Chronology of Canadian Same-Sex Marriage Issue

by Réal Ménard, Member for Hochelaga-Maisonneuve
218 Justice Building
House of Commons
Parliament of Canada, Ottawa
Tel.: 613 - 947-4576
Fax: 947-4579
PUBLICATION: Le Devoir, August 1, 2003

When our friends the Europeans and the Americans take a look at Canada and Quebec in 2003, more than ever they will be able to point to us as those excitable folks on the shores of the St. Lawrence.

In 2003, when it came to the rights of homosexuals, the prevailing winds were in favour of the right to equality. When the Pride celebrations begin, homosexual activists and their supporters would do well to recall that three superior courts, representing three different jurisdictions, took the unprecedented step of asking their respective parliamentary assemblies to open up marriage to same-sex partners. We know what happened next: the federal justice minister, Martin Cauchon, indicated that he intended to translate the imperatives of the law courts into legislative reality, eliminating any lingering doubt as to whether he is an ally of the gay and lesbian communities.

In the legal trilogy in question, Quebec couple René Leboeuf and Michael Hendricks set the ball rolling. Their case raised the issue of the validity of article 365 of the Civil Code requiring that the parties to a marriage be a man and a woman, both with respect to the legislative authority of the province and to equality of treatment as provided for in section 15 of the Canadian Charter of Rights and Freedoms.

In this decision, Judge Lemelin, of the Quebec Superior Court, declared article 365 of the Civil Code, which defines marriage, to be unconstitutional, suspending the validity of this declaration for 24 months.

This was followed by Halpern v. Canada. In September 2000, seven couples applied to the Clerk of the City of Toronto for a marriage licence. These couples had been married in the Metropolitan Community Church of Toronto, after publishing banns. The Metropolitan Community Church of Toronto forwarded the documents required for registration to the office of the registrar of Toronto, who refused to accept it.

The couples in question and the church asked the Divisional Court of Ontario to review this decision. This court ruled unanimously that there is indeed a common law rule prohibiting homosexual marriage but that this rule violates section 15 of the Canadian Charter and cannot be allowed to stand under section 1 of that Charter. In addition, the Divisional Court of Ontario has 24 months to comply with this decision. When the decision was handed down in July 2002, the Minister of Justice, in a moment of weakness, decided to appeal it. The Court of Appeal of Ontario, the highest court in that province, handed down its decision at the very time when the House of Commons Standing Committee on Justice was preparing its report on opening up marriage to same-sex couples.

Under the alert and forward-looking pens of Justices McMurtry, MacPherson and Gillese, the Court of Appeal of Ontario ruled that the existing common-law definition of marriage was unconstitutional and that it should be replaced by the following definition: "the voluntary union for life of two persons to the exclusion of all others". Here again, the legislator has until July 12, 2004 to comply with the ruling.

Political manoeuvring

Given all that has gone on, I feel I must point out that some Liberal and Alliance MPs sitting on the Justice Committee were instrumental in forcing Martin Cauchon to appeal this decision to the Supreme Court. But because of the quick thinking of MPs Svend Robinson, Richard Marceau, Marlëne Jennings and myself, events took an entirely different turn...

Finally, in May 2003, in Barbeau v. British Columbia, the Court of Appeal of British Columbia followed the lead of the Quebec and Ontario courts and rescinded the legal restriction on same-sex marriage. Again, the legislator has until July 12, 2004 to amend the legislation.

What is noteworthy about the BC court's decision is that it struck down two arguments advanced by Justice Pitfield, the trial judge. The honourable judge was quite confident that he could demonstrate that Parliament could not amend the definition of marriage because it is a specific type of legal relationship that had a particular meaning at the time of Confederation. In addition, for Justice Pitfield, marriage and procreation were inextricably linked.

The British Columbia Court of Appeal pointed out vigorously and in detail the erratic nature of these arguments. Justice Prowse quite properly noted that "same-sex couples can 'have' and raise children, given technological developments and changes in the law permitting adoption".

The message from the courts of law has not resonated with all the communities concerned - far from it. It could even be said that a certain ideology in English Canada, fortunately adhered to by only a small minority of Quebecers, has undergone what might be called a constitutional convulsion. For those who oppose same-sex marriage, marriage is, at its core, transhistorical, timeless and immutable. It was Daniel Cere, I think, from the Institute for the Study of Marriage, Law and Culture at McGill University, who best summed up the arguments used by proponents of this thinking in his brief to the House of Commons committee on February 12, 2003: "It is a genealogical bond that reaches back into time through its ancestors and forward to the future through its descendants. It fosters rich and complex lines of kinship that weave through human community. This complex social institution does need ongoing change and development to uphold these characteristics of marriage, not to dismantle them. The social ecology of conjugality can only be shaken and destabilized, not developed, in the push for a "one-shoe-fits-all-sizes" reconfiguration of marriage that deletes heterosexuality from its core definition."

This view of marriage, which supports the status quo, was echoed by many religious denominations, academics like Katherine Yong, Paul Nathanson and Douglas Allen, and our Canadian Alliance colleagues, as well as a few federal Liberal MPs.

Questionable arguments

I believe that essentialist arguments do not stand up to serious analysis for four reasons.

- First, the argument that heterosexual marriage is as old as the dawn of time was refuted by law professor Michel Morin, a specialist in the history of law, who informed the Standing Committee on Justice that some societies recognized same-sex unions -- especially the Romans, who conducted a marriage ceremony until the practice was banned in 342 Anno Domini, on pain of death.

- As for the need not to weaken the social ecology of marriage, one could argue, respectfully, that it is heterosexuals, the only ones who qualify to enter into the state of matrimony, who have made the biggest mess of it. In 1981, according to Statistics Canada, married couples represented 83% of families in Canada. Twenty years later, in 2001, they represented 70% of families. By the way, as a point of interest, Quebec has the highest percentage of people living common law -- 30% of all families. It would have been instructive for Daniel Cere and his acolytes to tell us how having homosexuals celebrating the values inherent in marriage will destabilize that institution.

- The possibility that opening up marriage to same-sex couples will delete heterosexuality from its core definition, to use Mr. Cere's phrase, is highly implausible. Our only point of comparison is the Netherlands, since Belgium does not yet have any statistics on this. Since April 2001, same-sex couples have been able to marry in Holland. Netherlands' Central Bureau of Statistics has estimated at 4,000 the number of same-sex couples who decided to legalize their union between April 2001, the date the legislation took effect, and November 2002. After November 2002, the novelty wore off and there were an average of 160 marriages a month. Since the sample in question represents less than 10% of the population of the Netherlands, a minimum of good faith forces us to conclude that the pink peril has not yet reached our doors...

- There is no denying that marriage can have a very precise meaning for a number of believers, particularly Christians. The Committee was told that Christians believe that Jesus Christ performed his first miracle during a wedding at Cana. I know of no parliamentarian who does not wish to see our fellow citizens' religious convictions respected. But for the legislator, marriage must be understood as an evolutionary social institution, just as the concepts of child care, family support and divorce have changed over time.

The essentialist arguments are destructive. If the US Supreme Court had relied on such arguments in 1967, would it have abolished the laws in the South prohibiting interracial marriage, as it did in Loving v. Virginia? Probably not. Would it not be more honest for those who oppose same-sex marriage to admit that they do so because they believe that homosexuality is against nature and that, for that reason, it does not deserve public recognition?

Réal Ménard, Bloc Québécois MP