EGALE
Fact Sheet
Ontario Same-sex Marriage DecisionQuestions
& Answers This
Fact Sheet has been developed by Egale to respond to some of the common questions
raised by the recent historic Court ruling in favour of same-sex marriage. The
ruling is, however, only a first step. The Fact Sheet therefore concludes with
some strategies and suggestions about what you can do to help secure this victory.
Q. What's
up? A. On
Friday, July 12, 2002, the Ontario Superior Court of Justice ruled that denying
same-sex couples the equal right to marry is unconstitutional. This
is the first time in Canadian history that a Court has ruled that excluding same-sex
couples from marriage is unconstitutional and must be fixed. The three-person
Court, consisting of Justice Laforme, Justice Blair, and Associate Chief Justice
Smith, was unanimous that the ban on same-sex marriage is unconstitutional, but
reached different conclusions on how to remedy the situation. Q.
So we won!! Er, what did we win, exactly? A.
The Court was unanimous on a number of important points:
(a) the question of who can marry is a matter of exclusive federal jurisdiction.
(b) Parliament has enacted no statute prohibiting same-sex marriage. There is
an interpretation clause in the federal Modernisation of Benefits and Obligations
Act, stating that the Act "does not affect" the opposite-sex definition of marriage,
but this clause is merely an expression of Parliament's opinion, and does not
itself prohibit same-sex marriage. It
should be noted that there is an opposite-sex definition of marriage in a federal
statute, S-4, which applies only in Quebec, since it was designed to harmonize
certain federal and Quebec laws. This statute is subject to a separate constitutional
challenge in the case of Hendricks & Leboeuf v. Quebec. (c)
Although there is no federal statute applicable in Ontario prohibiting same-sex
marriage, the common-law definition of marriage dates back to an 1866 case called
Hyde v Hyde, and restricts marriage to the lawful union of one man and one woman.
(d) The common
law definition restricting marriage to opposite-sex couples is discriminatory,
contrary to the s.15 equality guarantees of the Charter of Rights, and undermines
the human dignity of lesbians, gays and bisexuals. (e)
This discrimination cannot be justified by the government. The only rationale
advanced by government for discriminating was based on the argument that only
heterosexuals can procreate. Procreation is not the singular objective of marriage
and, in any event, many same-sex couples now have and raise children. The government
has advanced no pressing and substantial objective for maintaining discrimination;
moreover, excluding same-sex couples from marriage is not rationally connected
to the purported objective, the rights of lesbians, gays and bisexuals are not
minimally impaired, and the negative effect of the discrimination far outweighs
any speculative benefits of the law. (f)
The Court also unanimously rejected the view of a B.C. judge (Pitfield J) who
held last year (in a decision currently under appeal) that even Parliament could
not legislate to allow same-sex marriage without a constitutional amendment. Q.
What did the Court say should be done about it? A.
Each of the three judges reached a different conclusion on how to remedy the unconstitutional
common law definition of marriage: (a)
Justice Laforme ruled that the common law definition of marriage must be extended
to include same-sex couples, effective immediately; (b)
Justice Blair ruled that:
i) the whole common-law definition of marriage must be declared of
no force and effect;
ii) the declaration should be suspended for 24 months to give Parliament
time to redress the discriminatory exclusion of same-sex couples from marriage
law;
iii) if Parliament fails to provide a remedy within 24 months, the
extension of the common law definition of marriage to include same-sex couples,
as proposed by Justice Laforme, would automatically come into effect. Justice
Blair also suggested that any remedy Parliament sought to provide would need to
conform to the constitutional requirements of equality. (c)
Justice Smith ruled that:
i) the whole common-law definition of marriage must be declared of
no force and effect;
ii) the declaration should be suspended for 24 months to give Parliament
time to redress the discriminatory exclusion of same-sex couples from marriage
law;
iii) if Parliament provides a remedy within 24 months, the Applicants
would have the right to return to Court to see whether the remedy meets the constitutional
requirements of equality. If Parliament provides no remedy within 24 months, the
Applicants would have the right to return to Court to ask the Court to fashion
a remedy instead. Q.
OK, so what does that mean, in practice? A.
Although different judges agreed with each other on different points, there are
three outcomes established by a majority of the Court: (a)
The majority of the Court (Blair and Smith JJ) held that the Court's decision
is suspended for 24 months; (b)
The majority of the Court (Blair and Laforme JJ) held that the common law definition
of marriage should be extended to include same-sex couples. Therefore, if Parliament
fails to act within 24 months, the common law definition of marriage will be automatically
extended to same-sex couples at the end of that period, with no further need to
return to the Court; (c)
If Parliament does provide a remedy within 24 months, that remedy will need to
conform to the constitutional requirements of equality. The court was less clear
about how the issue could most effectively be re-examined: Smith ACJ would allow
the Applicants to come back to Court to review what Parliament had done, Blair
J did not indicate how the matter might be reviewed, and Laforme J. did not address
this point, since he felt that no remedy other than the full right to marry could
ever satisfy the demands of equality. The
bottom line is this: If the government does not appeal the decision, it has two
years to fix the unconstitutional definition of marriage. If it fails to do so,
the definition of marriage will be automatically extended as a result of the court
decision. Q.
What happens now? A.
There are essentially three different ways in which the case can now unfold: (a)
The federal or provincial Attorneys General could appeal the case to the Ontario
Court of Appeal. The Ontario government has already announced that it will accept
the Court decision. The federal government has until July 29 to decide whether
or not to appeal; (b)
The federal government may choose not to appeal, but take no action within the
24 month period, in which case the law will be automatically extended to include
same-sex couples; (c)
The federal government may choose not to appeal, and may instead enact legislation
within the 24 month period. This legislation might be of 3 kinds:
i) Parliament
could provide same-sex couples with the full equal right to marry, in which case
the matter would be resolved; ii)
Parliament might attempt to create some alternative regime to marriage. The Applicants
have been clear that they are not interested in some second-class alternative,
but seek the full equality that marriage provides. It would therefore be necessary
to return to Court to challenge the new regime as maintaining discrimination.
At least two of the judges (Blair and Laforme JJ) strongly questioned whether
such a 'separate and unequal' regime could survive constitutional scrutiny, while
Associate Chief Justice Smith preferred not to speculate on the adequacy of alternative
measures; iii)
Parliament could also replace legally-sanctioned marriage with an alternative
mechanism for allocating State rights and responsibilities, effectively getting
the State out of the marriage business, and leaving it up to religions to perform
marriages or not in accordance with their own values. Blair J. referenced a Law
Commission of Canada report which raises this possibility. In this case, the Applicants
would have the right to return to Court to consider whether or not such an approach
met the requirements of equality. Q.
Does the ruling apply outside Ontario? A.
In theory, yes. The ruling, once it takes effect, would extend the federal definition
of marriage, and federal law applies across all of Canada. One exception is Quebec,
where a separate federal statute, S-4, is under challenge. Alberta has also purported
to enact a statute prohibiting same-sex marriage, but this statute is almost certainly
unconstitutional because the provinces have no jurisdiction over the question
of who can marry. In
practice, a Registrar in another province might simply refuse to follow the Ontario
judgment, which would then require a further constitutional challenge in that
province. The courts of that province would doubtless find the Ontario court ruling
persuasive, but would be free to reach a different conclusion. To
truly cement the victory across the country, one of two things must happen: (a)
a Supreme Court of Canada ruling extending the definition of marriage in both
the common law and Bill S-4 would have binding effect across the country; (b)
Parliament could legislate to extend the definition of marriage across the country.
Q. What can
I do to help? A.
Good question!! If we truly want to secure equal marriage, every one of us is
responsible to get involved. The Ontario decision is a good first step, but no-one
is going to just hand us our rights - we have to fight to obtain them. Here's
what you can do: (a)
Contact your federal MP. Tell
him or her you support providing same-sex couples with the equal right to marry.
Ask your MP if he or she supports the unanimous Court ruling that it is discriminatory
to deny same-sex couples the right to marry. Point out that two-thirds of Canadians
(according to a poll by Leger Marketing in June 2001) support same-sex marriage.
Point out that the Ontario government has decided to accept the Court decision
and support same-sex marriage. Ask if we can count on the MP's support for equal
marriage, and where their party stands. Specifically, do they believe Parliament
should do the right thing and extend marriage to same-sex couples? If your MP
is supportive, ask them to speak to their party leader and to the Attorney General
of Canada Martin Cauchon. Be sure to tell Egale what response you get. You
can get your MP's contact details in one of the following ways: Just
visit the following Website and enter your postal code: http://www.parl.gc.ca/information/about/people/house/PostalCode.asp?Source=s
m You can also
phone Elections Canada at 1-800-463-6868, or contact the Egale office at 1-888-204-7777,
egale.canada@egale.ca. (b)
Contact the office of Attorney General of Canada Martin Cauchon and the office
of Prime Minister Jean Chrétien. Urge them not to appeal the decision, and to
legislate to provide same-sex couples with equal marriage rights. The
contact details for the Attorney General of Canada and the Prime Minister are:
The Rt. Hon. Jean Chrétien, PC, MP
Prime Minister of Canada
House of
Commons,
Ottawa, ON, K1A 0K2
Ph: (613) 992-4211
Fax: (613) 941-6900
E-mail: pm@pm.gc.ca The
Hon. Martin Cauchon, PC, MP
Attorney General of Canada House of Commons,
Ottawa, ON, K1A 0A6
Ph: 613-992-4621
Fax: 613-990-7255
E-mail:
Cauchon.M@parl.gc.ca (c)
Write letters to the Editor. Your MP and MPP will be watching their local
and national newspapers to get a feel for where their constituents stand. Write
letters to your local and national papers telling them how you feel about the
court decision, and why equal marriage is important. Respond to letters opposing
the court decision. (d)
Join Egale's Adopt-an-MP program! By building a relationship with your
MP, you can help to educate him or her over time, bringing us that much closer
to the goal of equal marriage. Just send an e-mail to mp@egale.ca
or call us at 1-888-204-7777. (e)
Support equal marriage efforts financially. You can contribute to any of the marriage
challenges through www.samesexmarriage.ca.
You can also support Egale's work in this and other areas by becoming a member
or making a donation. Better yet, consider becoming a monthly donor, to support
our work on behalf of the community for the long haul. To make a donation, just
fill out the on-line form at: https://www.islandnet.com/~egale/intro/appeal.htm
or contact us at egale.canada@egale.ca
or toll-free at 1-888-204-7777. If
you've read this far, and if you support the Ontario decision extending equal
marriage rights, please take the time to do at least two things from the above
list. If you don't have time, then please make a financial contribution. Not everyone
would choose to marry - but it's a choice that each of us has a right to make
for ourselves. The equal right to marry could be ours - but it won't just happen
by itself. You have to help make it happen. To
contact Egale at any time: Egale
205-176 Gloucester Ottawa,
ON, K2P 0A6
1-888-204-7777
egale.canada@egale.ca
www.egale.ca
| 
