the Church nor the State can redefine marriage. The institution, which
is composed of a man and woman, exists outside the law.
not necessary to recognize homosexual relationships as marriages ... we
don't recognize polygamy, prostitution, or any casual sexual liaison as
equivalent to marriage.
State were to recognize homosexual marriages, many religious people ...
would be stigmatized as "un-Canadian".
marriage would derive his clients of the ability to marry in accordance
with their religious beliefs, because marriage, as they understand it,
would no longer exist.
Similar to slaves, or women who have endured domestic violence, people don't seek to put an end to an intolerable situation until they are able to dream of an alternative. -EGALE Coalition
suggestion that M. Hendricks can marry a woman if he wishes is, in and
of itself, a dicsriminatory argument. We can't expect anyone to be other
than they are.
Day Five - November 14, 2001
Me Reynolds began
the day for his clients, the Francophone Alliance of Evangelical Protestants
of Quebec and the Catholic Civil Rights League, saying that the Charter
equality analysis must be considered in its context, which includes, according
to judge La Forest in the Egan case, biological,
The interpretation of the Charter must also correspond with Canada's multicultural heritage - which includes the many Canadians of faith. The Court therefore needs to consider the impact of the "radical" changes being proposed by Me Goldwater on religious Canadians.
He then referred to the affidavits of a number of religious witnesses, saying that neither the Church nor the State can redefine marriage. The institution, which is composed of a man and woman, exists outside the law.
There are three essential elements to marriage, none of which will be advanced by extending the definition. These elements are, apparently:
(i) the fact that
it's a male-female relationship;
Allowing same-sex couples to marry would create a divergence between civil and religious marriage, and would gut marriage as a heterosexual institution.
Me Reynolds heavily criticized "social constructionism", which he says is an ideology based on the notion that all our moral concepts are relative. The rhetoric of "homophobia and heterosexism" is a fairly recent invention, which stigmatizes religious communities and seeks to undermine the credibility of long-standing religious thought.
There are even some people who have suggested the heterosexism is in the same class as racism and sexism!
It's not necessary to recognize homosexual relationships as marriages. For example, we don't recognize polygamy, prostitution or any casual sexual liaison as equivalent to marriage.
At this point, the judge commented that he must admit this was not the happiest comparison.
Me Reynolds replied "perhaps", but merrily continued in the same vein.
There is no discrimination, because homosexuals can marry someone of the opposite sex, and have and raise children. Procreative potential is essential, and it's not relevant that there are exceptions, such as a heterosexual couple who can't have children.
Some homosexuals celebrate the fact that homosexual marriage would enable them to stigmatize heterosexuals.
Judge Lemelin suggested, however, that religious groups are able to survive when the State takes a position on something like abortion which is contrary to their religious values.
Me Reynolds replied that this goes further than that.
He did emphasize however that his clients respect homosexuals - it's just our behaviour that they hate.
He continued with
similar points of view from a variety of religions. If the State were
to recognize homosexual marriages, many religious people would not be
able to accept these "marriages", and would be stigmatized as
Me Goldwater is trying to force those who oppose homosexual relations to accept them as equal. If one removes the foundation of marriage, the whole building will come tumbling down.
The Judge said, well, hang on a bit, it's not as if you'll be forced to become homosexual. The only impact will be on those who would have preferred to keep marriage as it is.
Me Reynolds replied that without its heterosexual definition, the institution ceases to be marriage.
He emphasized that in B.C., Judge Pitfield ruled that neither the Courts nor Parliament could let same-sex couples marry without a Constitutional amendment.
Judge Lemelin pointed out that the development of computers was not foreseen in the Constitution either.
Me Reynolds replied that Quebec has always considered marriage to be essentially heterosexual, as have the common law provinces, since the 1866 case of Hyde v Hyde. The Courts can interpret the scope and application of constitutional terms, but cannot expand the actual definitions found in the Constitution.
Even if the Edwards case requires a broad and purposive approach to constitutional interpretation, Courts can't change black into white.
The judge expressed the view that all the Constitution does is to identify the general fields of federal and provincial competence.
Me Reynolds replied that you can't interpret a word to give it the opposite of the meaning it was intended to bear.
In addition, his clients invoked section 15 and 2 of the Charter to protect their religious interests. Recognizing same-sex marriage would derive his clients of the ability to marry in accordance with their religious beliefs, because marriage as they understand it would no longer exist.
Finally, Me Reynolds ended, leaving many of us feeling like we needed to wash.
Then Me Noël Saint-Pierre presented the position of the Coalition.
He began by replying to the suggestion that the gay community is trying to stigmatize religious groups. We wouldn't call religious people "homophobic" , explained Noël, but when groups or individuals go out of their way to promote discrimination against us or our relationships, it's not inappropriate to use such a word.
One of the arguments of those who oppose equality for same-sex couples is that marriage should remain heterosexual, because it's always been that way. While it's true that at the time of Confederation, same-sex marriage wasn't contemplated, we have seen a tremendous acceleration in recent years of both the rights of lesbians, gays and bisexuals, and also of their expectations. Similar to slaves or woman who have endured domestic violence, people don't seek to put an end to an intolerable situation until they are able to dream of an alternative.
25 years ago, no jurisdiction in Canada recognized sexual orientation as a prohibited ground of discrimination. Quebec became the first province to protect us, and the argument "No-one does it, so why do it here?" would hardly have been convincing.
Noël mentioned several factors which have contributed to this social evolution, such as an increase in lesbian parenting, the impact of AIDS, particularly on the gay male community, immigration etc.
We have often had to deal with those for whom denying our rights is a moral imperative.
to the "interesting arguments" of the Attorney General of Canada,
particularly the position that marriage can be separated from its effects,
and the fact that the federal government felt the need to insert s. 1.1
into the law to ensure that denying us marriage was a condition of
The Coalition is asking the Court to change Bill S-4 and the Civil Code to enable same-sex couples to marry. Article 365 of the Code must follow the same fate as Bill S-4.
In the Hassan case, the court recognized that the definition of marriage in the Hyde case is no longer the law. Noël also mentioned that marriage is not a necessary prerequisite for procreation, and that a male to female transsexual can be legally recognized as a woman and marry a man.
Noël emphasized the need to recognize that the Constitution is an evolving document, and examined a number of changes that have occurred since it was first adopted in 1867.
The suggestion that M. Hendricks can marry a woman if he wishes is, in and of itself, a discriminatory argument. We can't expect anyone to be other than they are.
Every step of the way, governments have opposed our rights before the Courts, saying that we should not be recognized as common law couples, but are more akin to roommates. Now that the governments have lost those cases, they are here before the Court claiming to have supported us all along.
Noël will continue
presenting his arguments tomorrow.