"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."
-Michael Hendricks

 

 

 

 

 

 

 

 

 

 

"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."
-Michael Hendricks

 

 

 

 

 

 

 

 

 

"The judge said she heard two requests: one for the effects of marriage and one for social recognition, for respect and dignity ..."
-Michael Hendricks

 

 

 

 

 

 

 

 

 

 

"The last thing we want is for our civil marriage case to turn into the trial of the homos vs the believers."
-Michael Hendricks

 

In 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.

· René 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 first.

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 to procreate.

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".

What "fundamental" 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 homos.

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.

Silence.

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 presentation.

Noël jumped 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 our trial.

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.

Read Michael and René's account of day 2

Read Michael and René's account of day 4