Appearing Before the Standing Committee on Justice & Human Rights
Metropolitan Community Church of Toronto - February 19, 2003

External link to the Metropolitan Community Church of TorontoSUBMISSION OF THE METROPOLITAN COMMUNITY CHURCH OF TORONTO



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 marriageRev. Brent Hawkes, Elaine and Anne Vautour (Photo by MCC Toronto. 2001) ceremonies for same sex couples of the congregRev. Brent Hawkes, Kevin Bourassa and Joe Varnell (Photo by MCC Toronto, 2001)ants. 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.[1]


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.[2] 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…”[3] Subsequently, in 1982, freedom of religion was expressly recognized in the Canadian Charter of Rights.[4]


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.”[5]


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.[6]


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.”[7]


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”).[8] 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.[9]


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.”[10]


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.[11]


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.[12] 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. [13] 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.[14]


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.[15]


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.”[16]

[1] [2002] O.J. No. 2714. In these submissions, we will rely on the facts and evidence submitted to the Ontario Superior Court of Justice, such as Affidavits of Reverend Dr. Brent Hawkes, Kevin Bourassa and Joe Varnell, Elaine Vatour and Anne Vatour, as well as numerous reports submitted by leading experts in the fields of religion and sexuality, such as Prof. Jaqueline Murray, Prof. William N. Eskridge Jr., Dr. Robert Wintemute, John Fisher, Mary Hunt, Randolph Trumbach, Prof. Barry Adam, and Linda Clarke. These documents can be provided upon request.

[2] Affidavits of Bishop Richard Holloway, Robert J. Hughes, Reverend Donald Gillies, Rabbi Steven Greenberg, Mark Morrison-Reed, and Rabbi Elliot Stevens accordingly.

[3] Chaput v. Romain et al., [1955] S.C.R. 834, quoted with approval in R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 (hereinafter, “Big M”) at 325.

[4] S.C. 1960, c. 44, s. 1(c) at s. 2(a).

[5] Big M, supra note 3 at 337.

[6] See Affidavits of Morrison-Reed, Stevens, Gillies, Clarke, Hunt, Greenberg and Holloway, supra notes 1 and 2.

[7] Big M, supra note 3 at 337.

[8] In Canada, the First Nations had no similar religious or other proscriptions of homosexual acts. Most First Nations recognized that some of their members were what we would call “gay” or “lesbian.” First Nations believed that such persons were “two-spirited,” that is that they had both a male and a female spirit, and that they were special or magical persons as a result. Many native cultures conceived of such persons as being of a third gender, and had a special name for them, such as the Lakota word winkte. Two-spirited persons often occupied a special place in their nations, and had relationships with others of the same sex.

[9] See e.g. W. L. Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture, (Boston: Beacon Press, 1992); Le Duigou, “A Historical Overview of Two Spirited People: a Context for Social Work and HIV/AIDS Services in the Aboriginal Community” Native Social Work Journal Vol. 3(1), September 2000, at 195-197; G. Kinsman, The Regulation of Desire, 2nd ed., (Montreal: Black Rose Books Ltd., 1996) at 92-93.

[10] Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 at 133. It is important to note that the Hyde definition of marriage, or the alleged source of the so-called common law definition of marriage, is no longer, if it ever were, the law of Canada or England. It was rejected by Justice Cory in the pre-Charter case of Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) as inappropriate for multicultural Canada.

[11] An Act to confirm and make valid certain marriages now comprised within the Province of Upper Canada, and to provide for future solemnization of marriage within the same, 33 Geo. III, c.5.

[12] Marriage Act, 1950, S.O. 1950, c. 42, s. 25.

[13] Divorce Act, S.C. 1967-68, c. 24 (later R.S.C. 1970, c. D-8).

[14] In Miron v. Trudel, [1995] 2 S.C.R. 418, at 498, the Supreme Court recognized that “Historically in our society, the unmarried partner has been regarded as less worthy than the married partner.” The most recent examples are Bredric v. Niksic and the Supreme Court of Canada case of Nova Scotia v. Walsh [2002] S.C.J. No. 84. The latter case supports the right of legislatures to impose differential obligations on common law couples and married couples based on the principle of choice.

[15] Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31 (QL) at para. 31.

[16] Vriend v. Alberta, [1998] 1 S.C.R. 493 at 535 per Cory J.

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