The Justice Minister's alternate realities for marriage - through the looking glass.
"The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience." Albert Camus

 

 

 

 

 

 

Justice discussion paper on marriage:

In english

En français

 

 

Summaries from the Ontario hearings:

Day One - Nov. 5, 2001
Day Two - Nov. 6, 2001
Day Three - Nov. 7, 2001
Day Four - Nov. 8, 2001
Day Five - Nov. 9, 2001

The Ontario Decision
(PDF)

 

 

 

 

"The Charter breach in connection with the impugned common law rule can only be remedied in one fashion ... The choice is to amend it to include gays and lesbians - as I believe it must - or to not amend it all."
Justice LaForme, Ontario marriage case decision (July 12, 2002)

 

 

 

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"Any "alternative" to marriage, in my opinion simply offers the insult of formal equivalency without the Charter's promise of substantive equality. Again, an alternative I find will only provide a demonstration of society's tolerance - it will not amount to a recognized acceptance of equality."
Justice LaForme, Ontario case

 

 

 

Link to learn more about the registered domestic partnerships
Registered Domestic Partnerships must
not be used for "separate but equal" - that "appalling doctrine" said Justice Linden


 

 

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"One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctine. That appalling doctrine must not be resuscitated in Canada four decades after its much heralded death in the United States."
Justice Linden (Egan v. Canada)

 

 

 

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To make written and oral submissions to the Standing Committee on same-sex marriage, write to:

M. Partice Martin, Clerk
Standing Committee on
Justice and Human Rights
House of Commons
Room 622, 180 Wellington
Ottawa, Ontario
K1A 0A6

 

 

 

 

"The plight and the needs of the individual litigants whose case is the vehicle through which the impugned law is being tested, are often heartfelt, poignant, and distressing. They cry out for an immediate remedy."
Justice Blair, Ontario marriage case decision (July 12, 2002)

 

 

 

 

 

 

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  November 12, 2002

One Reasonable Choice - Equal Marriage

"... the numbers are extremely low, making up less than 1 percent of all families and even a smaller percentage of all Canadians. 'This is such a small number and it raises the question why would we consider redefining the institution of marriage ...' " Focus on the Family, V.P. Derek Rogusky

"[A Bill of Rights like the Canadian Charter is] designed to protect individuals and minorities against the tyranny of the majority, but it's also designed to protect the people against bureaucracy, against the government." Judge Lawrence Tribe


Justice Minister Martin Cauchon has released his Liberal government's paper on marriage, setting out the various options that Parliament is considering in response to the recent judgements calling for same-sex marriage in Ontario and Quebec. The leaders of Ontario, Quebec, Manitoba, the Conservative party, the Bloc Québécois , the New Democratic Party, the Law Commission of Canada, and the Canadian Human Rights Commision have all called on the Liberal party (who stand alone with the extremist Alliance party) to end its fight against same-sex marriage.

Four judges have ruled in favor of equal marriage, and one, Justice Pitfield in B.C., stands alone, discredited by his peculiar take on constitutional matters. Yet still, the government of Canada thinks it is showing "leadership" with its human rights a la carte approach to governance.

The options as laid out by Minister Cauchon are:

Justice Minister Cauchon released  the discussion paper about marriage on November 6, 2002 1) Legislate an 'opposite-sex' definiton of marriage.

If Parliament wishes to exclude same-sex couples from marriage, they could pass legislation which expressly calls out that marriage is only open to couples of opposite-sex. We have seen a half-hearted attempt at this in section 1.1 of the Modernization of Benefits and Obligations Act (MBOA) when former Justice Minister Anne McClellan, resurrected a convenient part of an 1866 definition of marriage and planted it in the Bill in order to appease what insiders have termed 'the God Squad' elements of the Liberal party (typically in Paul Martin's camp):

"the voluntary union of one man and one woman to the exclusion of all others"

Half-truths To Justify Bigotry

This partial definition (the original included the terms in Christendom and for life), may have expressed parliament's view of what marriage was at the time, but it is far from a legally enshrined definition. Justice Blair in his decision in July 2002 remarked:

"While this statuatory provision may provide a strong indication of Parliament's view on marriage. at the time of the enactment of the MBOA, it does not constitute a statuatory definition of marriage that would feed the Ontario legislation governing the issuance of marriage licenses and registration of marriages peformed under the authority of banns...even if the language of s 1.1 of the MBOA were construed to constitute a stauatory definition of marriage, however, it would be unconstitutional on the same Charter grounds that apply to the common law definition."

Cauchon's offensive option, however, is far more ambitious than that of his predecessor. Instead of taking a 'frozen rights' view of marriage and constitutional rights, the government would be looking to take the 'no rights' approach, similar to the various states who have passed Defense of Marriage Acts (or DOMAs), in order to legally repress some of their citizenry. What's more, because of the constitutional structure of Canada, the government could defend this bigotry with the notorious notwithstanding clause - a highly unlikely outcome.

The minister's paper does note that enshrining an opposite-sex definition in law, would most likely be done in conjuction with some federal registry that would grant 'equivalent status' to same-sex couples in conjugal relationships. This federal registration scheme would grant equivalency in relation to spousal status for federal laws and the government would need to work with the provinces and territories in order to ensure that the complimentary provincial laws that deal with spousal relationships were similarly modified to apply to gays and lesbians.

Such a scenario would result in a 'patchwork' of rights depending on the legislative climate of a particular province. As some provinces, most notably Alberta, have already indicated their hostility towards gays and lesbians, this would severly restrict the mobility rights of same-sex families (we may not be able to cross a border in our own country without losing many of our rights) and create the very scenario which the minister wishes to avoid.

"This outcome is exactly what the drafters of the original Constitution hoped to avoid - having some provinces and territories recognize a marriage that others do not," the Justice Minister's paper says. Not going to happen.

Anything other than full and equal marriage will take us back, through the looking glass, to the discredited separate but equal regimes of the past.Separate But Equal

An equally pressing concern with the registration approach, is that any legislated distinction between same-sex and opposite sex couples would create a 'separate, but equal' regime - a textbook case of discrimination. The Canadian judiciary have warned against this approach time and again. In the July 12, 2002 Ontario judgment Justice Blair noted:

"I have some concerns about the adequacy of the registered domestic partnership regime to meet the requirements of the Charter. Equality of benefits and protection are not necessarily the same thing as full and equal recognition."

In the same case, Justice LaForme was even more explicit in his condemnation of creating an 'alternative' to marriage for gays and lesbians:

"Any "alternative" to marriage, in my opinion simply offers the insult of formal equivalency without the Charter's promise of substantive equality. Again, an alternative I find will only provide a demonstration of society's tolerance - it will not amount to a recognized acceptance of equality.

"I also reject the argument of the AGC that the benefits afforded through the institution of marriage can be remedied by amendment to legislation that otherwise grants benefits to co-habiting couples. In my opinion that submission amounts to the 'separate but equal' argument that has long since been rejected in Canada as a justification for an otherwise discriminatory law."

Indeed, as far back as 1995 when the government was denying pension benefits to same-sex couples (Egan v. Canada), Justice Linden warned of the dangerous waters that the government was sailing into:

"One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctine. That appalling doctrine must not be resuscitated in Canada four decades after its much heralded death in the United States."

Ontario & Quebec court gave parliament 2 years to register our marriage.  Time is running out.2) Withdrawing completely from marriage and leaving the institution to faith communities.

The minister's second option would involve having no government intervention in marriage and creating a civil union registry that would be obligatory for all couples who wished legal status to be afforded to their relationship. Faith communities would be free to perform ceremonies, but they would have no standing in law.

This approach, which would be similar to that adopted by the Netherlands, would have more chance of passing a constitutional challenge than a national registry scheme which creates a marriage equivalency for same-sex couples, but is far more likely to create division and discontent among Canadians.

First, such an approach would require all provinces and territories to co-operate and to have their marriage and domestic partnership registries replaced with federally controlled ones. If the provinces refuse, then there would be legal vacuums left (no federal laws would be in place regarding marriage disolution) and it would still not address the equality provisions of section 15 of the constitution. The removal of federal marriage laws would still leave the federal common law bar in place and open to challenge.

More to the core of the issue, however, is that the religious component of marriage is extremely dear to the hearts of Canadians. 70% of Canadians still choose to get married in a house of worship and many might feel that by removing the legal recognition of a rite they hold dear, their religious beliefs are being trampled on by the law. As the discussion paper notes:

"However, it would likely concern those who believe that marriage should be legally recognized and may make them feel that their beliefs have been marginalized."

The scenario as described by the paper is a likely one, in fact it exists today. Gays and lesbians across Canada have been exchanging vows within their faith communities for several years and these blessings have received no legal recognition. The current legal status marginalizes the religious beliefs of those faith communities which regard individuals in same-sex relationships as full members of their congregations. It would be a tragic thing to have more faith communities feel alienated from the totems of their society, but an even greater travesty to permit the marginalization to persist for only selected religious groups.

All of this is about one word : marriage.    3) Changing the federally definition to allow same-sex couples to marry.

The third option and our obvious preference, is to expand the definition of marriage to be equally applicable to same-sex and opposite-sex couples. This would bring federal legislation into compliance with the Charter with minimal impact on existing laws (both federal and provincial) as there would be few rewrites necessary. Marriage as a legal entity would simply encompass all people who had joined themselves through a marriage ceremony (civil or religious) regardless of the sex of the two individuals.

The minister's paper postulates that such marriages would only be legally valid within Canada as there is no mechanism in place to recognize same-sex marriages internationally. But, it would not be difficult to envision an agreement for mutual relationship recognition with nations such as the Netherlands or Belgium. More countries will follow.

Even in those situations where marriages aren't acknowledged abroad, Canadians in same-sex relationships would be no worse off than today when travelling. When we travel to the United States we have to argue with U.S. customs in order to be recognized as a family, a status that we enjoy due to the laws of Ontario. We have been told that our relationship does not qualify us as a family in America. If the government were to recognize our right to marry, it might influence the international community to begin treating gay and lesbian travellers with dignity.

Moreover, the paper expresses the concerns of some faith leaders that an expanded or revised definition of marriage could be used to force faith communities into performing same-sex marriages, even when those faith communities do not accept same-sex couples as equivalent to opposite-sex couples.

In the Ontario marriage challenge, it has been explicitly stated on numerous occasions that there is no intention of forcing faith communities into perform marriages against their wishes. Indeed, we have gone on record as saying that no religious group should be forced to perform same-sex marriages. Such change must come from within each faith group - a process now underway around the world.

But we must ask that those faith communities, who, according to the paper, would feel 'marginalized', to respect the rights of our faith community. The Metropolitan Community Church of Toronto holds a different view and believes that it should marry same-sex couples who wish to partake in this rite. Is the potential alienation of some faith communities a valid reason to deny civil and religious marriage to those who hold differing opions and beliefs? Are the Charter guarantees subject to the political game of numbers and the tyranny of the political will of the majority?

In the end, the third option is by far the least intrusive into the legislative process and it is most in keeping with the spirit of our Constitution, our values and our sensibilities.


November 20, 2002

The process
Town-hall or tyranny?

The House of Commons Standing Committee on Justice and Human Rights met on November 18 to discuss the process for hearing from Canadians on how to reconcile the traditional definition of marriage and the recognition of gay and lesbian unions within the framework of the Canadian Constitution and its equality guarantees.

An informed source said the Minister of Justice will testify, at last, in mid-December and the public hearings will take place beginning in February 2003. The Committee is expected to travel to at least 15 destinations across Canada. On November 12, the Minister of Justice said recommendations on possible legislative reform would be submitted by early April 2003 (the same month when the Ontario appeal is scheduled to be heard). No other official information is available.

But what exactly is this process? We explored that question with a Liberal member of Ontario's provincial parliament who we met at a party. Although the Justice Minister can produce options like a car salesman, the fact is the government can either comply with the Canadian Charter or the courts will order it done. The Justice Minister's "neutral" tossing out of options for Canadians to consider implies that human rights can be determined by the tyranny of the majority. That is not how our charter, beloved by Canadians, works.

So if this is an education process, as our friend the politician wanted to stress, than let's say so. But a Justice Minister is unworthy of the title, under our Canadian Charter, if the office believes Charter compliance is determined by public hearings. His guidance has come from the Law Commission of Canada, the Canadian Human Rights Commission, and from courts in Ontario and Quebec. The B.C. judgement against marriage was just plain stupid. Every Canadian knows our Constitution isn't "frozen in time". Common-law marriage, civil marriage, and divorce laws now in place would not exist if that were true.

It seems a poor sign of judgement to see a Justice Minister point to the BC judgement as a reason to delay doing what is right. The Justice Minister does not require a court order from any level in Canada to do what is right. He does not need to hear from the people. Previous Supreme Court of Canada cases have been quite clear. The precedents are established. We know it and he knows it.

What the Justice Minister needs is good judgement and leadership. So far, he is failing miserably with both. Perhaps the committee will help clairify their purpose so that Canadians can better understand that the Charter they love and support (including LGBT issues), has already settled the matter. It will be instructive to see if this last remaining form of government discrimination against gays and lesbians will end through government action (as in the Netherlands and soon Belgium) or by court order (which is the Canadian Liberal government's sad tradition). The clock is ticking and a lot of us are watching.

You can write directly to your Member of Parliament or Senator, or send your views to the Minister of Justice at Room 100, 284 Wellington Street, Ottawa, Ontario K1A 0H8, or by e-mail at marriage@justice.gc.ca.

To make written and oral submissions to the Standing Committee on same-sex marriage, write to:

The Justice Minister's Discussion Paper

M. Partice Martin, Clerk
Standing Committee on Justice and Human Rights
House of Commons
Room 622, 180 Wellington
Ottawa, Ontario
K1A 0A6

Questions about the Committee process should be referred to the Committees Directorate, House of Commons, Ottawa, Ontario K1A 0A6 (Tel. (613) 992-3150). Click here for guidance about appearing before a committee.


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