly oppose expanding the definition of marriage in Canada to include same-sex couples.

The main current effort of the Coalition currently appears to be to preserve marriage in Canada as it was defined prior 2003-JUN, when the the Ontario Court of Appeals ordered the Ontario Government to issue marriage licenses to same-sex couples and register their marriages.

An analysis of the brief follows:

The "introduction and overview" section:

This section of their brief makes some interesting statements:

Marriage as primarily a religious institution: That is currently true. However, many couples now view it as a secular institution and are married by a judge or marriage commissioner instead of by a clergyperson. The percentage of persons in North America who no longer identify themselves with a religious faith is growing rapidly.

Marriage has existed for millennia: This is certainly accurate. All known societies recognize committed couples in some way. But they differ on which couples they allow to marry. Prohibitions have been based on tribal membership, race, religion, fertility, disability, developmental handicap, sex and status (e.g. slave or free).

All major religious faiths have always defined it as a union of one man and one woman: This is not accurate. The Bible records that many leaders of ancient Israel were in polygynous relationships. For example: David had many wives, Solomon had 700, and Abijah had 14. From the historical record, Herod the Great (73 to 4 BCE) had nine wives. The Church of Jesus Christ of Latter-day Saints have promoted polygynous relationships, although they at least temporarily suspended the practice in the late 19th century. It is a large denomination with over ten million members. The government of British Columbia allows Mormons to practice polygyny there today without interference.

Within Islam, a marriage is restricted to one man and one woman. However, most Islamic states and the religion of Islam itself, permit a man to marry up to four wives. Many states where Islam is in a majority, permit temporary marriages for men only.
Within Canada clergy have recognized same-sex couples with union or marriage rituals including:

	The United Church of Canada, the Metropolitan Community Church, and one diocese of the Anglican Church of Canada.
	The Reform Jewish tradition.
	The Canadian Unitarian Council.
	Wiccan and other Neopagan individuals and covens.

There is some evidence that same-sex couples were married in ancient Egypt, that some Christian denominations have sanctified such unions in Europe during previous centuries, and that some aboriginal groups recognized same-sex unions.

Even if a near consensus existed among faith groups to ban SSM, many civil libertarians believe that elementary human rights, such as the right to marry, should be universal and not be subjected to majority opinion.

Denying SSM does not violate the Charter of Rights and Freedoms: The Coalition claims that "the heterosexual nature of marriage..." does not violate the Charter of Rights and Freedoms, Canada's constitution. This is an interesting point of law that the Court is certain to comment on. However, the brief confuses same-sex and opposite-sex marriage with homosexual and heterosexual marriage. All marriages between persons of the opposite sex are not necessarily between two heterosexuals. One or both spouses may be bisexual -- attracted to both men and women. One or both might be persons with a homosexual orientation who are entering an opposite-sex marriage, perhaps to satisfy economic, companionship, or parenting needs, but without any feelings of sexual attraction for their spouse.

The civil union option: The government could continue to deny same-sex couples the right to marry, but create a system of separate but equal system of civil unions instead, of the type created in Quebec and Vermont, and California. A number of senior courts in North America have ruled that such unions are separate but not equal.

Damage to society: Allowing same-sex couples to marry may have a massive effect on society that is currently unpredictable and may well be quite harmful. Their concern may be groundless. Focus on the Family Canada's web site describes many benefits to marriage that would seem to apply to both opposite-sex and SSM. So the overall effect of SSM can be expected to be positive for the same-sex spouses, for their children, and for society.

Threats to religious groups: Conservative religious groups are concerned that their clergy will be required by law to perform same-sex marriages and/or that "regulatory and professional governing bodies" will discriminate against them because they discriminate against same-sex couples. They also fear that religious groups might be sanctioned by human rights organizations.

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Rejection of SSM is integral to four faith traditions:

The Coalition brief discusses how four religions and faith groups view marriage. Although they only represent three religious traditions, they discussed conservative and orthodox Judaism as well. All members of the Coalition believe that continuing to allow same-sex couples to marry is not simply an expansion of the institution of marriage mainly affecting same-sex couples. Rather, it is "fundamentally changing" marriage for everyone. They feel that God created marriage long before states existed, and that they have a right to insist that the state not "radically redefine" marriage.

Roman Catholic Church:

	Marriage was created by God before governments existed.
	Governments have an obligation to recognize God's form of marriage and no other.
	As stated in the Catechism of the Catholic Church (#2358) "every sign of unjust discrimination" against persons with a homosexual orientation is to be avoided. The important word here is "unjust." The church differs from the Canadian Charter of Rights and Freedom. It teaches that there are certain forms of discrimination against gays and lesbians which are just and in fact manditory.
	"Catholics are concerned that the proposed redefinition of marriage would 'necessarily exclude us from our own institution as a result of our religious faith and traditions'."

Islam:

	A "universal and unifying feature of Islam globally" is that marriage is restricted to a man and a woman. "The Islamic personality of each person is incomplete until they marry" a person of the opposite sex.
	Not mentioned is the fact that Islam permits a man to marry up to four women, or that some Muslim men are permitted to enter into temporary marriages.
	The brief states that: "Islamic tradition accepts the dignity of gay and lesbian persons." This belief is difficult to support in view of the many Hadiths -- collections of sayings attributed to Muhammad -- which discuss liwat (sexual intercourse between males). One in particular states: "Kill the one that is doing it and also kill the one that it is being done to."
	If SSM continues to be legal, Muslims are concerned that they will have to accept conduct that is in opposition to their religion. They will find it difficult to participate in public schools where SSM may be taught as valid. They are concerned that there will be a public backlash against Muslims if the latter continue to reject SSM.

Orthodox and Conservative Judaism:

	These traditions recognize only opposite-sex marriage. God invented marriage in this form. Judaism has preserved it.
	Judaism accepts homosexuals as people with dignity, because they are made in the image of God.
	If the government continues to allow SSM, many religious Jews will avoid civil marriage.
	Religious Jews are concerned about future challenges to religious institutions. They see that their beliefs concerning SSM might result in the public becoming disrespectful of Jewish beliefs in the future.
	They do admit that other traditions within Judaism accept and/or promote SSM.

Fundamentalist and other Evangelical Protestants:

They believe that the Bible defines marriage as a God-ordained covenant between a man and a woman. They also believe that all sexual activity should be confined within an opposite-sex marriage. Thus, pre-marital sex, adultery, polygamy, post-marital sex, and same-sex marriage is considered highly immoral and is forbidden.

When the state allows same-sex couples to marry, Evangelicals feel that the state is forcing them to accept the legitimacy of such unions. This is an "unjust and illegitimate imposition on their religious conscience."

The proposed government legislation states that: "nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs." However, Evangelicals are still concerned that their clergy might face legal compulsion in the future to marry same-sex couples. They argue that the federal legislation may protect clergy who want to discriminate against same-sex couples, but that provincial governments may intrude. Evangelicals feel that the Charter of Rights and Freedoms may not offer any protection to conservative Christians:

	Clergy might be required to solemnize SSMs.
	Churches might be required to make their facilities available for SSMs and receptions.
	Clergy who counsel opposite-sex married couples might be required to provide the same service to same-sex couples.
	Marriage commissioners who are individuals authorized by a province to solemnize marriages may have to handle SSMs even though it violates their personal religious beliefs.
	Religious groups might have to recognize the marriages of all of their employees, including those in same-sex marriages, with regard to medical benefits, bereavement leave, etc.
	Children may be taught about same-sex marriage in public schools in a way that violates the religious beliefs of their parents.
	Church-run educational facilities may be refused full participation in public life because their teachings on same-sex marriage are in conflict with the government's stand.

They ask the Supreme Court to give a very broad interpretation of the Charter's guarantee of religious freedom. They want religious freedom to be interpreted as extending beyond an individual's and a group's religious beliefs to include actions based on those beliefs, even if the actions are discriminatory. That is, the right of a person, on the basis of their religious belief, to actively discriminate against another person outweighs the right of the latter individual to free of discrimination based on their sex, color, race, sexual orientation, disability, etc. The right to discriminate must be judged from the position of the individual or their specific denomination. Even if liberal faith traditions within the same religion considers such discrimination to be immoral, the right of conservatives to discriminate must not be limited.

Same-sex couples do not necessarily have a right to marry under the Charter. Another remedy is available: the government can create a separate but equal institution of civil unions for same-sex couples.

They are concerned that future governments might deny benefits to religious groups who discriminate on the basis of sexual orientation, on the basis that their beliefs and practices are contrary to the public interest.

A secondary concern:

The main theme of the Coalition's brief relates directly to SSM. However, it repeatedly refers to a secondary concern: increasing conflict between conservative religious beliefs and public opinion over homosexuality:

	Although there has been considerable change in the beliefs of liberal and some mainline faith groups, almost all conservative religious denominations and traditions continue to treat homosexual behavior as intrinsically immoral, condemned by their holy book(s), and hated by God.
	There is a growing acceptance of homosexuality by the public as a morally neutral, normal, and natural orientation for a minority of adults. Further a majority of Canadian adults favor equal rights for persons of all sexual orientations.

The three conservative groups seem to fear:

	A future lessening of public respect for conservative religious beliefs.
	Actual restrictions by governments, human rights organizations, and other groups on the freedom of religious groups to continue to discriminate on the basis of sex and sexual orientation.
	Conflicts, particularly involving young persons, between what they are taught in their church, mosque or synagogue, and what they hear in public educational institutions, the media, entertainment outlets, etc.
	A narrowing of the legal concept of religious freedom to include only beliefs, and not actions based on those beliefs.

Their concerns may well be valid. There have been many conflicts which have divided religious groups in North America over the past 15 decades that have produced schisms: human slavery, an end to racial segregation, equal rights for women, inter-racial marriage and now equal rights for persons of all sexual orientations, including the right to marry. These conflicts have set different wings of the same religion against each other. One wing may work to preserve discrimination on the basis of race, sex and sexual orientation while another wing works to achieve "liberty and justice for all."

In recent decades:

	The Church of Jesus Christ of Latter-day Saints came under considerable government pressure to end its racist ordination policy before they announced in 1978, that "all worthy male members of the Church may be ordained to the priesthood without regard for race or color." ₂
	The Roman Catholic Church has come under continuing pressure to consider ending its sexist policy of refusing to ordain women to the priesthood. ₃

Some conservative religious groups are under considerable pressure today by gay-positive groups to end their homophobic policies ₄ towards the unions and marriages of same-sex couples, the ordination of sexually active gays and lesbians, and acceptance of gays and lesbians for membership. In time, if present trends continue, increasing pressure may well be seen from liberal wings of the same religion, from the public in general and from governments.

References:

"Factum of the Intervener The Interfaith Coalition on Marriage and Family," Evangelical Fellowship of Canada, at: http://www.evangelicalfellowship.ca This is a "pdf" file for which you may need software to view. It can be obtained free from:
We use the term "racist policy" here to refer to any policy that discriminates against persons on the basis of their race or color.
We use the term "sexist policy" here to refer to any policy that discriminates against persons on the basis of their sex.
We use the term "homophobic policy" here to refer to any policy that discriminates against persons on the basis of their sexual orientation.

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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA