limitation of our religious freedom diminishes us as a just society."
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."
November 6, 2020
Day Two - The Ontario Divisional Court
Today was the second day of arguments presented in favour of same-sex marriage.
Martha McCarthy started the day by discussing the "frozen rights" view of marriage. In the decision of the BC Court, the definition of marriage was frozen in time at 1867 with the formation of the constitution. Martha made it clear that the meanings of words have evolved, and the framers of the constitution could not possibly have meant to limit the power of parliament to the world of 1867 without change. Otherwise there would be no divorce and things like regulation of airline travel would have no law because the world of 1867 couldn't conceive of them.
Martha then turned to the issue of how to undo any discriminatory practices of a law that prohibits same sex couples from marrying. She argued that when the court finds discrimination in the common law, the responsibility for remedy falls squarely on the shoulders of the court with no need to consult parliament. In a case where "judge made law" discriminates against gays, it is up to judges to write new common law.
Vermont or Not Vermont?
Martha was challenged as to whether parliament should not be given a chance to act on this case. like in Vermont with the civil unions bill. She eloquently stated that this case is about marriage itself and that anything short of full marriage, either by legislation or by common law would "smack of discrimination". She argued that if the panel were to get as far as finding discrimination, and then defer to parliament to come up with some "gay version" of marriage, then they would in effect be giving gays and lesbians "rights and no remedies".
Martha asked for a new common law that would give same sex couples the same right to marry as opposite sex couples. No parallel system ("separate but equal"), no marriage in everything except name. We must have full access to marriage.
The Case For MCC Toronto
When we resumed after the mid-morning break, Douglas Elliott began outlining the case for MCC Toronto. He introduced us to the court and explained the absences of both Rev. Brent Hawkes, and the Vautours, and asked the court to consider weddings: the love and joy that are present on that special day. Douglas asserted that our weddings, on January 14, despite the media attention, were no different from any other weddings, except in the eyes of the government, who called them foreign and alien to Canadians. Yet he concluded, they made no move to stop the weddings from taking place.
Any bar at common law, Douglas said, is a remnant from another time when state-sanctioned prejudices against non Church of England marriages influenced the laws of both England and Canada. He asserted that the history of traditional Christian teaching interfering with marriage laws goes back to Henry VIII, a notorious serial husband and an even more notorious divorcee. Further the English parliaments, which passed laws, were full of bishops who brought their own Episcopal prejudices to the laws of the land.
It was argued that laws against homosexuality were influenced by the same fundamentalist Christian prejudices that had existed since the time of Saint Augustine and despite our move away from the "barbarism" of those times; the opponents of same-sex marriage would have those opinions still forming laws and customs.
Religious objections and legal impediments to same-sex marriages did not exist on this continent until the arrival of the European powers. The imperialist powers ignored the customs of First Nations peoples (who had recognized same sex unions) and imposed Western European religious intolerance into the earliest laws of the land. First nations same sex marriages were considered "incidental".
Another group whose marriages were disallowed by the English were Catholics. Their church was granted status to perform a religious ceremony, but with no standing in law. For example it wasn't until 1847 that Catholic marriages became legally recognized in Ontario. Jewish marriages didn't become legal until 1857, and civil marriages were not permitted until 1950. In fact marriage licenses were introduced to grant marriage to people who did not wish to follow a faith community. Prior to 1950, only religious marriages were allowed. This answers those critics who say our marriage was performed by a "loophole" in the law. Licences are the loopholes, not banns.
Douglas went on to argue that marriage, as a right, is important to all Canadians and exclusion from that right violates the principles of common law, the Charter of Rights and Freedoms and various International laws to which Canada has agreed. Finally Douglas went on to say that there is no statutory bar to marriage despite the Attorney General's reliance on the preamble to Bill C -23. Douglas pointed out two main flaws in their assertion:
1) An act which says it is not defining marriage, cannot then be used to define it.
2) The definition that is supposed to be a "universal unchanging and timeless truth" is a perversion of an 1866 decision on polygamous marriage.
The government chose to take out the parts of the definition they thought would be unpopular with people and left in only the parts that supported their argument and presented it as a "timeless truth". This twisted definition has been used, incorrectly in many cases, to deny people marriage rights, but this has been rejected in Ontario. As one Justice asked, why should the 1866 view of marriage apply to Ontario in the 20th Century?
Trent went on to argue (as Martha had done previously) that the law had moved on from the 1867 perceptions of marriage and even in framing the constitution, there had been advice to be broad in considering what constituted marriage. Trent's final point was that to view the Constitution as stuck at 1867 was to ignore that the Constitution is a living document that must evolve to meet the needs of Canadian society and the changing social realities of our time.
We broke for lunch and afterwards, Trent clarified a few minor points before Douglas concluded his arguments on behalf of the church. He asked the court to consider the freedom of religion that has been guaranteed under the charter and how important that right is. He also indicated that part of religious freedom is the right to marry and to have that marriage legally recognized. He then read from our affidavit, citing the different reactions that our families had on the day of the wedding as opposed to the day of the Holy Union. Douglas finished on this point by saying "the limitation of our religious freedom diminishes us as a just society."
An End To Segregation - We Expect Nothing Less
He then asked the court to consider the arguments advanced by the Attorney General's office as justifications for excluding gays and lesbians from marriage. These included such things as procreative ability (that marriage is about procreation), history (that it has always just been a man and a woman and that's the way things are), it's a common view that marriage is between a man and a woman and the notion that heterosexual marriages would be diminished if gays and lesbians were allowed to marry. In each case, Douglas showed why the reason was invalid and has been dismissed by the Supreme Court or other courts.
Finally, Douglas submitted that the institution of marriage which had historically been limited to a few (the Church of England) had expanded to include others and was robust enough to allow gays and lesbians in without ruining it for everyone. He concluded that any attempt to create another type of marriage for gays and lesbians was akin to having equally nice schools for black children during the days of segregation. "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."
After a short break, the last speaker of the day was Cynthia Petersen a lawyer representing EGALE. Cynthia's presentation made a dramatic finish to the compelling arguments advanced by Trent, Douglas and Martha. In her submission, Cynthia presented herself as representing all of those gays, lesbians, bisexuals and transgendered persons who could not be present in court.
She argued that several of the cases cited by the government did not deal with situations that were analogous to our case because they did not deal specifically with cases where a violation of the rights guaranteed by the Charter was infringed upon by a rule of common-law. She said what the proper course of action should be; lesbians and gays across the country could not be expected to wait for the government to get around to worrying about them. She charged the court that it was their duty and place to set things right by changing common law.
Cynthia picked up the theme, touched on by both Martha and Douglas, of "separate but equal". She argued that the current case was exactly parallel to that in which the courts found themselves during the 1950s when dealing with the issue of segregation. Her presentation seemed to clarify for the court exactly what this case was about and more especially, how monumental what they had to do was. This seemed to shock the justices, just a little bit, but they were also paying rapt attention to her.
Finally, Cynthia closed with a comparison that, at first, had everyone puzzled. She cited a case where an abusive man, who had a criminal background, had married his on again/off again common-law wife, in order to prevent her from testifying against him. When the government tried to force the wife to testify, the Supreme Court ruled that this relationship of abuse and convenience still was a valid, legal marriage with an established bond that needed to be protected. How then, asked Cynthia, did the loving relationships of stable same-sex couples warrant so much less respect? No one seemed to have a good answer and the silence in court was deafening.
And so onto tomorrow when the opponents of equal marriage get a chance to try and answer Cynthia's poignant question.
Kevin and Joe