a guest list was Ontario Superior Court Justice Harry LaForme, who wrote the majority
decision in support of same-sex marriage. "He was pictured on the homosexual website,
http://www.equalmarriage.ca at a reception with leading homosexual activists,
Kevin Bourrassa and Joe Varnell, [whose] arms were around ... LaForme's shoulders.
... Chief Justice Roy McMurtry of the Ontario Court of Appeal, Chief Justice of
the Ontario Superior Court, Heather Smith (who presided at the lower court level
hearing on same-sex marriage), Mr. Justice MacPherson, another judge on the Ontario
Court of Appeal same-sex marriage case -- and former Supreme Court of Canada justice
Claire L'Heureux Dubé -- all joined in the gay activist celebrations. "
L'Heureux Dubé advocated gay rights in Mossop
and added dignity to equality in Egan. I would like to refer, briefly,
to her dissent in Mossop, in 1993, ten years ago. I think her dissenting
opinion can be said to be reflected in our recent same-sex marriage decision in
the Ontario Court of Appeal ... 'It is possible to be pro-family without rejecting
less traditional family forms. It is not anti-family to support protection for
non-traditional families. The traditional family is not the only family form.
Non-traditional family forms may equally advance true family values.' "
is not me you should celebrate. It is the Chief Justice [McMurtry], and Gillese
and MacPherson that have made history ... the Ontario Court of Appeal handed out,
I am told, as I have not read it yet, one of the most perfect decisions on an
issue which was difficult. It took a lot of courage ... Canadian law owes them
a great deal"
discourse about judicial activism is absolute rubbish."
schools are just an extension of our publicly funded and publicly regulated school
system. They cannot do what they please within the Catholic school system."
a difference a few decades have made in the legal recognition of relationships
and the notion of family, not only in Canada, but all over the western world ...
in the shifting landscape of human relationships ... courts have been at the forefront
of this evolution, not to say revolution. It's fascinating that the courts played
a unique role. There are two main factors that bear strongly, in my view, on the
tremendous changes in family law: human rights and constitutional law, and to
a certain extent, the globalization of the legal community."
just as the government's arguments defamed and threatened all Canadians, so this
victory should make us truly proud to be Canadian. We also have to be so thankful
for the wonderful judges, ten of them now across the country, who acted with impartiality
when faced with an issue that Parliament dumped upon them. They followed the rigorous
promise of our equality guarantee in our Charter and the Canadian tradition of
issuing human rights decisions that will become examples to other nations."
the remarkable thing about this decision - that the court didn't want to spend
one moment thinking about popular opinion or any other pressures. The essence
of equality demands it, but even the most pure judicial officer has to have an
immense amount of courage to give effect to this promise. This panel did an amazing
July 3, 2003
Law Society of Upper Canada
Four of the lawyers who led the fight for same-sex marriage in Canadian courts sat on a panel hosted by the Law Society of Canada, on June 26th, 2003. We were there to capture a few quotations from their presentations about the amazing victory for equal marriage in this country. Afterwards, we joined a larger group for an annual reception, with special guests that included the retired Supreme Court of Canada Justice the Honourable Claire L'Heureux Dubé and some of the judges who helped make history by ordering Ontario to immediately recognize the marriages of gays and lesbians.
Kathy Lahey, Queen's University, Faculty of Law
"It's taken 35 years, but I have a great sense that queer communities all across North America, and perhaps elsewhere in the world, are finally arriving right back from where we started from," said Lahey. "During the 1960's, during the sexual revolution, as part of what was going on surrounding the Stonewall rebellions, certainly on the heals of the Loving v. Virginia decision in 1967, where a criminal prohibition on the marriage of people from different races was decisively overturned, and finally the decriminalization of same-sex sex, all produced, as part of the uprise of demands for civil rights for people considered to be queer was, among other things, the demand to be able to marry. This is a part of queer history that doesn't surface that often ... I am of the view that the demand for marriage has always been a very important part of the demand for civil equality for the gay community."
Lahey outline four strategies that were used to defeat same-sex marriage:
Religion - Appeals to religious doctrine, including biological arguments and the importance of promoting procreation as an important state interest in same-sex marriage.
Defense of Marriage Acts (DOMAs) - "Sometimes taking the form of just inserting man/woman definitions of marriage into gender neutral statutes, such as we have now in Alberta and the civil code of Quebec." In the United States, there are "approximately the same number of provisions relating to same-sex marriage as there were relating to inter-racial marriage at the height of that segregationist movement."
Registered Domestic Partnerships - Lahey described this strategy as: "Choosing a number of benefits and obligations associated with being married that are extended to same-sex couples ... these RDPs are carefully defined as being not marriage. They're recorded in separate books, the certificates being issues by separate offices, churches are often prohibited from performing RDP ceremonies. All of this is done to prevent the institution of marriage in the European countries from being tainted or polluted by too close contact with these legal forms of recognizing same-sex couples."
Heterosexualizing Canadian relationship laws - Lahey described this as a "uniquely Canadian strategy" that injected "opposite-sex definitions of spouse directly into marital and domestic legislation, apparently to try and inject heterosexual terms into statutory groups of words connected with the word spouse, to block lesbian and gay couples from beginning to claim the rights and incidences of marriage."
"The difference between what has been going on in the United States and in Canada, I submit, is that in Canada we saw how the legislative end-game was used in the United States to defeat the claim for same-sex marriage, even after those cases had been won in terms of constitutional challenges and legal doctrine."
"As these three Canadian cases began to develop, it was very clear that the Federal government was prepared to direct the full weaponry that it had available to defeat these cases in Canada. In these cases the petitioners were met with everything from religiously grounded arguments, and their secular successors, to the suggestion that the constitution doesn't have room for queer couples in it, and the submission that the Canadian common-law still has a man-woman definition of marriage. The Federal government argued that ordinary language would become unintelligible if people were expected to understand that the word marriage could include same-sex couples. Most importantly, it increasingly pointed to the already existing legal rights and benefits that had been enacted in response to the M&H case, and began making noises about how it planned to adopt RDP legislation as a way to take care of the discrimination, and insisted on treating it as if it were discrimination in benefits only."
"Some of the lawyers are almost having nervous breakdowns ... the full resolution of these cases could be left in the hands of the common-law rulings that the judges have now produced, which simply confirm that the appropriate common-law definition is a gender-neutral one. We are now in that delicate end-game where the legislative initiatives are going to determine the future. What makes us different from the situation in the U.S. is that people are now getting married in Ontario and they're coming from all around the world."
Douglas Elliott, McGowan Elliott & Kim
Douglas Elliott began by reviewing that day's decision by the U.S. Supreme Court to strike down that country's sodomy laws.
"[Supreme court judge] Scalia again invoked the language of "culture wars" which harkens back to the German term kulturkampf. It reflects a very interesting perception by conservative Christians in North America ... that they live in a society where Christians are persecuted ... I would suggest "war" is too strong a term. The translation of kampf is "struggle" and I think that's a better way to describe it. That struggle has been about our community's quest for equality and the attempts by religious conservatives to maintain their doctrine in the legal system."
"If you want to get the Catholics and the Protestants and the Jews and the Muslims, at least the conservative ones, together, all you have to do is say that there is a gay rights case heading to the Supreme Court of Canada and they're lining up to get in place. We have to ask ourselves why? Why should they have a say at all? The fact is that these are the organizations who have been most hostile to us ... I cannot remember a case where all of these organizations have ever been refused intervenor status in a case. They have always been heard from in the Supreme Court of Canada."
"One of the things we heard very clearly in the marriage case is how some people, particularly conservative Catholic theologians complained about us using the language of homophobia. They don't like to be called homophobes or bigots. They think that it is mean, they think that it is harsh language. Well let me give you some of the language that is used in the official doctrine of the Catholic Church when referring to gays and lesbians: "intrinsically disordered," objective disorder," tendency ... toward an intrinsic moral evil," "deceitful," "deplorable distortion," "grave error" and "evil". A Scottish Cardinal compared the gay rights movement to the Nazis, and the Congregation for the Doctrine of the Faith (once known as the Holy Inquisition) observed that violence against us, while deplorable, was an understandable reaction to our militancy. I have never heard anyone in lesbian and gay organizations suggest that violence against conservative Christians is deplorable but understandable."
"The discourse about judicial activism is absolute rubbish," Elliott said, before running through a few court cases that are often used by opponents of equality as examples of "activism".
"It's seen by some to be judicial activism because they read sexual orientation into section 15 [of the Canadian Charter]. It clearly was a deliberate decision by the Parliamentarians to leave open-ended language [in the Charter]. Everyone has said, from the Department of Justice in 1986, through all of the court decisions, that that open-ended language included sexual orientation. That's the interpretation of the law and the traditional role of judges. If they had come to a different conclusion that would have been remarkable."
"The Vriend case is often cited by our religious opponents as a case where the Supreme Court of Canada forced a Christian college to hire a gay man against their religious beliefs ... that's absolute rubbish. All the Supreme Court of Canada did was order Alberta to include sexual orientation in their human rights legislation. It was the decision of Alberta not to invoke the notwithstanding clause. The fact that Alberta has protection for sexual orientation is not because of the judges of Supreme Court of Canada, in the last analysis, it is because of the decisions of elected officials of Alberta. [After winning the right to file a complaint based on sexual orientation, Vriend decided not to file a complaint]."
"The case involved a private Christian school ... that wanted its teachers to be able to teach in the public school system after graduation. This was opposed by the British Columbia College of teachers who wanted the continuation of a year of training at a secular institution. They argued that TWU's anti-gay conduct code, and related commitment to promoting it, were incompatible with teaching in a public school system committed to LGBT equality."
"Justice Iacobucci seemed concerned that all the Catholic institutions in Canada might be under siege if we went too far in this area. If you read his decision, he doesn't talk about a legal clash between religious rights and same-sex equality rights. He says if you delineate the sphere between the public and the private, you can see that there is no clash. The freedom to hold a belief is broader than the freedom to act on it. You can have a homophobic religious belief but you are not allowed to preach it in a public classroom."
"This one gets sited all the time by the religious right as an example of interfering in Catholic Schools. The state has a clear interest in the regulation of schools and what happens to children ... Catholic schools are just an extension of our publicly funded and publicly regulated school system. They cannot do what they please within the Catholic school system."
"Marc Hall was not a gay man who was saying he was an atheist against the Catholic Church. He was a Catholic. He wanted to be in a Catholic school. He just had a different view from the Pope on what the correct course was for the Catholic church. While dissent is not that well tolerated in the Catholic church these days, Marc Hall is just as entitled to his religious beliefs as the Durham Catholic school board.
"Here is a case where we clearly see that it's about a clash of religious beliefs and there is no squeezing people out of the public square. Both in the courts and at the Justice committee, religious groups who are opposed to same-sex marriage have been given a full public hearing. Some of the things that were said at the Justice committee, if they were said about Jews or about blacks or any other group in our society, those people would be put in jail. Because they come forward and they say, "As part of my religious belief, I think that those people are going to have sex with babies if you allow this," that is still acceptable public discourse ... The Justice Committee hearings have been a kind of verbal auto-da-fe."
"The accusation of judicial activism rings particularly hollow in this case, for as the Ontario Court of Appeal has so stunningly confirmed recently, this is a judge-made rule that judges are both entitled to and required to change."
"It would be an error to believe that the religious interventions in cases involving gay and lesbian equality have been universally negative or that they have only arisen out of the conservative end of the religious spectrum ... We have had the support of Christians and Jews, Unitarians and Muslims, and other people of many faiths ... Frequently, the voices heard are from straight people who are opposed to injustice. Like the righteous gentiles who came to the defence of the Jews during the Holocaust, they have come to our defence time and again. We should recognize them, and the fact that they are often inspired by their own deeply held religious convictions. That is my idea of divine intervention."
Martha McCarthy, Epstein Cole
"When we were arguing this case in the Ontario Court of Appeal, Justice MacPherson put to my co-counsel, Joanna Radbord, that under section one [of the Charter], it is relevant to consider what other free and democratic societies have done. He then put to her that the remedy that we were asking for, with the exception of Belgium and the Netherlands, was going further than any free and democratic society had gone so far. What did she say to that? Joanna stepped back from the podium, paused, looked at the panel and said, 'that's why I'm proud to be a Canadian' ... that simple moment of patriotism was one of the most profound moments of the entire hearing. Last week, the Metropolitan Community Church of Toronto raised a Canadian flag, something they never do, and sang O Canada. I know this sounds like a trite media bite, but just as the government's arguments defamed and threatened all Canadians, so this victory should make us truly proud to be Canadian. We also have to be so thankful for the wonderful judges, ten of them now across the country, who acted with impartiality when faced with an issue that Parliament dumped upon them. They followed the rigorous promise of our equality guarantee in our Charter and the Canadian tradition of issuing human rights decisions that will become examples to other nations."
"The remedy portion of this case was easy. This is a common-law rule. Judges have to fix unconstitutional problems in judge-made law. There is no room for the usual deference to the legislature, no need to worry about Parliament at all. Just as [the remedy] seemed to be easy, it also appeared to be politically unrealistic and near impossible. A Charter right with a real, immediate remedy? That has become almost unheard of in the Supreme Court of Canada ... there is virtually always some kind of suspension [of remedy] in equality cases. And in our case there was obviously going to be more appeals. But we demanded it anyhow."
"Two things happened during the oral argument [of the Ontario appeal hearing] that should have tipped us off. The first was about an hour into the government's case when Roslyn Levine was arguing that it was not discriminatory to deny gays and lesbians marriage because they have all of the other rights. The Chief Justice who wrote studiously through-out the hearing, with his head down, raised his eyes as if suddenly interrupted from his work, and said in his distinctive, thunderous voice, 'There has been a shameful history of discrimination against gays and lesbians in this country, Ms. Levine.' The other clue to the decision that was to come, was when I was making submissions about remedy ... I took the court to the then-most recent opinion poll about same-sex marriage that indicated that 63% of Canadians support same-sex marriage ... this time the Chief Justice raised his eyes and sent the shock my way and said very simply, 'This court is not concerned with polls.' "
"That's the remarkable thing about this decision - that the court didn't want to spend one moment thinking about popular opinion or any other pressures. The essence of equality demands it, but even the most pure judicial officer has to have an immense amount of courage to give effect to this promise. This panel did an amazing thing. The decision is pure, unbiased, totally technically, even rather dry in areas of legal analysis. One would never know that Douglas and I were in competition for melodrama during oral argument. Me, the weeping hormonal mother talking of the lived realities of children and suicide rates of gay teens, and Douglas the queen with his reference to Rosa Parks and Martin Luther King. Not one sentence of those tear-inspiring moments found their way into the judgment. There's no melodrama in the whole thing, until the last three sentences when suddenly the heart stops when you read it and there in the same totally unadorned language: a bomb. The decision is effective immediately. The marriage of Kevin and Joe is the first legal [gay] marriage in the world. Leshner and Stark married by three and on every station by eleven. And with that it was over."
"There are, of course, many other judges who deserve there share in the limelight. Of course, Madame Justice L'Heureux-Dubé who wrote literally the foundation for all of these cases ... Justice Harry LaForme, who's decision was upheld by the Court of Appeal ... Madam Justice Gloria Epstein who set the groundwork with a very courageous decision in M&H in 1994, Madam Justice Susan Greer who wrote the dissent in favour of Layland and Beaulne, Ontario's first marriage case.
"The federal government did admit that they paid $350,000 dollars for expert witnesses in the case [while our own witnesses worked for free]."
"The process that the Justice Minister has chosen is the ultimate in dialogue between the courts and the legislatures. A truly democratic process that is going to be guided by the consultation with the courts. Nobody is going to be able to criticize this process with any legitimacy, although they are clearly going to."
"We know that these are full and legal marriages in Canada. We have no idea whether these marriages are going to be respected in other countries. American couples who have been married in Ontario are being urged by Evan Wolfson and other prominent activists in the U.S. to go about their lives as if they are married, to check off those boxes that say married, to live their lives as an example that sky has not fallen, and to coordinate a national strategy to achieve legal recognition."
The Ontario Court of Appeal opened the door and now gays and lesbians of all shapes and sizes are carrying their partners across the threshold. Pressure your federal member of parliament, encourage your friends to demand marriage across the country, and if you're in a loving, committed relationship, than go get married yourself."
Cynthia Petersen, Sack Goldblatt Mitchell
"We all felt quite strongly that the jurisprudence was well established and we ought to get to remedy. We were all aware that there was a huge risk that we wouldn't actually get marriage as a remedy ... that they would do something like Vermont, where we would have a civil union, or some kind of domestic registry ... we felt that it was fairly easy to make the pitch that RDPs were not a satisfactory remedy. "
"One of the ways in which we addressed that was by emphasizing to the courts that the bar against same-sex marriage is a common-law rule, not a statutory rule. It was not enacted by elected representatives. It was created by judges, it could be changed by judges, like any other common-law rule. We spent a fair bit of time emphasizing that in the trial courts."
"That had the added advantage of being able to expose for the courts the offensive origins of the rule ... Apart from the inherent homophobia of saying that same-sex partners can't marry, the common-law definition of marriage that was at issue in this litigation actually comes from an old polygamy case ... in the course of that judgment the court decided on a definition of marriage based on what marriage is in Christendom. It talked about non-Christian nations as infidels ... there was a clear religious intolerance."
"There are many cases, as well, that deal with the requirements for marriage. One of the requirements was that you had to have the capacity to consummate the marriage. That was produced in cases in the 1970s to say that same-sex partners can't marry ... but those cases were all about the duty of women to sexually service their husbands. If you read those cases, they have nothing to do with procreation, which the government tried to make them out to be about it. They had everything to do with the obligation, the courts then saw, that women had to have sex with their husbands. They don't have to be fertile, they don't have to have procreative sex, but they have to have sex with their husbands. The word "duty" is actually used in those judgments ... it's not just that women are supposed to have sex with their husbands, but they are supposed to have the right kind of sex. It's not only heterosexual sex, but it's penis and vagina and if there isn't penetration than it is not sex. There are all kinds of cases with people with disabilities who don't have the right kind of sex ... all of these things factored into making people look at how absurd this rule is. Not only was it clearly homophobic, but it derives from sexist, religiously intolerant, ablest values that in a modern, Charter-based Canadian society have no place."
"The reference [to the Supreme Court of Canada] in my view is a political necessity, not a legal one. The government decided not to appeal the decisions, which I commend them for, but we know even within the governing party, there isn't unanimous support for that decision. So there is a lot of political pressure on the government .... that political pressure is evident in that they announced that there will be a free vote, which I think is reprehensible, but it is very common on gay and lesbian issues for the government to call a free vote, sadly. The reference is to get the approval of the Supreme Court of Canada, so that when it goes to the house for a free vote ... they can say that the Supreme Court has said that religious freedoms will be protected. There is a real political value in that ... the other political value is in the Alberta situation ... we know the government there is doing everything possible to prevent same-sex marriages. But if we can get assistance from the Supreme Court of Canada in the reference to either pre-empt the battle altogether or use it to ensure uniformity across the country, then I think there will be real value there as well ... I'm pretty confident that this is more a political necessity than a legal one and that it will not in any way undo any of the legal victories that we've won."
Summaries from the Court of Appeal for Ontario: