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Legal - Ontario

April 15, 2003

Attorney General of Canada's circular logic
The Ontario same-sex marriage appeal

Extracted from the factum by Epstein Cole LP:
Martha McCarthy
Joanna Radbord

The Attorney General of Canada's circular logic could be used to prove the moon is made of green cheese"An argument begs the question when the conclusion it purports to derive from the premises is itself one of the premises. Question-begging arguments establish nothing at all. Of course if you assume that the moon is made of green cheese, you can prove that the moon is made of green cheese. P always entails P. [The AGC] arguments are question-begging. Most implicitly have the form: If a marriage is only between a man and a woman (plus some other considerations), then a marriage is only between a man and a woman."
Reply Affidavit of Dr. Mercier, Reply Evidence of Applicant Couples, Tab 1, at page 4.


The AGC's [Attorney General of Canada] entire case is built on one assertion: "Marriage is the union of one man and one woman." This is said to be a "universal" definition across religions and cultures, because the raison d'Ëtre of marriage is, at root, the rational possibility of natural procreation. If this meaning is altered, then the AGC says that society can expect a myriad of unforeseeable, but necessarily destructive, social consequences. This theory, which we call "Definitional Preclusion," is used at every stage of the analysis in order to avoid the requirements of constitutional scrutiny ...

The AGC's circular logic is legally unsupportable

The Definitional Preclusion approach is legally unsupportable, but it has a long pedigree; the exclusion of classes of people by the creation of "definitional boundaries" is the intellectual foundation of oppression in all of the significant social struggles of our time. Legal definitions of "person", "citizen", and "marriage" have served to maintain discrimination against various groups. But whatever power law brings to bear in its defining, it does not change what is real. Slaves were always persons, even when centuries of law and universal social practice said they were not and condemned them to treatment as property. Women were always persons, despite centuries of court rulings and social practice, "since time immemorial", defining them as chattel. This case challenges the Court to recognize that gays and lesbians are fully persons in Canadian law.

This historical background reveals that the essence of the AGC argument is discrimination. It may use polite language and "expert" evidence, but as much as the white supremacist defence of anti-miscegenation law was bigotry, the core of the AGC's case is equally discriminatory … The AGC's argument openly seeks to privilege opposite-sex relationships as normal, natural, fundamental, and normatively superior. In a human rights context, the discriminatory thinking underlying the AGC's factum is all too familiar: gay and lesbian people are "essentially different" - their so-called "marriages" do not and cannot exist, and they are irrational to complain of discrimination. "The only way to break out of the logical circle is to examine the actual impact of the distinction on members of the targeted group. This, as I understand it, is the lesson of the early decisions of this Court under [the charter's] section 15(1). The focus of the [charter] analysis must remain fixed on the purpose of the equality guarantees which is to prevent the imposition of limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics in violation of human dignity and freedom."
Miron v. Trudel, [1995] 2 S.C.R. 418 at 488-491, para. 134-137

The Supreme Court has repeatedly rejected the reasoning of Definitional Preclusion. In Egan, both the trial judge and a majority on appeal relied on circular reasoning to find that there was no discrimination, ruling that “the plaintiffs fall into the general group of non-spouses and do not benefit because of their non-spousal status rather than because of their sexual orientation.” In contrast, Justice Linden of the Federal Court of Appeal, like a majority of the Supreme Court, recognized that:

The AGC's logic goes 'round in circles.[This analysis] is circular, returning us to the original issue without satisfactorily resolving it. ... [The] issue cannot be resolved simply by stating that the distinction drawn by the Act is based on the definition of “spouse” rather than on sexual orientation. It is, after all, the definition of “spouse” that is being attacked as discriminatory.

Egan v. Canada (1991), 38 R.F.L. (3rd) 294 at 308-9 (F.C. T.D.); (1993), 103 D.L.R. (4th) 336 at 346, 366 (F.C.A.); [1995] 2 S.C.R. 513 at 594, para. 161.

Underlying the assertion that “marriage just is the union of one man and one woman,” the AGC factum proposes three rationales for exclusion: religion, biology and history.

  1. The AGC evidence relies heavily on Christian theological treatises on marriage and the religious history of marriage.
  2. The AGC appeals to biology, arguing that because gays and lesbians cannot “naturally” procreate, they simply do not fit the definition.
  3. The AGC appeals to history, tradition and the “universal”, stating that human societies, “since time immemorial”, have understood marriage to be exclusively heterosexual, and that this must continue, since the definition is “pre-legal” and “pre-political,” having been fixed by God, nature or culture.

All three rationales for Definitional Preclusion are wrong in fact and law.

The AGC's use of religion to support circular logic

The AGC centres much of its evidence on religious tradition. The AGC relies on a definition of marriage as rooted in “Christendom,” provides evidence on the teachings of Thomas Aquinas and St. Augustine, and offers “expert” opinion from the official spokesperson of the Catholic Archdiocese of Toronto. Canadian society and the recognition of civil marriage are not governed by religious law, but by the Constitution and its values of religious freedom, liberty, and equality. Our Constitution demands rational justification, not reliance on majoritarian religious belief.

In any case, the MCCT application reveals that the AGC cannot rely on religious definitions as a justification for continuing exclusion. There are religious communities that solemnize marriages between persons of the same sex as a sacrament. Unless the Court is to prefer majoritarian faith traditions to others, the Court cannot deny recognition to the marriages of same-sex couples."The AGC’s entire case rests on a single assertion: marriage “just is” heterosexual. This definitional “truth” is thrown down at each step of the factual and legal argument. While the device may assist the AGC in avoiding the required Charter analysis, it is tautological and legally wrong."
Factum of the applicant couples (Ontario civil marriage case), prepared by Epstein Cole for the Court of Appeal for Ontario

The AGC's use of biology to support circular logic

The Respondents argue that marriage is by definition heterosexual, because they have the “rational possibility of children”. This argument is legally and factually untenable. The nullity cases (which form part of the common law of marriage) demonstrate that procreation is not the purpose of marriage. A marriage by a heterosexual couple over age 60 offers no “rational possibility” of childbearing. If the central purpose of marriage were procreation, surely this would be reflected in the law of divorce and annulment. It is not. The House of Lords, the United States Supreme Court, and our Supreme Court have all recognized that procreation is not the essential purpose of marriage.

The Law Commission of Canada has recognized the weakness of relying on biological explanations for exclusion from marriage:

[The state does not reserve] marriage to procreation and the raising of children. People may marry even if they cannot or do not intend to have children.... [T]he argument that marriage should be reserved to heterosexual couples cannot be sustained in a context where the state's objectives underlying contemporary state regulation of marriage are essentially contractual ones, relating to the facilitation of private ordering. There is no justification for maintaining the current distinctions between same-sex and heterosexual conjugal unions in light of current understandings of the state's interests in marriage.

Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa, December 21, 2001), chapter 4, at page 16-17.

The AGC's use of history to support circular logic

The claim that “marriage is heterosexual” because this represents a “universal norm” “across times and across cultures” is also deeply flawed. First, it flies in the face of the AGC’s own expert evidence acknowledging that many societies have recognized marriages between persons of the same sex. Hundreds of cultures have celebrated same-sex marriages over the course of history. There is current legal recognition of equal marriage in the Netherlands and Belgium. Yet, the AGC insists that a different-sex requirement is “universal”.

Second, even if marriage had been heterosexual-only “since time immemorial”, this does not determine the constitutionality of exclusion. The mandate of human rights jurisprudence is its mandate to critically evaluate and challenge long-standing, often commonly accepted historical practices. In the words of political philosopher J.S. Mill, “[w]as there ever any dominion which did not appear natural to those who possessed it?” Since discrimination is itself traditional, there is a grave danger in perpetuating an unconstitutional law by relying on historical precedent. Indeed, there is a long and shameful history of denying marriage on the basis that the parties were of the wrong race. In Loving v. Virginia, the trial court held that a marriage between two persons of different races was, by definition, not a true marriage. The AGC’s assertion that the Applicant Couples are of the wrong sex is a parallel, equally discriminatory argument that should be rejected."The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested. Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive."
Edwards v. Attorney-General for Canada, [1930] A.C. 124 at 134; Affidavit of Dr. Mercier, Reply Evidence of Applicant Couples, Tab 1
.

History is not static. Society evolves. It is therefore not sufficient to state that, because same-sex couples have not historically been allowed to marry (at least in contemporary Canada) then marriage is justifiably restricted to different-sex couples. The issue is not how “marriage” has historically been defined, no more than the Persons Case could have been correctly resolved by the fact the term “person” had been historically defined to exclude women. The issue is whether the exclusion of a historically disadvantaged group is discriminatory and, if so, whether that discrimination is justified. The Charter aims to protect the traditionally disadvantaged from discrimination, however deeply ingrained, seemingly natural, and longstanding.

Conclusion

Definitional Preclusion is no answer to the claim of discrimination. Under the equality guarantee of the Charter, the government cannot rely on a history of discrimination, majoritarian religious views, or so-called natural imperatives to explain or justify its continuing discrimination.

In relying on the definitional argument, the government ultimately seeks to classify gay and lesbian relationships as “other”, fundamentally outside the realm of civic and linguistic intelligibility. In a symbolic sense, the definitional argument declares same-sex unions to be meaningless and incomprehensible. Whatever the arguments advanced by the government, the marriage of two persons of the same sex is not an expression of unintelligible nonsense ... Some of the Applicant Couples consider themselves married. It is the government that fails to recognize their marriages and their humanity. They are nevertheless real.

Read the complete Ontario civil marriage case factum

Read other factums related to the April 2003 Ontario Appeal


Summaries from the hearings in Ontario divisional court:

Day One - Nov. 5, 2001

Day Two - Nov. 6, 2001

Day Three - Nov. 7, 2001

Day Four - Nov. 8, 2001

Day Five - Nov. 9, 2001

The Decision - July 12, 2002


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