Canadian Coalition of Liberal Rabbis for Same-Sex Marriage - The Words of the Living God (SELECT to read the complete factum)

 

 

 

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Legal Canada - Ontario

April 17, 2003

The words of the living God
The Canadian Coalition of Liberal Rabbis for
Same-Sex Marriage

Extracted from the factum written by:
Ed Morgan
Faculty of Law, University of Toronto

“The question of moral right and wrong and the relationship of judgment to religious decision is a matter of conscience and decision-making. Jewish tradition recognizes that differences will emerge. An oft-cited Talmudic maxim is 'eilu v'eilu divrei Elohim chayim,' ' These and those are the words of the living God.'”
Affidavit of Rabbi Elliot Stevens, paras. 4, 14

"As a people and a church, we reflexively want to catch hold of God. Like children snapping the lid on a jar of fireflies, we want to trap God in doctrine, hold God fast so we may examine God behind the clear glass of tradition. This seems to be a universal impulse from the beginning of recorded history. But if God is to be God, the first thing God must do, as Peter found out, is to shatter what we think we know about God. Because, if God doesn’t, we come to place our trust in what we know about God — in our doctrines and our traditions themselves — and not in God."
God not trapped behind tradition, York Daily Record, Mar. 2, 2003


The Liberal Coalition is made up of rabbis from across Canada who, as described by Chief Justice McMurtry, "have been actively involved in the theological discussion of same-sex unions and who have dealt with the practicial reality of the difficulties encountered by gay and lesbian congregants in Jewish religious life."

It is the Liberal Coalition's position that the religious freedoms and equality reights of the clergy and congregations it represents are impeded by the continued prohibtion of same-sex marriage. Another intervenor in the case at bar, the Interfaith Coalition on Marriage and the Family (the "Interfaith Coalition"), states that religious Jews in Canada view the prospect of the recognition of same-sex marriage as "destablizing" to their religious freedoms and are "extremely concerned about the impact of the redefinition of marriage in a manner inconsistent with their fundamental religious beliefs." This concern is not shared by all religious Jews. Judaism is far from monolithic, embracing substantial diversity in practices and interpretation.

Read the complete Liberal Coalition factum

Read the affidavit of Rabbi Steven Greenberg
(ordained Rabbi of America's largest Orthodox Rabbinical Seminary, Yeshiva University's Rabbi Isaac Elchanan Theological Seminary)

Read other factums related to the April 2003 Ontario Appeal

A broad range of views in a secular society

As with all other religions, there is a broad range of views and interpretations within Judaism. There is certainly no single spokesperson for Jewish law ... Contrary to assertions made by the Interfaith Coalition, Jewish law on the subject of same-sex unions is subject to change, and contemporary Jewish leaders speak with a variety of voices on the subject.

The Liberal Coalition represents those who view it as a religious duty to correct the misunderstandings and resulting injustices of the past towards gays and lesbians ... Support of gay and lesbian families helps to strengthen the Jewish family in its diversity, and allows all community members to participate in the committed and loving relationships fostered by the Jewish faith."The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own."
Dickson, J., R. v. Big M Drug Mart Ltd., (1985)

Moreover, the Liberal Coalition does not represent a "dissentient" view of Judaism, as described by the Interfaith Coalition ... Indeed, the Interfaith Coalition's narrow conception of Judaism does not reflect the values and beliefs of the Central Conference of American Rabbis, the governing body of the Reform movement (the largest branch of Judaism in the United States, representing a majority of American Jews, and one of the major branches in Canada).

Faith-based opposition to equality is unjustified

The Interfaith Coalition has submitted that the termination of the common law prohibition on same-sex marriage will seriously and negatively impact religious communities across Canada, including the Jewish community. Further, the Interfaith Coalition suggests that such a change would cause clergy in various religions to withdraw from the solemnization of marriage altogether, in order to avoid being "required" to recognize a same-sex marriage or being subject to a human rights challenge for failing to perform one ... there is no merit in such a submission ... no such negative impact will be felt; indeed religious freedom is augmented by the inclusion of same-sex partners within the definition of marriage.

In the Liberal Coalition's view, a change in the law regarding same-sex marriage is not, as the Interfaith Coalition puts it, equivalent to an "attack" that would fundamentally undermine the values and beliefs of the Jewish commuity. The Jewish faith has always been capable of accommodating itself to the secular legal system, even where the law does not accord with Jewish norms. The fact, for example, that Canadian society permits the sale and consumption of non-kosher food is not an "attack" on Jewish values, despite the fact that Orthodox Jewish law contains numerous dietary restrictions; likewise, the fact that Canadian marriage laws permit marriage between Jews and non-Jews is not an "attack" on Jewish values, despite the fact that Orthodox Jewish law prohibits such marriages."Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits."
Iacobucci, J., Law v. Canada, (1999)

Freedom of conscience and religion

The common law rule prohibiting same-sex marriage creates a barrier to freedom of conscience and religion of both Jewish and non-Jewish gays and lesbians, and those who support their commitments.

Further, it is the Liberal Coaltion's submission that the differential treatment contained in the impugned rule serves no ameliorative purpose in that it does not improve the situation of any other group. Writing in the Gosselin case, L'Heureux-Dube, J. concluded that if a law is to be understood as having an ameliorative purpose, it "must be for the benefit of a group less advantaged than the one targeted by the impugned distinction." While the rule prohibiting same-sex marriages does not improve the lot of the people who do not care to enter into or officiate at such unions, it certainly discriminates against those who do.
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

The Liberal Coalition supports the Respondents in their request that his Honourable Court declare as follows:

  1. that the common law prohibition of same-sex marriage infringes the section 2(a) right to freedom of religion;
  2. that the common law prohibition of same-sex marriage infringes section 15(1) equality rights on the grounds of religion and sexual orientation; and
  3. that the common law rule restricting marriage to heterosexual couples be reformulated to permit marriage between two persons regardless of the sex of those persons.

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