"Why can't my moms get married?"  Ontario Appeal - Day 1
Hannah Ruth with her brother Robbie (children of Alison Kemper and Joyce Barnett) at the press conference. "Why can't my moms get married?"

 

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"We have concepts that by their nature will exclude other ideas."
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"Broadening the definition of marriage won't exclude a single heterosexual couple or their benefits. This is not a case where you take from one and give it to someone else, like affirmative action. There would be no change whatsoever to the vast number of Canadians."
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"Some of the affidavits from the applicant couples say that they have celebrated their unions in other ways. I don't think that anyone in this courtroom could say that their relationships are not recognized - they are not recognized in the same way. If same-sex couples did not have the right to choose a same-sex couple, than that would be discriminatory ... These other unions are clearly capable of being brought to fruition and recognition is clearly available in many other ways."
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"But not in the same way." Justice Gillese
April 22, 2003

 

 

 

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"If you ask a 20-year-old what you want in life, a person would say: one, good health; two, good education; three, a good job; and four, probably a good marriage with children. If you too each of those four and said gay people won't be admitted to one, two or three because they are gay, it would be incomprehensible, so why not marriage?"
Justice MacPherson, April 22, 2003

 

 

 

 

"Social and biological realities have to be taken into account. If those social and biological realities exist than someone who looks at that in its context will conclude that marriage doesn't discriminate, but rather what society has done with it is the cause or source of discrimination. If you understand the premise and biological and sociological realities than if you are not in that model, how can you be demeaned?"
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Legal - Ontario Appeal - Day 1

April 22, 2003

Why can't my moms get married?
The netherworld of the Attorney General of Canada


Our day began early in the offices of McGowan Elliott & Kim where Douglas Elliott, Trent Morris and Victoria Paris, the lawyers representing the Metropolitan Community Church of Toronto, were packing up the documents that were going to be used in this week's same-sex marriage appeal at the venerable Osgoode Hall. The team had been up late the night before, perhaps a normal experience in cases like this. Stress seems to be a part of the job, if the Tylenol perched on the water cooler was any indicator.

Everyone seemed to be doing double duty, even those of us who weren't involved in the legal case. While the lawyers finished last minute preparations on the case, our pastor, the Rev. Dr. Brent Hawkes worked on church-related business and my husband Joe Varnell worked on bank business. Our day-to-day responsibilities can't wait while we slowly, but surely, work our way through the court system for justice. As Joe said, moments before leaving the law firm to get to the court in time for a press conference, "I just wish we could get on with our lives ..."

The press conference

The 9:00 a.m. press conference was an orderly affair, unlike the press conference from our first day at Ontario divisional court in 2001, when the Evangelical fellowship decided to interrupt the speaking order.

"The essence of these [the federal government] arguments is bigotry," Martha McCarthy told the gathered media. " ... the Charter promises equality for everybody and there is no hierarchy of love."

"Everyone has the right to choose the partner of their choosing and to have that relationship recognized in law," said Joe. "Nothing less than full and equal marriage will do ..."

A reporter enquired about our marriage life.

Joe Varnell, using some quiet time before heading to court, to meet his responsibilities at the bank where he works (Photo be equalmarriage.ca, 2003)
Joe Varnell taking some quite time before the beginning of the hearing to look after his work responsibilities as a manager at a bank. Advocacy work causes many involved to do double duty in their lives.

"We'd love to be able to get on with our married life," I responded, "instead of having a courtship here at Osgoode Hall."

And young Robbie Barnett Kempler said, "This case is simple. All it says is if a man and a woman can get married, why can't a woman and a woman get married? Why can't my moms get married?"

Courtroom orientation

Soon it was time to enter courtroom number two in Osgoode Hall where we were greeted by Mr. Doug Taylor, Site Manager, Ontario Courts. Mr. Taylor had previously served as site manager in our first appearance in divisional court, and his friendly and professional demeanor was a welcome reunion in this final visit to Osgoode Hall.

As before, he began the day explaining a few formalities to everyone in the courtroom, prior to the entrance of the panel of three justices. He also offered a few facts about the historic surroundings we found ourselves in. Mr. Taylor pointed out that our surroundings differed somewhat from the courtroom next door (which was built 30 years earlier), where our first appearance at Osgoode hall had been in 2001.

Today we were in a room completed in 1888 at the start of the machine age. The provincial government had hired an architect who was also an engineer. Consequently he was intent on finding a more economical means of doing things, rather than the intense hand crafting that we had found in our first courtroom. Here, details in the woodwork were stamped by machine, and moldings were used instead of hand made elements. The colour scheme was the original style that had been used in 1888.

The hearing begins

At last it was time to begin the hearing. Chief Justice Roy McMurtry entered, accompanied by Justice James MacPherson and Justice Eileen Gillese, all of whom took their place on the raised platform overlooking the courtroom.

Since the government of Canada decided to appeal our July 12 Divisional court victory, Roslyn Levine (Roz), the lawyer representing the Attorney General of Canada (AGC) led off with her arguments.

Victoria Paris makes a few finishing touches to some documents prior to our first day in court (Photo by equalmarriage.ca, 2003
Lawyer Victoria Paris makes a few finishing touches to some documents, prior to leaving for our first day in the Court of Appeal for Ontario

The AGC began by saying that this case does not now, and never has, reflected on whether the objective of changing marriage from man/woman to two persons is a good thing.

"That has never been an issue before the court," she said. "It has been and will be an issue for parliament to decide. Parliament's Standing Committee on Justice and Human Rights has been mandated to consider this issue. The only legal issue before the courts is whether the couples met their burden to establish whether marriage, as a concept in common law, violates their charter rights. The divisional court went beyond that legal issue."

According to the AGC, the court doesn't define marriage but it "understands it". This seems to contradict the concept of common law, but the AGC tried to explain this unusual position. "The court has to determine how marriage is understood ... to determine the nature and identity of this institution."

Court to government - what are your intentions?

Justice MacPherson introduced the first question early in the AGC's presentation.

"The federal government has authority, but the federal government has never legislated in that area, right?"

The AGC agreed with this view, but said that the Modernization of Benefits and Obligations Act (commonly known as Bill C23) had a preamble clause (the infamous "one man and one woman to the exclusion of all others") that showed the government's intention. Although this clause was not a statute, it mirrors today's common law (judge owned law) that is in question today.

"The common law view is supported by parliament?" Justice MacPherson asked.

"Correct," the AGC replied.

"Given the process that is going on now," said Chief Justice McMurtry, "it seems that parliament is signaling to the country that it is reviewing the matter."

The AGC said that this does not indicate that the exclusionary definition is a charter violation, but rather that the definition of marriage is a matter of "social policy".

The freight of equality (Photo by equalmarriage.ca, 2003)
Constitutional law is paper-driven - some of the boxed documents used by our heroes at McGowan Elliott & Kim

"Times have changed, benefits have been extended, and as asocial policy decision, marriage may be changed in the next short while. But the only question now is whether there is a charter violation."

Referring to the AGC's contention that the purpose of Bill C23 was to maintain the status quo in common law Justice Gillese said that common law is "a living growing thing."

"Before the common law can be changed," the AGC countered, "a charter breach must be found." Further, she argued that common law advances must be "incremental and within institutional boundaries."

Here we go 'round in circles

"This case is unique because it asks the court to challenge the fundamental societal institution, one that was prelegal," the AGC said. "The court was asked to measure the institution against section 15 [the equality guarantees in the Canadian Charter]."

The court seemed to think that our case was indeed about legislation.

"You say that this case is unique because it challenges an institution rather than legislation," Chief Justice McMurtry said. "But the institution has been recognized by legislation. Does that not make it less unique?"

Legislation or common law merely turns the institution into "useful concepts for the law" but that is not the entity of marriage, the AGC replied. Here, the AGC entered into her circular argument that marriage just is heterosexual and by nature, homosexuals are not part of that institution. By analogy, the AGC said, "the essence of the term male is that it distinguishes between male and female. No one would suggest that the term male is discriminatory."

She gave further examples: democracy does not include dictatorships, adulthood does not include childhood.

"We have concepts that by their nature will exclude other ideas."

She didn't say some people are protected by the Charter and some are not, but she did compare citizens to non-citizens. It was clear where she thought gay people fit in.

"You say that Bill C23 amends 69 statutes to provide financial benefits to couples," Justice MacPherson said. "If the federal government has done that, why not give them [same-sex couples] the same title?"

The AGC implied that this was not a matter for the courts.

"What you ask me is a social policy question," she said. "There are clearly a number of options in that social policy question. It doesn't really bear on the legal issue."

Liberal Member of Provincial Parliament George Smitherman (Photo by equalmarriage.ca, 2003)
Provincial Member of Parliament (Liberal) George Smitherman was at the press conference. . Mr. Smitherman is supporting Federal Liberal leadership candidate Paul Martin. Many expect Mr. Martin to be the next Prime Minister but Mr. Martin has yet to speak out in support of same-sex marriage. Will Mr. Smitherman have any influence in turning the Liberal feds away from discrimination?

"Why is it not a legal issue?" asked Justice Gillese.

"The legal issue is whether the charter rights have been breached."

The AGC then went on to explain that everyone, except the Netherlands and Belgium, have maintained marriage discrimination against gays.

"Why are international elements relevant?" Justice MacPherson asked. "If the Canadian law changes I have no expectation that other countries will recognize it."

"It's helpful to know that the concept of marriage is understood universally," the AGC responded. "It supports the idea the sometimes distinction are valid and justified in democratic societies."

"But it is not universal," Justice MacPherson said. "It is predominant but not universal and never has been."

"I would disagree," the AGC responded. She went on to say that marriage has never changed its "core attributes" which are attached to the constant of an opposite-sex relationship.

The AGC's Core Attributes of Marriage

The "core attributes" were the same ones that the AGC had used in our first appearance in Divisional Court:

  1. Procreation or the possibility of children.
  2. Fidelity.
  3. Sacrament, which the AGC said is now interpreted as permanency.

Marriage was not based on companionship, the AGC said.

"Same-sex couples raise children," Chief Justice McMurtry interjected, "it's not just companionship." He gave the courtroom its first relief from the serious discussion when he commented on his own age and the unlikely possibility of children.

"Same-sex unions would have all of those features," Justice Gillese said.

But those were just "features" attached to "the one constant of opposite-sex relationships" the AGC said, back at her circular argument again. Same-sex couples didn't meet the one constant: they weren't opposite-sex! To support this argument, the AGC referred the court to the Supreme Court of Canada Egan case, sighting the minority opinion of Justice La Forest. However, the AGC failed to identify her source as a minority opinion, which is largely seen as a no-no in legal circles.
Refreshment at the firm of McGowan Elliott & Kim (Photo by equalmarriage.ca, 2003)
Life in law. We noticed this unique feature of refreshment at the firm of McGowan Elliott & Kim

Minority opinions are relevant when they offer illuminating statements that supplement the majority opinion, or when they are indicative of the direction that future law will take. They are not relevant when they are disingenuously used to bolster weak arguments, as the AGC was clearly doing. It was a tactic that the AGC would return to again and again throughout the day.

Justice MacPherson asked the AGC explain how same-sex couples differ from opposite-sex couples in their ability to meet the "core attributes" defined by the AGC.

"You can't look at marriage as a stack of attributes," the AGC said, not rising to the challenge. Those three attributes, she explained, underpinned this "one constant" of marriage being opposite-sex in nature.

"I don't think we are at the point in our world history where we can say that gender is irrelevant," the AGC said. "That would be a post-post modern world."

Marriage was simply aimed at opposite-sex couples.

"What is the purpose of the distinction today," Justice MacPherson asked, "and what is the effect of the distinction today?"

"Marriage is the descriptor that we use for opposite-sex unions," the AGC said. She implied that our case was challenging the institution of marriage, not the laws, which have been already changed through Bill C23 to give us "substantive equality" and "public recognition".

"That is about money," Justice MacPherson said.

"I beg to differ," the AGC replied. "It gives status as having a value and meaning as a unit ... it's not just financial benefits but it's building on the purposes of those ideas that couples do build unions and have inter-economic dependence. These unions are celebrated in formalities in the community, there is social recognition of those unions."

Apparently a blessing of our union, which Joe and I did in 1999 is good enough. She seems to forget that our affidavit pointed out that my parents considered the union meaningless because it was not recognized in law. Their reaction to our marriage in 2001 was very different.

"Broadening the definition of marriage won't exclude a single heterosexual couple or their benefits," Justice MacPherson said. "This is not a case where you take from one and give it to someone else, like affirmative action. There would be no change whatsoever to the vast number of Canadians."

The AGC said that the model of marriage would be changed. "It would be a description of a different relationship ... it would have a different way of looking at the core attributes."

Justice MacPherson wasn't buying this argument.

"How do you change the model if you go back to your three elements? Does it change fidelity? No."

"It does change the model in terms of children," the AGC replied. "When you are dealing with children, bearing the idea behind the opposite-sex model, there would be the ability of the couples ..."

"That is just method, the result doesn't change," Justice MacPherson interrupted.

Roles are temporarily switched as Joe Varnell offers protection to lawyer Douglas Elliott during the press conference on the steps of Osgoode Hall (Photo by equalmarriage.ca, 2003)
Roles are temporarily switched as Joe Varnell offers protection to lawyer Douglas Elliott during the press conference on the steps of Osgoode Hall.

"The method is attached to the idea of who we are," the AGC said, putting a whole new spin to the idea that you are what you eat. She again fell back on the minority opinion of Justice La Forest, still not identifying his view as one of dissent. Marriage just is opposite-sex in nature. This she argued was the "contextual" element of marriage that Justice Laforme (in our Ontario divisional court case) had failed to examine properly. The AGC said that Justice Laforme assumed a prima facie position when, without accepting the AGC's "contextual analysis, he saw the AGC's approach (marriage just is heterosexual) as being one of "definitional preclusion".

"You're saying that he can't take a common sense approach?" Justice Gillese asked.

"This is an underpinning that found its way through the judgment," the AGC replied.

Well, duh!

The Word

The AGC said the Divisional court had mistakenly come to the conclusion that the AGC's argument was simply based on "the word": marriage. This was "not our position" the AGC said, "and unfair".

But "the word" was indeed a major part of the argument against us in 2001. The AGC spent much of her time on this very issue, specifically on day three and day four of the hearing in the lower divisional court.

It seemed it was the AGC that was being "unfair" and again misleading the court.

Jorge da Costa, President of Portuguese Speaking Gay, Bisexual and Transgender (Photo by equalmarriage.ca, 2003)
Jorge da Costa, President of Associations of Portuguese Speaking Gay, Bisexual and Transgender (arco iris) was at the press conference and in court to support the couples.

But if the AGC was now saying that marriage is more than "the word", this court agreed that Justice Laforme in Divisional court saw it the same way too.

"He says that marriage is much more than a word," Justice Gillese said. "He agrees with you."

"He took the subjective feelings of the applicants," the AGC said. "He erased the biological, historical, anthropological, social ... without the context all marriage is, is "the word."

The AGC moved on to the Walsh v. Bona decision that supports the idea that you can treat different types of couples differently [it determined that common law couples were not automatically entitled to half the home if the relationship ends, whereas married couples do have that entitlement].

"The core of the Walsh decision is focused on freedom of choice for married couples and common-law couples," said Chief Justice McMurtry. "That is emphasized to a great extent. It talks about the individual's freedom to choose and says that the choice should be respected and legitimated by the state. Some of this language might be interpreted as supportive of same-sex marriage in the evolving institution."

The AGC argued that really the issue was that alternatives existed to manage property rights outside of marriage and therefore marriage wasn't discriminatory.

"Even if there are other methods around property," said Justice Gillese, "is there any other choice that would afford same-sex marriage the social and public aspect?"

"This is not one of the purposes of marriage," the AGC replied. "It may be a collateral effect. Some of the affidavits from the applicant couples say that they have celebrated their unions in other ways. I don't think that anyone in this courtroom could say that their relationships are not recognized - they are not recognized in the same way. If same-sex couples did not have the right to choose a same-sex couple, than that would be discriminatory ... These other unions are clearly capable of being brought to fruition and recognition is clearly available in many other ways."

"But not in the same way," said Justice Gillese.

"The fact the province doesn't register same-sex unions is really the feature that may be missing ... the applicants have not established that marriage is the source of discrimination," the AGC said.

We broke for lunch feeling that the AGC was on shaky ground. Apparently she agreed and returned to earlier arguments in attempt to shore up her weak arguments. She wanted to return to the Walsh case and refute the courts view that it seemed to support same-sex marriage.

It there was another means of recognizing same-sex unions, other than marriage, that would allow "substantive equality" rather than "formal equality", that would be acceptable under the Charter she said. She seemed to be arguing for the discredited "separate but equal" regime.

But since she insisted on returning to Walsh to support this argument, the court obliged.

Justice MacPherson read a line from the Walsh decision: all cohabitants are able to choose.

"They have a choice," he said. "In this case, same-sex couples don't have that choice. They are told they cannot marry."

"I would disagree," the AGC predictably said. "They can arrange their own affairs in a way that gives them substantive equality. Inequalities can be remedied by other provisions that give them equality."

The AGC returned to Bill C23 as an example of obtaining substantive equality and so once again Justice MacPherson interjected with a repeat of his own refrain.

"Bill C23 is mostly about money .. marriage isn't about money," the Justice said. "Marriage is one of the most important institutions in society right?"

"It is a fundamental institution in society," the AGC agreed.

"If you ask a 20-year-old what you want in life, a person would say: one, good health; two, good education; three, a good job; and four, probably a good marriage with children," Justice MacPherson said. "If you too each of those four and said gay people won't be admitted to one, two or three because they are gay, it would be incomprehensible, so why not marriage?"

"It's not whether they should be admitted, but whether marriage is discriminatory," the AGC said. "Could the benefits of each of those institutions be achieved in other ways?"

The purpose of marriage

"If marriage is only about economics, companionship, etc., you would have to ask why not give marriage to more than one person," the AGC said, "but we have never given them that. We don't allow someone to marry a close relative because of the core features that marriage has always been between one man and one woman to the exclusion of all others."

"But each of those have a problem that same-sex couples don't have," asserted Justice MacPherson, stating that same-sex marriages have no problem with fidelity or health that polygamy and incest have.

The AGC weakly implied that health issues (costs?) may arise because third parties would be required to generate children. Again, when all else failed, the AGC returned to the Egan minority position to claim that only opposite-sex couples met the definition of marriage, because of children.

"The fact that biological and social realities must be recognized doesn't mean discrimination is taking place," the AGC said.

In order to change the common law, "you would first have to find that the common law violates the charter. That's a prerequisite. It doesn't get changed by the whim of the court", the AGC said.

Justice MacPherson mentioned that US courts had changed the prohibition against inter-racial marriages.

"The purpose of marriage has nothing to do with race," the AGC said, "and everything to do with gender. The analogy is not apt ... essential human dignity, not just human dignity must be impacted."
The Kemper_Barnett family at the Osgoode Hall press conference (Photo by equalmarriage.ca, 2003)
The Kemper-Barnett family at the
Osgoode Hall press conference.

The AGC said that an objective, dispassionate assessment of the situation was required, whereas the Divisional court only listened to our passionate pleas and didn't do a contextual assessment.

Justice Gillese asked, "What is the objective basis on which you measure?"

"Social and biological realities have to be taken into account. If those social and biological realities exist than someone who looks at that in its context will conclude that marriage doesn't discriminate, but rather what society has done with it is the cause or source of discrimination. If you understand the premise and biological and sociological realities than if you are not in that model, how can you be demeaned?"

The AGC agreed with the court that we are part of a group that was historically disadvantaged, but she said whether we still are disadvantaged is debatable.

"If the purpose of marriage was to unite opposite-sex people, than it's the purpose that corresponds to the circumstance of the claimants. The claimants are not in the same circumstances," the AGC said.

Justice MacPherson tried to get the AGC to articulate the purpose of marriage, returning to the core model that the AGC had already articulated.

The AGC said the purpose was to create a model for two particular people - opposite sex couples.

Justice MacPherson said that he agreed that may have been the case, "but that doesn't make it right."

The AGC returned to her belief that the wrongs could be corrected without changing the definition of marriage.

"You are talking about a benefit program," said Justice Gillese, "and marriage is more than that."

The AGC said, "We try to tailor through legislation a more perfect correspondence ... In this case you should pay some measure of deference to Parliament."

The AGC ended the day by again referring to Egan and the minority position, implying that social and biological aspects of marriage meant that the issue should not be dealt with by the three justices hearing this case. One can hardly blame here, considering how they seemed to reject her circular arguments that marriage was just heterosexual, and that's it.

"We're in a netherworld," she said, perhaps hoping to hypnotize the Justices into submission, " "between pure common law and legislation, so some deference to Parliament is required."

Kevin Bourassa

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