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basic recommendation is to make it clear that the prohibition [against same-sex
marriage] is the part that is unconstitutional ... and do not go to suspension
... I don't see a problem with that."
I understand the arguments from MCCT, a manifestation of its religious practice
is same-sex marriage, so what you are advocating is a constraint against MCCT's
religious belief and practice ... I'm talking about constraint against a religious
practice. You are defining religious practices differently from how they are defining
religious practices - to what extent does the state define religious practices?"
just don't understand ... if the definition of marriage does not include same-sex
couples, how can that not be a constraint on their religious ceremony?"
is no relationship between consanguinity laws and same-sex marriage! It would
be like Chretien setting up a panel to look at SARS and you saying, let's look
at leprosy too!"
respect to the two couples that have been married, if they are successful, why
wouldn't the consequence be that they are married? I understand that you want
the government to have the chance to put together a regime...what's that got to
do with the couples in this litigation? A suspension would mean that the church
couldn't do any more, but why shouldn't the couples have their marriage be valid?"
why wouldn't the church be able to continue performing ceremonies, even if there
was a suspension? Once the suspension was lifted they could register those marriages."
the role of the AGC to defend the legislation of Canada?" Justice MacPherson
asked. "You are here protecting a common-law rule [i.e., judge-owned law].
That's a little unusual isn't it? Has the AG ever defended any other common-law
"The Netherlands has the gold medal. Belgium has the silver. The question for us is whether Canada will be shut out of a medal position."
Douglas Elliott, April 25, 2003
"The government has a long history of legislative avoidance when it comes to gay and lesbian equality ... Do we want to continue to talk abou this? ... It has been 20 years of incremental change. If it is right, it is right to do it now."
Martha McCarthy, April 25, 2003
Legal - Ontario Appeal - Day 4
April 26, 2003
not interested in polls."
Our final day in Courtroom 2 of Osgoode Hall began as each day previously had, with a mini-lecture from the erudite Capt. Taylor. Returning to his theme of the previous day, Capt. Taylor talked about the significance of the coat of arms that sat above the justices' bench.
"The power came from the throne", Capt. Taylor said, "delegating the authority of the Crown. It reminds us of the independent nature of the bench."
In a day when the bench would be frequently reminded that their remedy in dealing with the rights of same-sex couples required no deference to parliament, the lecture seemed to be a good omen.
Perhaps in contrast to this, the remedy proposed by Cynthia was surprisingly simple: " declare the common law restriction on same-sex marriage of no force or effect..."
This, Cynthia argued, would be the simplest and most effective way of correcting the problem. It would allow same-sex couples to marry without having the court interfere in any other aspects of marriage law, which was their duty according to the jurisprudence she would take them through.
"What about declaring the marriages of the MCCT [Metropolitan Community Church of Toronto] couples valid?" Justice MacPherson asked, to our relief.
Cynthia responded that declaring the common law restriction to be of no force or effect would provide the relief that we sought, but she certainly would support additional declarations by the court about the validity of the marriages in order to leave no ambiguity.
Turning to section 52 of the Constitution, Cynthia took the judges through the three sequential steps that they were required to craft a remedy to a breach of Charter rights:
These steps must be done in sequence, Cynthia reminded the court. To err as the lower court did, by returning the issue to parliament was to abdicate responsibility they had for crafting a remedy. "The court has an obligation to issue a remedy," Cynthia told the court.
'Positive or negative'
"I am a little confused by the starting point in this case, Justice Gillese responded." The common-law rule is stated in the positive, 'Marriage is the union of one man and one woman', not that 'A marriage between two persons of the same-sex is void.'"
"I don't think we should take Hyde ('one man and one woman to the exclusion of all others') as the drafted rule. Whether you fashion the rule as one man and one woman or the rule is two people of the same-sex can't marry, in either case the court should declare it void and of no force or effect."
"If the decision is to strike down the rule as invalid, won't that create a backlash?" Justice Gillese queried further. "Won't we create a legal vacuum where there is no marriage?"
Justice MacPherson agreed. "If you strike out one man and one woman - you strike out not only man and woman, but the one and one."
Cynthia said that was why she preferred to look at the rule in the negative. What was needed was clarity that the effect of the remedy was that gays and lesbians have the right to marry and that nothing else is impacted.
Justice Gillese recalled the decision of the lower court where a judge had recommended the use of the phrase "two persons."
"Is Justice LaForme's approach acceptable?"
"It is acceptable," Cynthia replied.
"Your basic recommendation is to make it clear that the prohibition is the part that is unconstitutional," Justice Gillese said, "then make it clear that the two people in a committed relationship remains the same and do not go to suspension."
"Precisely," replied Cynthia
The court's attention was directed to the Attorney General of Canada's (AGC) factum where they cited various cases where deference to the legislature was the recommended approach. Not one of these cases was a case dealing with a breach of Constitutional rights. Not one was a Charter case.
Declaring the law of no force or effect as of now, would leave the MCCT couples in legal limbo. Our church first began performing marriages on January 14, 2001.
Cynthia again repeated that she in no way wished to undermine the relief sought by Mr. Elliott and that she supported the court making additional orders to avoid leaving any ambiguity.
"There wouldn't be a word about Parliament," Justice MacPherson said. "We would make a simple declaration. The man woman rule is invalid. Period."
"Unless we leave a vacuum," Justice Gillese said, to perhaps underscore the problem of not addressing the issue in a timely manner.
Cynthia replied that she would expect the court to give reasons along with the declaration in order to remove any ambiguity in this case. Cynthia outlined the long history of parliament using anything unclear in court orders to delay granting gays and lesbians equality under the law.
'The only choice is marriage'
Cynthia outlined for the court why the lower divisional court had erred by declaring the whole common-law void. They had in essence created the vacuum which Justice Gillese was concerned about. By striking down the entire common law, they would create "equality with a vengeance", similar to how southern states had responded to an order to integrate swimming pools - they closed all the pools!
Divisional (lower) court Justices Smith and Blair had wanted to suspend the remedy because they believed that there were a variety of ways to respond, such as RDPs.
"We're not saying RDPs are unconstitutional", Cynthia said. "We're saying that it is not a remedy because it does not respond to the claimants in this case".
It does not give us the same choices and relationship options. We need to have the choice to get married. If RDPs are offered to everyone in addition to marriage, that's fine.
"Besides", Cynthia continued, "parliament can always choose to legislate after you grant remedy."
Justice Blair believed that the issue was so controversial that it was best left to parliament to deal with and the AGC had introduced polls to support that belief.
"We are not interested in polls," Chief Justice McMurtry said flatly.
The Chief Justice's remark would be remembered, by some, later in the day.
Lesbian and gay couples have the same aspirations as other couples and they want to right to choose. Cynthia concluded, "However you formulate the declaration on invalidity you need to strike down the prohibition...in terms of when, we would like it now, underscored please."
The AGC's Michael Morris, or the 'other Mr. Morris' as our side would think of him, now stood to respond to the religious discrimination arguments put forward by MCCT and the Liberal Rabbis.
The essence of the argument advanced by the AGC was that the government is not violating our religious freedoms because the refusal to register the licenses had nothing to do with the fact that they were MCCT weddings. It was based on the genders of the individuals involved in the weddings. They did not have the capacity to marry. Religious freedoms were not engaged.
The AGC said that it agreed with Justice LaForme's dismissal of the religious freedom arguments. The government is not obliged to recognize all forms of religious marriage and indeed it would be untenable to do so. Second, he argued that the refusal to grant legal status to the MCCT marriages is not based on traditional Christian dogma.
Referring to the Big M. Drug Mart case (the leading case of freedom of religion where the Sunday shopping laws were declared unconstitutional), the AGC argued that in order to violate MCCT's religious freedom, there would have to be coercion, that is the state must be found to try to make us adhere to a particular purpose. It was a moment the AGC would come to regret.
"The way I read the decision is there must be the absence of coercion or constraint," Chief Justice McMurtry said. "As I understand the arguments from MCCT, a manifestation of its religious practice is same-sex marriage, so what you are advocating is a constraint against MCCT's religious belief and practice ... I'm talking about constraint against a religious practice. You are defining religious practices differently from how they are defining religious practices - to what extent does the state define religious practices?"
Looking like he wished he was in the headache-remedy aisle of a Big M Drug Mart, the AGC said that the state is not defining religious practices. The state is not telling MCCT it can't celebrate marriages in the way they see fit, but rather that the civil definition of marriage cannot be changed to coincide with their religious views. There would be a need to incorporate every one else's view of marriage as well. The state could not regulate on any matter with both religious and civil significance without limiting someone's religious freedoms. And what if someone's religious beliefs included marrying children, or ...
I am not talking about civil unions, I am talking about marriage.
But Justice Gilles wasn't accepting the AGC's attempt to make the issue bigger than what it was. "If you don't expand to this large project and just focus on MCCT, it says that two people of the same-sex wish to manifest their religious beliefs through a marriage ceremony and we can't do that?"
"MCCT cannot ask the state to change their law based on their religious beliefs," The AGC said.
"I just don't understand..." Justice Gillese puzzled, "if the definition of marriage does not include same-sex couples, how can that not be a constraint on their religious ceremony?"
"There was no constraint," the AGC insisted against the obvious. "The civil definition of marriage..."
"I am not talking about civil unions," Justice Gillese interrupted, "I am talking about marriage."
In frustration, the AGC finally took us to the underlying problem. The ceremonies at MCCT were just play-acting commitment ceremonies - not marriages!
They said it didn't matter which faith community had brought the marriages forward - they would have discriminated against all of them equally.
Sensing that it was it was time to move on from the ceremony issue, the AGC addressed a second concern: dogma. The AGC argued that there had always been inconsistencies between civil and religious marriage and the state could not endorse one view of marriage over another. It would be asking the state to make religious and civil marriage the same thing.
The AGC seemed to ignore the obvious: for many religions, religious and civil marriage was in fact the same thing (one man and one woman to the exclusion of all others). He moved back to an earlier, objectionable argument.
"What about marriage with children," the AGC said, "or what about consanguinity [incest] or bigamy? Don't some religions have this view?
The cold stares dropped the temperature about 20 degrees and so the AGC moved onto their final point: MCCT was attempting to confuse the section 2a religious freedom protections of our Charter with the real issues - the couples were being discriminated against because of their sexual orientation (section 15 of our Charter) and not their religious beliefs!
While attempting to defend Canada against charges of discrimination based on religion, the AGC had at last admitted that it had, at a minimum, violated section 15. This was a contradiction of their stance in court the previous few days.
Realizing that perhaps this was not going to be the most effective strategy to keep gays and lesbians out of marriage, the AGC hurriedly ended with an appeal to have the line between civil and religious marriage distinct and we adjourned for lunch, most pleased with how things were going.
Bewildering world tour
We resumed our seats after lunch wondering if the AGC's case against us would further implode. Gail Sinclair, another lawyer for the AGC, rose to deal with the issue of remedy. She began by saying that if the court found that our Charter rights were being violated, the appropriate remedy was:
The AGC proposed to show that this was an appropriate remedy because of the nature of the change involved and because of the respective roles of both the courts and the legislature in a constitutional democracy.
Starting what would be a long world tour, the AGC took us to England and the recent House of Lords decision in a case called Bellinger, involving the use of the word "man" as a marker. The AGC noted that in a 5-0 decision, the judges there had decided to allow parliament to fix the problem.
Chief Justice McMurtry, an expert on the legal culture in the UK (formerly Canada's High Commissioner, 1985-1988), asked if that wasn't indicative of the non-bill of rights approach that the UK has and in contrast to the model here in Canada? Flustered slightly, by the question, the AGC said that the case was being referred to because the issue was similar, not the style of remedy.
We were all slightly confused, but the AGC now whisked us across the English Channel and pointed out that in both the Netherlands and Belgium, it was the legislatures and not the courts which had given marriage to same-sex couples. She then outlined that there were many differences between the marriage regimes in those countries. Briefly, whisking us up to the Scandinavian countries, she pointed out that the partnership acts in those countries were different again. Then, as our heads began to reel from the globetrotting, the AGC brought us in for a landing - in outer space!
"There are numerous issues to deal with in allowing same-sex couples to marry that parliament would need to examine: citizenship requirements, international implications, consanguinity laws..."
We could see that Justice MacPherson was about to interrupt, when Justice Gillese spoke first. "Why would parliament have trouble looking at incest laws?"
"It would be better for parliament to look at all of the issues," the AGC said. She seemed to want to inflate the issue to appear bigger than it was.
Justice MacPherson leapt in to narrow the scope. "There is no relationship between consanguinity laws and same-sex marriage! It would be like Chretien setting up a panel to look at SARS and you saying, let's look at leprosy too!"
The court burst out laughing and the AGC tried desperately to regain some ground by dealing with other complexities that could arise:
"There is the connection between religious institutions that act as government agents," the AGC said. "They could be challenged to marry same-sex couples."
This didn't help.
"Isn't that in contrast to what the last speaker said?" Justice Gillese said, referring to Mr. Morris' previous arguments for the AGC when he argued that their wasn't a religious connection to our case. The AGC seemed to want it both ways. "I thought your whole point was that this is basically a legal challenge and doesn't involve religion?"
"This is a different aspect...," the AGC seemed to be stumbling as she looked for a logical response. "There's an interconnect."
"So this is part of the same argument?" Justice Gillese was as amazed as we were. "Because marriage is bigger than just this issue, leave it to the government to look at a broader basis? Why is that a better method for the government? Why is looking at a huge thing an advantage?"
The AGC argued that it wasn't a question of advantage, rather it was placing the courts in their proper role. The legislature can look at things from a holistic basis rather than from the point of view of the parties to a lawsuit.
We thought the whole point of the remedy was to look at things from the complainant's point of view and Justice Gillese agreed.
"That's in conflict with the Supreme Court of Canada," Justice Gillese said. "Would you accept that?"
"The Supreme Court has developed a more dialogue role," the AGC said with more hope than conviction.
Justice Gillese asked the AGC to move on, saying that she wouldn't take up any more of her time.
Having come in from the world tour with a somewhat hard landing, the AGC moved on to the "Institutional Boundary" argument: why the roles of the court and the legislature called for a suspension of remedy. The role of the courts would be to begin a dialogue of mutual respect and not to second guess the legislators.
"But we have two groups of couples involved here," Justice MacPherson said. "Eight couples for civil and two couples at church. The eight are at the starting gate trying to get a licence. Presumably there is not much of a remedy for the eight. The city has already said that it will respect that judgment of this court. They would get a license."
The AGC was thinking of our marriage and the Vautours.
"The issue is with the couples married with the publication of banns," the AGC said. "The church continues to perform the ceremonies...there would be a number of couples and we should wait for comprehensive..."
Again the AGC seemed intent on inflating the issue and the court was having none of it.
"With respect to the two couples that have been married," Justice MacPherson interrupted, "if they are successful, why wouldn't the consequence be that they are married? I understand that you want the government to have the chance to put together a regime...what's that got to do with the couples in this litigation? A suspension would mean that the church couldn't do any more, but why shouldn't the couples have their marriage be valid?"
The AGC said that there was no precedent for declaring our marriage valid and then subsequently waiting for the government to implement a regime for same-sex marriage. When there is a remedy, it's usually on a comprehensive basis.
Justice MacPherson didn't agree that we could win our case and yet not receive a remedy. "I thought that the precedent in a case was that when you win, you win!"
"Yes," the AGC said a little desperately, still looking for a deferral, "once the suspension is up."
But the exchange had prompted other questions as Justice Gillese remembered the submissions from the morning.
"So you are saying suspend for everyone?"
"Yes," said the AGC.
"So why wouldn't the church be able to continue performing ceremonies," asked Justice Gillese, "even if there was a suspension? Once the suspension was lifted they could register those marriages."
The AGC could only nod at Justice Gillese, having already undermined her own side's argument from the morning when they said there was no connection between religious ceremonies and marriages.
An appearance of "re-lying" on the evidence
Grateful to be leaving remedy and with her voice now breaking, the AGC said she wished to address some points raised by our side during the week.
She criticized the portrayal of some evidence as unrefuted by the government, saying that there had been very limited time for cross-examination. Also she said that it was not clear that Canadians supported same-sex marriage. The AGC referred to polls. You could feel the bench and everyone else cringe, remembering the Chief Justice's comment from the morning.
"There is no history of discrimination between same-sex and opposite sex marriage," the AGC said. Everyone wondered what case she had been attending all week.
Continuing her theme, she argued that it would be inappropriate to implement a remedy based on parliament acting in bad faith. The court should assume mutual respect and good faith.
Having pledged the government's good faith, the AGC proceeded to tell the court what seemed to be a bald-faced lie, claiming that during submissions, the AGC had never misrepresented the references to the Egan case. She argued that the government had made it clear that the court was divided in Egan.
The room was shocked! No-one present could recall a single instance of the government presenting Egan as anything other than the court's (majority) opinion. Even some of the lawyers on the government's side were gaping!
Quickly moving on, the AGC, by now just hoping to get to the finish line, turned quickly to refuting the suggestion that the Canadian Human Rights Commission was a legitimate alternative federal voice. The CHRC, she argued, was not charged with upholding the laws. The bench saw an opportunity to further clarify the reasons behind the government's opposition.
"Isn't the role of the AGC to defend the legislation of Canada?" Justice MacPherson asked. "You are here protecting a common-law rule [i.e., judge-owned law]. That's a little unusual isn't it? Has the AG ever defended any other common-law rule?"
The AGC looked desperately to the two other lawyers representing Canada for some kind of answer, but they just looked back at her. There was no way to articulate why the government was there without admitting they were trying to defend discrimination for the sake of political expediency.
Fumbling for some kind of response, the AGC said, "Federal common law" and with a heave of her shoulders, she sat down.
Having waded through the mess of the AGC's submissions, Douglas Elliott stood to make his final submission on behalf of MCCT.
"The Netherlands", he began, "has the gold medal. Belgium has the silver. The question for us is whether Canada will be shut out of a medal position."
The justices smiled. It was a nice change to have intentional levity in the submissions.
Douglas said that the AGC had completely ignored the history and effect of the marriage laws in Canada. The ties between traditional Christian beliefs and the exclusionary effects are not a mere coincidence. The AGC had argued that to accept our marriages, the government would have to accept all religious marriages. This case was not about all religious marriage, Douglas said, 'it is about these religious marriages".
The state would not be endorsing our church's dogma by registering our marriage any more than the state endorsed Catholic or Jewish dogma by registering marriages performed in those places of worship.
Finally, tying the week nicely together and taking a page from Capt. Taylor's book, he recalled the portrait of the courtroom and judges that had been mentioned on the morning's brief tour, earlier in the week. Douglas noted that there were no women judges in the picture because that would have been inconceivable at that point. He urged the court to remember that we have evolved as a nation and that ideas grow and expand along with our understanding of equality.
There was a moment's silence as our champion of equality, having mesmerized the court with his gifts of oration, sat down at the end of a job well done.
The afternoon ended with that other powerhouse for equality Martha McCarthy, describing her wishes for remedy. She urged the court to adopt the following approach to remedy:
She said she disagreed slightly with Ms. Petersen in that she did not feel that a declaration of constitutional invalidity was sufficient, and that the declaration of the right to marry had to be included as part of the remedy and not just part of their reasons.
Justice MacPherson asked if she would recommend the remedy that Justice LaForme had crafted and Martha assented, although she indicated that she would prefer that the court simply remove the restriction to same-sex marriage as that would avoid any other complications in dealing with marriage laws.
At that point a note was passed to Martha, reminding her that she was an intervener in the MCCT marriage case and had yet to remind the court of that.
"Douglas Elliott has just passed me a note reminding me that I have to agree with his case too."
The court laughed, but Justice MacPherson asked quite seriously, if all of the applicant couples would accept the religious freedom arguments.
"They would accept the legal arguments [for the right to choose religious marriage]," Martha replied. In fact, two of the couples that she represents are also active members of our church, but are unable to marry through the practice of banns (the process is only available to couples who have not previously been married), and therefore they are seeking civil access to a marriage license.
In your hands
Martha's concern about not having the remedy specifically spelled out was because the government might choose to use minor administrative matters in order to delay implementing the court's decision. "We agree with Mr. Elliott that history is on our side", Martha warned, "The government has a long history of legislative avoidance when it comes to gay and lesbian equality. Do we want to continue to talk about this?"
We have had 20 years of dialogue, creeping towards full equality an incremental step at a time. Bill C-23 was required by M v. H, 'it was not a magnanimous gift". Even then, the government tainted it with a discriminatory preamble ("one man and one woman to the exclusion of all others"). The parliamentary hearings, cited by the AGC, were the direct result of the three marriage cases (B.C. Ontario and Quebec) in Canada and they were being used to attack the dignity of gays and lesbians, as groups like the Catholic Women's League, came forward to suggest that same-sex marriage would lead to sex with babies, children and animals.
"It has been 20 years of incremental change. If it is right, it is right to do it now."
Martha responded that she was sure that the couples who wanted to be married would put up with a little administrative inconsistency and to delay the remedy for such a trivial reason would truly be having 'the tail wag the dog' [in our MCCT marriage, one of us had to place our name in a form's field that was labeled "bride" and one of us was listed as "bridegroom"].
In conclusion, Martha asked the court to remember that gays and lesbians have been inching towards equality for so long that delay any longer would be to impact both the lives of the applicants and their families.
"How long must Mike and Mike wait to have their parents dance at their wedding? The applicant couples place their lives and the essence of humanity in your hands."
There was a respectful minutes silence as those final words sunk in. Then court thanked all parties for their able arguments and we stood as the justices left the court to make their decision. With the court adjourned, we applauded the work of our heroes.
The Court of Appeal for Ontario is expected to release its decision in the coming months: possibly September or October.
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