August 18, 2003
the legal battle continues in Quebec
By Michael Hendricks
The following article originally appeared in the Montreal Mirror. It is used here with the author's permission.
On July 17th, Justice Minister Martin Cauchon announced that Canada will have a new definition of who can marry. Henceforth "marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." The key words are "two persons," i.e., any two unmarried persons, age 16 or more, not closely related by blood. Once this definition becomes law, Canada will be the third country in the world to extend full civil recognition to same-sex couples.
Across Canada gays and lesbians celebrated, and understandably so. Full citizenship, civil equality, appeared just a stone's throw away. Except that Cauchon decided to refer his proposal first to the Supreme Court for validation which will take months. Then it will have to go through Parliament, a time-consuming, and never completely sure, process. Result: arrival time for queer access to civil marriage (from coast to coast) is estimated for "sometime in 2004" (if nothing goes wrong on the way).
Why can't Quebec queers do it?
But hold on, gay and lesbian couples are already getting married in Canada. In Ontario, they are doing it. In British Columbia, too. So why not here? In 1998, when my partner René and I started down the yellow brick road to full civil rights for homosexuals via civil marriage, it was not a very popular idea even in our own community. We had serious problems getting support; the national gay and lesbian lobby group, Equality for Gays and Lesbians Everywhere (EGALE), wanted nothing to do with us.
At one point we actually considered that, if they offered us "marriage lite" (Vermont-style civil union), we would take it. But by 2000, things looked better. Quebec definitely seemed to be the right place to start a marriage fight: the polls were running higher in our favour than anywhere else in Canada, the religious opposition was scattered and insignificant, TV stars invited us on their shows to promote it, even the Quebec Liberal Party supported gay marriage.
So how did Quebec's gays and lesbians end up last in line? To start with, we paid a price for being prematurely right. From '98 to 2002, the federal government claimed it was "doing research" and was not ready to argue the issues. While we objected, our provincial government was silent. For four years, both governments avoided the inevitable meeting. Meanwhile, in May 2001, while Quebec remained silent, the feds quietly slipped a statute concerning equal marriage into an otherwise boring law intended to reconcile Canadian common law with the Quebec Civil Code, the "Harmonisation Act." Overnight, same-sex couples in Quebec, and only in Quebec, were subjected to a federal statute defining marriage as between a man and a woman. There is no other statute anywhere in Canada that defines marriage in this fashion. In the other provinces, citizens live under common law, judge-made law, which judges can change - as they just did in B.C. and Ontario.
The religious right moves in
Then we ended up with tenacious and powerful opposition. Since the Catholic Church in Quebec, and the other major denominations, appeared to take no interest (perhaps they figured it would never fly?), two very conservative religious groups moved in as intervenors. In July 2001, the Evangelical Fellowship of Canada and the Catholic Civil Rights League went to court to gain status in our court case. With tacit support from both the provincial and the federal governments, these Ontario-based religious lobbies won full party status, something they didn't have in the other marriage cases. Once their legal foundation was in place and the supporting cast in court, and after considerable pressure from the local judges, the Quebec and federal governments finally accepted to proceed. Little did we know it but they had been busy preparing one last strategy that they figured would become the model for settling the "gay marriage problem" across the country.
On our first day in court, the Quebec government pulled "civil union" out of a hat, leaking it to the press as the judge was hearing opening arguments. In the days that followed, both governments told the judge that marriage was not necessary for us, that "civil unions" would do the trick.
It took almost a year but we finally got our decision: a resounding victory. Even their Civil Union strategy ("give them anything but marriage") failed to pass the judge's evaluation. Since equality is the issue, marriage is the solution, she said. Within days, the federal government and, separately, their religious allies, appealed. The Province of Quebec quietly dropped out.
After we filed our suit in Quebec in 1998, two other marriage cases were filed in British Columbia and in Ontario. Both of these cases were heard before ours and both had decisions months before we did. In the end, the federal government lost both cases at the appeal level. In British Columbia equal marriage was granted but its enactment was suspended for a year. Then came the Ontario Court of Appeal ruling in favour of equal marriage but, this time, the decision was effective immediately. Within hours, same-sex couples started marrying in Toronto. Seeing this, one of the parties in B.C., the BC Partners, went back to court and asked the Appeal Court to drop the delay, which they did. More folks got married in B.C. (11 couples "did it" on the first day!). Faced with this incredible and expensive legal disaster, the federal government announced that it would appeal neither decision to the Supreme Court, they would resolve the problem by legislating equal marriage.
Civil unions as theatre
So where are we in Quebec? Because of Ottawa's and Quebec City's delaying tactics, as the statute banning equal marriage in Quebec wound its way through the Senate (not the House!) and with lots of time wasted on their civil union theatre piece, our appeal won't be heard until September. Meanwhile, the feds have withdrawn from the appeal leaving the opposition to their religious allies. In September, René and I will be stuck defending equal marriage against people who have nothing to lose.
No matter what Martin Cauchon says in public, he knows, as we know, that this battle is not over. Across the country there is a rising tide of right-wing outrage over queer marriage. Here in Quebec, the minuscule Evangelical Protestant community (9,000 "souls") is calling for a national referendum on our right to full citizenship. In Ontario, the Catholic bishops announced that they cannot let marriage "slip quietly away" (translation: if queers can marry, marriage is dead). According to the press, Liberal backbenchers in Ottawa are conspiring with the Canadian Alliance and the Elsie Waynes of the world to stop Cauchon's marriage bill.
But we, as a community, have one big card to play. For those committed couples who support full civil rights for homosexuals, the best strategy we have is to get married as quickly as possible. No matter what the Elsie Waynes of the world do, no matter what the religious extremists try, once a couple is married, for better or for worse, there is no way to undo it without their consent. Each queer marriage is another brick in the wall of equality under the law. There will be no way to put Humpty Dumpty back together again.
The bottom line: René and I can't marry until this court case is settled. But there is a bus to Ottawa every hour. Each couple that goes down the 401 to nuptial bliss is pushing Humpty off the wall. But don't do it just for yourselves, do it for the generations to come. And, if you could be so kind, do it for René and Michael who are pinned to the wall like trapped butterflies.