"We were called insane, told it could never happen and that we were
wasting our money. Now that we have won, everybody thinks it a great thing to
do. We knew we would be alone when we started this fight and when it’s all
over eventually, we will still have each other and that's what’s important."
" Be reasonable, demand the impossible." Che Guevara, communist
In the year 2000, the Québec Government revised several laws to give same-sex couples the same benefits and obligations as
heterosexual common-law couples. However, it continued
same-sex couples from legal marriage.
Michael Hendricks, 57, and René Léboeuf, 43, are a gay couple who have been
together since they met at a New Year's Eve party in the 1970s. Hendricks is a well known
gay activist in Montreal, Québec. Three years into their relationship, they bought a house
By 1998, the Québec government had neither recognized common-law marriages between
same-sex couples, nor enacted legislation making it easier for gays and lesbians
to give medical consent, to obtain guardianship of children, to receive inheritances
upon their partner's death, or to do many things that opposite-sex couples are
automatically able to do simply by going through a marriage ceremony. 1 Hendricks and Léboeuf decided to
force Québec's hand with a lawsuit.
It soon became obvious that they would have to go it alone. The main national
gay and lesbian advocacy group, Equality for Gays and Lesbians Everywhere (EGALE)
was not interested in pursuing same-sex marriage at that time. But there were
encouraging signs in Québec. Hendricks wrote: "...the polls were running
higher in our favor than anywhere else in Canada, the religious opposition was
scattered and insignificant, TV stars invited us on their shows to promote it,
even the Québec Liberal Party supported gay marriage." 5 The
couple and their lawyer went through the motions of requesting a
license from the license bureau. They gave media interviews at the courthouse, and kissed for the cameras. With
their lawyer, Stephane Gendron, they asked an assistant clerk of the Québec Superior Court for a
marriage license. The clerk read out the section of the Québec Civil Code
that defines a marriage as being between a man and a woman only. Their
application was formally rejected. Gendron immediately filed a request to challenge the law in the courts.
The couple is challenging three government statutes as
Art. 365 of the Quebec Civil Code, which contains an
opposite-sex definition of marriage.
Federal Bill S-4, which affirms the opposite-sex definition
of marriage, and applies only in Québec.
S. 1.1 of the Modernization of Benefits and Obligations
In 2001-JUL, two Ontario-based conservative Christian groups, The Evangelical
Fellowship of Canada and the Catholic Civil Rights League were given full party
status in the legal action, along with the Québec and federal governments.
Day 1 of their court case:
On 2001-NOV-8, their case began at the Montreal Palais de justice, in
Québec Superior Court
before a standing-room only crowd. Attorney for the couple, Me. Goldwater, "began
by explaining that we were all gathered as witnesses to a marriage - which,
given that we expect to be fighting the case for years to come, might prove to
be a very long ceremony." 12 Michael and René
testified about their relationship. Government lawyers declined to
cross-examine. Me. Goldwater said that her clients' case was a simple one which
could be argued in five minutes.
Me. Goldwater emphasized that society's concept of marriage is continuously
evolving. As an illustration, she "read from the 1866 Civil Code, which provides that a husband
exercises full authority over his wife, that she had no right to refuse to
submit to sexual intercourse, that she was required to follow and obey her
husband, that she could only seek separation if he brought a concubine to live
with them in the matrimonial home, etc." 2 She noted that
some Canadians claim that heterosexual marriage is a "universal norm." She argued
that war, slavery, sexism and child abuse could also be described in this way,
because they existed across history, in most cultures, races and religions.
However, this has not prevented attempts to modify or eliminate these "norms."
She denied the argument of attorney Me. Robert Reynolds, who represents religious conservatives,
that there is a conflict between religion and sexual orientation. She noted that
same-sex couples are not demanding that clergy marry them. A civil ceremony
The trial continued on 2001-NOV-9. The submission by the attorney representing the Québec
Attorney General was in disarray, because it was based on the argument that gays
and lesbians were not suffering any form of discrimination in the Province. The
Government's leaked plan for civil unions undercut his argument by implicitly
recognizing that inequality existed, and needed to be corrected.
Mr. Goldwater discussed the philosophy behind the Charter of Rights and
Freedoms, Canada's constitution. She explained that it was impossible to define
"couple" and still exclude same-sex couples. She discussed a 1987 ruling y the U.S.
Supreme Court decision (Turner v. Safley) which established the right to marry
as absolute for citizens, even if procreation is not physically possible. In
that case, the groom was in jail at the time and conjugal visits were not
allowed. She asked "If prisoners can
marry, why not René and Michael?" She pointed out that the children of
lesbian and gay couples in Québec are the only children in the province who are
not protected by their parent's access to marriage. Near the end of her presentation, Me Goldwater said that if gays and lesbians
do not attain the right to marry, that the big loser would be marriage itself.
It would become more marginalized and would be more stigmatized as
discriminatory -- a diminished and dated institution. 7
Day 3 of their court case:
On 2001-NOV-12, a representative of the Attorney General of Canada started to present the federal government's
arguments against same-sex marriage He argued that the
definition of marriage was the legislature's business, and not a matter to be
decided by the courts. He asserted that the plaintiffs had failed to demonstrate
that their rights were violated. He predicted that if same-sex marriage were
permitted, that the next step would be polygamous marriages. The bulk of his
morning presentation was an attempt to prove that marriage has historically been
viewed as a union between two people of different genders. He reviewed the
Leyland decision in 1992 which was based on the 19th century
Hyde definition of marriage, which was grounded in the ability of the couple to procreate. He
suggested that marriage should be maintained as a heterosexual-only institution,
and that other means should be found to give homosexual couples some of the
benefits of marriage. 8
Day 4 of their court case:
On 2001-NOV-13, a lawyer from the federal Attorney General
concentrated on Section 1 of the Charter of Rights and Freedoms. It is an escape
clause which allows a
government to discriminate against a group, using a "reasonable person"
test. He asked that if the judge finds that any of the three laws under question
discriminates against gays and lesbians, that it is an allowable degree of
discrimination, under Section 1. He said that any reasonable
person would realize that the institution of marriage must be protected and that
some discrimination against gays and lesbians is thereby justified. He claimed that
federal legislation carefully balanced conflicting elements in society,
rights with what he called "larger values."
He said: "...all those
who oppose [same-sex marriage] are not motivated by hatred...."If we say that
all citizens who believe in heterosexual marriage are homophobic, then four
justices on the Supreme Court are homophobes." 9
Day 5 of their court case:
On 2001-NOV-14, Robert Reynolds, a lawyer representing various conservative
made a case against same-sex marriage. He discussed:
An affidavit from Daniel Cere, a Roman Catholic professor at McGill
University and the director of Newman House: He said that SSM would fracture
the basis of shared religious and civil peace in the province. Neither church nor the
government can change the definition of marriage. The lawyer claimed that "the inclusion of
same sex marriage is to exclude a large sector of human sexuality from the legal
system, the evisceration (disembowelment) of marriage, a disconnect between
the faith-based groups of society and the law."
An affidavit from Dr. Caparos, a professor of Roman Catholic Canon Law: He
maintained that civil marriage does not exist. Only religious marriage is
valid. There are not two kinds of marriage, just two ways to celebrate the
service. Any change in marriage will create serious problems for religious communities.
Same sex marriage contradicts Roman Catholic legal, social and moral traditions.
The church teaches that any sexual behavior outside of a heterosexual
marriage is morally wrong. If same-sex marriage is allowed, it will lead to
the stigmatization and the social exclusion of the Roman Catholic Church,
which is the largest faith group in Canada. This statement appears to be a
factual error, because most Roman Catholic members were and are in favor of SSM.
However, if the hierarchy of the Roman Catholic church remained opposed, they
might be stigmatized by much of the rest of the country.
An affidavit of Rabbi Novak: He stated that marriage comes from
Adam and Eve. Judaism does not reject individuals because of their sexual
orientation, but expects them to remain celibate for life. All same-gender
sexual behaviors are
inherently sinful, regardless of the nature of the relationship. He predicted that SSM would create a schism between Jews and the rest
of society. Jews would be accused of discrimination, of "un-Canadianism"
or of "anti-Canadianism". Jews may be forced to emigrate to other countries.
An affidavit from an unidentified Muslim Imam: He stated that SSM
would invalidate Muslim beliefs, preventing Muslims from full participation in
An affidavit from Professor Craig Gay, a conservative Protestant: He
stressed that marriage is basic to the maintenance of moral order. Sexual
behavior is condemned under all conditions except in the marriage of a man and a woman.
Evangelical Christians oppose polygyny, polyandry, and homosexuality. Marriage
of one man and one woman is God's
design for all people, for all time. This opinion seems to conflict with the
various marital forms mentioned in the Bible. He
believes that SSM
would drive a stake into the heart of Protestant beliefs.
In conclusion, Reynolds explained how his clients had sincere, profound,
convictions against SSM and feared being targeted by the State if gays and
lesbians were allowed to marry. SSM would take all the meaning out of marriage.
Marriage as an institution could not continue. He attempted to prove that the
meaning of the term "marriage" was frozen in the Constitution of 1867 and cannot
be changed, except by constitutional amendment. A modern-day law cannot change
the 19th century meaning of the word "marriage."
He argued that the freedom of religion and conscience enjoyed by many
Canadians would be attacked if SSM is legalized. His heterosexual clients would
no longer be able to marry. That is because, to them, marriage is a heterosexual institution.
would not be an option for them if same-sex married
couples existed. He noted that Article 27 of the Charter of Rights and Freedoms supports
multiculturalism, which includes support of the diversity of religious belief.
Noël Saint-Pierre is an
attorney for the Coalition for the Recognition of Same Sex Couples. His
group supports any legal move that would allow same-sex couples to have the same
rights as opposite-sex couples. He reviewed how same-sex behavior has been
viewed in the past. A century ago, it was a very serious criminal offence. Until
1969, same-sex behavior was still illegal. Only in 2001 did the Québec
government adjust the age of consent for homosexuals to match that of
heterosexuals. But even as this trial was being heard, a gay person need only to
go into a hospital to know that their relationship is not recognized. A gay or
lesbian couple has no status in society; they are second class citizens.
Saint-Pierre systematically dissected each of the arguments of the federal
Attorney General showing them to be groundless. In conclusion, he discussed
Article 15 of the Charter, showing how gays and lesbians are the prime group of
discrimination in Canada. 10
Day 6 of their court case:
Noël Saint-Pierre continued his presentation on NOV-15. He referred to a
court ruling that defined "dignity" in the Charter of Rights
and Freedoms as "having equality, having autonomy in one's personal life
and thus in one's choices." Same-sex couples are not able to choose marriage, and thus
are deprived of dignity. He carefully analyzed the many benefits of marriage
automatically given to heterosexual couples, and showed how it was not possible
for same-sex couples to duplicate them via individual legal contracts. Alimony, child
visitation, child support, and immigration are four such areas. For poor couples
who cannot afford legal assistance, legal contracts to get some of the
protections of marriage are not an option.
He reviewed six affidavits submitted by the Coalition for the Recognition of Same Sex Couples
which he represents. He described some areas of discrimination that did not
apply to the two plaintiffs, and therefore were not included in their testimony: parenting,
inheritance, etc. Saint-Pierre then concentrated on the children of same-sex
couples. These are mostly children from previous heterosexual relationships and
children born into lesbian-led families. He pointed out that the United
Nations Convention on the Rights of Children guarantees rights to all
children. But the protection and assistance offered to children in a marriage is
far more complete than is offered to children in a "union libre" -- a
common-law relationship, which is the only relationship that gays and lesbians
can enter into. Child support and visitation rights are only two factors where
children of same-sex couples are deficient in protection.
He discussed medical ethics in Québec which gives the patient's spouse the
greatest authority in making medical decisions. Their patient's family comes
next. Interested parties are last. A gay or lesbian partner is defined as an "interested
party." If SSM were allowed, the partner would be considered a spouse.
The police do not considered same-sex couples to be spouses. This presents
problems in the handling of conjugal violence.
Saint-Pierre noted that gays and lesbians are confronted with their lack of
status at the times when they are most vulnerable: during emergencies,
separation, inheritance, and conjugal violence.
He referred to a Roman Catholic 1999 document on Marriage and Family,
which stated that: "The principles of justice would be violated if married
and de facto couples are treated the same." He explained that for Catholics non-discrimination against de facto couples or families (i.e. same-sex committed
couples) is automatically seen as discrimination against "families" (i.e.
heterosexual married couples).
He submitted two affidavits that contradicted the earlier affidavits from
religious conservatives: one from an Anglican Bishop and one from an Orthodox
rabbi. Both said that the world will not end for believers if homosexuals are
given the right to choose civil marriage. He discussed the experience in Holland
after SSM was legalized. The fears of the religious conservatives did not
materialize. Christians did not stop marrying. Jews did not flee the country.
Saint-Pierre finally showed that the Attorney General of Canada's claim that
the federal government had done everything in their power to provide equality
for gays and lesbians was simply not true. He listed many areas where changes
had not yet been implemented.
The final phase of the hearing allowed each side 90 minutes to respond to the
testimony of other principals.
Me Marie-Hélène Dubé represented the Coalition for the Recognition of Same Sex Couples.
After covering many legal points, she read from the dissenting opinion in the
Leyland case: "It is in the interest of the State to foster all family
relationships. To say that the State should protect only traditional families
is discriminatory. To exclude gays and lesbians from marriage is
discriminatory. There is no rational connection between supporting
heterosexual families and denying homosexuals the right to marry."
Me Goldwater, representing the two plaintiffs, referred to the Attorney
General of Canada's statement that "people care about marriage" --
which the attorney said as if her clients were not people. Referring to the
federal governments intention of balancing social and individual values and
rights, she asked which rights were involved; who has to be protected; what
groups are in competition; and what benefits will be lost to whom. She
concluded by stating that all religions think they have the monopoly on truth.
But those conservative religious leaders who opposed SSM do not necessarily
represent their faith group's own membership. 11
Day 6 of their court case:
The final day of the trial was 2001-NOV-16.
The representative of the Attorney General of Canada explained that
Parliament has balanced divergent interests. They, not the courts, have
responsibility for "social engineering."
The representative of the Attorney General of Québec explained that
the province's Harmonisation Act integrates the province's civil law with
Canadian law. The Act is not discriminatory; it simply reflects federal
definitions of marriage.
The representative of various conservative religious groups spoke next. He
expressed concerned if any major change was made to the institution of marriage. It
has served society well in its present form. Allowing SSM could have serious
consequences. SSM would impose on believers and the rest of society a
new institution that is fundamentally contrary to traditional religious faith.
Allowing SSM would be an attack on the freedom of religion. If the court
grants gays and lesbians the choice to marry, then the court also would take
away choice from religious folk who believe that marriage should remain
between one man and one woman.
Noël Saint-Pierre, representing the Coalition for the Recognition of Same Sex Couples,
referred to his work with women immigrants which has taught him the importance
of marriage. He said that views of society and the community have evolved.
Marriage works. The courts only have to make it accessible to same-sex
Québec government announces intent to create civil unions:
In 2002-MAR, the Government of Québec announced
that legislation would
shortly be introduced to create Vermont-style civil unions in the province.
Hendricks and Léboef personally rejected the proposed law, because it would not carry the
same weight as marriage. It would not be recognized throughout Canada. On
2002-MAR-22, Hendricks said: "We will get married, if we can win this
case..."Marriage is marriage. It's the gold standard in social acceptance, and
Québec Superior Court ordered the case reopened briefly on 2002-FEB to review
any impact that Québec's proposed civil unions bill would have on the case.
Québec government passes civil union law:
On 2002-JUN-7, the Québec National Assembly passed the Civil Union
law. It is similar to the Vermont civil union system.
It grants same sex couples some of the rights of marriage. It is not recognized
outside the province.
Michael Hendricks commented: "Everybody's mother wants you to get
married, not to get unioned." 16
Québec Superior Court issues ruling:
On 2002-SEP-6, the Québec Superior Court declared that the denial of marriage to same sex
couples violated their rights. The court gave the federal government
two years in which to modify the federal marriage act to allow gays and lesbians
to marry. The ruling stated that a system of national civil unions or other
alternatives to marriage would not be acceptable. Since equality is the issue,
marriage is the only solution.
Judge Lemelin quoted extensively from a letter written by Nathalie Ricard, a
Québec nurse. She explained that being refused permission to marry isolated gay
and lesbian couples and their children from the main stream of Canadian life.
She wrote that same-sex couples are infantilized by that discrimination. 13
Michael Hendricks, referring to an earlier victory in Ontario, said: "Now
we have the two biggest provinces. The last shoe has fallen. Let's see what the
federal government will do with it." 12
The lawyer who represented Michael Hendricks and Rene Léboeuf
told the Montreal Gazzette. "What makes the Québec victory important for all
of Canada is that [Judge Lemelin] had the chance to look at a civil-union law
and to comment herself as to whether that would be enough of a solution for gay
and lesbian couples. But Judge Lemelin said in very strong terms that a civil
union, as wonderful as it is because of all the economic rights that it gives,
is still not marriage." 13
Federal government announces appeal:
The defendants did not have long to wait for reaction from the federal
government. Six days later, on 2002-SEP-9 the government announced that they
would appeal the Québec Superior Court ruling to the Québec Court of
Faced with a number of court decisions which found the marriage act
unconstitutional, and paralyzed with fear at loss of votes if they carried out
the wishes of the courts and the majority of Canadians, the federal government took the only option open to
it: a delaying tactic. They formed a parliamentary committee to travel
throughout Canada and give the public a chance to speak. 13 More details.
Two days have been set aside for the appeal, starting on 2003-SEP-25.
Federal government changes its mind:
On 2003-JUN-10, the Ontario Court of Appeal handed down its ruling.
They agreed with the senior provincial courts in British Columbia and
Québec. All three courts delivered the same messages to the federal governments
The existing marriage act is unconstitutional because it not allow
gays and lesbians to marry .
National civil union legislation is not an acceptable alternative to
However, the Ontario court went further. It announced that the Government of
Ontario must start issuing marriage licenses immediately to gay and lesbian
couples. The British Columbia court followed suit on 2003-JUL-8.
The ruling Liberal party finally caved in. Gays and lesbians were routinely
getting married. Courts in provinces containing 80% of the Canadian population
were of the same mind. The government apparently realized that they would
to overhaul the marriage act. The longer that they dragged their
feet, the more of a laughing stock they became to the public, and the more they
looked like ineffective politicians. On 2003-JUL-17, Justice Minister Martin Cauchon announced that the government would change the definition of marriage to
"the lawful union of two persons to the exclusion of all others." The
only restrictions would be that the spouses would have to be at least 16 years of age, not too closely related genetically, and unmarried. The
draft legislation would be sent as a
"reference" to the Supreme Court who would then be asked to rule on its
constitutionality. More details.
The federal government abandoned its appeal of the
Québec Superior Court ruling. The appeal continued,
but with only the group of religious conservatives opposing the plaintiffs.
Court approves same-sex marriage in Québec:
On 2004-MAR-20, by a vote of five to zero, the Québec Court of Appeal
unanimously rejected the Catholic Civil Rights League's appeal. The
League had requested that the court overturn the Quebec Superior
Court's decision in the Hendricks case. There is a certain irony that a
"Civil Rights" agency had the goal of limiting the civil rights of
same-sex couples. The justices ruled that Canada's Charter of Rights and
Freedom does not permit discrimination in marriage. Same-sex marriages
are now legal in the province. Hendricks and Leboeuf plan to get married in
April, about six years after having first launched their court case. Michael
Hendricks said to reporters at a news conference: "The floodgates seem to
be open and it looks like Canada is going to become the first North American
country that has equal marriage... This is wonderful." Their lawyer,
Colin Irving, said: "The judgment declares as a matter of principle
that the judgments in the courts of one province, when they deal with the
validity of federal statutes and where the attorney-general of Canada was
involved, have effect elsewhere. If you're dealing with federal law, then
the judgment of a provincial court, like the Quebec Court of Appeal, has
effect everywhere in the country." He indicated that court had
found that the religious group had no legal standing, after the
federal government withdrew from the case.
Quebec's justice minister, Marc Bellemare, said that same-sex couples
will be able now to marry in the province. However, clergy will not be
required to perform the ceremony if it violates their church's religious
beliefs practices. The Evangelical Fellowship of Canada was one of
the religious groups which were involved in the appeal. Janet Epp Buckingham,
director of law and public policy for the Fellowship, said: "We
are very disappointed with the ruling, particularly since it seems to go
beyond the rules of court, the rules of procedure."
The case was not be appealled to the Supreme Court of Canada.
Sixteen months later, on 2005-JUL-20, federal law C-38 was proclaimed, making same-sex marriage
legal, in theory, across all the provinces and territories of Canada. That
legislation did not make a massive impact across Canada as only P.E.I,
Alberta, and two territories did not allow SSM when the law was