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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

ONTARIO COURT CASE; PART 2

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Sponsored link.

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Previous developments in this case are described in another essay

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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.

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Topics covered in this essay:

bulletReactions to the Ontario Divisional Court's 2002 decision
bulletParliamentary commission created

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Reactions to the Ontario Divisional Court's 2002 decision:

bulletLawyer 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 same-sex marriages."
bulletDerek 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.
bulletBarbara McDowall, one of the plaintiffs in the case, said: "We always believed we are mainstream. We're looking forward to celebrating our own marriage."
bulletMichael 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.
bulletBill 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
bulletIan 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:
bulletTo 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.
bulletStart 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 man.
bulletStall 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:
bulletAppeal 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.
bulletImmediately refer the matter to the Supreme Court.
bulletAccept 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

bulletErnie 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
bulletThe 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.
bulletOn 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.
bulletThe 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.
bulletToronto 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 thing." 4
bullet 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. 5
bulletBill 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. 6
bulletShiela 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
bulletA 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:
bulletDan 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
bulletFormer 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.
bulletPublic 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."
bulletEvangelical 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 ruling. Their 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
bulletFocus 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

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Parliamentary commission created:

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 include:

bulletExpanding marriage to include persons of all sexual orientations.
bulletCreating a parallel system of civil unions for gay and lesbian couples which would have the same rights, privileges and obligations as marriage.
bulletHaving 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:

bulletMichael 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?"
bulletJohn Fisher of EGALE Canada, a gay rights group, supported the commission, but said "Human rights should not be subject to a popularity contest.
bulletGeorge 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 debate.
bulletLiberal 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 parliamentary committee.

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Further developments in this case are described in another essay

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References:

  1. Ian Urquhart, "Ontario weights gay marriage options," Toronto Star, 2002-JUL-17, Page A21
  2. Richard Brennan, "Eves supports gay ruling: Ontario won't appeal decision, saying it's up to Ottawa to act," Toronto Star, 2002-JUL-17, Page A4.
  3. " 'Focus' welcomes decision to appeal marriage ruling," Focus on the Family Canada at: http://www.fotf.ca/familyfacts/news/072902.html
  4. Kerry Gillespie, "City council supports same-sex marriage: Councillors ask Ottawa to not fight court ruling," The Toronto Star, 2002-AUG-1.
  5. Micolaas Van Rijn, "Recognize same-sex marriages, Rock urges: 'Important step' on the road to equality, minister says," The Toronto Star, 2002-AUG-4, page A2.
  6. Nicholaas van Rijn, "Graham backs gay marriage: Foreign affairs minister second to voice support," The Toronto Star, 2002-AUG-6, Page A8.
  7. Tim Harper, "Same-sex unions spark Liberal [party] battle: MP accuses Rock of flip-flop, calls on him to resign," The Toronto Star, 2002-AUG-7.
  8. Tim Harper, "PM seeks debate on same-sex marriages," Toronto Star, 2002-AUG-8, Page A3.
  9. "Ottawa should amend the law instead of appealing the Court decision, says PSAC," 2002-JUL-30, at: http://www.psac.com/COMM/NEWS/
  10. "About Us," Evangelical Fellowship of Canada, at: http://www.evangelicalfellowship.ca
  11. "Sexual Orientation," Evangelical Fellowship of Canada," at: http://www.evangelicalfellowship.ca
  12. The Canadian branch of Focus on the Family has a web site at: http://www.Focusonthefamily.ca

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Copyright © 2002 & 2003 by Ontario Consultants on Religious Tolerance
Latest update: 2003-JUN-11
Author: B.A. Robinson

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