their own words / Dans leurs propres mots
Quebec Day Five - November 14, 2001
If I remember correctly,
Jesus was on the cross for 3 hours before dying. Without being flippant,
I can tell you that the "Girls' Team" sat there for almost 3
hours today and listened in silence to one of the most incredible presentations
I have ever heard. Somehow we made it to end, without an eruption, which
speaks tons about how determined, or how cowed, we are. Jerry Falwell
would be proud of the Wrapper!
We had put out a
call for support and 18 people (plus John) showed up, some of them coming
from gay religious communities. There were two journalists. The Drones
arrived as a group, spiffily dressed but once again "hair challenged".
Those in the audience were treated to a morning long view of the back
of Wrapper's head which looked something like a Niagra Falls of too fine
long hair --- the 'cover up' coiffure kept falling towards the back as
he looked up to the judge.
Wrapper is definitely
a believer in something. Even as he reads in a monotone from his notes,
he is still able to transmit conviction when he speaks. And, as someone
who believes and is secure in his belief (perhaps in himself), he speaks
with a judgmental, yet matter-of-fact, tone that assures the solid foundation
of his thinking. From our side, watching his lipless mouth form the foul
words coming the cesspool of human ignorance that serves him for a mind,
was literally repugnant.
I will spare you
the verbatim transcript and only hit the high points. Wrapper read so
slowly that it was easy to capture it all. Surprisingly he spoke in French
but most of his quotes, from texts you all had presented in your trials,
were of course in English.
The session started
with Her Ladyship going over the list of affidavits that he won the right
to present (in a previous court hearing, thank you Judge Rolland) and
which could not be stricken by court order. Not the kind to be gracious
in victory, Wrapper then started by whining about how Me Goldwater had
suggested yesterday that some of this smut be eliminated. He ended this
song and dance with "I don't get it---what's her game?"
The formal introduction
started with Wrapper explaining the importance of "context"
which is so valuable for the Supreme Court in Article 15 cases. He then
assured the judge that his presentation was conforming to Article 27 of
the Constitution that orders that Art 15 should be used to maintain and
protect multiculturalism, which includes those motivated by FAITH. It
seems that the Wrapper is only a vessel bearing the point of view of people
of faith to the Supreme Court and that he will not be limited by speaking
of only his and his clients' religions but ALL RELIGIONS! So his presentation
will expose what people of faith think and how this radical change that
Me G is pushing would attack these people and, of course, the "context"
in which people of faith live.
Affidavit 1 - Daniel
Cere (who teaches at McGill, director of Newman House)
Speaking for the
True Church (the one I was raised in, in fact), Cere explains how same
sex marriage would fracture the basis of shared religious and civil peace
that has existed through the ages. Neither Church nor State can change
marriage, it comes from before History and exceeds State power. Inclusion
of s-s couples in marriage forces the reconfiguration of civil marriage,
making it into an empty legal entity while removing the central elements.
Worse it will cause problems for the clergy in observing their faith.
clause 367 of the Civil Code (which protects the Churches from discrimination
charges, example: refusing marriage to divorced people)?
Wrap: The protection
of 376 is a "red herring" used by Goldwater but I will come
back to that.
The Wrap then went
on to read to us about the evils of "social deconstructionism"
as Cere presents them.
Judge: That word
is not in the dictionary.
Wrap: It's an academic
idea, takes time to get in dictionary. It means the rejection of reality
as we know it. This ideology says we are not men or women, that we are
linguistic constructions, that marriage is a cultural construction. It
will pass, just like Marxism did. (But ugliness is eternal, the proof
is before me.)
S-s marriage is a deconstruction of het bonding, not an inclusion but
an explosion. (Then a whole bunch of more rubbish which all proved that
hate by any other name smells the same.)
But even worse than
deconstructionism is the danger of these new homosexual clique words "homophobia"
and "heterosexism" which were invented to avoid honest debate
about the TRUTH. Wrap then says that these two dirty words have not yet
been used in Her Ladyship's court but we must beware. However, Me Goldwater
has accused his clients of "hate" and that is the same strategy.
Worse, these words are linked with other words like racism and anti-sematism
to stereotype the Catholic Church.
Change of direction:
Wrap says that non-discriminatory treatment of homos does not have to
treat homo bonding in same way as hetro bonding is treated. The Church
does not approve of all heterosexual sex, for example, incest, rape and
prostitution are not approved of.
The comparison is not the most happy one, do you think?
his dignity): Homosexuals are not banned from marrying. They can marry
heterosexually and raise children if they wish. Heterosexual love is different
from homosexual love, it bridges the male/female gap . . . (I lost the
At this point Me
Goldwater is loudly whispering to Me Dubé about something and the
judge disciplines her. I find I am having trouble paying attention. This
must have been what the Inquisition was like, when words you know suddenly
are used in ways they were never meant to be. A perversion of your reality
using words that are familiar and emotionally charged.
I get back on track
as Wrap is saying: "the inclusion of s-s marriage is to exclude a
large sector of human sexuality from the legal system, the evisceration
(disembowelment) of marriage, a disconnect between the faith-based groups
of society and the law. "Jamming" this kind of thing into the
schools is a new kind of indoctrination . . .So this really is the Monkey
Trial after all.
Judge: When abortion
was legalised, no one died and they said they could not live with it,
Wrap: What is proposed
by Me Goldwater is further, more fundamental, than abortion. Profoundly
fundamental for my clients.
Judge: A bit lame,
your arguments? Perhaps you could bring new elements.
Wrap: I only have
the last paragraph of Cere to cover (strangely, it is paragraph 69). The
inclusion of s-s couples in not an extension of marriage but a deconstruction
of legal marriage with no relation to het reality.
Affidavit 2 - Dr
Caparos, a professor of Canon Law (knowm to be close to Opus dei)
Wrap: There is no
civil marriage; only religious marriage is valid. Me Goldwater says that
all "they" (he means Michael and René) want is civil
marriage. There are not two kinds of marriage, just two ways to celebrate
the service, but only one institution. It is impossible to separate the
Any change in marriage
will create serious problems for religious communities. Same sex marriage
is opposed to our legal, social and moral traditions including Creation
By this time, Wrapper
is looking like some kind of suited Don Quixote with his hair flying in
all directions, his smudged 70's "aviator style" glasses, his
tiny hole of a mouth.
The basis of marriage
in Canada is Canon law, ie. het partnership for life with kids in a family.
Any other form of sexuality is morally wrong. People are moral agents
and can choose their acts. However, homosexual persons deserve respect;
all religions distinguish between the immoral geste and the person who
There is a distinction
between claims for equality. The court must consider the equality interests
of the plaintiffs (us) and that of the Catholic Church as well as, most
important, the common good. But justice must be done. If they (he means
us or homos?) are allowed to marry this will lead to the stigmatisation
of the Catholic Church and the social exclusion of the Catholic Faith,
the largest in Canada.
Judge calls break
time. John Fisher tells me that this is the worst religious presentation
he has seen in all of the hearings.
Back to work with
Affidavit #3, the Rabbi Novak.
Marriage comes from
Adam and Eve, reconfirmed after Noah's ark ran aground. Marriage is a
natural institution elevated to a sacrament without changing its pre-religious
Judaism does not
reject the homosexual but rejects same sex relations as sinful.
S-s marriage will
create a schism between the Jewish community and society and the State.
If s-s marriage is legal, a large segment of Canadians will not be able
to accept the marital status of other Canadians. It will lead to accusations
of discrimination, "un-Canadianism" or "anti-Canadianism".
Jews will leave for other countries where their religion is protected
or they will move to civil disobedience.
Affidavit #4 - The
Islam teaches that
the husband and the wife (which one???) are two pieces of the same whole
which unite in marriage. The impact of the redefinition of marriage will
result in the State imposing acceptance of s-s marriage. This contradicts
and invalidates our religious beliefs. Result will be the isolation of
muslims from full participation in Canadian society.
Affidavit #5 - Professor
Craig "Gay" for evangelical protestants (Wrapper's folks)
Wrapper starts off
by saying that Me Saint-Pierre called evangelicals a sect. They are not,
they are everywhere in all Christian religions, they are 10% of the Canadian
population (who is counting?).
muslims), they put a total emphasis on the authority of scripture. One
can not overstate the significance of marriage---it is basic to creating
the moral order.
explains that, in the beginning, there was Adam and Eve, not Adam and
Steve. For this world, Holy Scripture indicates that marriage is het and
is the only acceptable place for enjoying sexual relations. So they oppose
polygamy and homosexuality. Marriage is god's design for all people, for
Evangelics are being
increasingly stigmatised and they are concerned about freedom of religion
in Canada. This marriage challenge is a case in point.
have invented words like homophobia and heterosexism to embarrass their
opponents. Part of the homosexual plan is to capture legitimate social
images like marriage and family.
Such a constitutional
move as the plaintiff propose pits the State against the Holy Scriptures---a
stake into the heart of protestant beliefs. End of "Gay".
Wrapper: My clients
see themselves confronted by the State in three cases about marriage.
They have sincere, profound convictions against s-s marriage founded in
religious faith. All of them love the sinner but hate the sin. In each
case before the courts, the danger of stigmatisation is present and they
will be targeted by the State if this cause is won.
If Me G wins this
case, the institution we know as marriage will be gone. Marriage is fundamental
and if this case wins, we will remove the foundation and the institution
will fall. That is what Me Goldwater wants, to abolish one institution
and replace it with another. One of the many false impression Me G spreads
is that she only wants the right to civil marriage but there is only one
marriage. She says that clause 367 will protect religious officers from
celebrating s-s marriages but, if she wins, there will be no marriage,
no 376. A new marriage will exist and it will be imposed.
Judge: Everyone will
have to live with it, this will not make everyone homosexual. Yet, from
your affidavits, I gather clause 367 will not settle it.
Wrapper: The simple
fact of doing this change takes all meaning out of marriage. Heterosexual
essence is the sine qua non of marriage. The proposed change is fundamental,
not banal. Marriage will not continue.
With that note, the
Wrapper ended his presentation of the affidavits and moved on to the constitutional
question. How did you guess, he thinks the Pitfield decision is just fine.
Perfect. So he told us how the term marriage is frozen into the Constitution
of 1867 and can not be changed without a constitutional amendment. But
he goes one step further---even the provinces together can not change
it because the founders meant the marriage they knew in 1867 (the real
one, not the phoney one with divorce, etc.) and that can never be changed.
Judge: Did I understand
that: it would change the constitution to change the signification of
the word "marriage"?
Wrapper: Yes. Marriage
has always been heterosexual, what they mean by marriage is the Hyde decision.
Any other use of marriage is not the same but a new product.
And so it went until
the cesspool closed at 12h30 for lunch.
Back at work at 14h15.
Judge: Could you
explain the citation from Pitfield that you read before lunch?
Wrapper tries to
explain it, not very aptly. The judge says that this citation does not
seem to communicate the idea he was talking about.
we arrive at the same conclusion (he and Pitfield, I guess) a law can
not change the sense of the word marriage in the constitution.
Wrapper then goes
into his second part. About the constitution, starting with the "Persons"
case and the Living tree doctrine. The exact quotation from the Privy
Council in the Persons case is "the constitution of Canada is like
a living tree capable of growth within its natural limits"
Judge: In the 1930s,
"persons" was ambiguous. It is not so today.
Wrapper; At the time,
"persons" was an ambiguous word and the Privy Council fixed
that. Marriage was never an ambiguous word so no one can change it.
Wrapper: the point
is that "marriage" is not an ambiguous word. 'Within its natural
limits' can not apply to s-s marriage. (Because s-s marriage is not natural,
Wrapper: The plaintiffs
are invoking article 15, invoking invalidity. But they are really trying
to amend the constitution. This can not be done (cites Supreme Court)
Judge: I don't get
it. You call it an amendment when we interpret the word marriage?
Wrapper: Yes. When
you change the sense of the word.
Judge: When identifying
an area of federal or provincial competence, it does not say what to do
in that area.
Wrapper: It is not
by changing laws that you can change the constitution.
Judge: The feds can
not change a "condition de fonde"? like age?
Wrapper: Age is not
fundamental. You can not change the constitution with article 15 and that
is what Me Goldwater said she wants to do.
Wrapper repeats all
this at least 3 times and the Judge falls silent.
Wrapper goes to part
III of his presentation: How to apply section15.
This is a major case.
The parties and the intervenors (what?) are invoking art. 15.
You (the judge) must consider that my clients have a religious interpretation
of marriage and thus reject the plaintiffs' request. Marriage means home,
wife, religious belief. If you give marriage to them, the concept of marriage
will be eliminated, replaced by another and that will be the law. For
many that geste will attack their freedom of religion and conscience.
Thus we have a collision
of fundamental rights. What does freedom of conscience mean? The right
to believe what we want and to do it publicly and practice it. If the
plaintiffs marry, my clients and many millions of Canadians will be forbidden
to practice their religion because they will not be able to marry.
Judge: If I apply
Big M you can believe what you want. How does their marriage interfere
with your clients' practice?
marriage is heterosexual and they could no longer marry under this new
institution, no longer limited to hets. If it becomes the law, the rights
of lots of people will be attacked because they can not marry. Article
27 of the constitution (which I read to you earlier) supports "multiculturalism".
We can not pretend that their rights (Michael and René's rights)
are superior to our fundamental rights. You have no choice but to defer
to the legislator.
(Me Dubé passes
me a note: "Quel calvaire")
The Wrapper is wrapped
and next is the lawyer for the Coalition for the recognition of same sex
couples, Noël Saint-Pierre.
NB: Noël, a
rather handsome, dashing 40ish gay lawyer, is one of those eternal hyperactives
with a real gift of gab. He speaks, reads and writes 4 languages and is
widely read. He practices immigration law and has been active in the gay
and lesbian movement for years. Seeing him, hearing him at the bar, is
a refreshing change.
differs from all the previous ones for two reasons:
· he has heard
all the others (he is last) and can reply to much of what has been said.
· he completed his presentation at lunch so it is fresh---everyone
else had theirs filed weeks ago and, obviously, they have been rethinking
Noël to Judge:
I have a document to submit from the Vatican.
Me Goldwater: And
I have the Canon Law and the Catholic catechism on marriage and sex etc.
Judge: I am not reading
a catechism. You all agree on the important parts and I will read them.
Noël: To start,
I was asked if the Coalition supports the marriage of MH and RL. The Coalition
supports any legal move that allows same sex spouses to benefit from the
same statue and rights as heterosexual spouses. So we support them. Who
are we? We are the rest of the people, the lesbians with children, the
single gay men, those who also know the situation they live with from
our own experiences.
Noël: We have
never said that Wrapper and his clients are homophobes. But we have all
suffered at the hands of homophobes who acted in the name of religion.
To start from the
beginning, s-s marriage is not in the constitution of 1867 because all
of our relations were illegal in a religious country in 1867. Today we
have a new request. The AGC remarked on Michael's newly found interest
in marriage in 1993. It is for good reasons that this came so late. Until
1969, our relations were illegal. 100 years ago it was a serious criminal
offence. Only in the last year has Québec legalised sodomy for
consenting 14 year olds.
There are three factors
that bring us to this point today. First of all, 25 years ago no State
even recognised our equality. The first was in 1977 in Québec.
The process of liberation, individually and collectively, has picked up
only recently. The experience of liberation is lived unequally----both
slaves and women had problems actually liberating themselves once free.
Even in 1977, after
the Charter was amended, there were prohibitions against recognition of
our couples, pensions, etc. This is all new. We could not have imagined
But at Dives/Cité
in 2001, we had a contingent of lesbian mothers with their children. This
was unthinkable 10 years ago. Certain factors have changed and hopes have
grown. The double life still exists but things are improving for us.
There is another
factor that has changed the way gay men are living. We have the lesbians
with us now. This is powerful. They are fighting for the right to maternity.
Finally, a third
factor, is that HIV and AIDS brought us together.
Gays and lesbians
often realise "different treatment" at moments in their lives
when they are vulnerable. For homosexuals, you only have to go to a hospital
to know that you and your partner are nobody. Being in couples has grown
since HIV struck, it changed our sexual habits. Being in a couple is a
means of prevention, a means of surviving.
A fourth factor where
we see couples forming is for immigration. We seek the right to immigrate
with our loved ones. The AGC said yesterday that all the rights have been
given to us. Not so, there is work to be done.
For those in the
front of the room (he means the Drones Club), this is new to you. We have
to avoid our emotions here but we have been confronted in every possible
way and place, trying to stop us. Now we are here.
I wish to start by
covering some of the points the AGC touched on. Points which illustrate
the " smart aleck tricks" (bad translation but the best I can
do) that appear in his presentation.
From there, Noël
· There is
not legal concept of separating the "effects of marriage" from
the institution and the Supreme Court never said anything about doing
· Nowhere does it say that C-23 is a deal to give exclusivity to
marriage to hets as a condition of access to rights for s-s couples
· Clause 365 (or its direct ancestor) never was based on the Hyde
· Pitfield's decision leaves out two important systems in governance:
the courts and the legislature
· Both the Harmonisation Act and clause 365 can be modified.
· The Hyde decision does not define marriage (and cites 2 pieces
of jurisprudence that prove his point)
· The Living Tree doctrine does mean you can revise the constitution,
including the meaning of the words in it (and explains how confessional
schools in Québec required specific updates to specific definitions
of words that were held to be "sacred" and then goes through
another one about alien status/citizenship in Canada)
Then Noël goes
off on Article 15, explaining how homos are in the prime group of targeted
classes of Canadians for the application of the Art 15.
NB: The judge gave
this latter part a lot of attention (and she pays lots of attention all
of the time). At this point, I glance at the Wrapper and his face is really
sour. I think maybe this is just me judging him but my friend Evangeline
tells me later that she notice how the Wrapper had gone dispeptic after
Then Noël pops
a big one: Originally, he had not appreciated Me G's use of Morgenthaler
but, in hearing the Wrapper tell us we could marry girls and boys and
have children, obliging us to live something we are not, he thinks it
applies very well.
And so Noël
went on til 4h30, offering bits and pieces of his lengthy legal experience,
carefully chosen pieces that demonstrate the applicability of Art. 15
and other principles to us, each of them refuting the allegations and
legal pretentions of the Drones' Club. In closing, he promises to expose
more lies tomorrow morning.
M. H and R L in Montréal.
Michael and René's account of day 4