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key is to stand in the shoes of the group. We are dealing with a group whose relationships
have not been respected by the law."
limitation of my client's religious freedom diminishes the religious freedom of
all Canadians. It diminishes us as a just society."
surely cannot be that the state can choose to 'facilitate' some religious beliefs
at the expense of others ... the state cannot withhold legal recognition afforded
to others based on the fact that the state does not like the religious dogma of
the person seeking equal treatment. We do not seek special affirmation of our
beliefs, we merely seek to rectify under-inclusion in the legal institution of
out the words 'one man and one woman' and put the words 'two persons'...period."
question before this Honourable Court is simply whether these marriages ...are
to be denied recognition solely because they were marriages between persons of
parents were married for over 40 and 50 years respectively, and we value the tradition
of marriage as seriously as our parents did."
valid reason can the state offer for refusing to recognize these religious marriages?"
historic links between the canon law of the Established Church of England and
the law...is a relic of days more barbarous than our own."
have waited long enough - now is the time!"
are no partial remedies in a case like this. For our client it is marriage or
nothing. A suspended remedy will cast into limbo the marriages of Joe and Kevin
and Elaine and Anne, and others."
Legal - Ontario Appeal - Day 3
April 24, 2003
"It is asserted that history is against
us. As I have noted, that is an ethnocentric view of history.... History is never
a justification. Sexism, racism, slavery and anti-Semitism have long pedigrees
too, and sadly, strong links to Christian teachings. While slavery was not a sacrament,
history and the Bible were used to justify it. Happily, it was Christians with
a modern view of Scripture that were instrumental in ending that evil institution."
Arms and the man
As is the custom, Capt. Taylor began the day with a short talk on a feature of the courtroom and today's topic was the large coat of arms that sits above the justices' bench. He enlightened us on the heraldic features of the coat of arms and held our attention with wonderful stories about the significance of the various elements that make up the coat of arms: the lions (representing England), the unicorns (representing Scotland), the harp of Tara (for Ireland) and the blue garter which runs around the shield (representing Edward III desire to make his mistress' garters the most famous symbol of chivalry in the world). It was with reluctance that we rose in acknowledgement of the discrete peal which heralds the entry of the justices. I think we all would have preferred to listen to more of Capt. Taylor
Walk a mile in our shoes
Arguments resumed from the previous day with Joanna Radbord walking the justices through the pitfalls of accepting the governments section 15 arguments (equality provisions) and their reliance on the minority opionions voiced in Egan. Joanna, in precise legal detail, exposed how the circular arguments of the government of Canada were being used to try and insulate marriage discrimination from a proper Constitutional analysis. If you start with the logical premise that marriage just is heterosexual then of course you will come to the conclusion that excluding non-heterosexuals from marriage is not discriminatory.
"The key is to stand in the shoes of the group. We are dealing with a group whose relationships have not been respected by the law." Joanna outlined, very poignantly, how same-sex couples are daily faced with messages and indicators that they and their relationships remain stigmatized and how "the very purpose of equality is to change that history of preclusion and stigmatization".
One…two…three, easy as A B C
Having shown clearly that the AGC had taken the wrong approach to determining whether or not there was discrimination, Joanna outlined the correct, three-step approach to determining whether or not there is a violation of the Charter rights guaranteed by section 15:
Does the law draw a distinction based on a personal characteristic?
The AGC claims that there is not a distinction being drawn in this case. They argue that marriage just is heterosexual and they rely on the minority opinion in Egan to support their view. Joanna asserted that this reliance on definitional preclusion is merely an attempt by the government to avoid the section 15 analysis altogether. Marriage, she argued, is not merely a word or a marker whose meaning cannot be discriminatory. Rather, it is a fundamental social institution and access to it is being restricted solely on the basis of the couples' sexual orientation.
Does the distinction result in differential treatment?
This appeared self-evident to everyone present (yes, even the government of Canada). The couples in this case qualified for marriage licences or met all of the criteria for marriage except that they were same sex-couples. This was the sole distinction which resulted in the denial of benefit of the law. The relationships in question were conjugal relationships, Joanna argued, a position which the Supreme Court of Canada affirmed in M v. H, despite the assertions of the Interfaith coalition that "conjugal" refers only to a man and wife.
Is the differential treatment substantive in nature?
Briefly refering to some of the financial and legal burdens imposed on same-sex couples, by not having access to marriage, Joanna focused the court on the more fundamental issue of denial of the 'status of spouse' as perhaps the most substantive difference. This denial of status contributes to the perpetuation of a world where the history of same-sex relationships is one of erasure and compromise. No one grows up wishing for a magical moment when they can ask their beloved one to get registered with them. Walking down the street holding the hand of an opposite-sex partner does not carry with it the stigmatization of perversion and the fear that simply for being who you are might bring danger around the corner in the form of violent protest from a starnger, which could go so far as physical violence.
Joanna reminded the court that the very denial of the status of spouse was a substantially differential treatment which, as the Supreme Court of Canada found in M. v. H, 'perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.'
In responding to the claim of the AGC that the benefits of marriage were all achievable through other legal instruments available to same-sex couples, Joanna asked the court to consider the 'less than perfect example' of graduation. She asked the court to consider being offered an education, but denied the opportunity to participate in graduation exercises. Graduation, she offered, is a ceremony with wide significance to both the individual and to the wider community of accomplishment. Joanna argued that having same-sex couples offered other means to compensate for exclusion from the intangible benefits of marriage was tantamount to offering them a private graduation ceremony that they could organize themselves, with home-made diplomas that they prinited off for themselves and with the admonition, "Hey, you got the education so what are you complaining about?"
Joanna then acknowledged that the reason she considered her analogy less than perfect was that marriage was far more important than graduation. Many in the courtroom found her analogy to be most effective.
Follow the leader?
Having dealt with the section 15 analysis, Joanna turned to section one of the constitution, where the government has the onus of proving that there is demonstrable grounds to justify discrimination. At this point, Justice MacPherson interjected, harkening back to earlier submissions that a section 1 analysis is not necessary when reformulating a common law rule.
Justice MacPherson agreed, "I'm saying I think we should do it and you are not disagreeing."
"Yes," Joanna responded.
In a section one analysis, the focus shifts from the claimants having to prove discrimination to the government having to prove that such discrimination can be 'reasonably and demonstrably justified in a free and democratic society'. The AGC, Joanna argued, had failed to offer any pressing argument as to why it was important to exclude gays and lesbians from marriage. The only purpose the government could have in denying same-sex couples the right to marry was to perpetuate the discriminatory practices that Joanna established in her section 15 analysis. She reminded the court that the justification had to be demonstrable and that deference to the legislature and the shifting winds of political expediency were insufficient grounds to justify discrimination. The only semblance of an argument that the government could advance was that the essence of marriage was procreation and gays and lesbians 'just don't fit that". The absurdity of the argument was drawn into sharp relief as it was deconstructed by a pregnant lawyer whose same-sex spouse was sitting in the back of the court room. Having demonstrably dealt with the procreation argument, Joanna asked her final rhetorical question, 'Where is the threat?'
At this point Justice MacPherson asked Joanna to clarify something. Speaking to Brown v. Board of Education (the U.S. case that ended segregation), Justice MacPherson said that the court was being asked to do for gays and lesbians what the U.S. courts had done for blacks by ending segregation. But, he continued, the end of segregation in the 1950s brought the United States policies into line with other 'free and democratic societies', while allowing same-sex couples to marry would only bring Canada into line with two other nations (Holland and Belgium) and would effectively take us out of step with the remaining 190 nations of the world. "What do you say to that?"
Joanna responded that this was one of the reasons that she was proud to be Canadian. "Our Charter is unique," she said, giving us the opportunity to do good more quickly. She noted that landmark Canadian cases, such as M.v.H., have been used to try and do similar good in other parts of the world, but that those measures have been shot down by public referendums."Canada does not just follow other countries, we distinguish ourselves from other countries by being a leader…but that is part of Canada's proud history."
Time, gentlemen, please?
The submissions had been great, but in covering the necessary ground Martha and Joanna had run significantly over time. Martha stood to ask the court for 'guidance' as to how they could adjust the schedule in order to allow her to deal with the issue of remedy and still permit full time for the other lawyers.
Justice McMurtury, looking somewhat stern and steely-eyed, told Martha that there was no more time to be had on the week's schedule and asked if she was requesting an adjournment in order to let the case be continued in a couple of weeks.
This was not a popular suggestion and Martha asked if the court would find her limited commentary on remedy useful as she would have to deal with it in only 15 minutes. The bench told Martha that remedy was a big issue and, just as in the previous round of court, it seems to be the biggest struggle for the justices. We adjourned for our morning break with our side and the AGC negotiating a new schedule and an agreement that Martha would come back and deal with the issue of remedy.
When we returned after the break, the wrangling over the schedule seemed to have been settled and Martha began to walk through the thorny issue of remedy. She stated that with one minor exception, she agreed with the remedy proposed by Justice Laforme, and that she only disagreed with Justice Laforme if the court intended to suspend remedy for any period of time. She reminded the court that in crafting a remedy, they were dealing with a common law rule and that as the custodians of common law, there was no need for them to pay any deference to parliament and the will of the legislature.
"What is it you want?" Justice Gillese asked. "It would help me to understand your arguments."
Martha indicated that the applicant couples were not interested in the legal wranglings of balancing the interests of legislative bodies and the judiciary, they just wanted to get married. They wanted no wiggle room left, as had been done in the lower court judgment, for consideration of RDPs or some other system. "Close the doors on further efforts to avoid the court's reason…there aren't any alternatives."
Justice MacPherson wondered if that was overstating things. "In the bolder human rights cases, the only remedy was to declare the law unconstitutional and leave it to the legislatures to address. There is no history of non-respect for the findings of the judiciary by the legislature, in fact Bill C-23 is a major response. Why would we assume that the government would produce a bad response to the declaration that the common law rule is invalid as it stands?"
Justice MacPherson went on, "Scratch out the words one man and one woman and put two persons …period."
There was much nodding from several of the lawyers present and Martha, a smile in her voice, said "Yes."
But it wasn't enough for Justice Gillese, who reminded the court that what was being sought was not simply a recrafting of the common law rule, but a declaration of its unconstitutionality and an instruction from the court that no marriage is invalidated solely because the parties to the marriage were of the same sex and an immediate order that marriage licences be issued to the applicant couples.
Again, Martha replied simply, "Yes."
Then, indicating that the issue of remedy would be returned to later in the day, Martha resumed her seat and the court adjourned for lunch.
Fresh not frozen
After lunch, the lawyers for the Metropolitan Community Church of Toronto (MCCT) began presenting the arguments to support the case that the government's denial of marriage to same-sex couples violates the religious freedom of those congregations that wish to marry gays and lesbians.
Douglas Elliott began by fully endorsing the arguments advanced by Martha and Joanna around section 15 and section 1 and indicated that he would be focusing his remarks on religious marriage and section 2a of the Charter, but he in no way wished to imply that the arguments for religious marriage should in any way interfere with the rights of other couples to obtain marriage through civil means. He then introduced Trent Morris, who dealt with the concept that marriage had somehow been 'frozen' in time at the founding of confederation and that the division of powers between the federal and provincial governments prevented any change to the definition of marriage without a constitutional amendment.
In a highly precise, dioagnostic and efficient presentation, Trent made short work of the assertion that because jurisdiction over marriage is split between the federal and provincial governments, neither can legislate a change to the definition of marriage without infringing on the powers of the other group.
He warned the court that to find a definition of a term as frozen by the framers of the constitution in 1867, would be to ignore the realities that the world had changed sine confederation and it would be ludicrous to assert that no government authority had power to legislate over concepts that would never have occurred to the fathers of confederation, such as radio.
He also reminded the courts that this is not a division of powers case. In such cases, the determination should be solely which body has legislative authority (the province under section 92 or the federal government over everything not covered in section 92), rather than using the split over powers to try and mainatin discrimination.
Having sucessfully thawed marriage from the icy grip of flawed constitutional reasoning, Trent then handed over to Douglas to begin outlining the long relationship between marriage laws and traditional Christian dogma. He started with a recap of the events of January 14, 2001 and the subsequent refusal of the province to register our marriages. Painting a vivid picture of the day and how everyone present had felt, he then framed the task that the court was being asked to take up, "The question before this Honourable Court is simply whether these marriages, that were performed by duly authorized clergy in accordance with the ancient and legally sanctionned tradition of banns, are to be denied legal recognition solely because they were marriages between persons of the same-sex."
Douglas started his analysis of section 2a by agreeing with the AGC, one of the few times during the hearing that our side has agreed with anything that the government has asserted, "it is not the institution of marriage which discriminates…it is the legal definition of marriage which discriminates". Refering to the leading case on freedom of religion, Big M Drug Mart (concerned with Sunday shopping), Douglas indicated that the correct beginning for analysis was to examine the history of the law in question "to determine whether it has its roots in the enforcement of the majority's religious dogma".
Further, Doug noted, that if the law had evolved from its religious basis to take on a more secular purpose, then the law must still interfere with his clients religious beliefs in a manner that is not trivial.
Justice MacPherson asked if the beliefs were those of the couples or the church.
"[T]he rule in Hyde frankly represents an historic European Christian worldview that takes note only of forms of marriage that conform to its ethnocentric model, and excludes all others…the alleged universal norm of one man and one woman for life to the exclusion of all others is a 19th century Anglican formula, not a universal norm or core attribute."
Douglas, taking full advantage of his masterful command of matters historical, reached back across the centuries and showed how the AGC and other opponents of same-sex marriage had attempted to characterize discriminatory legal mesures against gays and lesbians as "Western" rather than "Christian" in order to put a secular spin on scriptural bigotry. He harkened back to the writings of St. Augustine, who had seen marriage as the only means of legitimizing sex between individuals and then only for procreative purposes. Augustine predicted dire consequences for those individuals who did not conform to this sexual model when he wrote, "Better to marry, than to burn". There was general laughter and many in the court must have imagined themselves being slowly barbecued in an Augustinian world.
While the competing dogmas of the European courts struggled for secular supremacy, things were going more smoothly in Canada. Douglas reminded the court that before the intervention of the Europeans, same-sex marriages were legitimate among the first nations of Canada and so while the AGC claimed to have history on their side, some would argue that history is more on the side of the couples seeking marriage licences in this "home and native land". It was only after the Europeans began to export their religiously-driven legal codes to their colonies, a sort of scripture/statute Antiques Roadshow, that intolerance of other peoples religious marriages became the cultural norm:
"Our first marriage legislation was local and enacted in 1793. It limited legal recognition of marriage to marriages in the Established Church of England. The scope of legal recognition was gradually widened to include other Protestants, and then eventually Catholics in 1847 and Jews and other non-Christians in 1857. There can be no doubt that the purpose of those laws was to discriminate and to privilege the form of religious marriage approved by the state."
Each of these evolutions, Douglas posited, must have been greeted with predictions of dire conseqeuences as they were enacted. Anglicans were certain that incestuous marriages were just around the corner when the laws concerning consanguinity were changed in the late 1800s and certainly there were prognostications of doom when, in the 20th century, the expansion of legislation to govern conjugal relationships expanded into such realms as civil marriage, divorce and the Family Law Reform Act of 1978 which recognized common law relationships, removing the stigma of 'living in sin'. Douglas remarked that the warnings of disaster would be very familiar to Chief Justice MacMurtury as he was one of the architects of the Act.
Smiling, the Chief Justice noted. "I got half my house back".
The question we had all been preparing for…
Having established the linkages between marriage laws and traditional Christian dogma, Douglas moved on to how the expression of this dogma in the secular laws of the land infringed on the religious rights of MCCT. He asserted that this was the one area of the lower court judgment where he disagreed with Justice Laforme, who had argued that there was no violation of the section 2a rights of MCCT, because the state has no obligation to recognize all forms of religious marriage and the denial of same-sex couples the right to marry applies equally across all faith groups and not just MCCT.
"Mormons would say that marriage to more than one person is a sincerely held belief in their religion?"
Douglas responded that if someone was to advance a claim that denying legal status to polygomous marriages was a violation of religious freedom, he would expect that the arguments would be put to the same test as the ones he was advancing, but there would be the added wrinkle: is there some secular purpose beyond the religious context whch would support barring polygamy? He asserted that he could not predict what the outcome of such a challenge would be and that this was not the issue at bar.
Justice MacPherson: "Couldn't you argue that marriage is secular today and that the secular definition as understood for 150 years in 192 countries would be understood to be a man and a woman?"
Douglas: "One can hardly expect people to come forward to say that same-sex marriages need to be recognized when their lives have been criminalized for most of the past 150 years in …even if marriage has adopted a secular purpose, that doesn't end the section 2a analysis…what is the secular purpose? To say that it just is heterosexual doesn't answer the question."
Front door or side door?
Justice MacPherson, who seemed to be enjoying his discussions with Douglas, now proposed a theory as to why there had been so little consideration given to the section 2a arguments in the lower court judgment
Justice MacPherson: "Maybe the section 2a argument is a side door route and is much more complicated to deal with than a section 15 analysis which is clear on sex and sexual orientation?"
"Agreed," Douglas said "…[but] even if it is an infringement through the front door, it is also an infringement of section 2a…a remnant of enforcing traditional Christian dogma."
"The analysis of the Divisional court that this is a mere failure to recognize my client's religious marriages, while a weak answer to the section 2(a) infringement claim, is no answer at all to the religious discrimination claim under section 15(1).
Douglas then proceeded to the section 1 analysis. Like Joanna Radbord before him, he asserted that while a section 1 analysis was not strictly necessary (the court could adjust the common law just enough for it not to be in conflict with the Charter), he noted the value of doing the analysis to the court.
He asked the court to consider that nowhere in the AGC's evidence had they advanced any reason that could demonstrably justify why the exclusion of the MCCT religious marriages would be justified. Historical tradition or political popularity, Douglas reminded the court, were not justifications for discrimination. The rights of individuals, Douglas noted, should not be subjected to a popularity contest, "the fact that a certain legal equality requirement that is otherwise harmless may offend the religious sensibilities of some, even the majority, is not legal justification under section 1."
"For our clients it is marriage or nothing. A suspended remedy will cast into limbo the marriages of Joe and Kevin and Elaine and Anne and others. For our client, civil unions would not be religious marriages. There is no sacrament of registered domestic partnership."
Sensing yet again that he was being asked to boldly go where only one judge (Justice LaForme) had gone before, Justice MacPherson asked if they were to go beyond a simple declaration that the common law rule was invalid. He noted that it took 3 incrementally stronger messages from the court to eliminate segregated schools, but that was only because the legislature continued to resist the will of the judiciary.
Douglas agreed and then perhaps sensing that the spectre of the 13 year delay in enacting the judgement of Brown was heavy on the court's mind, he finished with an appeal that brought home the problems with delaying and deference to legislative bodies… "We should not be placed in the Brown case. We have been waiting 2000 years for justice. By any standard, we have waited long enough. As Rev. Martin Luther King Jr. said, 'the time is always ripe to do right - now is the time to lift our national policy from the quicksand of injustice to the solid rock of human dignity'. We have waited long enough - now is the time!"
A profound silence echoed through the room as the justices adjourned for the afternoon break.
After we returned, Professor Ed Morgan presented on behalf of the Liberal Rabbis who believe, as MCCT does, that there is a place for the sanctifying of same-sex relationships in the beliefs of reform judaism.
Justice MacPherson: "What do you say about my Mormon question?"
Professor Morgan argued that in certain circumstances, where matters of public safety or personal interests are at stake, we must interfere with the religious practices of some. As examples he referred to the case of a Jehovah Witness wishing to refuse a blood transfusion for a child or outlawing female circumcision, and that polygamy would have to be evaluated in this light as there were potential issues of harm. He agreed with Douglas Elliott that the case for polygomous marriage would have to be put through the same tests as the case for same-sex marriage.
Morgan, with time running short, asked the court to consider how, already in our society, we permit activities which cause no harm to occur, despite their religious anathema to some. We permit the sale and consumption of pork despite it being forbidden by Hebraic laws, we permit women to walk around with their hair exposed, and so on. He closed with a warning against accepting arguments which purported to bring the wrath of God down upon all if the 'sinful' practices of some were permitted. This, he noted, would speak to a theocracy and would permit anti-diverse religious arguments which have no place under the Charter.
The CHRC was clear that only full and equal marriage for same-sex couples would be acceptable. The recent Supreme Court ruling of Walsh v. Bona, where the court indicated that couples who chose to remain unmarried, could in fact be treated differently than married couples, made it more important than ever to ensure that the same relationship choices be offered to all couples.
The Commission further asked the court to consider all prohibited grounds of discrimination as equal and that when you do that, it is inconceivable that there can be any choice but to grant same sex couples marriage. "We would not accept a separate registration scheme for inter-racial couples, why then would we accept one for same-sex couples?"
Justice MacPherson then asked what he called a 'formal' question, "Do you accept the 2a arguments advanced by your colleagues (Douglas and Prof. Morgan)?"
Implicitly, the court asked the Canadian Human Rights Commission if denying same-sex couples the right to marry violated the religious freedoms of some groups. A question that has not been asked of a non-religious body yet in this case.
How gratifying to hear the answer, "Yes".
And so onto Day Four…
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