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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

AMENDMENTS TO LEGISLATION CAUSED BY THE ONTARIO COURT CASE; PART 7

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Sponsored link.

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Previous developments in this case are described in another essay

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In this essay:
SSM means Same-Sex Marriage;
MLA means a Member of the Legislature.

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Background:

The Ontario Court of Appeals issued a decision on 2003-JUN-10 requiring the province of Ontario to provide marriage licenses to, and to register the marriages of, same-sex couples. However 73 pieces of existing legislation in the province violated this court ruling by referring to wife, husband, widow, widower, and similar sex-related terms. In order to bring the legislation in synchronism with the court decision which legalized SSM, each of these laws had to be amended to include gender-neutral language.

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2005-FEB events:

bullet2005-FEB-16: ON: Meeting to prepare for Ontario same-sex marriage bill: The decision by the Ontario Court of Appeal on 2003-JUN-03 which legalized same-sex marriages in the province required the government to issue licenses to same-sex couples, register their marriages, and eventually change various pieces of legislation so that the definition of marriage would be altered. The traditional definition of a union of "one man - one woman" was declared unconstitutional. It is to be replaced by a union of "two persons." 

The Liberal government is planning to introduce a bill in the near future which will amend about 70 provincial statutes which touch on marriage. The bill will also guarantee that clergypersons will be able to safely continue to discriminate against same-sex couples by refusing to marry them -- clergypersons will be protected from prosecution under Ontario's human rights legislation. The Liberal government in Ontario is hoping to slide its same-sex marriage bill through the Legislature in a single day with little fanfare. They held a meeting on FEB-16 to grease the path for the bill. The previous Conservative government was able to do this some six years ago with a similar bill. Although the bill is expected to pass with no real difficulty, an arrangement to process it in a single day requires the concurrence of every MLA (member of the legislature). This will probably not happen. Two conservative MLAs have indicated that they plan to withhold their agreement:
bulletBill Murdock (Conservative-Bruce/Grey/Owen Sound) is a strong opponent of same-sex marriage. Ignoring the needs of same-sex couples, he said: "It's not going to hurt us [the Conservatives] to prolong it, so why would I do that."
bulletJerry Ouellette (Conservative-Oshawa) is still distressed about an incident six years ago over a previous human rights bill which granted partial equality to same-sex couples. MLAs who opposed the bill were sent on out-of-town assignments so that they would not be in the Legislature to disrupt proceedings. Ouellette plans to vote against the new bill.
bulletPay Hoy (Liberal-Chatham/Kent/Essex) expressed a desire to vote in favor of preserving the right of clergypersons to discriminate against same-sex couples, but wants to vote against granting equal rights to gays and lesbians. 1
bullet2005-FEB-22: ON: Same-sex legislation tabled in Ontario Legislature: The Government of Ontario has tabled Bill 171 in the legislature. It consists of a series of amendments to 73 provincial laws which have references to "spouse" "marriage," "husband," "wife," "widow," and similar words. Attorney General Michael Bryant said: "The bill removes references to gender and gender-specific language from Ontario definitions of spousal terms, and uses one term, 'spouse', to include opposite-sex couples and same-sex couples who are married or who live together in conjugal relationships outside of marriage." The bill would protect clergy from having to solemnize marriages that run counter to their beliefs. But it does not extend the same protection to civic officials who might be required to marry same-sex couples against their religion. Bryant told reporters: "There isn't anything in the bill about that. I'm aware of no instance where a couple was denied the solemnization, so there has not been a problem in over 1,000 [same-sex] ceremonies that have taken place in Ontario. There is no problem...Same-sex marriage is part of the fabric of Ontario life." The three parties in the Legislature -- Conservative, Liberal and New Democratic -- have negotiated a limitation to the debate in order to minimize controversy. John Baird, a Conservative Member of the Legislature (MLA), said that some members "...will vote for it, some will vote against. I'll be one members who will be voting for it. The debate is not about [allowing] same-sex marriage. The debate is about some housekeeping amendments to deal with the [court] decision and the protections for religious officials in sacred spaces -- something that we fought for." Howard Hampton, a New Democratic MLA, said: "All we're doing is bringing some Ontario laws into line with a court decision that's already been made. This is housekeeping amendments of several bills." The amendments will be voted on during FEB-24.

Jim Hughes, National President of Campaign Life Coalition, a conservative religious group, said: "This pre-emptive move by the Ontario legislature looks suspiciously like an attempt to strengthen the faltering federal legislation. At least on the federal level most MPs are being given an opportunity to debate, but in Queen’s Park they plan to proceed without any debate and even without a recorded vote. This is an affront to democracy and every MPP should be told that." Mary Ellen Douglas, Ontario President of Campaign Life Coalition, said: "We urge every Ontario resident to contact their MPP today and express their strong objection to this heavy-handed move by the McGuinty’s Liberals. We encourage people to tell their MPPs to vote against this Bill and demand a recorded vote." 2,3
bullet2005-FEB-23: ON: Ontario Conference of Catholic Bishops support Ontario legislation; some Protestant groups are displeased: The Ontario Conference of Catholic Bishops (OCCB) issued a press release titled "Ontario Catholic Bishops support protective legislation." It said in part that the OCCB "...commends Premier Dalton McGuinty and his government for proposing this legislation." They remain opposed to allowing same-sex couples to marry, but appear pleased that the legislation will protect clergy who wish to continue to discriminate against same-sex couples. The release states that: "Priests will have some protection, they won’t find themselves in court. The Bishops wanted to be sure that religious bodies could not be compelled to allow their properties to be used for purposes associated with same-sex unions if such are contrary to their teachings, as is true for the Catholic Church. The Bill clearly provides this protection and the Ontario Bishops accordingly support it."

Rev. Tristan Emmanuel, Executive Director of Equipping Christians for the Public Square said: "It’s not about protecting ourselves as individuals, not about protecting our collection baskets or buildings, it’s about defending a sacred institution....The church needs to show leadership in this area and many of us believe it’s a sacrament and we must speak as one." Apparently referring to Ontario Premier McGuinty, a Roman Catholic, Emmanuel continued: "Which means we don’t commend Christian politicians, Catholic or otherwise, who compromise the integrity of marriage and think they can buy us off." 4
bullet2005-FEB-24: ON: Same-sex marriage enshrined in law: The Ontario Legislature easily passed Bill 171. There was considerable controversy over the manner in which the vote was recorded. The leaders of the three main parties: Conservative, Liberal and New Democratic, arranged in advance to have a voice vote. There is on record of how individual MLAs voted. Observers speculate that this was done in order to avoid repercussions at the next election from that minority of Ontario voters who oppose SSM. Three MLAs, all members of the Conservative Party, asked that a recorded vote be taken. 5 However, a minimum of five MLAs is required.
bulletAttorney-General Michael Bryant said that the amendments were required because the laws, as originally written, violate the Charter of Rights and Freedoms. He said: "I'm very pleased that we have aligned our statutes with the Charter of Rights and Freedoms on the subject of same-sex spouses and same-sex marriage."
bulletRev. Dr. Brent Hawkes of the Metropolitan Community Church of Toronto married the first same-sex couples in 2001-JAN-14. Their web site encourages same-sex couples to schedule their: "...wedding at MCC Toronto and stand on the exact same spot that the first same-sex couples who were legally wed stood! For our community, that spot is truly 'holy ground'." 6 Hawkes sat in the legislature gallery during the vote. He said: "This province of Ontario...is probably one of the few jurisdictions anywhere in the world whose laws have been totally brought into conformity for protection of gays and lesbians."
bulletThe Toronto Star newspaper reported that MLA Bill Murdock (Conservative - Bruce-Grey-Owen Sound) "...filibustered for almost an hour in opposition of the bill and was one of the three Tories [Conservatives] demanding a record vote..." Murdock said: "There are a lot of people in Ontario that are against the bill. Democracy is dead in Ontario" because the individual MLA's vots were not recorded. He apparently voted against the bill, thus violating his oath of office in which he had promised to uphold the Charter of Rights and Freedoms.
bulletFrank Lkees (Conservative - Oak Ridges) also spoke against the bill. He asked that other MLAs rise after the voice vote to request a recorded vote. Only two others stood.
bulletPeter Kormos (New Democrat - Niagara Centre) said that a permanent record of the vote should have been taken. He said: "I find it embarrassing as a member of the Legislature that legislators, members of provincial parliament, would flee from putting themselves clearly on the record by way of a recorded vote." He criticized the ruling Liberal party by saying: "What's more fascinating even than the failure to vote on the record was the failure of people to stand up and put their position on the record. Especially those Liberals who, when they get back home, figure it's politically convenient to say 'I don't support that bill'."  Kormos was not present for the vote. 7,8,9
bullet2005-FEB-28: ON: Toronto Star newspaper raises concerns: In an editorial, the Toronto Star expressed concern that the legislation remains silent on the rights and obligations of civic officials who perform weddings at city and town halls across Ontario. In Manitoba, Saskatchewan and Newfoundland, marriage commissioners had been ordered to perform same-sex marriages on request. This has led to human rights complaints and resignations on the part of commissioners who wish to discriminate against same-sex couples by not performing marriages. The Star notes that thousands of gays and lesbians have married in Ontario since SSM became available in 2003-JUN without difficulty. But the newspaper suggests that Bryant should issue a written directive instructing municipalities to accommodate staff who wish to discriminate against same-sex couples by refusing to marry them. "As we break historic ground in this area, Ontario should serve as an example that expanding human rights needn't conflict with freedom of conscience." 10 Adam Quinan of Toronto wrote a letter to the editor of the Star in reaction to this editorial. He said, in part: "Would you offer the same suggestion to those who did not wish to marry black people, or perhaps disabled people? This isn't accommodation of conscience, it's condoning discrimination of the worst sort." 12
bullet2005-FEB-28: ON: Toronto Star columnist: Newspaper columnist comments on bill: Ian Urquhart contrasts the bloodletting being displayed in the federal parliament with the smooth passage of enabling legislation in the Ontario Legislature. He attributes thelatter to the desire by all three parties in the Legislature to avoid a messy debate "that would exacerbate divisions within society on this volatile issue:"
bulletIn the Progressive Conservative provincial party leader John Tory favors SSM. However,  almost all of his 23 MLAs oppose it. A recorded vote would have publicized the split between the leader and his own caucus.
bulletPremier Dalton McGuinty, leader of the Liberal provincial party also favors SSM as do the overwhelming majority of his MLAs. Urquhart speculated that some of the liberal MLAs from rural or small town riding would "get caught in a squeeze between their constituents and their consciences if they were forced into a recorded vote." There is a geographical split in the province with rural and small towns generally being opposed to SSM.
bulletAll eight MLAs of the New Democratic Party supported the bill. But Urquhart suggests that the gay and lesbian community asked that the party not press for a recorded vote; the community did not want the bill to become a political football.

The three parties agreed to consider the bill with a minimum of debate and no recorded vote. Urquhart suggests that there will be some political fallout from the voting. Only three conservatives stood after the vote to ask for a recorded vote. Five would have been needed. Jim Hughes of Campaign Life referred to the voice vote as "an end run around democracy." Urquhart writes that Hughes "vowed to take it out on the members who refused to stand with..." the three Conservatives." 11

bullet2005-MAR-04: LifeSiteNews charges political scheming and cowardice: LifeSiteNews, A Fundamentalist Christian agency suggested three conflicting explanations why Bill 171 was dealt with quickly and without a recorded vote.
bulletOne scenario is that: "...the Ontario Liberals pushed their same-sex marriage bill in response to a deal with the federal Liberals who needed the rushed Ontario same-sex entrenchment to help their faltering same-sex marriage Bill C-38. In exchange for the deed, the source reports, the Ontario Liberals received promises of billions from the feds."
bulletA second is that "...the leaderships of all three parties conspired to ram the bill through in three days, without a recorded vote and without either the public or MPPs being given reasonable opportunity to address the dramatic changes to marriage that would result. [Conservative, Liberal and New Democratic] Party leaders brow-beat their Members to go along with the scheme."
bulletA third is that the bill was the result of a conspiracy by homosexuals at Queen's Park. A Liberal MLA allegedly told LifeSiteNews that he was astonished about the "large number of homosexuals that work in Queen’s Park [who]...take these things (Bill 171) very seriously."

They quote to editorials on Bill 171:
bulletChristina Blizzard of the Toronto Sun favors same-sex marriage rights. She wrote in her  column on MAR-04, "What I find truly disgraceful is the weasely way the vote to amend provincial statutes to fit with new federal same-sex marriage legislation happened."
bulletAn Ottawa Citizen editorial for FEB-28 stated: "All but three of Ontario’s MPP’s acted in a cowardly fashion on Thursday, by not requesting a recorded vote" on the bill.

They also quote excerpts from the speeches of two Progressive Conservative MLA's:
bulletBill Murdoch stated: "Will we see that members have true democracy in this House, or do we make deals in this House and we don't have true democracy any more?...it's my right to come here and debate. I know there are some people in our party and some in the other two parties who don't want that to happen. They don't want us to stand up here and debate this. They've put pressure on some of our guys and said, 'Oh, you can't do that'." After the second reading vote, he said: "...there were three people who stood up to want democracy -- only three people. How many are there here -- 103? So 100 people in this House yesterday on second reading didn't care about democracy -- didn't care. You'd think there would be a few Liberals who want some democracy, wouldn't you? You would think there would be at least one Liberal. You got elected to come here to vote. You didn't get elected to come here to be told what to do. That's what's happening to you. It happens here all the time. Don't feel bad. The other governments weren't any better."
bulletFrank Klees said: "What are we hiding? What is the problem? Why, if they consider themselves so committed to this bill, will people not stand in their place and simply identify their vote in Hansard for everyone to see? People at home and people in the galleries must be asking themselves, "What is going on in this place?" What is wrong with this bill that you're not prepared to identify with it? What are we afraid of?13

bullet2005-MAR-06: John Tory terminates internal dissention: John Tory is the leader of the Progressive Conservative Party of Ontario. During a recent Ottawa convention, at a closed-door policy session of his caucus, Tory terminated a heated debate on SSM. He allegedly said, in a booming voice: "That's been decided by the courts. There's no need for further discussion on that." A reporter from the Toronto Star's Queens' Park Bureau wrote: "In other words, confided one shaken eyewitness, he was saying it was his way or the highway." 14

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Finis -- for now:

From the marriage of two same-sex couples on 2001-JAN-14 to the passage of Bill 171 on 2005-FEB-24 took a little over four years. Loving committed couples, whether opposite-sex or same-sex have been able to marry since mid-2003 and have the full protections and obligations that marriage brings to themselves and their children. Now, they see that right enshrined in Ontario law.

The right of same-sex couples to marry was further reinforced by the federal Bill C-38 which legalized SSM across Canada. It was proclaimed on 2005-JUL-20.

SSM is not necessarily secure. It is the federal government which decides who can marry across Canada. The Federal Conservative Party will undoubtedly win some future election. They might be able to pass legislation that will activate the "notwithstanding clause" in Canada's constitution to redefine marriage as being restricted to one man  and one woman. The clause is only effective for a period of five years. This redefinition can be repeated indefinitely into the future -- at least until a Liberal government is voted in. Although this would violate the Charter of Rights and Freedoms, according to the unanimous decisions by many courts, it is quite legal and constitutional for the federal government to overrule the constitution. In Canada, non-constitutional laws can be implemented and not overturned by courts.

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References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Ian Urquhart, "Anxious MPPs prepare for same-sex vote," Toronto Star, 2005-FEB-16, Page A17.
  2. Robert Benzie & Hicham Safieddine, "Ontario same-sex legislation exempts clergy," The Toronto Star, 2005-FEB-23, Page H7.
  3. "Urgent Ontario Action Item – Call MPPs Today Urging Vote Against Same-Sex Marriage Bill
    Demand Recorded Vote
    ," News release, Campaign Life Coalition, 2005-FEB-23.
  4. "Pro-Marriage Groups Disappointed with Ontario Bishops' Support for Ontario Same-Sex Bill
    Bishops 'Commend' Catholic Premier and Liberal Government for Legislation,
    " News release, LifeSiteNews.com, 2005-FEB-23.
  5. Robert Benzie, "Voice vote approves same-sex marriage," Toronto Star, 2005-FEB-25, Page A8.
  6. The Metropolitan Community Church of Toronto has a web site at: http://www.mcctoronto.com/
  7. "All Party Collusion to Avoid Accountability Succeeds as Ontario Passes Same-Sex Marriage Bill," LifeSiteNews, 2005-FEB-24 news release.
  8. "Ontario Passes Same-Sex Marriage Bill - All Party Collusion to Avoid Accountability Succeeds," LifeSite.net, 2005-FEB-24, at: http://www.lifesite.net/
  9. "Ontario redefines 'spouse'," Today's Family News, Focus on the Family Canada newsletter, 2005-FEB-25.
  10. Editor, "Avert same-sex hassles," The Toronto Star, 2005-FEB-28, Page A18.
  11. Ian Urquhart, "Same-sex bill passes quietly," The Toronto Star, 2005-FEB-28, Page A17.
  12. Adam Quinan, "This is condoning discrimination," Letter to the Editor, The Toronto Star, 2005-MAR-02, Page A19.
  13. " 'Democracy is dead in Ontario;' Bill 171 - a tale of political scheming and cowardice, LifeSiteNews, 2005-MAR-04, at:  http://www.lifesite.net/
  14. "Tory lays down law on same-sex debate," The Toronto Star, 2005-MAR-07, Page A7.

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

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