HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

British Columbia (BC)

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Overview:

British Columbia (BC) is Canada's western most province. Its culture resembles California's in many ways. Church attendance and religious affiliation is low. The concentration of gays and lesbians, the divorce rate and the suicide rate are high, relative to the rest of the country. The culture is generally permissive. Unlike California, British Columbia has had a series of unusually corrupt governments elected to office, representing the full political spectrum from the extreme left to the extreme right.

In 1977, the government recognized gay and lesbian partnerships by setting up a system for gays and lesbian that was largely parallel to heterosexual marriage. Eight gay/lesbian couples applied for marriage licenses and were denied. They sued the government in 2001-JUL, and lost. This was a very important decision, because two other courts -- in Ontario and Quebec -- had ruled in favor of same-sex marriage in other similar cases. The Federal Government and others who opposed same-sex marriage capitalized on the lack of unanimity of the three court decisions.

The couples appealed to the British Columbia Court of Appeal. On 2003-MAY-1, they won their case. The court unanimously ordered the Federal Government to modify its marriage act before 2004-JUL-12 to allow gays and lesbians to marry. All three senior provincial courts of appeal -- Quebec, British Columbia and Ontario -- are now unanimous in demanding a change to the marriage act to allow same-sex couples to marry.

1997: BC Government recognizes gay civil unions:

The NDP (Socialist) government of the province of British Columbia proposed two new spousal benefits laws in 1997-JUL that would expand the definition of "spouse" to include same-sex couples. Bills 31 and 32 recognized "the marriage-like relationship between persons of the same gender" in the Family Relations Act and the Family Maintenance Enforcement Act. Gay and lesbian couples received the same legal status with regards to child custody, maintenance and access as would "common-law" heterosexual couples. The bill passed overwhelmingly. Even one member of the Reform Party (now part of the Conservative Party of Canada) voted in favor - an unprecedented move for that extreme right-wing political party. British Columbia was the first jurisdiction in North America to take this step. The New Democratic Party in Ontario tried to do this in 1994. They withdrew the effort in the face of widespread opposition. ₁₃

Responses from various faith groups was as one might predict. Conservative groups expressed concern at the legislation and feared its negative effect on heterosexual families and marriages in the province. At least one liberal religious group welcomed the legislation for its long overdue granting of equal rights to gay and lesbian families, and looked forward to the law having a positive effect on all families.

2001-JUL: Gay and lesbian couples launch petition in British Columbia:

Eight BC same-sex couples -- Murray Warren & Peter Cook; Melinda Roy & Tanya Chambers; Robin Roberts & Diana Denny; Jane Hamilton & Joy Masuhara; Tess Healy & Wendy Young; Shane McCloskey & David Shrott; Bob Peacock & Lloyd Thornhill; and Elizabeth & Dawn Barbeau -- applied for and were denied marriage licenses. They launched a petition to overturn the federal Marriage Act, arguing that it denies them equal rights because it allows marriages only between a man and a woman. The couples' lawyers argued that the Marriage Act violates gays' and lesbians' right to equal treatment under the Charter of Rights and Freedoms by denying them official marital status. A petitioner, Murray Warren, said: "We are less than full citizens and I want full citizenship." Judith Bowers, a lawyer representing the federal Attorney-General said "The federal government has come to court to defend the historic definition of marriage, that being an opposite sex institution....It will end up, I'm assuming, at the federal level."  She estimated that it would take at least three years to bring the case to the Supreme Court of Canada. As of 2003-APR, this appears to be an accurate prophecy.

Referring to Toronto couples who attempted to be married under church banns, Murray Warren said that he and his partner "...don't profess to any religion, so we wouldn't want to use that process. I believe there is a fundamental problem that needs to be fixed. We don't want a backdoor approach." ₁

The Supreme Court of British Columbia heard arguments during 2001-JUL and AUG.

2001-OCT: Supreme Court denies the petition:

On 2001-OCT-3 BC Supreme Court Justice Ian Pitfield ruled that:

Judge Pitfield introduced a novel concern. He commented that opposite-sex marriages can be annulled if they are not consummated. But there is no evidence of what would constitute consummation in a same-sex relationship.

The lawyer for three of the couples is barbara findlay. She prefers that her name not be capitalized. She said: "Our clients knew, when they started, that this would be a case that would go on for five years. But the anguish of being told that we recognize that you're being discriminated against but that discrimination is acceptable is very difficult to describe. The sense of being people who don't count in the Canadian community is deeply sorrowing." She commented that politicians haven't yet shown the courage to take action on homosexual rights questions unless it became apparent that the courts were going to force them to do so. ₃

The text of the ruling is available online. ₆

An appeal to the BC Court of Appeal followed.

BC Court of Appeal overturns lower court ruling:

On 2003-MAY-2, the Court of Appeal for British Columbia overturned the decision of the BC Supreme Court. The decision was unanimous. The Honourable Madam Justice Prowse wrote on behalf of the court, with the Honorable Mr. Justice Mackenzie and the Honourable Mr. Justice Low concurring. ₇ The ruling stated "that the [current] common law definition of marriage contravenes the [Canadian] Charter [of Rights and Freedoms] and cannot be justified in contemporary Canadian society....These developments have substantial public support, although the matter remains controversial...This evolution cannot be ignored. Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment"

The court concluded:

The court's ruling, in effect, re-wrote the common law definition of marriage, deleting those phrases that refer to one man and one woman. In their place is a new definition of marriage in Canada as "the lawful union of two persons to the exclusion of all others". ₈

The court then suspended these remedies, saying that they would not come into effect until 2004-JUL-12. This date "coincides with the expiration of the 24-month suspension of remedy in Halpern." That synchronizes the period of suspension with that given by the Ontario Divisional Court. This suspension is "solely to give the federal and provincial governments time to review and revise legislation to accord with this decision." ₁₀

This gives the Federal government until 2004-JUL-12 to rewrite the federal marriage act to grant all loving, committed couples the right to marry in Canada, regardless of their sexual orientation. ₇

Referring to this decision and similar decisions by senior courts in Ontario and Quebec, Federal Justice Minister Martin Cauchon said that the BC ruling is an "important judgment...The three decision are all going in the same direction, So I have to take that into consideration." However, it is the policy of the Government of Canada to appeal these decisions, apparently because it does not regard elementary civil rights to be absolute; rather they can be granted to minorities only if a substantial majority of Canadians first agree. As as Cauchon said: "It's an important social issue for Canada. When you look at the situation in Canada, people are divided."

Comments, as expected, were varied:

Subsequent events: