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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

British Columbia (BC)

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Overview:

British Columbia (BC) is Canada's western most province. Its culture resembles California's in many ways. Church attendance and religious affiliation is low. The concentration of gays and lesbians, the divorce rate and the suicide rate are high, relative to the rest of the country. The culture is generally permissive. Unlike California, British Columbia has had a series of unusually corrupt governments elected to office, representing the full political spectrum from the extreme left to the extreme right.

In 1977, the government recognized gay and lesbian partnerships by setting up a system for gays and lesbian that was largely parallel to heterosexual marriage. Eight gay/lesbian couples applied for marriage licenses and were denied. They sued the government in 2001-JUL, and lost. This was a very important decision, because two other courts -- in Ontario and Quebec -- had ruled in favor of same-sex marriage in other similar cases. The Federal Government and others who opposed same-sex marriage capitalized on the lack of unanimity of the three court decisions.

The couples appealed to the British Columbia Court of Appeal. On 2003-MAY-1, they won their case. The court unanimously ordered the Federal Government to modify its marriage act before 2004-JUL-12 to allow gays and lesbians to marry. All three senior provincial courts of appeal -- Quebec, British Columbia and Ontario -- are now unanimous in demanding a change to the marriage act to allow same-sex couples to marry.

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1997: BC Government recognizes gay civil unions:

The NDP (Socialist) government of the province of British Columbia proposed two new spousal benefits laws in 1997-JUL that would expand the definition of "spouse" to include same-sex couples. Bills 31 and 32 recognized "the marriage-like relationship between persons of the same gender" in the Family Relations Act and the Family Maintenance Enforcement Act. Gay and lesbian couples received the same legal status with regards to child custody, maintenance and access as would "common-law" heterosexual couples. The bill passed overwhelmingly. Even one member of the Reform Party (now part of the Conservative Party of Canada) voted in favor - an unprecedented move for that extreme right-wing political party. British Columbia was the first jurisdiction in North America to take this step. The New Democratic Party in Ontario tried to do this in 1994. They withdrew the effort in the face of widespread opposition. 13

Responses from various faith groups was as one might predict. Conservative groups expressed concern at the legislation and feared its negative effect on heterosexual families and marriages in the province. At least one liberal religious group welcomed the legislation for its long overdue granting of equal rights to gay and lesbian families, and looked forward to the law having a positive effect on all families.

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2001-JUL: Gay and lesbian couples launch petition in British Columbia:

Eight BC same-sex couples -- Murray Warren & Peter Cook; Melinda Roy & Tanya Chambers; Robin Roberts & Diana Denny; Jane Hamilton & Joy Masuhara; Tess Healy & Wendy Young; Shane McCloskey & David Shrott; Bob Peacock & Lloyd Thornhill; and Elizabeth & Dawn Barbeau -- applied for and were denied marriage licenses. They launched a petition to overturn the federal Marriage Act, arguing that it denies them equal rights because it allows marriages only between a man and a woman. The couples' lawyers argued that the Marriage Act violates gays' and lesbians' right to equal treatment under the Charter of Rights and Freedoms by denying them official marital status. A petitioner, Murray Warren, said: "We are less than full citizens and I want full citizenship." Judith Bowers, a lawyer representing the federal Attorney-General said "The federal government has come to court to defend the historic definition of marriage, that being an opposite sex institution....It will end up, I'm assuming, at the federal level."  She estimated that it would take at least three years to bring the case to the Supreme Court of Canada. As of 2003-APR, this appears to be an accurate prophecy.

Referring to Toronto couples who attempted to be married under church banns, Murray Warren said that he and his partner "...don't profess to any religion, so we wouldn't want to use that process. I believe there is a fundamental problem that needs to be fixed. We don't want a backdoor approach." 1

The Supreme Court of British Columbia heard arguments during 2001-JUL and AUG.

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2001-OCT: Supreme Court denies the petition:

On 2001-OCT-3 BC Supreme Court Justice Ian Pitfield ruled that:

bulletThe government discriminates against Gay and lesbian couples by not allowing them to marry. They are denied rights set in Section 15 (1) of the Canadian Charter of Rights and Freedoms -- the Canadian constitution.
bulletIt is acceptable for the government to discriminate against a minority, under section (1) of the Charter. 2
bulletCourts can only make "incremental" changes to law. Recognizing same-sex marriage would be a major change. He wrote "A judge-made change to the legal nature of marriage would be much more than incremental. The change would affect a deep-rooted social and legal institution...A change of the nature proposed would create new issues of social concern."
bulletPoliticians, not judges, should settle the question of homosexual marriage. The judge wrote: "The legal nature of marriage is so entrenched in our society, and the changes in law required so uncertain in the event same-sex marriages are to be recognized by the state, that Parliament or legislatures, and not the court, must make the (decision.)"
bulletThe definition of marriage was fixed for all time by the constitution of 1867, and cannot be changed to allow same-sex marriages.

Judge Pitfield introduced a novel concern. He commented that opposite-sex marriages can be annulled if they are not consummated. But there is no evidence of what would constitute consummation in a same-sex relationship.

The lawyer for three of the couples is barbara findlay. She prefers that her name not be capitalized. She said: "Our clients knew, when they started, that this would be a case that would go on for five years. But the anguish of being told that we recognize that you're being discriminated against but that discrimination is acceptable is very difficult to describe. The sense of being people who don't count in the Canadian community is deeply sorrowing." She commented that politicians haven't yet shown the courage to take action on homosexual rights questions unless it became apparent that the courts were going to force them to do so. 3

The text of the ruling is available online. 6

An appeal to the BC Court of Appeal followed.

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BC Court of Appeal overturns lower court ruling:

On 2003-MAY-2, the Court of Appeal for British Columbia overturned the decision of the BC Supreme Court. The decision was unanimous. The Honourable Madam Justice Prowse wrote on behalf of the court, with the Honorable Mr. Justice Mackenzie and the Honourable Mr. Justice Low concurring. 7 The ruling stated "that the [current] common law definition of marriage contravenes the [Canadian] Charter [of Rights and Freedoms] and cannot be justified in contemporary Canadian society....These developments have substantial public support, although the matter remains controversial...This evolution cannot be ignored. Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment"

The court concluded:

bullet"...that there is a common law bar to same-sex marriage..." i.e. that the Federal and Provincial marriage acts forbid gays and lesbians to marry. 8
bullet"...that it contravenes s. [Section] 15 of the Charter" which forbids discrimination on various grounds, including gender and sexual orientation. 8
bullet"...that it cannot be justified under s. [section] 1 of the Charter" which allows governments to discriminate under special circumstances, but only where it can  be justified. 8
bulletThus, the law forbidding "same-sex marriage is of no force or effect..." i.e. the law is unenforcable. 9

The court's ruling, in effect, re-wrote the common law definition of marriage, deleting those phrases that refer to one man and one woman. In their place is a new definition of marriage in Canada as "the lawful union of two persons to the exclusion of all others". 8

The court then suspended these remedies, saying that they would not come into effect until 2004-JUL-12. This date "coincides with the expiration of the 24-month suspension of remedy in Halpern." That synchronizes the period of suspension with that given by the Ontario Divisional Court. This suspension is "solely to give the federal and provincial governments time to review and revise legislation to accord with this decision." 10

This gives the Federal government until 2004-JUL-12 to rewrite the federal marriage act to grant all loving, committed couples the right to marry in Canada, regardless of their sexual orientation. 7

Referring to this decision and similar decisions by senior courts in Ontario and Quebec, Federal Justice Minister Martin Cauchon said that the BC ruling is an "important judgment...The three decision are all going in the same direction, So I have to take that into consideration." However, it is the policy of the Government of Canada to appeal these decisions, apparently because it does not regard elementary civil rights to be absolute; rather they can be granted to minorities only if a substantial majority of Canadians first agree. As as Cauchon said: "It's an important social issue for Canada. When you look at the situation in Canada, people are divided."

Comments, as expected, were varied:

bulletFederal Member of Parliament LIbby Davies (NDP; Vancouver East) said: "I think it's another great victory and I really applaud the couples who have stayed the course. It's a fundamental equality provision. I cannot for the life of me understand why two people, just because they happen to be of the same sex, would be denied the right to marry if they want to."
bulletMichael Martens, spokesperson for the Canadian office of the Fundamentalist Christian Colorado-based group Focus on the Family is opposed to the extension of marriage rights to gays and lesbians. He was disappointed at the court's decision. He said that the judges did not take into consideration the benefits that marriage provides. He said: "Marriage is a social institution; institutions are not about rights, they're about serving society, and marriage does a very good job of that."

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Subsequent events:

bullet2003-JUN-17: Most observers had expected that the case would be finally determined by the Supreme Court of Canada. The federal government had until 2003-JUN-30 to decide to appeal the B.C. case to that court. 5 However, at a cabinet meeting on 2003-JUN-17, they decided to abandon this route. Rather, they will draft legislation which will legalize same-sex marriage across Canada. It will be checked by the Supreme Court for adequacy, and later submitted to Parliament for approval. More details.
bullet2003-JUL-7: Two social and religious conservative groups, the Interfaith Coalition on Marriage and Family and the Association for Marriage and the Family announced that they are planning to seek leave to appeal the 2003-JUN-10 decision of the Ontario Court of Appeal to the Supreme Court of Canada. It is not clear whether they will be able to mount an appeal, since they were not principles in the case; they only had "party intervenor" status. More details.
bullet2003-JUL-8: As noted above, the British Columbia Court of Appeal had suspended implementation of same-sex marriages in the province until 2004-JUL-12. Some homosexual rights groups in the province asked the court to remove the one year delay. The Ontario Court of Appeal had issued a ruling on 2003-JUN-10 which had legalize same-sex marriages immediately in that province. The BC court issued a supplementary ruling, ordering the government of British Columbia to start issuing marriage licenses to gay and lesbian couples immediately. The government anticipated this decision and had all systems in place to issue licenses without delay. MSNBC reported that:

The three-member B.C. Appeal Court panel said ...it was unaware of any [government] opposition to lifting the one-year delay. "It is also apparent that any further delay in implementing the remedies will result in an unequal application of the law between Ontario and British Columbia," the decision said." 11

The judgment continued: "In these circumstances, the Court is satisfied that it is appropriate to amend the order in these appeals to lift the suspension of remedies, with the result that the declaratory relief and the reformulation of the common law definition of marriage as 'the lawful union of two persons to the exclusion of all others' will take immediate effect." 12

In the courtroom, partners Tom Graff, 58 and Anthony Porcino, 35, wept with joy. "I didn't know that I was going to do that," Graff said. After the hearing, they went immediately to the nearby Vital Statistics Branch to get a marriage license. 11

Seven years ago, Vancouver City Councillor Tim Stevenson, a United Church minister, had performed a "blessing" of the couple. The three got together again to upgrade the blessing to a marriage. Stevenson called the ceremony, which recognized the two as "spouses and life partners," a historic occasion "for you, for this province, for this country, for gays and lesbians throughout the country. May this legalizing also make a difference in your own lives." The United Church of Canada has an approved ritual for marrying same-sex couples. The Church is a liberal Christian denomination which is similar in social and theological beliefs to the United Church of Christ in the U.S.

Two of the couples who initiated the lawsuit, Dawn & Elizabeth Barbeau, and Joy Masuhara & Jane Hamilton have already been married in Ontario. Petitioners Peter Cook and Murray Warren plan to get married in 2004, on their 33rd anniversary together. Cook said: "It means we'll have a relationship that's internationally recognized and understood. It has lots of legal benefits, like hospital visitation rights." Petitioners Robert Peacock and Lloyd Thornhill  have lived together for 35 years. They are planning to marry at Ryerson United Church in Vancouver in mid-2004. Peacock said "We have equality. We have the rights that have been afforded every Canadian citizen." Neither man had expected that legal same-sex marriage would be available during their lifetimes. Other plaintiffs also plan to marry at their next anniversary. 12

Anglican Bishop Michael Ingham, recently decided to allow priests in the Lower Mainland Anglican churches to bless same-sex unions. This has triggered a crisis in the worldwide Anglican Communion. Referring to the court decision, he said: "It goes considerably further than the church has gone. We have spoken of unions and not marriage. That remains the position of our diocese. I'm glad gay and lesbian people are receiving recognition of their equality rights, but it goes beyond where we are in the church. We still regard marriage as a union between husband and wife."

Pavel Reid, spokesperson for life and family at the Roman Catholic Archdiocese of Vancouver, said the diocese was "saddened" by the decision because it believes it will be detrimental to Canadian family life. He continued: "We're also concerned that the courts have taken over the role of legislating in our democracy. This way of making important public decisions is very wrong. A third point of concern is the impact this will have on churches and religious freedom. The prime minister has given a guarantee with respect to religious freedom, but he can't give us a guarantee with respect to what the courts might do."

Kathleen Lahey, counsel for the petitioners, said that the court ruling "confirms that the new federal law on same-sex marriage applies uniformly across the country -- and immediately. It also makes it clear that other provinces can and should act now to extend marriage to lesbian and gay couples, instead of putting the issue off until the Supreme Court of Canada and Parliament have confirmed the new law."

Craig Maynard, a spokesperson for the gay rights group EGALE said Tuesday's decision was an important one for gays and lesbians. "EGALE and gays and lesbians across the country are thrilled by this decision, but we are also calling upon all provinces across Canada to start issuing marriage licenses to couples of the same sex who want to get married." 12

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References:

  1. "Same-sex couples launch challenge," Toronto Star / CP, 2001-JUL-24.
  2. "Legal Recognition of Same-Sex Unions," MapleLeafWeb, 2003-JAN-13, at: http://www.mapleleafweb.com/
  3. Wendy Cox, "Same-sex discrimination justified, B.C. judge rules," Toronto Star, 2001-OCT-4, page A15.
  4. Andrew Chung, "B.C. appeal court lifts ban on gay unions," Toronto Star, 2003-MAY-2.
  5. Estanislao Oziewicz, "Same-sex married couples rejoice. Ruling recognizes union of those married in 2001; others rush to wed," The Globe and Mail, 2003-JUN-11, Page A4.
  6. "Egale Canada Inc. v. Canada (Attorney General) [2001] B.C.J. No. 1995 : 2001 BCSC 1365; Vancouver Registry Nos. L002698, L003197," British Columbia Supreme Court, 2001-OCT-2, at: http://www.lawsite.ca/51301/
  7. "Court of Appeal for British Columbia, Barbeau v. British Columbia, Docket CA029017, 029048 & 029017," 2003-MAY-1, at: http://www.samesexmarriage.ca/
  8. Ibid, Paragraph 7.
  9. Ibid, Paragraph 158.
  10. Ibid, Paragraph 159.
  11. "British Columbia court allows same-sex marriage," MSNBC News, 2003-JUL-8, at: http://famulus.msnbc.com/FamulusIntl/
  12. Brian Morton and Nicholas Read, "Same-sex marriage makes B.C. history. Ceremony minutes after Appeal Court lifts ban," Vancouver Sun, 2003-JUL-10, at:  http://www.canada.com/vancouver/
  13. "NDP turns BC gay couples into 'spouses'," Catholic Insight, 1997-SEP-01, Vol. 5 Issue 7, Page 18-19. Downloadable online at an outrageous price at: http://www.amazon.com/
  14. Information about marriage in British Columbia is available at: http://britishcolumbiahq.com/

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Copyright 2003 to 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-NOV-02
Author: B.A. Robinson

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