The Meaning of Marriage: Shades of the "Persons" Case
Politics Of Exclusion No Longer Acceptable

by Terence Cottrell
Kingston Whig-Standard
Published Jan 29, 2005

Jesus was once challenged by members of two mutually hostile parties, the Pharisees and the Sadducees, to show a sign from Heaven in the sky. He said: "When it is evening, ye say, It will be fair weather: for the sky is red. And in the morning, It will be foul weather today: for the sky is red and lowring. O ye hypocrites, ye can discern the face of the sky; but can ye not discern the signs of the times?" (Mat.16:1-3).

Well, Stephen Harper has done it again. In October he wanted to set Canada up on the Belgian model and discriminate among language groups. Now he's against expanding the definition of marriage to include a left-out ten percent of the population. And to do it, many say, he'd have to use the "Notwithstanding Clause" to override the Charter of Rights. Harper says No - that's a "red herring."

Which was just Jesus's point. Does Harper not discern the signs of the times? The days of sectarian, gender and minority shut-outs are over in Canada. The Charter, and cases decided on it, are clear on what minority rights are. But Harper's stance is similar to arguments used in the infamous "Persons Case," a rearguard action fought using the argument of the traditional definition of a word to deny Canadian women their full rights.

Emily Murphy, a writer with an impressive record in pushing women's rights, was made a magistrate of the Edmonton Municipal Court in 1916 - the first female judge in the British Empire. But on her first day a lawyer challenged her right to sit on the basis that she was not a "person" under English law. He cited an 1876 case that said: "Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges." The Supreme Court of Alberta overruled that decision and affirmed Murphy's right to sit.

In 1921, a wide range of supporters, including 450,000 women represented by the National Council of Women, wanted her appointed to the Canadian Senate. But it was said that she wasn't qualified because Section 24 of the British North America (BNA) Act reserved that role for "persons," and women were not persons within the meaning of the Act. It was also argued that there was no female equivalent of "senator" in the Latin language, and that all personal pronouns in the BNA Act were masculine.

The traditional arguments, biblical and otherwise, were trotted out. The same arguments are used today to stop women holding office in the Roman Catholic Church. Men did not want women to give up their feminine role as "angels in the house." In the meanwhile, during the First World War, women had been granted the right to vote, and in 1921 Agnes McPhail had become the first female member of parliament.

But Murphy's brother, a lawyer, realised that the Supreme Court Act allowed "five citizens," acting as a body, to pose questions on constitutional matters to the court. Murphy asked four distinguished women, Muir Edwards, Louise McKinney, Irene Parlby and Nellie McClung, to join her in an application. The "famous five" group was formed.

The Crown argued that at common law, and traditionally, women had no political rights - that custom and popular feeling among those with political rights was against an extension. Custom became tradition, and traditions were stronger than laws. They said the meaning of words in law must be interpreted as of the time in which they were written.

On April 24, 1928, the Supreme Court, after spending more time considering the word "qualified" than the word "persons," declared that women were not persons.

Later, Senator H.P. Hill joked, "We of the humble and gentle sex were apprehensive that one of those strong-minded women with a mission in life and a pair of horn-rimmed spectacles would be appointed and we knew that if so she would immediately commence to reform a number of matters that we did not wish reformed. He spoke in jest, but he hit an essential truth.

The case was appealed again. When it was heard by the law lords in England, they rejected the Crown's arguments. On October 18, 1929, they declared that women were persons and were entitled to sit in the Canadian Senate.

Extending a right doesn't take away rights - it makes democracy better. The lords said the exclusion of women was "a relic of days more barbarous than ours." But 85 years later, Stephen Harper is laying barbarous relics in front of tradition-bound groups in ethnic newspapers. He wants their help to shut out gays and lesbians from inclusion in the meaning of "marriage."

Minorities will support him at their peril. One day the bell might toll for them.


Copyright ©2005 Terence Cottrell. Reprinted with permission.
Originally published in the Whig as "Politics Of Exclusion No Longer Acceptable"