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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

ONTARIO COURT CASE; PART 3

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Previous developments in this case are described in another essay

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Topics covered in this essay:

bulletAppeal to the Ontario Court of Appeal 2003-APR
 
bulletRuling of the Court legalizing same-sex marriage in Ontario 2003-JUN-10
 
bulletThe Michaels' wedding 2003-JUN-10

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Quotations:

bullet"...it is our view that the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage. Accordingly, we conclude that the common-law definition of marriage as 'the voluntary union for life of one man and one woman to the exclusion of all others' violates s. 15(1) of the Charter [of Rights and Freedoms]." Excerpt from the decision of the Ontario Court of Appeal, 2003-JUN-10. 1
bullet"By the power vested in me by the Marriage Act, I pronounce you Michael, and you Michael -- affectionately known  as 'the Michaels' -- to be lawfully wedded spouses." Mr. Justice John Hamilton, judge of the Ontario Superior Court, 2003-JUN-10, at 2:52 PM ET. 2
bullet"I knew that nobody could say I didn't have a family. Canada has finally figured out it's unfair to deny this to anybody." Robbie, 11, a member of a family headed by Joyce Barnett and Alison Kemper. 3

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Appeal to the Ontario Court of Appeal:

There was no initial reaction to the Ontario Divisional Court's 2002 decision by the federal government. As of 2002-JUL-24 they were still "deliberating" what steps they would take. Their deadline to appeal the decision was Monday, JUL-29. They waited until the morning of that last day before announcing that they decided to "seek leave to appeal" the decision to the Ontario Court of Appeals in order to "clarify" the law. Justice Minister Martin Cauchon noted that there was no consensus, "either from the courts or among Canadians, on whether or how the laws require change." That is an interesting comment for two reasons:

bulletThe lack of consensus presumably referred to a ruling against same-sex marriage by a lower court in British Columbia. That decision was subsequently overturned by a higher court in 2003-MAY, leaving all of three senior provincial appeal courts who have considered the matter unanimous in their support for gay and lesbian marriage.
bulletCauchon's second comment apparently means that fundamental civil rights in the country require a consensus before they are granted to minorities. If this is so, then important human rights can presumably be removed from any group of Canadians if significant opposition materializes. That is a scary thought!

From 2003-APR-22 to 25, the appeal was heard by Chief Justice Roy McMurtry and justices James MacPherson and Eileen Gillese of the Ontario Court of Appeal. 4 Intervenors were:

bulletEgale Canada Inc., a gay-positive advocacy group. 5
bulletMetropolitan Community Church of Toronto, a gay-positive Christian church. 6
bulletThe Interfaith Coalition on Marriage and Family, an interfaith group of religious conservatives including British Columbia Council of Sikhs, the British Columbia Muslim Association, the Evangelical Fellowship of Canada, the Islamic Society of North America, the Ontario Council of Sikhs, and the Catholic Archdiocese of Vancouver. 7
bulletThe Association for Marriage and the Family in Ontario is a group of social and religious organizations, including Focus on the Family Canada, REAL Women of Canada, and the Canada Family Action Coalition 8
bulletThe Canadian Coalition of Liberal Rabbis for Same-sex Marriage, a liberal Jewish group. 9
bulletCanadian Human Rights Commission, a federal government organization of more than 200 persons whose "business is to make the Canadian Human Rights Act work for the benefit of all Canadians." 10

Peter Jervis is a lawyer who represented the Interfaith Coalition on Marriage and the Family, a conservative group who wish to restrict special marriage rights for heterosexuals. He said that some conservative Christian. Muslim and Sikh leaders have expressed concern about expanding the definition of marriage to include committed gay and lesbian couples. They are troubled that this would invalidate their religious beliefs and send mixed messages to their children. Jervis argued that faith groups that refuse to recognize same-sex marriages would be perceived as discriminatory or anti-Canadian, and be marginalized. This, of course, is a valid concern. It happens whenever the fundamental definition of marriage changes, as it did in the mid-19th century when African-Americans were first allowed to marry in many southern U.S. states, and again in 1967 when couples of mixed race were allowed to marry anywhere in the U.S.

Ed Morgan is a lawyer who represented the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage. He said that his clients already performed same-sex marriage ceremonies and "would like to do it with state sanction." Morgan said that Jewish religious life can "co-exist" in a society that allows same-sex marriage. He commented that "We manage to live in a society that allows the sale of pork."

Co-counsel for the gay and lesbian couples, Martha McCarthy, said that the court's decision will be the ultimate test of the Charter of Rights and Freedoms -- Canada's constitution. She said that it will be as important as the decisions by:

bulletThe U.S. Supreme Court in Brown v. Board of Education during 1954 which lead to and end of the racist system of school desegregation in some U.S. public schools, and
bulletThe anti-sexist decision by the English Privy Council in 1929 which recognized that women in Canada were actual "persons" under the law.

One might also cite an even closer analogy:

bulletThe U.S. Supreme Court in "Loving v. Virginia" during 1967 which overturned the racist miscegenation laws in 16 states, including a law in Virginia which stated that "All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." 11

Lawyer Roslyn Levine represented the Federal Government's position in the hearing. Her arguments were based on the historical record which she believes has continuously restricted marriage to opposite-sex couples. She said that marriage is not something that lawmakers dreamed up; it predates the law. She criticized the lower court who she believes caved into the "subjective feelings" of the plaintiffs who said that they were excluded from one of society's most fundamental institutions, and were left feeling unworthy. She argued that marriage has always existed as a way to bring the two sexes together to produce children, and marriage had been defined by permanency, fidelity, and the potential for procreation. Some have criticized these as weak arguments, because they ignores the facts that:

bulletSame-sex relationships can be as permanent as the average opposite-sex married relationship.
bulletSame-sex relationships can be as monogamous as the average opposite-sex marriage.
bulletSome married couples are infertile and cannot have children.
bulletSome married couples have decided to remain childless.
bulletLesbian couples can and do have children through artificial insemination.
bulletGay couples can and do build a family through adoption.
bulletSome gay, lesbian, and bisexual couples bring their own children into a same-sex relationship.

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Ruling by the Ontario Court of Appeal:

The Ontario Court of Appeal delivered their ruling on 2003-JUN-10. It is Docket number C39172 and C39174. The full text of the decision is available online. 1 The court only took six weeks to complete their decision. This is unusually fast for a major constitutional case. As almost everyone expected, the court upheld the lower court's unanimous decision and unanimously ruled in favor of the plaintiffs. The court found that the present marriage acts offends the dignity of all gays and lesbians, discriminates on the basis of sexual orientation, and violates their equality rights under the Charter of Rights and Freedoms -- Canada's constitution. The court changed the definition of marriage in the province from being "the voluntary union for life of one man and one woman" to "the voluntary union for life of two persons to the exclusion of all others." Same-sex marriage then became available for the first time the western hemisphere, but only in the Province of Ontario. Presumably, the Canadian federal government is still under a court order to make same-sex marriage available in some form across Canada by 2004-JUL.

The three judges wrote their 60 page decision collectively. A key section stated that:

"A person's sense of dignity and self worth can only be enhanced by the recognition that society gives to marriage and denying people in same-sex relationships access to that most basic of institution violates their dignity."

"The ability to marry, and to thereby participate in this fundamental societal institution, is something that most Canadians take for granted. Same-sex couples do not; they are denied access to this institution simply on the basis of their sexual orientation."

"Preventing same-sex couples from marrying perpetuates the view that they are not capable of forming loving and lasting relationships and not worthy of the same respect and recognition as heterosexual couples." 2

Elsewhere in their ruling, they wrote:

"A purpose that demeans the dignity of same-sex couples is contrary to the values of a free and democratic society and cannot be pressing and substantial....Same -sex couples are capable of forming long, lasting, loving and intimate relationships. A law that prohibits same-sex couples from marrying does not accord with the needs, capacities and circumstances of same-sex couples." 2

The court rejected all of the federal government's arguments, saying that they were filled with irrelevancies, stereotypes and "circular reasoning." They said that it doesn't matter who originally invented marriage. What does matter is how gays and lesbians fare now, under a legal regime that excludes them from the institution.

The court ordered the Province of Ontario to register the two marriage certificates issued to Elaine & Anne Vautour and to Kevin Bourassa and Joe Varnell. These were the plaintiffs in the case -- the two couples who were married in a double ceremony at Toronto's Metropolitan Community Church in 2001-JAN. They have thus became the first same-sex couples to be legally married in the world, even though the registration process took about 30 months to achieve. (Same-sex marriages only became available in the Netherlands on 2001-APR-1; and in Belgium on 2003-JAN-30.)

The court ordered the clerk of the City of Toronto to issue marriage licenses to Michael Leshner and Michael Stark, and to six other couples whose license applications had been stalled pending the outcome of the appeal.

The Province of Ontario started to modify their marriage license and registration forms. They will delete the words "bride" and "groom," and substitute the gender-neutral term "spouse."

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The Michaels' wedding:

A major part of the publicity on the day of the court decision fell on Michel Leshner, 55, and Michael Stark, 45, a gay couple who had been together for over two decades. They had unsuccessfully tried to obtain a marriage license in Ontario during 2002-JUL. Early on 2003-JUN-10. Leshner, a crown attorney, said: "If it goes the way we hope, we will be on Cloud 9. If the appeal court agrees, the common-law definition of marriage should be extended to include same-sex couples effective immediately....This is a so-called 'quickie' marriage, after 20 years...This is our gift to gays and lesbians, so nobody else has to go through this nonsense" of fighting a court battle in order to marry. 4 They had purchased a pair of wedding rings and had arranged with an Ontario Superior Court judge to perform their marriage in a jury waiting room of a Toronto courthouse. Two hours after the Court handed down its decision, the couple had paid $110 in Canadian funds (about $80 in U.S. funds) for a marriage license. They crossed out the form heading that read "Bride" and "Groom" and replaced with with "Spouse" and "Person." They were married by Mr. Justice John Hamilton, a judge of the Ontario Superior Court, on 2002-JUN-10, at 2:52 PM Eastern Time.

After the wedding, Michael Leshner said to reporters that he regards the court's judgment as "Day One for millions of gays and lesbians around the world" and the culmination of a personal 20-year battle to end "legally sanctioned homophobia." He also said to reporters: "Go tell [Prime Minister] Jean Chrétien, it's dead. The argument's over. No more political discussion -- we've won, the Charter won. It's a great day for Canada." He also said: "This is why people come to Canada, because they marvel at our values...we've sent an unmistakable message that love can conquer all. The love of two good men can defeat everything...It [homophobia] is dead legally as of today." His 90-year old mother, Ethel, beamed and sang in her wheelchair. She said "I'm just happy my son is happy. I know he's getting a nice guy."

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Further developments in this case are described in another essay

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References:

  1. "Docket: C39172 and C39174, Between Hedy Halpern...." Court of Appeal for Ontario, 2003-JUN-10, at: http://www.ontariocourts.on.ca/
  2. Tracey Tyler & Tracy Huffman, "Wedding bellwether for same-sex couples: Gay duo wed hours after court ruling; Judges rewrite definition of marriage," The Toronto Star, 2003-JUN-11, Page A4
  3. Kevin Ritchie and Cassandra Szklarski, "First came the wedding, now the licence; Partners celebrate court victory with legal ceremony," Ottawa Citizen & The Canadian Press, 2003-JUN-11, at:  http://www.canada.com/
  4. Tracey Tyler, "Gay couple hope to get married today," The Toronto Star, 2003-JUN-10, Page A4.
  5. Egale Canada Inc. has a web site at: http://www.egale.ca/
  6. Metropolitan Community Church of Toronto has a web site at: http://www.mcctoronto.com/
  7. The Interfaith Coalition on Marriage and Family does not seem to have a web site.
  8. The Association for Marriage and the Family in Ontario does not seem to have a web site. 
  9. The Canadian Coalition of Liberal Rabbis for Same-sex Marriage does not appear to have a web site. However, a portion of its factum in the Court of Appel case is online at: http://www.samesexmarriage.ca/
  10. Canadian Human Rights Commission, has a web site at: http://www.chrc-ccdp.ca/menu.asp?l=e
  11. Virginian law: Code Ann. A7 20-57.

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 Home page > Homosexuality > Same-sex marriage > Canada > here

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Copyright © 2003 by Ontario Consultants on Religious Tolerance
Latest update: 2003-JUN-17
Author: B.A. Robinson

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