"...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
"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
"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
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:
The 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
Cauchon'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:
Egale Canada Inc., a gay-positive advocacy group. 5
Metropolitan Community Church of Toronto, a gay-positive
Christian church. 6
The 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
The 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 Coalition8
The Canadian Coalition of Liberal Rabbis for Same-sex Marriage,
a liberal Jewish group. 9
Canadian 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
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
The 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
U.S. public schools, and
The 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:
The U.S. Supreme Court
in "Loving v. Virginia" during 1967 which overturned
the racistmiscegenation lawsin 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:
Same-sex relationships can be as permanent as the average opposite-sex
Same-sex relationships can be as monogamous as the average
Some married couples are infertile and cannot have children.
Some married couples have decided to remain childless.
Lesbian couples can and do have children through artificial insemination.
Gay couples can and do build a family through adoption.
Some gay, lesbian, and bisexual couples bring their own children into
a same-sex relationship.
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
"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
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 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."
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.
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
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."
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
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:
Tracey Tyler, "Gay couple hope to get married today," The
Toronto Star, 2003-JUN-10, Page A4.
The Interfaith Coalition on Marriage and Family does not seem
to have a web site.
The Association for Marriage and the Family in Ontario does not
seem to have a web site.
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: