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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

Same-sex marriage (SSM) developments:

2003-JUN-25 to AUG-11

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Same-sex couples obtaining marriage licenses, except in Alberta; Various appeals launched and threatened; Government sends reference to Supreme Court; Liberal MPs feeling heat; United Church considering SSM

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Initial reactions to the government decision are described in a separate essay

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Overview:

On 2003-JUN-17, the federal government decided to create legislation that would legalize same-sex marriage (SSM) across Canada. This decision stirred up a hornets' nest of controversy during the first week after the government's decision was announced.

Subsequent developments are described below:

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2003-JUN-20: Gay couple denied marriage license in Alberta: Keith Purdy, 41, and Rick Kennedy, 37, were refused a marriage license in Calgary, AB. The clerk said that "The laws of Alberta, at this point, do not allow same-sex marriage." The couple then crossed the street to the office of the Alberta Human Rights and Citizenship Commission, and obtained a complaint form which they planned to file on JUN-23. Purdy said: "We're setting the groundwork for what's going to come up in the future. We want to exercise our rights as Canadian citizens under the Charter. We consider ourselves married already but we want to be legally recognized with all the rights and responsibilities that come with that [state]." The couple have been together for 13 years and held a commitment ceremony in 1992. 1

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2003-JUN-29: Hundreds of marriage licenses issued to same-sex couples in Toronto: Focus on the Family Canada quoted a Canadian Press report which revealed that some 250 same-sex couples have purchased marriage licenses in Toronto in the 19 days since such marriages were legalized. It is not known how many licenses were obtained by same-sex couples elsewhere in Ontario. The Toronto city registry office stayed open over the weekend and added more staff to handle the anticipated number of couples attending the city's Gay Pride festivities who wish to get married. 2

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2003-JUN-30: Time runs out on appeal: This is the last day on which the decision of the Court of Appeal for British Columbia could have been appealed to the Supreme Court of Canada. Leaders of the federal government cannot now decide to change their mind. They have to proceed with new legislation legalizing SSM in order to make the marriage act conform to the Charter of rights and Freedoms -- Canada's constitution.

bullet2003-JUL-9: Attempt by social and religious conservatives to derail process: As noted elsewhere, the federal government decided on JUN-17 to not appeal to the Supreme Court of Canada the decisions of the British Columbia and Ontario Courts of Appeal that legalized same-sex marriages in those provinces. However, two conservative groups have announced that they will attempt to mount an appeal even in the absence of federal support. The two groups are:
bulletThe Interfaith Coalition on Marriage and Family, which includes the Evangelical Fellowship of Canada, the Catholic Civil Rights League, the Islamic Society of North America and the Ontario Conference of Catholic Bishops.
bulletThe Association for Marriage and the Family, which includes Focus on the Family Canada, REAL Women of Canada and the Canadian Family Action Coalition.

Both groups had "party intervenors" status when the same-sex marriage case was heard by the Ontario Court of Appeal in 2003-APR. However, they were not the main parties to the litigation. In Canadian jurisprudence, there are precedences for both allowing and denying the right of appeal by groups that are not the main parties in the case. The Ontario Court of Appeal did not rule whether these groups could mount an appeal to the Supreme Court. A lawyer for the Association, David Brown, said: "The position of the association and the coalition is that, because they were party intervenors, there is a basis for them to seek leave to appeal to the Supreme Court of Canada and, given the importance of the case, that this is an appropriate one for the court to hear." 3

However, Doug Elliot, a lawyer for the Metropolitan Community Church, which was also a party intervener in the case, said: "The litigation is over between my client and the government. The government announced it is not going to appeal. If they (the intervenors) want to start a legal challenge to the proposed legislation the government is introducing, they have to start from scratch. They can't keep a fight going that's not their fight. They can't piggyback on to ours. It's none of their business.3

David Brown would not comment on whether his clients would attempt to stay the Court of Appeal ruling pending a decision by the Supreme Court. Mary McCarthy, a lawyer who represented eight same-sex couples in the case said the legal test for granting a stay is whether the lower court ruling would cause "irreparable harm" if it were allowed to stand. She said that, so far, there was no evidence that this has happened. She said: "The sky is still were it usually is and more than 200 marriage licenses have been issued in Toronto [to same sex couples]."

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2003-JUL-23: City of Toronto statistics on same-sex marriages: The City of Toronto issued 362 marriage licenses to same-sex couples between 2003-JUN-10 (when SSM was legalized) and JUL-15. This included 157 licenses to lesbian couples and 205 to gay couples. They totaled 13% of the total licenses issued. After JUL-15, the City will not provide updates to these statistics, perhaps because SSM is such a routine occurrence. 

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2003-JUL-17: Government legislation completed and sent to Supreme Court: The federal government has drafted legislation which would expand marriage to include same-sex couples across the country. The draft bill's text is:
Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes
bulletWHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;
bulletWHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex;
bulletAND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
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.

Consequential amendments will be added in the bill that is introduced in Parliament.*

bulletConsequential amendments are changes to other federal statutes that will have to be made as a result of new legislation. 15

It is expected that the changes in law would be minimal:
bulletCurrent references in law that define marriage as being between one man and one woman would be replaced by a new definition, which is identical to that found in the 2003-MAY-1 ruling of the Court of Appeal for British Columbia: . The draft bill states that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." 4,13
bulletA new section is included to affirm that churches and other religious groups can continue to discriminate by refusing to marry any couple that does not meet their standards -- however arbitrary or discriminatory that they might appear to many secularists and religious liberals. The draft states that: "nothing in this Act affects the freedom of officials of religious groups to refuse to conduct marriage ceremonies that are not in accordance with their religious beliefs." 13

The legislation was sent as a "reference" to the Supreme Court on 2003-JUL-17. According to the Office of the Minister of Justice, the government has asked the court for a non-binding ruling on three questions:
  1. "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?"
  2. "If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry persons of the same sex, consistent with the Charter of rights and Freedoms? If not, in what particular or particulars, and to what extent."
  3. "Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials form being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?" 13,14

A fourth question was added later, in early 2004.

If the answer to the first question is yes, then Alberta's assertion that it will use the "Not Withstanding" clause to opt out of same-sex marriages will presumably be without merit. 4,5

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2003-JUL-25: Gay marriage announcements: Some American gay and lesbian couples are going to Canada to be married, and then returning to their homes in the U.S. where they are asking their local newspaper to carry their wedding announcements. The fundamentalist Christian Family Research Council (FRC) notes that the Washington Post and Times-Picayune [New Orleans] newspaper have been publishing such announcements. The FRC is urging its supporters to write letters to their local paper, asking them to veto announcements about same-sex marriages. FRC Vice President Genevieve Wood told the Associated Press that: "The fact that The Washington Post and Times-Picayune [New Orleans] ran these announcements shows a reflection of the political views of the newspapers' owners and editorial boards, not the American public." 6

bullet2003-JUL-28: Request to stay JUN-10 decision: Darrel Reid, of Focus on the Family, Canada, filed an affidavit with the Supreme Court of Canada on behalf of the Association for Marriage and the Family in Ontario. It seeks a stay of the JUN-10 decision of the Court of Appeal for Ontario decision which legalized SSM, in the event that the Supreme Court allows an appeal. They base this request on a number of points:
bulletA "checkerboard pattern now seems to exist concerning the lawfulness of same-sex unions." Some provinces allow them; others do not.
bulletThe current status of same-sex unions is uncertain. The Supreme Court might disallow them in the future after the appeal is heard.
bulletClergy are confused about their civil rights obligations if they are asked to perform a SSM. They are confused about the future of the institution of marriage.

The Association's belief is that staying the ruling of the Appeal Court, and thus making SSM unavailable once more, would be the best course of action.

The affidavit recognized that the normal procedure would have been for the Association to request a stay from the Court of Appeal itself. However, they argued that they felt that they could not receive an "impartial hearing" before a panel of that court. That is an unusually serious charge -- almost unprecedented. They cited the presence of two Justices of the court at the Law Society of Upper Canada's annual Pride Week reception as proof of bias.

The request for a stay has little chance of success. Typically, they are only granted in cases of dire emergencies. No such disaster appears imminent. 12

Doug Elliot, a lawyer for the Metropolitan Community Church, commented: "When a judge attends black history month, he is showing his commitment to equality. When he attends the Red Mass, he is showing respect for Catholics. When he attends Pride Week, he is making a political statement and is biased. [This is] Proof again that homophobia is the most politically acceptable form of discrimination, especially when wrapped in the cloak of religion and family values." 13

bullet

2003-JUL-29: Canadian Conference of Catholic Bishops: The Conference decided to ask the Supreme Court of Canada for permission to argue against the government's draft bill when the Court holds hearings on the proposed legislation. Monsignor Peter Schonenbach, general secretary of the Conference said: "Our position is: Keep the traditional definition of marriage. It has served society well and it will serve society in the future...We're one of the members of society and we feel as a rather important member of society we should also speak...We don't see this strictly as a religious point of view." 7

bullet

2003-AUG-4: Letters to the Editor heat up:
bullet

Paul Kiloski of Hamilton suggested that the Roman Catholic hierarchy "up the ante and support the Pope's initiative by proposing its own stiff legislation of excommunication for all so-called Catholic MPs including the Prime Minster, who vote against their faith in favour of same-sex marriages."

bullet

Neil Thomlinson of Toronto directed a message to the Pope: "When you've cleaned up your own house and seen justice done for the many children who experienced real violence at the hands of our employees, then come back and talk about whatever violence you imagine may result for gay and lesbian adoption." 8

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2003-AUG-8: Liberal members of parliament feeling some heat from voters: "Liberal cabinet ministers, like backbenchers, are receiving hundreds of letters, calls and e-mails on the plan" to pass legislation that would make SSM available across Canada. 9
bullet

One woman phoned Steve Mahoney, a recently named cabinet minister, and yelled at him: "You're not a Christian. I voted for you because you were a [Roman] Catholic." Mahoney no longer considers himself an "active, practicing Catholic" but still considers himself to have with religious views. He said: "I simply don't make my policy decisions based on my religion." Apparently referring to the oath of office, in which he and all other members of parliament must swear to support the Charter of Rights and Freedoms, he said: "We're morally and legally bound to uphold the Constitution and that's the basis upon which I've made my decision."

bullet

Garfield Dunlop, a Conservative and Member of the Ontario legislature is circulating a petition to try to influence Paul DeVillers, the local Liberal member of parliament, a Roman Catholic, and the Minister for Amateur Sports, to vote against the proposed legislation. DeVilliers quipped: "Have I burned in Hell yet? No....The sanctity of marriage is more challenged by heterosexuals divorcing than by what other people -- same-sex people -- are doing. I don't believe I should be imposing my morality on other people."

bullet

Solicitor-General Wayne Easter met recently with two Presbyterian ministers, and said that opposition in his riding "is very wide-spread....There's less opposition to the same-sex unions per se. It's the marriage thing. I don't mind admitting I've got problems with that myself....It would be nice to know what the Supreme Court would say if we didn't use the word 'marriage.' That's what I would like to know." According to the Toronto Star, both Mahoney and Easter had sought some kind of compromise in Cabinet -- civil unions for gays and lesbians with equivalent rights and privileges to married couples. However, the government's lawyers suggested that it would create a two-tiered system of marriage which would would have a very high probably of being declared unconstitutional by the courts. Separate and equal institutions are generally separate, but rarely equal.

bullet

Government House leader Don Boudria is a member of parliament from a rural Ottawa Valley riding that is almost 80% French Canadian Catholic. He said that he has not been flooded with opposition on the issue. He senses that his riding is likely split evenly on SSM. Boudria pointed to the wide-spread acceptance of birth control, which is officially against Catholic doctrine, as an example of how people "go on to live their lives in the way that they do."

Thoren Hudyma, spokesperson for the Prime Minister said: "The Prime Minister has made his case several times and his position is clear. His position is that there needs to be a separation between church and state and as Prime Minister he has an obligation to protect the equality of all Canadians...But he is not going to preach to caucus. It's not a ram-it-down-your-throat kind of thing. It is a free vote." 9

bullet

2003-AUG-9: New survey results published: An Ipsos-Reid survey asked the question: "Do you support or oppose same-sex couples being allowed to marry and register their marriage with the provincial government?"  Results were:
bullet

25.6% strongly support

bullet

23.7 somewhat support

bullet

11.8 somewhat oppose

bullet

36.7% strongly oppose

bullet

3% are undecided.

55% of women and 44% of men support same-sex marriage. Most adults 54 years and younger support SSM, compared to only 35% of those over 54. University graduates support SSM at almost twice the rate as do persons with some high school experience. A slightly higher percentage of Roman Catholics support SSM than do persons of other denominations and religions. Support rises significantly with annual income.

The survey also sought the public's opinion on civil unions:
bullet

38% said that all couples -- opposite and same gender -- should be able to marry.

bullet

37% said that marriage should only apply to one man and one woman, and presumably that the unions of gays and lesbians should not be recognized at all.

bullet

24% said that a term other than "marriage" should be used to apply to same-sex couples, and presumably that gays and lesbians would receive the same rights and privileges as opposite-sex married couples.

bullet

1% were undecided. 10

bullet

2003-AUG-9: Feds may introduce civil union option: The federal government is reported as considering revising the reference that it sent to the Supreme Court. They might add an additional question: whether the creation of a system of civil unions for gays and lesbians, that would have the same rights, privileges and obligations as marriage, would be constitutional. The general consensus among constitutional experts is that separate but equal systems would be discriminatory and thus unconstitutional. 10

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2003-AUG-10: Church resolution to support same-sex marriages: The Rt. Rev. Dr. Marion Pardy, Moderator of the United Church of Canada discussed a petition which originated from the church's Saskatchewan Conference. It calls on the federal government to create civil union legislation for same-sex couples. She said: "I might be proved wrong, but my sense is in terms of the actions we have already taken in the General Council, that it will be approved...We in The United Church of Canada have been dealing with same-sex partnerships and gay and lesbian persons for a long time....At each of the United Church (General Council) gatherings we advance the discussion" The Rev. Dr. Jim Sinclair, Acting General Secretary of the General Council, said that any decision around same-sex marriages will rest with the Session (elders/leaders) of the local congregation. "In our church, and in other churches, the local congregation sets policy concerning marriage matters." The moderator said that she had telephoned  Prime Minister Jean Chrtien to applaud his "responsible leadership and courageous leadership" around the SSM legislation. 11

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Later developments are described in another essay

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References:

  1. "Gay couple fighting Alberta for marriage licence," The Kingston Whig Standard, 2003-JUN-21, Page 17.
  2. "Homosexual weddings cause controversy," Today's Family News, Focus on the Family Canada, 2003-JUN-30.
  3. "Coalition to battle same-sex marriages. Family, religious groups seek right to appeal ruling," AlterMedia.info, 2003-JUL-8, at: http://ca.altermedia.info/
  4. "Same sex marriages bill goes to supreme Court. Government asks for Supreme Court opinion on draft bill," Canada Online, at: http://canadaonline.about.com/
  5. Alexander Panetta, "Same-sex legislation expected," Canoe.ca, 2003-JUL-14, at: http://www.canoe.ca/
  6. "Here come the brides: 'Gay Marriage' announcements," Family Research Council Washington Update, 2003-JUL-25.
  7. Valarie Lawton, "Bishops take gay-marriage issue to court. 'Keep traditional definition' Catholics say. Will ask Supreme Court for right to press their case," The Toronto Star, 2003-JUL-30, Page A4.
  8. "Crtien must choose" and "Church violence is real," The Toronto Star, 2003-AUG-4, Page A19.
  9. Tonda MacCharles, "Faith can be reconciled with gay bill, Liberals say: Cabinet members feeling the heat on marriage issue. Won't be swayed by religious furor, several insist," The Toronto Star, 2003-AUG-8, Page A7.
  10. Kim Lunman & Campbell Clark, "Ottawa considering testing same-sex marriage definition," The Globe and Mail, Toronto ON, 2003-AUG-9, Pages A1 and A7
  11. Jim Cairney, "Same-Sex Marriage Surfaces at First News Conference," United Church of Canada, 2003-AUG-11, at: http://www.united-church.ca/
  12. "In the Supreme Court of Canada," 2003-JUL-25, at: http://www.samesexmarriage.ca/ You may need software to read these PDF files. It can be obtained free from:
  13. Mike Murphy, "Minister of Justice announces reference to the Supreme Court of Canada," Office of the Minister of Justice, 2003-JUL-17, at: http://www.justicecanada.ca/
  14. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
  15. "Fact Sheet: Reference to the Supreme Court of Canada on Civil Marriage and the Legal Recognition of Same-sex Unions," Department of Justice, Canada, at: http://www.canada.justice.gc.ca/

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Copyright 2003 & 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-OCT-10
Author: B.A. Robinson

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