The morning after - a new reality (Photo be equalmarriage.ca, 2003)

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June 10, 2003

 

 

 

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Human Dignity

"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. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society."
Justice Iacobucci, Law v. Canada, Supreme Court of Canada, 1999

 

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"This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples. Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same-sex marriage ... the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views."
Court of Appeal for Ontario
June 10, 2003

 

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Legal - Ontario

June 11, 2003

The morning after - A new reality
A new world destination for same-sex couples?

Nearly two dozen homosexual couples applied for marriage licenses Wednesday, taking advantage of a court ruling that led to Canada's first legal same-sex wedding the day before. City spokesman Brad Ross said 18 of the couples were from Toronto and the rest from southern Ontario.
Associated Press, June 11, 2003

"Leslie Thompson, executive director for the Affirmations Lesbian and Gay Community Center in Ferndale, said she wouldn't be surprised if many gay couples from southeastern Michigan seek a marriage license in Windsor, just to have their unions recognized."
Associated Press, June 11, 2003


Following yesterday's courageous and compelling ruling from the Court of Appeal for Ontario, we returned home to open a bottle of champagne. We agreed to welcome CBC television back into our living room one more time (we wish to reclaim the privacy of our home, despite our appreciation for the respectful contribution of media professionals) so it wasn't the intimate moment we wanted, but we raised our first glass to toast love.

Read the full decision from
Court of Appeal for Ontario
June 10, 2003

Ontario Marriage Licence Application

Toronto Marriage licence requirements

Ottawa - Marriage Licenses

Our second toast was offered with thanks for the support of MCC Toronto and the team of lawyers at McGowan Elliott and Kim. There were more toasts to the justices, family, friends, supporters ... and then eventually we were alone to finish the bottle together.

The first registered gay marriage: January 14, 2001Later we went walking on Danforth Avenue in Toronto's east side Greek district to find an Irish pub. Inside, we joined a celebration with Douglas Elliott, the lead lawyer on the MCC Toronto team, along with Anne Vautour, and Rev. Dr. Brent Hawkes. There were two more bottles of Veuve.

It was a wonderful evening with many stories from this long and eventful journey. We also marveled at the implications of the day ...

Can't the federal government stop this?

No. Once again, the Canadian government lagged behind in delivering rights to gays and lesbians and so, yesterday, the justices did their job and protected the Canadian Charter. Further, the rights have already been exercised, and accepted by Ontario, Canada's most populous province.

Toronto began issuing marriage licences to same-sex couples yesterday. Ottawa started today. All will follow, in this province, and all others very soon.

Government options:

  1. The Prime Minister's legacy is linked to same-sex marriage.   As the sun sets on his political career will he seize the golden opportunity? (Photo of  Jean Chretien courtesy of the Office of the Prime Minister)The Canadian government could seek a stay from the Supreme Court of Canada immediately. This is only possible when a remedy can be demonstrably destructive. Unless "the sky will fall", the SCC will not grant a stay.
  2. File an application for leave to appeal and then seek a stay. There must be good grounds for an appeal, something the government lacks most notably. Further appeals are highly unlikely. Ten judges in four court cases agree.
  3. In unusual circumstances, the Court of Appeal of Ontario can be asked to put its decision on hold, but only when the Supreme Court of Canada can't handle the case in an emergency. There is no emergency here and this option won't apply.

Can't Ralph Klein and Alberta stop this?

No. Alberta can only invoke the notwithstanding clause on provincial matters - the solemnization of marriage. The capacity to marriage is controlled by the federal government. Alberta has no power over federal law, as Mr. Klein will soon discover. He may huff and puff but he will not blow the Charter down.

Couples from anywhere can marry in Ontario?

Yes. The Court of Appeal for Ontario delivered an undiluted, full and equal version of our holy grail: marriage. It goes furthTravelling to Ontario to get married?  Marriage advisoryer than the landmark legalization of marriage in the Netherlands and in Belgium. Both of these countries applied adoption restrictions on same-sex married couples. And both countries had native status requirements - at least one spouse must be from the country. Such limitations do not exist in Ontario.

In Ontario, and soon Canada, same-sex married couples will have 100% full and equal rights (and obligations) of opposite-sex couples. No hedging, no hold-backs. One marriage for all, including anyone who wishes to make Ontario their romance destination. The province will marry foriegn visitors too. Divorce, however, requires one-year of residency in Ontario, for at least one spouse, in the year prior to Ontario court action to end the marriage. The decision is a serious one of consequence.

Recognition of Canadian same-sex marriages in foreign countries will be the next challenge faced by cross-boarder couples. Already, American same-sex marriage advocates, in a number of states, are planning their strategies with intentions of starting in Ontario and ending in court in their home state or country. We have received notes from American supporters, asking for advice. Lawyer Bruce Walker is kindly responding to these enquiries, with something like:

"The usual method is to obtain a marriage license from the appropriate clerk at a city hall in Ontario. The fee for this is currently $110.00. Having met the criteria to obtain a marriage licence, you would then arrange with someone licenced to solemnize marriages in Ontario. This would be either a clergyperson or a justice of the Ontario Court. Your marriage would then be solemnized in a marriage ceremony. The problem would lie in having your marriage recognized by another jurisdiction, such as Orlando, Florida. Just whether or how this might turn out is not clear at this time.Also, marriage conveys no automatic right of residency in Canada. In fact, if you have lived together as common-law spouses for one year you both might jointly apply to immigrate to Canada as common-law spouses at this time. The Government of Canada web-site for Citizenship and Immigration is very helpful. "

The federal government has still not responded, but actions speak louder than words. Same-sex couples across the province are obtaining their marriage licences. A gracious response from the Liberal Canadian government is expected soon. There is still time to join the celebration.


June 10, 2003

Court of appeal gives immediate remedy:
January 14, 2001 marriages declared valid
Marriage licenses to same-sex couples issued today

"... this case is ultimately about the recognition and protection of human dignity and equality in the context of the social structures available to conjugal couples in Canada ... the question at the heart of this appeal is whether excluding same-sex couples from another of the most basic elements of civic life - marriage - infringes human dignity and violates the Canadian Constitution."
Court of Appeal for Ontario
McMurtry C.J.O., MacPherson and Gillese JJ.A.
June 10, 2003


Today, at 9:30 a.m., the Court of Appeal for Ontario decided that there was no reason to make same-sex couples wait any longer for their rights. In a unanimous 3-0 decision, the court concurred with the previous Ontario divisional court ruling that declared it was unconstitutional to deny same-sex couples the right to marry. However unlike the lower court, Justices McMurtry, MacPherson and Gillese found no reason to make same-sex couples wait to enjoy their new won freedoms:

"There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of the legal recognition of their marriage."
Court of Appeal for Ontario
McMurtry C.J.O., MacPherson and Gillese JJ.A.
June 10, 2003

The Court of Appeal for Ontario embraced a remedy that was first proposed by Justice Laforme in a minority view in Ontario divisional court. Today's decision said:

"To remedy the infringement of these constitutional rights, we:

  1. declare the existing common law definition of marriage to be invalid to the extent that it refers to "one man and one woman";
  2. reformulate the common law definition of marriage as "the voluntary union for life of two persons to the exclusion of all others";
  3. order the declaration of invalidity in (1) and the reformulated definition in (2) to have immediate effect;
  4. order the Clerk of the City of Toronto to issue marriage licenses to the Couples [same-sex couples involved in this marriage case]; and
  5. order the Registrar General of the Province of Ontario to accept for registration the marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne Vautour."

Marriage rights exercised hours after decision

Michael Leshner and Michael Stark apply for their marriage license.  Photo by equalmarriage.ca, 2003.
Michael Leshner and Michael Stark apply for their marriage license

Shortly after the decision was announced, the City of Toronto issued a statement that said, "Today's ruling allows any couple in the City of Toronto who meet the application requirements for marriage to obtain a marriage licence." Michael Leshner and Michael Stark received their marriage licence from the city. They were subsequently married by a judge in chambers shortly after 2:30 p.m.

In rendering their decision the three justice panel was very clear in rejecting the arguments advanced by the Attorney General of Canada, that marriage just "is" heterosexual. The court said this is "Circular reasoning" that "sidesteps" the real issues of equality. The Court of Appeal for Ontario said:

"The proper approach is to examine the impact of the opposite-sex requirement on same-sex couples to determine whether defining marriage as an opposite-sex institution in discriminatory."

The court also rejected the arguments that because External link to Pride York Regionmarriage has value for persons of the opposite sex it must be 'good' and therefore non-discriminatory. They also rejected the idea that because several countries around the world do not acknowledge same-sex marriages, that Canada should follow suit:

"A law is not 'non-discriminatory' simply because it pursues a pressing objective or impairs equality rights as little as possible. Much less is it 'non-discriminatory' because it reflects an international consensus as to the appropriate limits on equality rights"
Court of Appeal for Ontario
McMurtry C.J.O., MacPherson and Gillese JJ.A.
June 10, 2003

The decision of the Ontario Court of Appeal comes at a crucial moment. The government deadline to appeal the decision of the B.C. Court of Appeal has not yet arrived and the Standing Committee on Justice and Human Rights is about to issue its report on same-sex unions. The decisiveness of the Ontario decision and the immediacy of its remedy adds more pressure on the government to stop fighting the inevitable.

The Prime Minister and the Justice Minister should act now. They'll be in good company, most notably ten justices, in four court cases, in a row.

Congratulations to newlyweds and future weds in Ontario, as couples across Canada who will soon enjoy this rite and/or right. Our heartfelt appreciation to the Metropolitan Community Church of Toronto, McGowan Elliott & Kim, Epstein Cole, intervenors, witnesses, consultants, supporters and friends.

We are deeply grateful for the wisdom of the Court of Appeal for Ontario, the Ontario divisional court, and the courts in British Columbia and Quebec.



Summaries from the Court of Appeal for Ontario:
 
Summaries from Ontario divisional court:


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