Reacting to the Divisional Court's ruling, the federal government
decided to appeal to the Ontario Court of Appeal on 2002-JUL-29. This
essay contains reactions to the court decision and the government's appeal.
Reactions to the Ontario Divisional Court's 2002 decision:
Lawyer Douglas Elliott, who represented the Metropolitan Community
Church of Toronto, said "It would be nice if the Ontario government and the
federal government took the clear message that they must act. They must act
now to clean up all of the statutes and regulations to facilitate access to
Derek Rogusky, spokesperson for the fundamentalist Christian group "Focus
on the Family" was disappointed with the decision. He hoped that it will
be appealed. "We will continuing to argue for maintaining the
traditional, and what we believe is the proper, definition of marriage."
He commented that there has been no solid research on the impact on children
of growing up with same-sex parents. He believes that the topic should
be thoroughly explored before the courts or legislators start "rushing"
to decisions. Rogusky is apparently unaware of the extensive research that
has already been done into same-sex parenting.
Barbara McDowall, one of the plaintiffs in the case, said: "We always
believed we are mainstream. We're looking forward to celebrating our own
Michael Leshner and Mike Stark, who have been in a committed relationship
for 21 years, went to City Hall in Toronto to obtain a marriage license on
2002-JUL-12. They were refused. City Clerk Ulli Watkiss said that she needed to
get legal advice before she could consider issuing a license. She agreed to
meet with the couple later. No license was issued.
Bill Murdock was one of the leaders of a group of rebellious
conservative MPPs (Members of Provincial Parliament) who resisted a
gay-positive government bill in the year 2000. The bill gave common-law gay and lesbian
couples rights and obligations equal to opposite-sex common law couples in
the province. The government had been forced to introduce this legislation
by the courts. But now, two years later, the steam seems to have gone out
of the opposition to equal rights for gays and lesbians. Murdock seems
resigned to the concept of same-sex marriage. He said "If it happens,
it happens." 1
Ian Urquhart, a reporter for the Toronto Star wrote an
Op-Ed piece on 2002-JUL-17. He suggested that the Government of Ontario
had three options:
To oppose the decision. If the federal government decides to not
appeal it, then the provincial government could. But even if they wanted
to appeal, they might not be able to because of the province's
secondary role in the case.
Start issuing marriage licenses to gays right away. This option is
being urged by the Liberal Party, the official opposition. Liberal MPP
George Smitherman, the only openly-gay member of the Legislature, said "Our
province has the opportunity to lead the way in ensuring legal and
social equality for gays and lesbians across Canada." But the
Attorney General of Ontario, David Young, said that it would not be
legally proper for the Province to start issuing licenses, as long as
the federal legislation defines marriage as between one woman and one
Stall until the Federal liberals take action. They have two years to
comply with the court decision, so there is no rush. Young said: "That
is an option we are giving serious consideration to. The ball is clearly
in the federal court." 1
Urquhart also gave a list of three options for the federal Liberals:
Appeal the decision to the next higher court, the Ontario Court
of Appeals. This is the highest court in the province; only the Supreme Court of Canada
is a higher judicial body.
Immediately refer the matter to the Supreme Court.
Accept the court decision and bring in legislation to widen the definition of marriage
to include same-sex couples. This could have been proposed to
Parliament in the fall of 2002. If the government chose this option,
they would probably want to
get the legislation passed sooner than later, so that the fallout would
subside before the next election. 1
Ernie Eves, the Premier of Ontario, and a Conservative, said at a special
cabinet meeting in Belleville ON on 2002-JUL-16 that he agrees that same sex couples
should be able to marry. He said that the Government of "Ontario won't
stand in their way...If two people decide that they want to be in a union
why would I interfere with that; that's my personal point of view." He
said that the Province will not appeal the decision. They will leave it up
to the Federal government to decide whether they want to appeal. 2
The reaction from the Canadian public seems minimal. There were
perhaps a half dozen letters to the editor of the Toronto Star -- one of
Canada's leading newspapers -- on the topic in the days following the
court decision. But there have been four times as many letters about the
Pope's visit to Toronto during the same interval.
On JUL-26, the federal government released a public opinion poll which
showed results similar to those of previous polls: most Canadian adults
favor same-sex marriage. Adults under the age of 30 are over 60% in favor.
The couples involved in the case were seriously disappointed at the
action of what one called "The Department of Injustice" of the
federal government. However, they expressed their belief that it was not a
matter of whether they would eventually be allowed to marry, but when.
Lawyer Martha McCarthy was quoted the Ottawa Citizen as saying:"It is time for the government to stop fighting and pass immediate
legislation." 3 One expressed
sadness that his elderly mother will probably not live long enough to
dance at her wedding. Another realized that her personal goal will not be
reached: to be married to her partner before their children graduate.
Their televised press conference was interrupted by a heckler who was
clearly opposed to same-sex marriage. But his words were so distorted by
hatred and venom that they could not be understood.
Toronto City Council voted 28 to 6 to ask the federal government to
not appeal the Ontario Divisional Court ruling. The motion
recommended that if the government continues with the appeal, that the city
clerk testify in court about the council's overwhelming support for
granting same-sex marriage licenses. Councilor Doug Holyday was one of the
few councilors who opposed the motion. He feels that the matter should be
decided by the "top court in the country" -- the Supreme Court
of Canada. He noted: "I have a lot of questions about doing this.
If two people from the same sex can get married, why can't three? I mean I
don't know where this ends once you open this Pandora's box." Kyle
Rae, who proposed the motion, said: "Since 1973, this city has been in
the leadership of making sure gays and lesbians are protected as well as
all other visible minorities, aboriginals, women and disabled. and this
[lack of same-sex marriage] is a gaping hole in our ability to be fully
equitable. The federal government is stopping us from doing the right
Allan Rock, the federal Industry Minister favors allowing gays and lesbians
to marry. He said: "The option that I'll be asking my colleagues to favor is
recognition of same-sex marriages. It's an important step along the road
to equality....Issues of equality have been central to my whole work in
public life, including equality for gays and lesbians, and I was very
proud to be associated with things like the human rights changes with
respect to discrimination in the workplace against gays and lesbians, and
hate crime laws. We've worked on those with the caucus and I think made
some real progress." He fely that "there is a lot of support"
within the Liberal party for same-sex marriages. Alan Rock, Bill Graham,
minister of foreign affairs, and junior Vancouver minister Stephen Owen
marched in Vancouver's Gay Pride parade on 2002-AUG-5.
Bill Graham, the federal Foreign Affairs Minister, became the second
federal minister to lend support to same-sex marriage. He said on AUG-5
that legal recognition of same-sex marriages is the logical next step in
Ottawa's drive to extend equality to all Canadians. He said: "I respect
those who believe in the integrity of [same-sex] marriage. That is a
very important institution for us as Canadians, and for society. I think
it is equally important that gay and lesbian people who are in an
affectionate relationship over time want to commit themselves to that
relationship." Commenting on the past granting of equality to gays and
lesbians, Graham said: "It started with changes to the Criminal Code
and hate crimes legislation, and then was followed by changes to the human
rights code and substantial changes to the Pension Act and other acts to
provide essentially the equivalent of common law marriage status to gay
and lesbian couples, equal to that of a heterosexual common-law union. It
[same sex marriage] is the final part of the picture." He noted that
some Canadians are concerned of social chaos if same-sex marriage is
approved. He noted that previous equity legislation also engendered
similar dire predictions, but caused barely a ripple after taking effect.
Shiela Copps, the federal heritage minister has also backed
same-sex marriage. She said that the government "should not be
prohibiting anyone from entering into a legal contract if they choose to
be together." 7
A number of federal politicians, who seem to be opposed to
extending marriage to include homosexual couples, have gone public. But
they are not attacking same-sex marriage directly. Rather, one are
attacked a federal leaders who supports such marriage. Another supported
the justice minister's decision to appeal to a higher court:
Dan McTeague, a MP from the Toronto area, criticized Industry
Minister Allan Rock and suggested that he resign. McTeague said that
Rock's endorsement of same-sex marriage breaks cabinet solidarity, is at
odds with the Liberal caucus position and demonstrates his "dishonesty"
because he had earlier promised that such unions would not happen when
he was justice minister. McTeague allegedly accused Rock of stacking the
bench while he was justice minister, in a bid to bring the debate to its
present status. 8
Former finance minister, Paul Martin, said that he supports the
appeal. "There are conflicting court cases, and I think that what
we've now got to do is wait for the higher court and take guidance from
them." 8 Martin is expected by most political
commentators to be the next Prime Minister of Canada in early 2004.
Public Service Alliance: On 2002-JUL-30, the Public Service
Alliance of Canada issued a statement which strongly condemned "the
federal government’s decision to appeal the July 12, 2002, Ontario
Divisional Court’s decision on same-sex marriages." PSAC National
President Nycole Turmel said: "We’re disappointed that the federal
government has chosen to prolong the discrimination suffered by same-sex
couples, when they should be taking the lead in ensuring equality and
fairness for all people in Canada. Nevertheless, we, along with other
unions and progressive groups, are going to continue to push for changes
that will end this type of discrimination."
Evangelical Fellowship of Canada: This is the largest
organization representing the Fundamentalist and other Evangelical
Christian groups in Canada. "Its affiliates include over 70
denominations, ministry organizations and educational institutions...., as
well as more than 800 local church congregations. The EFC also has more
than 15,000 supporting individuals." 10 As of
2002-SEP-29, more that two months after the court decision, the EFC's
webmaster appeared to be unaware of the
essay on sexual orientation states: "The Ontario Divisional Court and
the Quebec Supreme Court both heard similar challenges in November 2001.
Neither has yet given a decision." 11
Focus on the family.ca: This is the Canadian office of Focus
on the Family, a very large, Fundamentalist, Christian organization
whose head office is in
Colorado.They set aside 2002-SEP-29 as a day of prayer for
marriage. They note that the divorce rate among born-again believers in
the U.S. is significantly greater than for the average population. They
also expressed concern over two recent court decisions, including this one,
that have expanded marriage to include same-sex couples. They state: "The
existing definition of marriage is no accident. It was ordained by God ,
and it reflects His desire for His creation...This truth has become
obscured in Canadian society, and we need God's help if this special
institution is to be preserved [in its present form]." 12
On 2002-AUG-7, less than a month after the decision by the Ontario
Divisional Court, prime minister Jean Chrétien
and justice minister Martin Cauchon announced that a parliamentary
commission will hold national hearings and study the way in which other
jurisdictions are handling the same-sex marriage issue. Simultaneously, the government will
continue the appeal to the Ontario Court of Appeals. Chrétien
said "It's a social problem which needs attention at this time, and we
want to have a committee to consult Canadians and experts." The
committee will give the committee a range of options to study. Tim Harpur,
Ottawa bureau chief for the Toronto Star speculated that the options could
Expanding marriage to include persons of all sexual orientations.
Creating a parallel system of civil unions for gay and lesbian couples
which would have the same rights, privileges and obligations as marriage.
Having the government get out of the marriage business and leaving it
as a religious union.
Some initial reactions to the creation of the parliamentary committee:
Michael Leshner, a gay rights activist and crown attorney called the
commission idea "pathetic." He said: "Are these people brain-dead? Can they
not think for themselves. Can nobody just get up in the House of Commons and
make a statement on a fundamental issue of human rights?"
John Fisher of EGALE Canada, a gay rights group, supported the
commission, but said "Human rights should not be
subject to a popularity contest."
George Smitherman, a member of the Ontario legislature, favored the
committee, which he regards as a "reasoned and principled discussion of
equal recognition of same-sex couples." However, he appears to view
equal recognition as a fundamental human rights issue and not a matter for
Liberal member of parliament Dan McTeague said there is no reason for parliament to diverge from its 1999
endorsement of marriage as a union between a man and a woman. 8
The commission was expected to issue its report during the week of
2003-JUN-15. Unfortunately, other events overtook it.
More details on the cross-Canada tour of the