SUBMISSION
OF THE METROPOLITAN COMMUNITY CHURCH OF TORONTO
EXECUTIVE
SUMMARY
I.
Metropolitan Community Church of Toronto(“MCCT”) is one of many faith groups that wish to perform same sex
marriages that are legally recognized. This is not a debate between the lesbian
and gay community and people of faith, but between people of differing religious
beliefs.
II.
The alleged nineteenth century
common law rule against same sex marriage is a remnant of the state enforcement
of traditional Christian theology that has no place in twenty first century Canada.
III.
Despite popular myth, the nature
of marriage as a legal and social institution has evolved significantly over the
centuries. Extending legal recognition to same sex marriages is the latest stage
in that evolution.
IV.
The notion that the state would
abandon the regulation of marriage and return marriage to the exclusive domain
of religious faiths is unworkable and inappropriate.
V.
Legal recognition of same sex
marriage is the only constitutionally sound policy option and the only one that
is acceptable to MCCT.
VI.
This Church opposes the teaching
of those faiths that teach that homosexuality is sinful and the efforts of those
faiths to restrict the freedom of religion of this Church by enlisting the state
to refuse to recognize its same sex marriages. However, because of MCCT’s commitment
to freedom of religion, it
unequivocally supports the right of those faiths with contrary views to continue
to freely refuse to perform same sex marriages.
I.
Religion and Same Sex Marriage – Not a Dichotomy
1.
With all due respect to the authors
of the background paper for this Committee, the paper implies that this is a case
of “the gays versus God.” The simple fact is that many people of faith believe
deeply in marriage as an institution and believe that gay and lesbian relationships
are not sinful. For this reason, many faith groups wish to have access to legally
recognized same sex marriage.
2.
The Metropolitan Community Church
of Toronto is a Christian Church. Under the leadership of Senior Pastor the Reverend
Doctor Brent Hawkes, MCCT with its 450 members has grown to be the third largest
congregation in the worldwide denomination to which it belongs, the Universal
Fellowship of Metropolitan Community Churches (“UFMCC”).
3.
UFMCC was established in 1968
and with a central mission and teaching that Christianity and homosexuality are
compatible. The foundation of the denomination’s distinct Christian theology is
the belief that the traditional Christian view that homosexual acts are sinful
is in error. It teaches that this view was based on misinterpretations of Scripture,
as well as ancient, unscientific and outdated beliefs about the nature of human
sexuality, beliefs that influenced early Christian attitudes toward sexuality
in general, and homosexuality in particular. MCCT believes in the continuing process
of revelation with respect to sexuality. Just as Christianity came to renounce
its traditional support for slavery, its historic anti-Semitism and its religious
condemnation of interracial marriage, MCCT teaches that Christianity can and should
renounce its traditional condemnation of homosexual acts.
4.
The majority of the congregants
at MCCT are lesbian or gay, many having left Christian denominations that taught
them that their homosexuality was sinful. The Reverend Doctor Brent Hawkes has
conducted a number of holy union and marriage
ceremonies for same sex couples of the congregants.
The refusal of the Registrar General of Ontario to register
the marriages of two such couples, Kevin Bourassa and Joe Varnell and Elaine Vautour
and Anne Vautour, was the basis of the MCCT’s application for judicial review
and intervention in the case reported as Halpern et al v. Attorney General
of Canada.
5.
MCCT is not alone in its view. In support of its position in Court, it
filed affidavits from a range of people of faith who supported the right of the
Church to legally recognized same sex marriages. These included: an Anglican Archbishop,
a Quaker, a United Church minister, an Orthodox rabbi, the
president of the Unitarian Church and the leader of Reform Judaism
in North
America. The majority of Canadians claim to belong
to a religious faith, and the majority of Canadians support same sex marriage.
Despite the protestations of those who oppose us, there is nothing necessarily
inconsistent between being religious and supporting same sex marriage.
II.
The Law and Christianity
6.
The laws of Canada have
their roots in the laws of England.
Three historical facts must be born in mind in understanding how we arrived at
the current state of the law. The first is that England
had, and has, a state religion, a religion whose precepts were often given the
force of law at the expense of minority or dissenting faiths. The second is that
the state religion of England
condemned homosexuality, and was solely responsible for regulating it until the
time of Henry VIII. Third, the Church of England also had an historic role in
regulating marriage.
7.
Just as Catholic France had
a bloody history of intolerance toward Protestants, so too did England
have a bloody history of intolerance toward Catholics and others who differed
from the state religion. Over time, we in Canada have
sought to overcome this unhappy history and to build a society that values tolerance
and religious freedom.
8.
For MCCT, the alleged common law
rule that prohibits same sex marriage is a remnant of this historic state enforcement
of official Christianity. To pretend that the alleged legal prohibition on same
sex marriage is purely secular and has nothing to do with religious intolerance
of homosexuality would be to ignore history and social reality. It is nothing
more than state enforcement of a particular conservative or traditional religious
teaching. What may have been a sensible interpretation of the “definition” of
marriage in Christian England in the 19th century can have no application
to the multicultural society of 21st century Canada.
9.
The alleged prohibition of same
sex marriage is one of the last legal vestiges of centuries of traditional Christian
teaching that has enlisted the law in imposing its values on others. While hostility
to gays and lesbians may have once represented the view of the Christian majority
in our society, it no longer represents the views of all, perhaps even most, Christians
in Canada.
Continuing support of the law for one religious view at the expense of others
is contrary to our core equality values and our commitment to a secular society
with religious freedom.
10.
Traditional religious views should
be respected, and indeed enjoy a measure of constitutional protection in the private
sphere of activity. However, respect for
religious faith should not be confused with a right to state enforcement of religious
beliefs.
11.
While religion plays an important
part in the everyday life of Canadian society, even in the pre-Charter era,
the state was not allowed to impose any particular religious doctrine on an unwilling
minority. Adopting the language of Justice Taschereau in Chaput v. Romain,
“In our country there is no state religion … All religions are on equal footing
… and enjoy the most complete liberty of thought … It would be distressing to
think that a majority might impose its religious views upon a minority…” Subsequently, in 1982, freedom of religion
was expressly recognized in the Canadian Charter of Rights.
12.
Nonetheless, the state is effectively
coercing MCCT into enforcing a restriction that is repugnant to its theology in
order to conform to the state’s view of acceptable religious belief. As Chief
Justice Dickson said in the context of the ban on Sunday shopping in Big
M, the theological content of this alleged legal restriction “…remains
as a subtle and constant reminder to religious minorities within the country of
their differences with, and alienation from, the dominant religious culture.”
13.
Moreover, the infringement is
more sweeping than just its impact on MCCT, for it is apparent that there is at
least one other religious denomination whose official doctrine supports recognition
of all same sex marriages, namely the Canadian Unitarian Church. Further,
there are other faiths such as the Quakers and the Reform Jews who would permit
individual rabbis or congregations to offer same sex marriages in the absence
of legal impediment. Even within more conservative denominations, the evidence
reveals that there are those who would either offer same sex marriage within their
faith or recognize the validity of a same sex marriage offered by another faith.
14.
By its support for an exclusion
of same sex marriage, the state chooses sides in this religious debate. Moreover,
it does so by coercing one group to accept the religious practice of the other
by forcing some to exclude same sex couples from marriage. This intrusion into
the religious sphere is without parallel in any other aspect of Canadian life.
It is far more intrusive and direct interference with religious practice than
the interference with commercial pursuits imposed by the Sabbath enforcement legislation
in issue in Big M. As Chief Justice Dickson said:
“What may appear good and true
to a majoritarian religious group, or the state acting at their behest, may not,
for religious reasons, be imposed upon citizens who take a contrary view.
The Charter safeguards religious minorities from the threat of “the
tyranny of the majority.”
15.
Allowing same sex marriages undoubtedly
is an unwanted change for the conservative religious groups whose religious doctrine
is hostile to same sex marriage. However, as will be discussed in the following
section, those groups have survived changes in the legal parameters of marriage
in the past and they will survive this change, too.
III. The Evolution of
Marriage
16.
Same sex relationships had been
historically recognized in North America prior to the arrival of the Europeans. The First Nations had vastly
different rules of marriage, permitting divorce, multiple spouses and same sex
spouses (in Ojibwa, for example, “ogokwe”).
Their nations did not believe that these ogokwe were immoral, but rather
that “God made them that way.” Thus, it may be fair to say that same sex unions
are, or at least were, more “traditional” in our country than monogamous heterosexual
marriages, because these forms of relationships pre-date the introduction of the
Christian concept of marriage to this country by millenia.
17.
The source of the common law rule
that is cited frequently is the judgment of Lord Penzance in 1866. It is important
to bear in mind what he said first, and then to examine the historical context
for his statement before and since. Lord Penzance stated that he “conceive[s]
that marriage, as understood in Christendom,
may … be defined as the voluntary union for life of one man and one woman, to
the exclusion of all others.”
18.
It is sometimes asserted that
this legal meaning of marriage is timeless and unchanging. The reality is far
different. In the last four hundred years, the legal meaning of marriage has changed
significantly. Most of the marriages that are legally recognized in Ontario today would
not have been legally recognized in Governor Simcoe’s day.
19.
In England,
although the Crown had extracted a change in the common law rules of consanguinity
in the time of Henry VIII, until the eighteenth century the regulation of marriage
was left in the hands of the Church.
20.
A revolutionary change occurred
in England and Canada in the eighteenth century with the first statutes regulating marriage.
Marriage was no longer to be within the exclusive jurisdiction of the Church.
However, Ontario’s Marriage Act of 1793 was not as religiously tolerant as the
English laws. Only Church of England marriages were given legal recognition. All
other Christian marriages were not recognized in law, let alone any non-Christian
marriages.
21.
In the nineteenth century, more
radical changes followed in Ontario. Legal recognition was extended to all Christian marriages, and eventually
to Jewish and other non-Christian marriages. Later, Parliament relaxed the degrees
of consanguinity to recognize the differing religious views on the subject. Anglicans
howled that the state was endorsing “incest” and warned that Anglican priests
would be facing prosecution for refusing to abide by the new rules. Of course,
that never happened.
22.
In the twentieth century, two
revolutionary changes took place. In 1950, marriage was finally permitted in Ontario through a
purely civil ceremony by a judge or other official.
The separation between religion and legally recognized marriage was almost complete.
For millennia, the hallmark of marriage in the official religions of both France and England was its indissolubility. In the words of Lord Penzance, marriage was
“for life.” With divorce reform in the late 1960’s, Parliament changed the definition
of marriage. What would
have been unthinkable in Governor Simcoe’s time is now common place.
23.
There has been an increasing secularization
of Canada’s laws. When Pierre Trudeau argued that the state had no place in
the bedrooms of the nation, he departed from a long tradition of state enforcement
of the religious teaching that homosexuality was a sin. Conservative Christian
dogma on marriage and homosexuality should no longer inform our law.
IV.
The Regulation of Marriage
24.
The notion that the state would abandon the regulation of marriage
and return marriage to the exclusive domain of religious faiths is unworkable
and inappropriate. Since marriage brings certain legal consequences, its regulation
by the state would be important and indeed necessary to make sure that the rights
of the parties involved are respected. Civil institution of marriage has become
an integral part of Canadian reality.
25.
Marriage is a status that has recognition across provincials, and to some extent,
international boundaries. We cannot and should not turn back the clock to the
seventeenth century. Moreover, MCCT believes this would cause a backlash against
the lesbian and gay community for “destroying the marriage.” We wish to expand
the institution of marriage, to open it up, not to destroy it.
V.
Marriage – the Only Goal and the Only Remedy
25.
Marriage is a ceremony and a status
with deep religious significance to many Canadians. It is a ceremony of such religious
significance that it is the only Canadian religious ceremony that also confers
legal status.
26.
Marriage is a public affirmation
of love before friends and family, and often, within a religious congregation.
For Christians, marriage is an important concept. Christians believe that Jesus
Christ performed his first miracle during a wedding at Cana. It is a manifestation of
religious belief, a commitment before and to God. Marriage is a spiritual celebration.
27.
Marriage also confers a status
with well-recognized social significance that, rightly or wrongly, is perceived
by many to be the commitment of the highest order of one person to another. As
with many other Canadians, for gays and lesbians the capacity to marry and the
right to marry the person of their choice is an incident of full membership in
society. For gays and lesbians, a group that has been historically marginalized,
marriage is also the recognition before and by the society of their “full personhood.”
28.
Marriage is also a relationship
with legal status. Despite many improvements in the law in recent years, married
persons continue to enjoy a regime of more complete rights and obligations.
29.
Given the existing differences
in status between the marriage and common law partnership, it is not surprising
that both the Netherlands and Belgium adopted gay marriage laws in addition to the existing legislation
on Registered Domestic Partnerships that already included same sex couples.
30.
Obviously, opening the doors of
the ancient institution of marriage to gays and lesbians was a big step for the
Netherlands and especially for Belgium,
predominantly Catholic country. However, given the context of increasing recognition
of same sex relationships through legislation and judicial rulings in Western
democracies as well as the decisions of the European Court of Human Rights, this
progress must be seen as an incremental rather than a radical change. There are
of course important considerations of equality and non-discrimination that supported
such a progress.
31.
For MCCT, there is no sacrament
of registered domestic partnership. The
only solution for the members of our Church is to have their marriages recognized
as equal to the marriages performed in any other Canadian church.
32.
If we were faced with the situation
that existed in 1950, would we ask atheists and agnostics to accept “civil unions”
because “marriage” was for religious folk? Surely not. If we were faced with the
situation that existed in 1850, would we ask Jews to accept “registered Jewish
partnerships” because marriage was just or Christians? Of course not. For the
same reason, it is not acceptable to gays and lesbians in general, and to this
Church in particular, that some separate but unequal status be created to be able
continue to treat this Church and its teaching as second class.
VI. No Coercion
of Other Faiths
33.
Freedom of religion protects other
faiths that do not recognize same sex relationship from having to recognize them.
The Supreme Court has established in Trinity Western University v. British
Columbia College of Teachers that those who hold the belief that homosexuality
is sinful are entitled to those beliefs. However, they must accept constraints
on those beliefs when they enter the public realm. Our society and our law recognize
as a matter of public policy and of our fundamental constitutional law that gays
and lesbians, and their relationships, are entitled to equality. However offensive
that principle may be to some persons of sincere religious faith, that is the
law.
34.
We believe that the current law
protects clergy who refuse to marry people on religious grounds, such as a Catholic
priest who refuses to marry a divorced person or a protestant. MCCT does not seek to compel anyone to marry
same sex couples. We so advised the Court.
35.
We hereby solemnly undertake
to publicly support by all reasonable means any priest, minister, rabbi, imam
or other clergy that faces a legal challenge in Canada because of his or her refusal to offer same sex marriage for religious
reasons.
36.
To avoid further discrimination
based on both sexual orientation and religion the marriage should be open to gays
and lesbians. The only real consequences of such decision would be Canada’s
advancement toward the “magnificent goal of equal dignity for all”, and “a sense
of dignity and worthiness for every Canadian and the greatest possible pride and
appreciation in being part of a great nation.”