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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

Same-sex marriage (SSM) developments: 2003-AUG-12 to AUG-21

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Civil Union option; Alliance Party motion; United Church supports SSM; Appeal launched; Liberal Caucus meeting ends.

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Sponsored link.


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Earlier developments are described in another essay

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Quotation:

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"Piece by piece, we're disassembling marriage." Derik Rogusky, vice-president of family policy of Focus on the Family, Canada -- a Fundamentalist Christian group, on 2003-AUG-21. 1

bullet"If you're so much in favor of family values, why would you prevent people from creating families?" Gilles Marchildon, executive director of Equality for Gays and Lesbians Everywhere (EGALE) -- a gay-positive group, on 2003-AUG-21. 1

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Sponsored link:

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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. Developments continued rapidly for the next two weeks.

Subsequent developments are described below.

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2003-AUG-12: Opposition to same-sex marriage bill: Referring to recent public opinion polls, the chairperson of the Liberal caucus, Stan Keyes, said: "If the word 'marriage' is a problem, then why are we as legislators using the word 'marriage?" He wants the federal government to withdraw its reference to the Supreme Court and rewrite it. He said: "If the government pulled the reference back and redrew the proposal to acknowledge our responsibility of recognizing same-sex couples in a civil union, I think, for the most part, most Canadians would agree with that and support across the country would rise dramatically."  Some unnamed government strategists have suggested that such an arrangement has already been rejected by various senior provincial courts. They have decided that "separate but equal" arrangements are always separate but never equal. They failed to provide justice in the American south who segregated school children on the basis of race. They have failed to provide fair treatment in Israel who segregates Jewish and Palestinian school children. Strategists believe that the Supreme Court of Canada would probably view it as a halfway measure, and reject it as well. One advisor said: "Some are still wondering if the courts would not allow for some other alternative, a civil union or a separate track. But the advice we're getting is [that the courts] would see this as a short of 'separate-but-equal' arrangement which would not pass muster as equality." Another nameless official suggested that it might be a possibility to submit the 'civil union' concept to the court merely as a political move to bury the issue once and for all. Laurie Arron, director of advocacy for the homosexual rights group EGALE denounced the "civil union" or "registered partnership" options, saying it would "send the inescapable message that the government sees us as second-class citizens... Registered partnerships are no substitute for equal marriage. Imagine if the federal government prohibited interracial couples or Jewish couples from marrying, but said we'll let you register your partnership instead. The very idea if offensive and demeaning." 2

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2003-AUG-12: Alliance motion expected: The Canadian Alliance party plans to force a vote on a motion which is an exact duplicate of a 1999 resolution which said that "marriage is and should remain the union of one man and one woman to the exclusion of all others." At the time, this motion was supported by the Liberal government, and was affirmed by all Liberal Members of Parliament. One "source" said that "four years ago, the vote was unanimous in cabinet and [the Liberal] caucus to reaffirm the traditional definition [of marriage]." 2

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2003-AUG-12: James Travers comments on SSM: Travers is a national affairs writer whose column appears three times a week in the Toronto Star. He made a number of points in his AUG-12 article:
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The expected successor to the present Prime Minister, Paul Martin, is a Roman Catholic. So is the present Prime Minister, Jean Chrtien, and each of the previous prime Ministers back to Lester B. Pearson, who was the son and the grandson of Methodist preachers.

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No Prime Minster has ever been willing to invoke the constitution's "not withstanding" clause in order to ram through legislation that violates the Charter of Rights and Freedoms.

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Canada "...should be celebrating one of those evolutionary steps that together are making this a different, more gentle and enlightened place." 

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Referring to the most conservative section of the Liberal party, Travers wrote: "...the most socially conservative Blue Grits will be uncomfortable [with SSM legislation]. But even they will know that ...[their support of SSM] will reinforce the image of the [Canadian] Alliance [Party] as the voice of intolerance, something that simultaneously solidifies narrow support and limits broad growth."

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"...this federal government is only moving on same-sex marriage because courts are making continued foot-dragging impossible." 3

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2003-AUG-13: United Church of Canada supports SSM: At their General Conference in Wolfville, NS, delegates passed a motion calling on Ottawa to allow same-sex marriages. Each of the 3,000 congregations in Canada and Bermuda will be able to decide if they will marry gay and lesbian couples. The United Church is the most liberal, and the largest Protestant denomination in the country. They already have a ritual published for same-sex unions. 4

Fred Braman of Montreal and the Ottawa Conference of the Church opened the debate, saying: "What an opportunity this is to witness tonight." He first asked the commissioners to replace the word "unions" in the original Saskatchewan motion with "marriage." They passed this amendment by a wide margin. Braman said: "This is not just a human rights issue. This is about what we are, the church. It is an opportunity to show our faith and meet our test--to do justice, to love kindness, to walk humbly with our Lord." The "calm, sometimes emotional debate...lasted less than an hour:"
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Rachel Culbertson of Alberta and Northwest Conference, was one of many young speakers who supportted the motion. She described to the commissioners that she lived with her "two moms," and that this generated much negative reaction outside the family. She said that one place she gets support is in her local United Church. Trying to suppress tears, she said: "I've prayed for a long time for this to be passed."

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The Rev. Dr. Sally Harris, co-chair of the gay positive group Affirm, drew an analogy between an earlier resolution in favor of peace and security for the State of Israel, and this resolution which would offer her and her partner "peace and security for our union."

bulletThelma Arnott of Toronto Conference described a same-sex wedding she had recently performed for two lesbians. She called it one of the holiest moments she could remember in her ministry. "We indeed made a covenant with those two women and God. These are mature women who love each other and God and it was indeed a marriage."
bulletOnly a handful of commissioners voted against the final motion. Nick Monsour of London Conference said that the legalization of SSM was "ridiculous...I don't favor this. I'm very disappointed in the United Church for even considering this." 5

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2003-AUG-13: Prime Minister rejects civil unions: Prime Minister Jean Chrtien shrugged off the threat by a Roman Catholic bishop that his "eternal salvation" is at risk because of his stand on SSM. Chrtien said that he would push ahead to legalize same-sex marriage, not some other form of civil union for gays and lesbians. He said: "We made a decision [in favor of SSM] some weeks ago, at the end of June, and it is the policy of the government." He added that the decision "was virtually unanimous in the cabinet." 6

bullet2003-AUG-13: Interfaith Coalition... asks to appeal JUN-10 decision: The Interfaith Coalition on Marriage and Family asked to appeal the ruling of the Court of Appeal for Ontario -- the one that legalized SSM in the province on 2003-JUN-10 -- to the Supreme Court of Canada. The Coalition is composed of four very conservative religious groups: The Catholic Civil Rights League, The Evangelical Fellowship of Canada, The Islamic Society of North America, and The Ontario Conference of Catholic Bishops. The Association has a number of concerns about the ruling:
bulletIts legalization of same-sex marriage was "sudden and profound."
bulletIt "has created significant confusion in the Canadian polity".
bulletThey believe that Court erred by treating marriage "as though it were an ordinary common law rule." This may be a reflection of their belief that the definition of marriage as between one man and one woman is imbedded in the 1867 Constitution and cannot be changed.
bulletThe court decision will "unreasonably fetter Parliament's ability to choose among alternative, constitutionally viable legislative regimes". This is presumably based on the Court's rejection of civil unions as an viable option.
bulletThey believe that religious freedom is at risk, because clergypersons may be subject to a civil rights complaint if they refuse to marry a same-sex couple. This appears to like a weak argument, because churches have always been free to discriminate in eligibility membership, ordination, and marriage. The right of religious institution to hold racist, sexist and homophobic policies while enjoying immunity from persecution under civil rights legislation has been guaranteed in many Canadian laws. 7
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2003-AUG-14: Cauchon rejects civil unions: Justice Minister Martin Cauchon rejected any suggestion that the government should consider "civil unions" as an alternative to allowing gays and lesbians to marry. He said that the concept would not meet the requirement under the Charter of Rights and Freedoms which requires that equal treatment under the law be expanded to persons of all sexual orientations. Nor would it "make sure gay and lesbians are entirely a part of our society...Marriage is an unique institution in our society and I strongly believe to start creating other types of union around marriage would just contribute in creating more discrimination.... The question of equality and all the freedoms we have in the Charter -- I strongly believe in all that." Two Liberal caucus members, MP Roger Gallaway and Senator Anne Cools announced that they will seek intervener status at the Supreme Court's hearings. They oppose same-sex marriage. 4

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2003-AUG-21 & 22: Newspaper columnist discusses SSM and the Liberal Party: James Travers, a columnist for the Toronto Star, wrote two columns about SSM. On AUG-21, he compared the SSM debate with another intense controversy which happened almost exactly four decades ago -- the selection of a flag for Canada. This also raised great passions in the public. The nation's opinions were split. But a flag was finally selected, the furor died down very quickly, and the vast majority of Canadians today consider it a non-issue. 8 On AUG-22 he wrote in his column: "On same-sex marriage, the [Liberal] party is on the right side of a controversy that is destined to inflame and then sputter out....Barring a seismic shift in the political plates the next election will be fought to determine second place, not first...The issue could be damaging locally. In ridings with a volatile demographic mix, opposition to same-sex rights could make the difference between winning and losing...If the public doesn't fully grasp why minority rights must be protected, the government will have to better explain what should be apparent. If a few votes or even a few seats are lost, Liberals will have to accept those losses as the cost of doing the nation's business in the national interest. If an unhappy party wants to find happiness, it will have to take more pleasure in doing what is right because it is right, not because it is easy or politically expedient." 9

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2003-AUG-21: Badly needed humor injected into "the issue:"  "Slinger" is the author of a humor/sarcasm column that appears in the Toronto Star three times a week. In his AUG-21 column he referred to the threat by a Roman Catholic bishop that the Prime Minister might burn in Hell because of his support of SSM. Slinger suggests, with tongue solidly in cheek, that the list of people who would be sent to the flames for eternal torture might also include those gays and lesbians who have married in Ontario and British Columbia, all members of Parliament who vote in favor of SSM legislation -- perhaps even all members of Parliament. Conceivably all Canadians could be tortured in Hell in a process that Slinger calls "Collateral damnation," because of the actions of a few gays, lesbians and legislators.

He suggests that public opinion be sampled using the question: "Would it be okay with you if same-sex marriage is legalized as long as the Prime Minister burns in hell for all time for it." He figures that there would be what pollsters call a "bump" in support for SSM in the polls. It might become a "great big bump" in support if the question ended "and the sooner the better?"

He concluded on a serious note: "Wouldn't it be a strange Creator that condemned a Prime Minister (and maybe all the rest of us) to the everlasting fire for allowing gays and lesbians to marry, but would let that same Prime Minister (and maybe the rest of us) enter Paradise when he -- and we -- haven't done one single thing to help all the poor children in Canada?" 10

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2003-AUG-21: Liberal caucus concludes retreat: The four day retreat by the Liberal caucus in North Bay, ON was almost completely dominated by discussion of SSM. 6 Some support emerged for a alternatives to Prime Minister Chrtien proposed legislative. Several other paths were suggested:
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Senator Celine Hervieux-Payette and Member of Parliament Dan McTeague suggested that the hot potato of SSM be transferred from Parliament to the general public by having a national referendum on the issue. Prime Minister Chrtien squashed that suggestion by stating that minority rights guaranteed by the Charter of Rights and Freedoms are not subject to the tyranny of the majority. He said: "I'm not keen on referendums. To have a referendum to decide the fate of a minority -- its a problem. It's why we have constitutions to protect the minority. That's why we have charters of rights. If it is always the majority vote, who will defend the minorities?"

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Others suggested that the religious and civil components of marriage be disengaged. Committed couples, whether opposite-gender or same-gender, could then obtain a license and register their partnership with the government. They would be given all of the usual rights, obligations, protections, and privileges that married folks have enjoyed in the past. Meanwhile, churches and other religious organizations could hold weddings if they wished. But a church marriage would have no significance in law. It would be similar to a baptism: it would be conducted according to a religious ritual, but devoid of any legal meaning outside of the religious group. Faith groups could then refuse to marry couples, as they have in the past, on the basis of the couple's race, degree of ability, genetic closeness, sexual orientation, religious faith, past marital history, or any other grounds by which they might want to deny marriage.

Unfortunately, adoption of this system would seem to require the unanimous agreement of the Federal government and all of the provinces and territories.

Prime Minister Chrtien squashed that option as well by stating that the Constitution of Canada currently states that marriage is the responsibility of the federal government. "The reality is the Constitution, and you have to change the Constitution to achieve that, to transfer the responsibility that is federal to the provincial governments in the Constitution would not be easy."  

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Still others suggest that the Liberal government invoke the "not-withstanding clause" in the Canadian Charter. This is a loophole in the Constitution which allows a government to pass legislation which violates the Charter, and which strips rights from any group of people, as long as the law plainly declares that the legislation is unconstitutional. They would also have to renew the legislation every five years. To our knowledge, this type of loophole is unique among the hundreds of countries in the world. This procedure could be used to deny gays and lesbians the right to marry which they now enjoy. It could even cancel the marriage licenses and registrations of same-sex couples who have married in Ontario and British Columbia. This would be similar to the American Congress passing a law making Roman Catholicism the established religion of the US for the next five years and admitting in the legislation that it violated the First Amendment of the U.S. Constitution. Paul Martin, the expected replacement of Prime Minister Chrtien said that he has rejected this route.

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Finally, Mauril Blanger, Member of Parliament for Ottawa, ON suggested a "sooner-rather-than-later approach." It appears to be based on a number of assumptions:
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The Supreme Court of Canada is currently bogged down with work.

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A hearing on the issue could not start until the fall of 2003 and would occupy many months. This would be followed by many months of waiting for the court's ruling.

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Thus, a court ruling on the reference would probably be delayed until 2004.

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There is a consensus among constitutional experts that the Supreme Court would agree with all three provincial Courts of Appeal and require the legalization of SSM.

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There is a growing feeling that SSM is inevitable for Canada.

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Parliament reconvenes on 2003-SEP-15.

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There will probably be a federal election in early 2004.

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Liberals would probably lose many seats in Parliament if the SSM controversy was fresh in people's minds on election day.

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The best strategy would be to introduce legislation allowing SSM across Canada as soon as possible, have it approved in parliament, endure the storm of adverse opinion from conservative citizens, and expect that much of the controversy would die down by election time.

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In the event that the Supreme Court finds a defect in the reference, then the law could be amended sometime in the future.

The suggestion has some powerful support:
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Paul Martin, who is widely anticipated to replace Jean Chrtien as Prime Minister in late 2003 or early 2004 said: "I think the debate is now fully engaged." He called the early introduction of legislation "an option that should be open. As to how to deal with an issue, this caucus was really the kind of example that I think Canadians would feel very proud of. What we've now got to do is take it into Parliament."

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Liberal caucus chair Stan Keyes said: "The idea of the first Monday back, [Justice Minister Martin] Cauchon stands up and introduces the legislation...appeals to me, because then we can begin the debate on the issue."

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Government House Leader Don Boudria initially preferred waiting until the Supreme Court "charter proof[ed]" the bill before it was introduced to Parliament. But by AUG-21, he seemed somewhat receptive to the sooner-rather-than-later-approach. He said: "Time is not elastic. You move one bill up, you move one bill down." 1,11,12

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Later developments are described in another essay

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References used:

  1. Susan Delacort & Les Whittington, "Same-sex bill gains momentum. Push on to introduce legislation in the next few weeks. 'I think the debate is now fully engaged," Martin says," Toronto Star, 2003-AUG-22, Page A16.
  2. Tonda MacCharles & Les Whittington, "New gay marriage bill faces challenges. Caucus expected to discuss issue next week. Top court seen as unlikely to accept 'civil union' option," The Toronto Star, 2003-AUG-12, Pages A1 & A8.
  3. James Travers, "Liberals follow right course," Op-ed piece, The Toronto Star, 2003-AUG-12, Page A19.
  4. Tonda MacCharles, "Same-sex marriage vote likely a year away. Justice Minister says opposition to bill will soften. Two Liberals want to challenge policy at Supreme Court." The Toronto Star, 2003-AUG-14, Page A6.
  5. John Asling, "Council Tells Federal Government to Legalize Same-Sex Marriages," United Church of Canada, 2003-AUG-14, at: http://www.united-church.ca/
  6. Tonda MacCharles & Les Whittington, "It's marriage, PM insists. Won't waver despite warning he's risking 'eternal salvation.' 'I'm a Catholic...but I am the Prime Minister of Canada'."  The Toronto Star, 2003-AUG-13, Page A1, the front page.
  7. "Blind Faith: Faith-based bigotry seeks state support," 2003-AUG-20, SameSexMarriage.ca, at: http://www.samesexmarriage.ca/
  8. James Travers, "This too shall pass. Those things that most deeply divide us can also unite. Remember the great flag debate of 1965? Thought not," The Toronto Star, 2003-AUG-21, Page A31.
  9. James Travers, "Right side of controversy," The Toronto Star, 2003-AUG-22, Page A17.
  10. Slinger, "We could all burn in hell if gays are free to marry," The Toronto Star, 2003-AUG-21, Page A2.
  11. Les Whittington & Susan Delacort, "Same-sex marriage causing caucus rift," Toronto Star, 2003-AUG-21, Page A25.
  12. James Travers, "Martin shifts same-sex debate to familiar ground," The Toronto Star, 2003-AUG-20, Page A10.
  13. "Pro-Homosexual Bill Called  'Serious Threat to Marriage'," Charisma, posted by Maranatha Christian Journal at: http://www.mcjonline.com/

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Copyright 2003 by Ontario Consultants on Religious Tolerance
Latest update: 2003-AUG-30
Author: B.A. Robinson

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