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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

ONTARIO COURT CASE; PART 1

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Sponsored link.

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Vautour - Vautour,  and Bourassa - Varnell case.

From 2000-DEC to 2002-AUG:  

From the "reading of the banns" to the Ontario Divisional Court's decision

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Two couples get married:

Gays and lesbians have repeatedly been refused marriage licenses in Ontario. However, there appeared to be an ambiguity in the province's marriage act which some lawyers felt might allow gay and lesbian marriage. Section 5 defines an alternative processes by which a couple may have the banns read at a church at which at least one of them is a member. The section does not specify that the couple must be composed of one man and one woman. Two lesbians or two male gays would appear to qualify.  Elaine Vautour and Anne Vautour attend the Metropolitan Community Church in Toronto ON (MCCT). So do Kevin Bourassa and Joe Varnell. Both couples had their banns read during 2000-DEC and 2001-JAN. 

In an editorial on 2000-DEC-7, the Toronto Star commented: 

"...public attitudes are evolving. Marriage is not the societal mainstay it once was. Millions of couples choose to live in common-law relationships. Four out of every 10 legally married couples end up divorcing. Hollywood has even turned marriage into a form of game-show entertainment. Against this backdrop, it is hard to see how a union of two loving, committed gay people would degrade the institution of legal matrimony. Toronto's Christian gay community has taken a bold and provocative step. It will make a lot of people uncomfortable. But this is often how progress begins." 1

The two couples were married on 2001-JAN-14 by senior pastor Rev. Brent Hawkes of the MCCT. The spouses each wore a single red rose in memory of the late Pierre Elliot Trudeau. He was a very highly respected former Justice Minister and Prime Minister of Canada who initiated legislation to decriminalize homosexual activity in private between two consenting adults. His famous statement was: "The state has no place in the bedrooms of the nation." 6 Gail Donnelly and Barbara McDowall would also been married on that day. However, they did not qualify for the reading of the banns because the process is only available to individuals who had not previously been married. Some 80 representatives of the media were on hand to record the event, including reporters from Agence France Press, Associated Press, Christian Broadcasting Network, Mother Jones, Ms. Magazine, Newsweek, Salon Magazine, Time, and a Japanese television network. Police were faced with one bomb threat and six protestors who were dressed in devil masks outside the church. Erika Kubassek, 57, was charged with assault. Evangelical pastor Rev. Kenneth Campbell called the weddings "blasphemous." A picture of the double marriage ceremony was published on the front page of the Toronto Star for 2001-JAN-15. Six hundred guests, family, friends and spectators gave the couples a standing ovation.

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A political hot potato:

An interesting exchange of letters occurred prior to the wedding:

bulletKevin Bourassa sent an e-mail to Canada's Governor-General, Adrienne Clarkson, inviting her to attend his wedding. 
bulletOne of her staff members replied, saying that Ms. Clarkson was unable to attend, but that she conveyed best wishes. 
bulletBishop Gerald Wiesner of Prince George, B.C., the president of the Canadian Conference of Catholic Bishops, then wrote a strongly worded complaint to the Governor-General and the Prime Minister. He wrote, in part: 

"Canadians should be able to expect the Governor-General to respect and uphold their basic values and laws. However, this controversial action by the office of the Governor-General offends most faiths, almost all of which believe that marriage by definition is the sacred union of a man and a woman, and is also at odds with Canadian civil and legal tradition.

bulletDouglas Elliott, lawyer for the Metropolitan Community Church (MCC), said it is unfortunate that the Catholic bishops are trying to draw Ms. Clarkson into controversy.

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Refusal to register the marriage:

The legality of the reading of the banns was disputed. The provincial and federal governments debated who has authority in this case. 2 The provincial government announced that it will refuse to register the marriage. Howard Hampton, leader of the NDP (Socialist) party in Ontario urged the Provincial and Federal governments to register the marriages. He commented: "The state has no place in the chapels of the nation." Rev. Hawkes asked guests to contribute to a legal fund to fight the expected court battle.

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Court cases initiated:

Two similar cases involving a total of ten couples were combined into a single court hearing, which started on 2001-NOV-5.

bulletLawyers Martha McCarthy and Joanna Radbord represented 8 gay and lesbian couples who had asked that the City of Toronto be required to issue marriage licenses to them.
bulletLawyers Douglas Elliot, represented the Metropolitan Community Church of Toronto (MCCT). Patricia LeFebour, and Trent Morris represented the couples who were married by the MCCT. They are seeking that the two same-sex marriages at the Metropolitan Community Church described above be recognized.

A press conference, called by John Fisher, Executive Director of EGALE, went well except for repeated interruptions by a representative of the Evangelical Fellowship of Canada.

Martha McCarthy started the hearing by discussing two main themes: love (on the part of ten couples who are "real people who love each other and wish to manifest their love through marriage") and hate (the continuing discrimination against gays and lesbians by the government). Lawyer Joanna Radbord then summarized why the government's action must be considered discriminatory under section 15 of the Charter of Rights and Freedoms. She said: "The definition of spouse as an opposite sex only couple sends a message that denies status and benefits - it reinforces prejudicial attitudes. Exclusion from marriage reinforces this stereotype and prejudice." 3

On the second day of the hearing, Martha McCarthy argued that:
bulletThe "frozen rights" view of marriage, expressed by a lower court judge in British Columbia, was invalid. This view asserts that the definition of marriage was frozen for all time in 1867 when the constitution was written.
bulletThe court can write new common law concerning marriage.
bulletThe civil union solution of Vermont is unacceptable. The plaintiffs seek full access to marriage.

Lawyer Douglas Elliott spoke for the MCCT. He asserted that any government refusal to recognize the weddings was an interference with his clients' freedoms of religion and equality. He argued that the first inhabitants of Canada, the First Nations peoples had recognized same-sex unions.

Trent Morris argued against the "frozen view" of marriage. To view the Constitution as stuck at its 1867 wording ignores the fact that the constitution is a living document that must change to meet the needs of Canadian society. He concluded with the statement: "the limitation of our religious freedom diminishes us as a just society." After lunch, Morris attacked the views of the Attorney General's office. They argued that marriage is about procreation, that marriage has always been between one man and one woman, and that heterosexual marriages would be adversely affected if gays and lesbians were permitted to marry. Drawing an analogy between segregated schools in the U.S. and civil unions, he commented: "The U.S. Supreme Court did not order black schools to look as nice as white schools; they ordered an end to segregation - we expect nothing less."

Lawyer Cynthia Petersen represented EGALE, Canada's largest gay/lesbian human rights organization. She presented herself as representing the gays and lesbians who could not be present in court. Most of her presentation was an attack on the government's arguments which she regarded as inaccurate, possessing faulty reasoning, or just plain wrong. She described an abusive criminal who married his common-law wife in order to prevent her from testifying against him in court. The Supreme Court ruled that this abusive marriage of convenience was still a valid, legal marriage with a bond that had to be protected. Cynthia asked why the loving relationships of stable, same sex couples were given less respect.

On the third day of the hearing, Roberto Zuech, representing the City of Toronto spoke. He explained that the province's Ministry of Commercial Relations had informed the City that they would not register same-sex marriages. The city asked for an application to the Divisional Court of Ontario, which was stayed. They then joined this case.

Rosalyn Levine, representing the Attorney General of Canada, said: "This case is about our humanity...There are different aspects, but at its core is our femaleness and maleness. The issue before this court is a legal one. It is whether government action, embodied in common law, and statutes, meets the charter rights that the applicants possess....It's a unique institution, and the court has to decide whether to change marriage forever...The purpose of marriage has nothing to do with excluding the applicants. That is an effect, but the purpose of marriage, outside the law, at its roots, was to define an institution that would bring together the two core aspects of our humanity; our maleness and our femaleness, because at its essence this is the basis for humanity. If you take that purpose away, we have something else; the institution has changed. Marriage doesn't exist without procreation. If you take it away, marriage doesn't exist...Marriage is by nature heterosexual. I can't give you a more basic statement....Same sex marriage is an oxymoron."

[Author's personal comment: I am personally outraged by the statement that "Marriage doesn't exist without procreation. If you take it away, marriage doesn't exist." This statement invalidates my own marriage. My wife and I were married in 1990 when we were both well beyond the age at which we could have children. Levine is saying that my marriage doesn't exist. It also invalidates the marriages of one woman to one man in which one is sterile. One wonders whether the Federal Government is secretly in support of same-sex marriage, and has decided to make totally absurd and incompetent arguments against it, knowing that their opinion will be rejected by the court. This way, they will be seen as having made an attempt to maintain the law, and thus will not lose the support of the substantial minority of Canadian adults who are opposed to same-sex marriage.]

On the fourth day of the hearing, Levine discussed whether the government was placing constraints on the MCC. She explained that: "The fact that the state won't register the church's marriages is a Government inaction, not a constraint against the church." She then discussed the freedom of gays and lesbians to marry: "What is at the core of humanity is that which makes us human. The fact that we do become two genders - that is what makes us human. I may have belabored that point, but that is the Attorney General's position....There is no right to same sex marriage in international law. There is no freedom to marry in the international documents, nor in the body of international law. There has been no violation of any of the rights, under the Charter, against the applicants or the church. The law must serve humanity. That is the role of the law. If the law cannot reference the essence or core of our humanity, without engaging in a violation of charter rights, than how can the law ever serve our humanity?..."There is no evidence, that is reliable, or that merits weight, to say that marriage, in the form of a man and a women, has caused the marginalization of same sex couples. It is true that the Church used this valuable institution for its own purposes to try to marginalize same sex couples, but that is not the circumstance today...There is no evidence that same sex couples would benefit in a way that would rectify the marginalization, that may objectively be there, by changing the institution."

Lisa Sand, representing the Attorney General of Ontario, asserted that: "The capacity to marry in not determined by the province but rather by the federal government. The issue raised in this matter is beyond the jurisdiction of Ontario and the application should be dismissed against the Attorney General of Ontario."

Attorney David Brown represented the conservative Christian Association for Marriage and the Family in Ontario. He argued a number of points:
bulletThat the definition of who can marry is both a federal and provincial responsibility.
bulletThat the court does not have the power to declare the existing marriage acts unconstitutional.
bulletThat couples who must make use of medically assisted technology, like in-vitro fertilization, are not in a real marriage, and their children are not procreated.

We are unaware of any constitutional experts who share his first two beliefs.  He said that: "Parliament, acting alone does not have the authority under our constitution to change the definition of marriage," Brown said. "This must be done by combination of parliamentary approval, and provincial approval. Our argument is one of process, and the courts can't do it, and therefore this applicant must fail." He then discussed the matter of procreation: "I have no quarrel that a same sex couple can raise children after they are born, but that is not procreation. A same sex couple, through an act of sexual intimacy cannot conceive a child." When challenged by Justice Blair, he admitted that a lesbian couple can use in-vitro fertilization. Brown replied: "They have conceived a child, but that is not procreation. Words, in the eyes of the law have very important meanings."

Peter Jervis represented the Interfaith Coalition on Marriage & Family -- a coalition of conservative Protestants, Orthodox Jews, Roman Catholics and Muslims. He gave the opinion that if same sex marriage were allowed that the couple "...will not be husband and wife, they will be common-law partners or conjugal partners...This is very new stuff, and the court is not competent to do this fundamental social engineering." He appeared to assume that two gay men would not be each considered each other's husbands in a same-sex marriage. He expressed concern about the many religious folks in Canada who could not accommodate to the idea of same-sex marriage. "These people are people of good conscience. What is going to happen to them? They may be marginalized." His latter belief has merit. In past generations, those who supported human slavery, rejection of inoculation of children, voting rights for women, accessibility to birth control, equal rights for women, and a continuation of racial segregation on religious grounds were marginalized.

Ian Benson also represented the Interfaith Coalition started the fifth day of the hearings. He maintained that the gay agenda is to use the same-sex issue to gain "further recognition and acceptance." He said that "the Catholic community would not be able to relate" to marriage if gays and lesbians were allowed to marry. If the court ruled in support of the plaintiffs, then many religious folks would find themselves "confused."

The final stage in the hearing involved replies by the applicants. Douglas Elliott said: "My learned friend says marriages provide a stable environment for children, that marriages are more stable relationships and therefore better for society. We agree. Aren't more marriages better for society, and better for all children? Do our children deserve less?" He said later that: same-sex marriage would not "disrupt anything other than religious sensibilities." He cited a definition of marriage by the Catholic Church. "in 1909, [they] said the word marriage may be taken to mean the action, contract, formality or ceremony by which the conjugal union is formed or the union itself is an enduring condition."

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The decision:

On 2002-JUL-12, "three Ontario Superior Court judges unanimously ruled in a Divisional Court decision that the current legal definition of marriage [in Ontario] is discriminatory, and ordered it changed to include recognition of same-sex marriage. 2,5 Their decision filled 129 pages. The judges all agreed that prohibiting gays and lesbians from marrying is unconstitutional because it conflicted with, and is a violation of, the Canadian Charter of Rights and Freedoms -- Canada's constitution.
bulletMr. Justice Harry Laforme wrote: "The restriction against same-sex marriage is an offence to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This in turn conveys the ominous message that they are unworthy of marriage....I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage."
bulletNoting that the Federal Government had defended the existing law because it believes that procreation is the basis of marriage, Mr. Justice Robert Blair wrote: "There is much more to marriage as a societal institution, in my view, than the act of heterosexual intercourse leading to the birth of children. Moreover, the authorities are clear that marriage is not dependent upon the presence of children."
bulletMadam Justice Heather prepared the ruling. She wrote that the current definition of marriage as involving "one man and one woman" is constitutionally invalid because it violated the equality guarantees in the Canadian Charter of Rights and Freedoms. She wrote that the definition should be changed to "two persons." However, she suspended the order for two years to allow Parliament and the Provincial Legislature to change their laws.

Although their decision was unanimously in favor of the plaintiffs, the court split 2-1 on the question of the remedy. The majority gave the Canadian Parliament until 2004-JUL to rewrite the legislation which defines marriage to include same-sex couples. However, Mr. Justice Harry LaForme wrote a dissenting judgment. He said that the definition of marriage must be extended to same-sex couples immediately.

Lawyer for the plaintiffs, Martha McCarthy, said "If no steps are taken by the government at the expiration of the two-year period, the common law will be written and gays and lesbians will have the right to marry."

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Further developments in this case are described in another essay

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References:

  1. "Test of marriage is commitment," The Toronto Star, Toronto ON, 2000-DEC-7, Page A36.
  2. Siobhan Roberts, "Loophole may allow gay marriages," National Post, 2000-DEC-5, Pages A1 & A2
  3. "Legal Challenges: Ontario," Equal Marriage for same-sex couples," at: http://www.samesexmarriage.ca/legal/on.html
  4. Tracey Tyler, "Gay couple hope to get married today," The Toronto Star, 2003-JUN-10, Page A4.
  5. The judgment of the Divisional Court, dated July 12, 2002, is reported at 60 O.R. (3d) 321.
  6. Christine Overall, "Trudeau Was Right. State Should Stay Out Of Nation's Bedrooms," Kingston Whig Standard, Kingston ON, 2004-JUN-28, at: http://www.christiangays.com/

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Copyright © 1998 to 2003 incl., by Ontario Consultants on Religious Tolerance
Latest update: 2003-JUL-30
Author: B.A. Robinson

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