HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

Québec: Hendricks & Léboeuf case:

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Quotation:

Their attempt to marry:

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 to exclude 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 together.

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 unconstitutional:

1. Art. 365 of the Quebec Civil Code, which contains an opposite-sex definition of marriage.
2. Federal Bill S-4, which affirms the opposite-sex definition of marriage, and applies only in Québec.
3. S. 1.1 of the Modernization of Benefits and Obligations Act.

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 would suffice.

During the afternoon, the Government of Québec "leaked" a plan to introduce a Vermont-style civil union in the province.  ₆

Day 2 of their court case:

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, harmonizing individual 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 religious groups, made a case against same-sex marriage. He discussed:

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. Marriage 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.

Day 6 of their court case:

The final day of the trial was 2001-NOV-16.

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 it's mobile."

The 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 Appeal.

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 -- That:

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 eventually have 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 proclaimed.

References:

1. "Gay couple rejects proposed Quebec law as alternative to marriage," Canoe.ca, 2002-MAR-22, at: http://www.canoe.ca/NationalTicker/
2. Citation lost.
3. "In their own words / Dans leurs propres mots: Quebec Day One," Equal Marriage, 2001-NOV-9, at: http://www.samesexmarriage.ca/legal/
4. "Equal marriage and the law in Canada: Status of Legal Challenges," at: http://www.samesexmarriage.ca/legal/ 
5. Michael Hendricks, "Why the legal battle continues in Quebec. Hearing scheduled for September 25-26, 2003," SameSexMarriage.ca, 2003-AUG-18, at: http://www.samesexmarriage.ca/
6. Michael Hendricks, "Quebec Day One - November 8, 2001," at: http://www.samesexmarriage.ca/
7. Michael Hendricks, "Quebec Day Two - November 9, 2001," at: http://www.samesexmarriage.ca/
8. Michael Hendricks, "Quebec Day Three - November 12, 2001," at: http://www.samesexmarriage.ca/
9. Michael Hendricks, "Quebec Day Four - November 13, 2001," at: http://www.samesexmarriage.ca/
10. Michael Hendricks, "Quebec Day Five - November 14, 2001," at: http://www.samesexmarriage.ca/
11. Michael Hendricks, "Quebec Day Six - November 15, 2001," at: http://www.samesexmarriage.ca/
12. "Québec Court Calls For Equality," 2002-SEP-6, at: http://www.samesexmarriage.ca/
13. "Appeal in Quebec: the story of our lives. Hearing scheduled for September 25-26, 2003," 2002-SEP-12, at: http://www.samesexmarriage.ca/
14. The text of the Quebec Superior Court ruling, in French only, is available at:  http://pub.bna.com/fl/Hendricks.pdf You may need software to read these PDF files. It can be obtained free from:
15. Rory MacDonald, "Defining moments for same-sex couples. Quebec couple win first major hurdle," at: http://www.capitalxtra.on.ca/
16. Jean-Pierre O'Brien, "First Quebec Civil Union," 2002-JUL-19, at: http://www.groovyannies.com/
17. Donald McKenzie, "Way set for gays to wed in Quebec. Appeals court rules same-sex union legal. Religious group may take case to top court," Canadian Press, Toronto Star, 2004-MAY-20, Page F8.

Copyright © 2002 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson