"Since it was the turn for the Bobbsie twins to present, they arrived
in grey suits; no bow ties today."
-Michael Hendricks descibing the lawyers for the Attorney General of Canada
The question before the court is not of the desirability of a redefinition
of marriage - that is the legislator's problem.
-Attorney General of Canada
Then to the heart of the matter: the concept of procreation, the differences
in biology, and the fragility of the couple based on this difference is
the basic reason for marriage.
-Attorney General of Canada
"... he started speculating on the problems that society will live
with if ever we should win, for example, how will the presumption of paternity
work for same sex couples?"
-Michael Hendricks, describing the Attorney General of Canada's argument
"At this point, the judge asked a question about whether marriage
was about procreation or assistance."
"The theme of this part of the presentation was that marriage is
federal, while the effects of marriage are provincial, so the discrimination
is not federal in origin."
"The judge said she heard two requests: one for the effects of marriage
and one for social recognition, for respect and dignity ..."
"The last thing we want is for our civil marriage case to turn into
the trial of the homos vs the believers."
their own words / Dans leurs propres mots
Quebec Day Three - November 12, 2001
Day 3, Monday, November
12th, was the first of 2 days set aside for the Attorney General of Canada
to present our federal government's arguments against equal marriage.
So there was a certain anticipation in the air.
The courtroom was
not full---13 spectators including 2 journalists, plus the Drone's Club,
the Girls Team, the Judge and two clerks. Since it was the turn for the
Bobbsie twins to present, they arrived in grey suits; no bow ties today.
Wrapper, though pale as a corpse, seemed a bit more excited than usual,
having tacked his wandering locks to his bald pate with Dippy-Do so that
he could concentrate on his work. Me Goldwater was on her best behaviour
and, apart from a couple of major squirms when Bobbsie #1 went too far,
sat in her seat like a real lady.
Boobsie #1 started
off with his preliminary remarks by saying that René and I had
spoken in our testimony of our interest in the effects of marriage but
not of marriage itself. He went on to say that Me G in her presentation
had made 4 important, but not necessarily pertinent, points:
· she discussed
the Morganthaler decision about abortion but this had nothing to do with
marriage and he would not address this since it merely demonstrated a
misunderstanding of "procreation",
· Me G had
made important arguments about the protection or the "effects"
of marriage. He went on to explain that there is a difference between
the effects of marriage and its definition, that the Supreme Court had
in the recent past extended the "effects" of marriage to homosexual
couples but had preserved the definition.
and I had testified to our needs but these really only apply to Québec
where alimony is not available to homo couples (but it is everywhere else
in Canada????). All of our "needs" can be met by the province
but none of them can be met by the federal gov't. These practical things
are all provincial in jurisdiction and have nothing to do with the unique
definition of marriage. He promised that he would demonstrate how the
Supreme Court had separated the "effects of marriage" from the
union itself which was not necessary to have the results.
· The question
before the court is not of the desirability of a redefinition of marriage---this
is the legislator's problem. Speaking to the judge, he explained that
she should not be concerned with the polling information furnished by
Me G---this is Parliament's work, not the courts. In Holland this change
was made by the legislator, not the court. Besides there are gays and
lesbians who are against marriage for homosexuals. It is not the judge's
role to decide these things.
Then came his killer
line: the demanders (us) must demonstrate that our rights were violated,
which we hadn't. So, if the court rules in our favour it will be a world
The Bobbsie #1 launched
into his Section 15 arguments by saying that the rights enshrined in the
Charter should not be reduced to the banal. When Michael testified, he
said he asked René to marry him and René had said "Pourquoi
pas?" Well, for Bobbsie #1 that is not enough, it takes more. Our
testimony demonstrated to him that no constitutional rights were in play
and, if so, they were justified under section 1.
From there, B #1
went after Me G who said he cited all the dissident opinions in the Supreme
Court case relating to gay and lesbian rights. According to him, she obviously
misread the arguments.
Then to the heart
of the matter: the concept of procreation, the differences in biology,
and the fragility of the couple based on this difference is the basic
reason for marriage. This is not what Me G is so "crudely" talking
about when she mentions the "biological reality". (????)
After the biology
lesson, we got the history lesson---the heritage of our past, the values
of the civilisation, all can be found in the decisions of the Supreme
Court. To clarify all this Bobbsie #1 promised a presentation that would
rival Plato's Cave, with the exemplars of reality flickering on the wall
before us. (Really!)
From the heights
of Plato we then plunged into the plumbing of the Harmonisation Law (when
the feds legislated royal consent for article 365, the Québec marriage
law which says that marriage is between a man and woman). This section
ended with a stern warning that, if the court listened to Me G, we would
led down the road to polygamy. As this drone track was running on, body
language told us that we were touching on some sensitive material. By
the time Bobbsie #1 got to denouncing Me G's emphasis on the procreative
mandate as a trap for women, Bobbsie #2 was biting his lips rather hard
(painfully, I thought). Meanwhile, the religious lawyer was pulling like
mad on what is left of his youthful locks, keeping the remaining strands
stuck to his head.
The rest of the morning
was spent going through voluminous, and expensively researched, materials
(legal articles and old versions of the Civil Code) all "proving"
what everyone knows: historically marriage has been perceived as between
two people of different sexes.
Meanwhile, the judge
continued to listen very carefully and take copious notes.
Bobbsie #1 got to
his best when he started speculating on the problems that society will
live with if ever we should win, for example, how will the presumption
of paternity work for same sex couples? The affidavits from the Coalition
(many from lesbians with kids) do not apply to René and Michael
and thus to the situation before the court. He then cited a decision in
a Québec case of two lesbians seeking parental authority for the
non-biological mother over the kids (which failed in court). This is the
preoccupation of the Coalition's affidavits, he intoned solemnly, not
the issues before this court. (He has figured out that we are not lesbians.)
At this point, Noël
Saint-Pierre, lawyer for the Coalition jumped up and pointed out that
marriage is necessary to proceed to these questions, so it is not pertinent.
The judge seemed to agree with Noël, so Bobbsie #2 jumped in saying
that the judge must have vision to look into the further implications
of our request.
Everyone sat down
and B #1 pulled out his next big gun---the 1992 Leyland decision where
he did not discuss the dissenting position (for once) because the majority
was against equal marriage. He suggested that the judge follow this decision,
base on the 19th century Hyde definition of marriage and on the capacity
At this point, the
judge asked a question about whether marriage was about procreation or
assistance. If it is possible to imagine Wayne Gretzky skating with his
tongue, then you can imagine Bobbsie at this point. I could not get his
point, (nor did the others seem to). An exchange with the judge followed,
finishing with Bobbsie saying that the difference in sex in marriage is
not a "value" but a reality.
It was break time,
thank god, and B #1 got off the hook.
Back at work, 15
minutes later, Bobbsie told us he would explain the Supreme Court's understanding
of homosexual conjugal rights, which he described as a kind of compromise---not
written---but present in all the cases from Egan to M vs H. According
to B, the court has struggled to keep the historic institution of marriage
and, at the same time, give protection to g & l couples. So they started
to develop alternatives. Yes, there is an emotional desire for a simple
mathematical formula for equality but it is not as simple as that. You
have to look at "context".
became in the Ontario trial, "context" became in Montréal.
So we heard all about the AGC's concept of "context" in each
case starting with Law, through Andrews, and up to M vs H. Once this was
over, we looked at the Section 15 criteria and how our request could not
be valid since Michael only thought about marrying René when he
heard Pr Robinson talk about it in 1997 (Noël corrected the date
to 1993). The theme of this part of the presentation was that marriage
is federal while the effects of marriage are provincial so the discrimination
is not federal in origin (or something like that). At one point, B was
reading from Miron vs Trudel, a decision that was announced on the same
day as Egan (this seemed to have some magical meaning for the AGC because
he mentioned it twice). Suddenly the judge interrupted and asked if the
Miron decision did not say that marriage is a choice and, if so, what
are the alternatives in the case before her? Answer: waffle, waffle. Not
quite sure of the answer, the judge asked another question: the AGC never
said that homosexuality is a choice like the Catholic League does? Answer:
No, never and the lunch bell rang.
After lunch, the
crowd in the room had gone down to 7 (there were complaints about how
boring the AGC was in the morning). It had been a productive lunch and
the Drone's Club was full of energy, Wrapper had fixed his hair again
and they were looking spiffy.
Bobbsie 1 continued,
charging on into a complex discussion of how to discern the difference
of opinion between the majority and the dissent in the homosexual rights
cases. He then read all the dissenters' comments about the importance
of preserving marriage in its traditional form. Then, with a logic that
would have set Plato on his ear, B told us that, since the majority did
not contradict these opinions, or even comment on them, they agreed with
them. (Or something like that.) M vs H proved a bit more challenging for
B but the court did say that marriage was not necessary to have access
to the effects of marriage so that means that marriage is not necessary
For at least the
third time, Bobbsie went back to our testimony saying that we had said
that we wanted the benefits of the institution but not the institution.
This was very frustrating for me, sitting there, condemned to silence
(René had left to go to work). Suddenly I heard the judge say that
she had not understood that from the testimony.
The judge said she
heard two requests: one for the effects of marriage and one for social
recognition, for respect and dignity and cited the Emergency Ward story,
where a mandate is not at hand and action is required.
Bobbsie was at sea.
But people want marriage like it is, he responded. The people see themselves
in this institution. We do not need to eliminate marriage. It can be conserved
and remedial means can be found to offer the effects of marriage to homosexuals.
Just as B was coming
apart in front of us, he requested a recess. At 3h30, when we came back,
the AGC asked to recess for the day and said that Bobbsie #2 would take
up the charge tomorrow morning with Section 1.
The judge agreed
but was concerned about not wasting our valuable court time and asked
if we could discuss Me G's objections to the religious party's expertise
(this was mentioned on Day 1).
Me Goldwater, finally
free to talk, was strangely (for her) brief. They can not present Jewish
and Islamic expertise, they do not represent them. And, for the Catholic
perspective, she offered an alternative. Wrapper said he would think about
it over the night but said he really had no intention of changing his
in to say he wanted to debate the issues of liberty of conscience and
the right to equality. I shuddered, the last thing we wanted to hear at
So the day ended.
René and I have no religious opinions at all but tonight I think
we will try praying. The last thing we want is for our civil marriage
case to turn into the trial of homos vs the believers.
M. H and R L in Montréal.
Michael and René's account of day 2
Michael and René's account of day 4