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Supreme Court of Canada Hearings

2004-October 5 to 7

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Topics covered:

Supreme Court of Canada hearings on the government's reference

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Sponsored link.

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Earlier developments are described in another essay

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bullet"I want to marry the person I love." A sign at a demonstration on Parliament Hill on 2004-MAR.
bullet"...preserving the heterosexual understanding of marriage is an important public policy decision that benefits all of society..." Focus on the Family (Canada)

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On 2003-JUN-10 the Ontario Court of Appeal determined that the federal marriage act was in violation of the Charter of Rights and Freedoms, Canada's constitution. They ordered the Government of Ontario to start issuing marriage licenses to same-sex couples immediately. This was the ruling that made marriage available to all adult couples, both opposite-sex and same-sex, but only within the province of Ontario. On 2003-JUN-17, the federal government decided to create legislation that would legalize same-sex marriage (SSM) across Canada. They sent the proposed legislation and some questions in the form of a reference to the Supreme Court of Canada for a non-binding ruling.

By the end of 2004-SEP, the territory of Yukon, and the provinces of British Columbia, Manitoba, Ontario, Quebec, and Nova Scotia had all legalized SSM within their jurisdictions. About 80% of same-sex couples in the country were able to marry without leaving their province or territory of residence.

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bullet2004-OCT-5: Ottawa: On 2003-JUL-17, the federal government had asked the Supreme Court to review proposed legislation that would modify the marriage act. The operative clauses of that legislation are:
  1. "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."
  2. "Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs." More details.

According to the Toronto Star, this reference asks the court to give a non-binding ruling on four questions. The first three were proposed by the previous Justice Minister, Martin Cauchon, on 2003-OCT-24:
bullet"Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?"
bullet"Is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?"
bullet"Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?" 1

The fourth question was added by the current Justice Minister: Irwin Cotler:
bullet"Is the traditional definition of marriage in common law jurisprudence and codified in Quebec, consistent with the Charter of Rights and Freedoms?"

The list does not include a question whether civil union legislation which would give same-sex couples the same rights, privileges and obligations as opposite-sex married couples -- a separate but equal system involving civil unions -- would be good enough. Yet this option will probably be the option that the conservative opposition will promote in Parliament when the new marriage bill is debated.

Hearings on the federal government's reference start on OCT-6 at the Supreme Court of Canada. Three days of oral arguments were originally scheduled.

There will be the federal Attorney General and 27 interveners at the hearing:
bulletThose favoring SSM include:
bulletAttorney General of Canada.
bulletEgale Canada and Egale couples.
bulletB.C. couples.
bulletOntario & Quebec couples.
bulletCanadian Human Rights Commission.
bulletOntario Human Rights Commission.
bulletManitoba Human Rights Commission.
bulletCanadian Coalition of Liberal Rabbis for same sex marriage.
bulletThe United Church of Canada.
bulletCanadian Unitarian Council.
bulletMetropolitan Community Church of Toronto.
bulletCanadian Bar Association.
bulletCanadian Civil Liberties Association.
bulletB.C. Civil Liberties Association.
bulletFoundation for Equal Families.
bulletCoalition pour le mariage civil des couples de mÍme sexe.
bulletThose opposing SSM include:
bulletAttorney General of Alberta.
bulletA coalition of Focus on the Family & REAL Women
bulletInterfaith Coalition on Marriage and Family.
bulletCanadian Conference of Catholic Bishops.
bulletOntario Conference of Catholic Bishops.
bulletChurch of Jesus Christ of Latter Day Saints.
bulletSeventh-Day Adventist Church in Canada.
bulletMartin Dion.
bulletSenator Anne Cools.
bulletRoger Gallaway M.P.
bulletWorking Group on Civil Unions.
bulletOne neither favors nor opposes SSM:
bulletMouvement laique quebecois
bulletOne province disputes the federal government's claim that they have jurisdiction to decide who can marry:
bulletProcureur general du Quebec  2,3

In addition, there are "volumes of written submissions."

Some comments:

bulletEqual Marriage for Same-sex Couples commented on their web site: "After four years of lobbying, advocacy and successful challenges in 6 of Canada's 13 jurisdictions, there has to be little new to be said on either side of the marriage debate." No novel arguments are expected to be put forth during the three days of hearings. On the eve of the first day of hearings,
bulletAlex Munter, co-chairperson of Canadians for Equal Marriage said: "We are hopeful that the finish line is in sight." 11
bulletKaren Busby of the homosexual-positive group Egale commented that the court decisions in British Columbia, Manitoba, Ontario, Quebec and the Yukon will have an effect on the Supreme Court. The highest court's opinion is key to establishing a national precedent.  She said: "Theoretically a different federal government could come along and pass federal law to take away the right to same-sex marriage. If we have the Supreme Court of Canada saying it's unconstitutional not to permit same-sex marriages, then it's harder for the federal government to pass legislation that goes in the other direction." 4
bulletThe Association for Marriage and the Family in Ontario will argue in their joint brief that:
bulletThe "essence of the legal meaning of marriage" is the union of one man and one woman.
bulletA same-sex relationship cannot be "of the same nature" as an opposite-sex marriage.
bulletSince the definition of marriage predates "even Canada itself, any attempt to change that definition should require an amendment to the Constitution." 5
bulletMartha McCarthy, lawyer for the Ontario and Quebec same-sex couples said: "Denying gays and lesbians the right to marry is outdated and wrong just like it was wrong not to consider women as persons or to prohibit inter-racial marriage. Historical pedigree alone does not make something right. The Charter aims to protect the traditionally disadvantaged from discrimination, however deeply ingrained, seemingly natural, or longstanding."
bulletCynthia Petersen, lawyer for Egale Canada and five same-sex couples in British Columbia said: "Excluding same-sex couples from civil marriage is discrimination, plain and simple. In todayís society, the only reason to exclude same-sex couples is to entrench and preserve the exclusive privileged status of heterosexual conjugal relationships. Same-sex couples in Canada have been getting married for well over a year. Thousands have done so. Equal marriage diminishes no one."
bulletThe Rev. Dr. Jim Sinclair, General Secretary of the General Council of the United Church of Canada, said in a news release: "A significant, unique contribution that the United Church brings to this debate is the denomination's own experience of making same-sex marriage ceremonies available to its members and, at the same time, respecting the right of those within the denomination who are opposed to such services....The United Church believes that equality and religious freedom can live side by side, supporting each other and building a stronger society." The factum submitted to the court by the United Church said, in part: "Theologically and liturgically, the United Church understands both opposite-sex and same-sex couples as sharing the same human dignity of being made in the image of God. There is therefore no theological impediment that would prevent same-sex couples from participating in this union, which is one of the fullest expressions of the covenant between God and humanity. To the contrary, excluding same-sex couples from this expression of the covenant relationship undermines their basic human dignity." 10 Anne Squire, former Moderator of the United Church of Canada said: "The United Church understands both opposite-sex couples and same-sex couples as sharing the same human dignity. Marriage is a benchmark by which Canadian society names the everyday development of love and intimacy between a couple. Restricting the definition of marriage to opposite-sex couples questions the capacity of gays and lesbians to develop love and intimacy, undermining their human dignity and reinforcing prejudicial attitudes."
bulletElizabeth Bowen, past president of the Canadian Unitarian Council said: "We see equal marriage as a matter of religious freedom for our clergy. What was once innovative is now regular practice. For us, the choice is clear. Our faith calls us to respect all persons. Justice requires this of us."
bulletGilles Marchildon, Executive Director of Egale Canada, said: "Equal marriage is the only option that advances equality. Separate but equal is unconstitutional. Eliminating everyoneís right to civil marriage, in order to exclude gays and lesbians, is not in keeping with our Canadian values of openness and inclusion. And the federal government simply doesnít have the jurisdiction to replace civil marriage with civil union."
bulletKenneth Cheung, chairperson of the Chinese Canadian National Council said: "The Chinese Canadian National Council adds its voice in support of the interveners advocating for same-sex marriage rights, We will continue to work in collaboration with other equality-seeking groups to fight discrimination and advance human rights and social justice in Canada. The federal government should introduce new legislation swiftly since the recent lower court rulings are clearly in support of including same-sex marriage." 6

Some lawyers for same-sex couples plan to argue that the government does not have the political will or muscle in a minority government situation to push through SSM legislation. They will suggest that the Supreme Court of Canada take the lead in changing legislation. 3
bullet2004-OCT-6: Wednesday: Ottawa: First day of hearings: There was relatively little coverage of the hearings in the media, and essentially no response by the public in letters to the editor of leading newspapers.
bulletThe lawyers representing the federal government were the first to testify at the hearing. Lawyers representing the same-sex couples and the Justices of the Supreme Court concentrated on the fourth question of the government's reference: whether it is unconstitutional to restrict marriage to opposite-sex couples. Justice Major asked the Attorney General of Canada (AGC): "Couldn't you have accomplished this with an appeal?" The AGG replied that "conscience" did not allow the AGC to appeal a decision reached unanimously by judges in three provincial courts. Justice Binnie commented: "The issue was not appealed from the Ontario, BC, Quebec cases because the Attorney General has accepted that the answer given by those courts was correct. Now given that that is the position of the government, and given that as a matter of policy, quite apart from the legal position, youíre moving forward or the government is moving forward with this bill, it seems to me that answering question four may not fulfill any useful purpose." Justice Bastarache asked: "Arenít you describing a political role? You are saying basically that parliament wants to introduce and pass this legislation in any case and then you are saying 'Well, politically it would be better for members of parliament to get a final answer on this question and that it would assist in the deliberation.' It seems to be a description of a political role for the decision of the court. The legal role is not there. Youíre saying the legislationís going to be passed in any event." 7
bulletMichael Morris, a federal Justice Department lawyer, testified: "The exclusion of same-sex couples for marriage can no longer be upheld as the exclusion is discriminatory and cannot be justified. 6
bulletEd Morgan, a lawyer for the Coalition of Liberal Rabbis testified: "Some religious groups claim not to have a problem with the concept. Same-sex ceremonies are kosher. We ask you to recognize that in every sense." 6
bulletVirginia Larsson, representing an unidentified conservative group said: "We're looking to maintain the traditional definition of marriage as one man and one woman for the sake of our children and our future generations."
bulletThe factum submitted to the court by the Canadian Unitarian Council (CUC) states, in part: "Unitarian churches have offered both ceremonies for same-sex unions that have been termed marriages as well as ceremonies for same-sex unions that were given names other than marriage since the 1970s....No Canadian Unitarian ministers or lay chaplain would refuse to perform a marriage or union ceremony for a same-sex couple....The failure to allow same sex couples the right to marry if they choose to do so is discrimination. It withholds a benefit from same sex couples in a manner that reflects stereotypical application of personal characteristics, resulting in the perpetuation of the attitude that gays and lesbians are somehow less worthy. It is about human dignity....Same sex couples who wish to marry do so for a myriad of reasons, including intimacy, companionship, societal recognition, and economic benefits to name a few. Same sex couples also conceive or adopt children....Elizabeth Bowen, president of the CUC stated 'Gay couples married by Unitarian clergy have told us that they and their children feel much more secure when their union has legal recognition.' Legal prohibitions against same-sex marriage harm children raised by same-sex couples by instilling them with the message their families matter less than families of opposite-sex couples....we view marriage as a civil and not a religious institution....Unitarians share with the Metropolitan Community Church (MCC), and even more so with Liberal Rabbis, the conviction that Scripture is misused by the selection of a few verses to support positions contrary to the overarching message of Scripture, that justice should flow down from government like water. Our movement in history has experienced the use of Scripture to defend both slavery and [racial] segregation....CUC submits the proposed legislation does not impair freedom of religion, but in fact is drafted so as to further enhance freedom of religion and allow religious groups that support equal marriage such as CUC, Quaker meetings, liberal rabbis and United Church clergy, to celebrate marriages that are consistent with their faith and practice as well as permit religious groups who oppose equal marriage to not perform same-sex marriages....We believe each religious group should make decisions on whether they would perform same-sex marriages in a manner consistent with their faith and practice without interference from State authorities....Unitarians do not wish to impose their religious beliefs on others any more than we want others to impose their religious beliefs on us. While we disagree with the beliefs of some other religious groups on the issue of equal marriage, we respect their right to hold those beliefs and would be opposed to any actions by the state to compel a religious group or its clergy to perform a same-sex marriage against their will." 12
bullet2004-OCT-7: Thursday: Ottawa: Second day of hearings: Testimony was heard from the Provinces of Alberta and Quebec, and from some religious groups:
bulletRobert Leurer represented the Province of Alberta. He said that the Parliament cannot expand marriage to include same-sex couples without formally amending the constitution. He said that when the constitution was written, the term "marriage" meant a union of one man and one woman. If the government is going to change that definition, it must first change the constitution. Justice Rosalie Abella, who joined the court this week, appeared to disagree. She said: "You don't look at 1867 as the end of the story." Leurer seems to hold a static, conservative view of the Constitution -- that one must interpret the Constitution according to its original wording. Justice Abella appears to view the Constitution as a living, evolving document. Leurer also suggested that change be made cautiously so that a change in the marriage act would not "obliterate in one fell swoop the wisdom accumulated since time immemorial." On the theme of constitutional change, Justice Ian Binnie pointed out that the divine right of kings had been well established for centuries. He asked: "Why is it that the divine right of kings has to give way to constitutional change, but marriage doesn't?" He also questioned the claim that SSM would destroy the institution of marriage. He said: "It seems to me difficult to see that extending the institution to this group would bring the whole edifice down." He also criticized the belief that child-gearing is a vital element in marriage. He said: "To reduce the whole thing to procreation seems to be an oversimplification."
bulletDavid Brown, who represents the Association for Marriage and the Family in Ontario coalition of conservative social groups, said that churches would be marginalized by the people of Canada if the government followed the wishes of majority of Canadian adults who favor same-sex marriage by implementing SSM. He also expressed concern that those churches who are opposed to SSM would be hit with a deluge of lawsuits. He said that "The federal government may not have the power to enact legislation that protects religion." He predicted that churches will be sued over their tax-exempt status and will find themselves charged under existing hate laws. Speaking outside of court, he said: "If the definition of marriage is changed and constitutionalized as to include same-sex marriage it will be open season on religious institutions." He also said: "You cannot come to a fork in the road . . . and say we're going to go down this road but we don't know where it ends." He predicted that: "For the next ten years, the main cases this court is going to be hearing are from religious groups who are being shut down in various areas - tax-status exempt, hate laws enforced against them. It is going to be very serious stuff." He said that the appellate courts in British Columbia, Ontario, and Quebec in favor of SSM were "dead wrong...The definition of marriage as a union between man and woman is embedded in the Constitution. With all due respect, the courts below....have stood the Constitution on its head."   9
bulletLawyers for the Interfaith Coalition represented the beliefs of the Roman Catholic Church, conservative Protestants and conservative Muslims. They argued that the Charter of Rights and Freedoms does not require that marriage be extended to same-sex couples. Lawyer Peter Jervis warned that religious conservatives -- both inside churches and without -- would be adversely impacted by SSM. He said: "What about a religious official who performs civil marriages? How about an Islamic judge, a conservative Jewish judge, a Catholic judge who did not want to perform a ceremony because of their religious beliefs? What about the municipal officials who perform civil marriages, they would have a conflict between their religious beliefs?"

In a news release about the court hearing, Bruce Clemenger, president of the Evangelical Fellowship of Canada, (EFC) wrote: "Changing the definition of marriage refashions its meaning and eliminates many of its distinctive features. If not marriage, what institution in society can we, as faith communities, promote that accomplishes what heterosexual marriage now does? What language can we use, and will we be afforded the public space to commend it to Canadians?" If marriage is to include both same-sex and opposite-sex couples, then a new term will have to be created to refer only to opposite-sex couples. One obvious term would be "opposite-sex marriage." We have seen a number of religious conservatives refer to "traditional marriage." However, this might cause confusion.
bulletPrior to the U.S. Civil War, traditional marriage meant the union of a white man and woman. In many states, African-Americans could not marry.
bulletUntil the 1960s in some areas of North America, the traditional form of marriage involved only spouses of the same race. Inter-racial marriage was a criminal act in some political jurisdictions.
bulletIn Bountiful, BC, marriage for the past six decades has typically means one man and many woman. Various Mormon denominations have engaged in polygyny for over 17 decades. Hebrews in ancient times practiced polygyny for millennia.

With marriage in such a continual state of flux, "traditional marriage" is not precise term. Another term that religious conservatives use -- "real marriage" -- is also confusing, because same-sex couples now get a marriage license, get married, and register their marriages with the government in the same way as opposite-sex couples.

In the same news release, Janet Epp Buckingham, director of Law and Public Policy for the EFC, wrote: "In a very real sense, we are fighting for the right to live without discrimination in Canadian society and practice our religious beliefs with respect to marriage. Now that the historic definition of marriage is said to be contrary to Charter-values, those of us who define marriage as being between a man and a woman are deeply concerned about being marginalized in Canadian society." This is a very real concern. Any religious group which says that same-sex couples should not be allowed to marry would be opposing the beliefs of most Canadian adults. Many religious groups in the 1860s opposed allowing Blacks to marry; others in the 1970s opposed inter-racial marriage; today, the Roman Catholic church occasionally does not allow disabled people to marry. All either changed their position or risked being marginalized.

The Canadian Conference of Catholic Bishops states: "Because it pre-exists the state and because it is fundamental for society, the institution of marriage cannot be modified, whether by the Charter of Rights, the state or a court of law. Enlarging, and thereby altering, the definition of marriage in order to include same-sex partners discriminates against marriage and the family, and deprives them of social and legal recognition as the fundamental and irreplaceable basis of society." 13

bulletGerald Chippeur, representing Conservative Senator Anne Cools and others, suggested that the court would be "justified in remaining silent" on all four questions of the government's reference. "This court should not become a third legislative option for frustrated cabinet ministers." 10
bulletThe Province of Quebec suggested that the federal government would intrude on provincial jurisdiction if it allowed SSM.
bulletRobert Leurer, who represented the Alberta government also took the view that the definition of marriage has been unchanged forever. He said: "We would lack humility if we think that as a society, we have learned enough in the course of 20 years of Charter jurisprudence to displace in one fell swoop the wisdom accumulated since time immemorial and sweep into the dustbin the core of the historically accepted definition of marriage."
bulletThe hearings, originally scheduled for three days, were concluded half-way through the second day.

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Subsequent developments

Possible paths forward to legalize same-sex marriage

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References used:

  1. "Factum of the Attorney General of Canada," Court File # 29866," Department of Justice, Canada, 2003-OCT-24, at: http://canada.justice.gc.ca/
  2. "It was an issue of rights," The Toronto Star, 2004-OCT-02, Page H1 and H4.
  3. "Same-sex Debate Q & A," The Toronto Star, 2004-OCT-06, Page A3.
  4. "Focus defends marriage at the Supreme Court," Focus on the Family Canada, 2003-OCT-6, at: http://www.fotf.ca/
  5. "Federal Government will delay gay-marriage bill," Today's Family News, Focus on the Family Canada, 2004-OCT-05.
  6. "The Marriage Reference: Itís About Human Rights and Equality. The Charter Protects All Canadians," Egale Canada, 2004-OCT-5, at: http://www.egale.ca/
  7. "Cotler's contortions questioned by court. Justice Minister abuses legal process for politics," Equal Marriage, 2004-OCT-6, at: http://www.samesexmarriage.ca/
  8. "Gay marriage opponents testify in Canada," Associated Press, 2004-OCT-07, at: http://www.boston.com/
  9. "Supreme Court urged not to redefine marriage," FamilyFacts.ca, 2004-OCT-12, at: http://www.fotf.ca/
  10. "United Church Intervenes in Supreme Court on Same-Sex Marriage," News release, 2004-OCT-6, at: http://www.united-church.ca/
  11. Ben Thompson, "Landmark Gay Marriage Case Begins In Canadian Supreme Court," 365Gay.com, 2004-OCT-6, at: http://www.365gay.com/
  12. Kenneth Smith & Robert Hughes, "CUC Factum to the Supreme Court of Canada," Canadian Unitarian Council, 2004-MAY-8, at: http://cuc.ca/queer/marriage_factum.pdf
  13. John Ward, "Opponents, supporters of same-sex marriage gear up for Supreme Court hearing," The Canadian Press, 2004-OCT-5, at: http://news.yahoo.com/

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Copyright © 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-DEC-11
Author: B.A. Robinson

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