Reports from the Court in the Ontario Marriage Challenge

November 5—November 9, 2001

Day 1   Day 2   Day 3   Day 4   Day 5.

Day 1, November 5, 2001

Here, for those interested, is the first of a series of updates on what’s been unfolding in the Ontario marriage case:

The first day of the Ontario marriage hearing went well yesterday, with powerful presentations from Martha McCarthy and Joanna Radbord.

We began the day with a very well-attended and successful Press Conference, with moving statements from Gail and Barbara, Joe and Kevin and Alison and Joyce, including wonderful support from Alison and Joyce’s children Hannah and Robbie, as well as Martha, Doug and Cynthia, Laurie, Rev. Morris of the Unitarian Church and Marilyn of PFLAG. The opening paragraph of the Globe and Mail article today read:

"Robbie Barnett-Kemper may be only 9, but he has a way of crystallizing an issue that a score of lawyers will take five days to elaborate for a panel of judges.

‘I think this case means no one will be able to say I don’t have a real family,’ Robbie told reporters on the steps of Osgoode Hall, where the Ontario Superior Court began hearing a constitutional challenge yesterday by couples refused the legal to marry."

The Press Conference was crashed by a woman from Focus on the Family, who ponied up to the microphone halfway through and declared that she wasn’t anti-gay but felt we shouldn’t be allowed to marry. However, she got a pretty rigorous grilling from the press:

"Marriage is between a man and a woman".
Q: "Why?"
A: "We just feel that’s best for society."
Q: "Well, why?"
A: "Our lawyers will be along soon. They can answer that."

Then it was up to Courtroom 3, where ‘Captain Taylor,’ the manager of the all-important seating plan, explained that the courtroom is one of the oldest courtrooms in the building, and has been carefully reconstructed to recreate the historic discomfort of 1858, when it was first built. It’s also a fairly small room, so there was standing room only for much of the day.

The Court consists of 3 judges: Justice Blair, Associate Chief Justice Smith, and Justice Laforme. Smith J. is the only woman on the panel, Laforme J. is Ontario’s only Aboriginal judge, and is thought to be progressive.

Smith J. began by outlining the structure of the 5-day hearing:

Our side has Monday and Tuesday to present its case, and we can agree amongst ourselves how to divide the time. In practice, Martha McCarthy and Joanna Radbord will present their case on Monday, on behalf of the 8 Applicant couples they represent, probably finishing with remedy on Tuesday morning. Doug Elliott, for the Metropolitan Community Church of Toronto (MCCT) and the 2 couples married in banns weddings on January 14, 2001, will present for the balance of the day on Tuesday, with Cynthia Petersen for EGALE closing at the end of the day on Tuesday. The AG of Canada sought a full two days, which would leave Friday for the Government of Ontario, the City of Toronto, the Interfaith Coalition, the Marriage and Family Coalition, and reply arguments. The Court indicated it would address timing for the Respondents before they begin on Wednesday morning.

Martha began with a strong opening, emphasizing that the case is about a basic and pure human instinct: love. The case concerns 10 couples—real people who love each other and wish to manifest their love through marriage. Martha asked: is there a hierarchy of love in this country? She invited the Court to remember their own wedding day, or that of a family-member, with all the hope, promise and joy of that occasion. Then, they were asked to imagine that they were told they could not marry, that they were less worthy to celebrate their love than others.

Martha then went on to say that the case is also about hate, that the government, in seeking to exclude us from what it describes as "the basic institution on which civilization is built", is promoting a world of ongoing discrimination, where kids in the schoolyard still yell "faggot", where it remains acceptable for gays and lesbians to be the butt of jokes at cocktail parties, where Matthew Sheppard is crucified on a fence, and left to die.

She cautioned that the government will doubtless protest the assertion that they are promoting hatred. They will try to be polite, and appear moderate. But the Court was asked to see beyond the politeness, and recognize the discrimination that lies at the core of the government’s arguments that we are "unnatural", "essentially different", "uncomplementary", "less stable", "not recognized in history".

Martha gave an overview of the facts, and emphasized the importance of substantive equality. She pointed out that it is demeaning to marriage, even for heterosexuals, to suggest that marriage is about exclusion.

She also referred to the evidence of expert Professor Kaufmann, who is in a same-sex relationship and who included a conversation she’d had with her young son. When asked ‘what is different about our family?,’ he replied "I’ve got two moms and we’re vegetarians. But I’m not a vegetarian just because I’ve got two moms."

Martha then began working through the specific legal claim. She argued that there is no statutory bar to same-sex marriage, and that the common law does not prohibit same-sex marriage. Blair J. then posed the first question of the hearing, asking whether the Layland case in Ontario did not settle the common law question. Martha argued that Layland should not be followed, as the law has evolved substantially since then.

Martha made a number points relating to the Charter issues:

1. marriage is a fundamental right;
2. marriage is more than just a word or a label;
3. the Court should reject the Attorney General of Canada’s arguments, which are all based on "definitional preclusion".

Definitional preclusion was critiqued on three bases:

1. it is circular to say: "if marriage is between a man and woman, then marriage is between a man and a woman".

2. the argument that fitting same-sex couples within the definition of marriage is a logical impossibility or inconceivable concept is inconsistent with the evidence which shows that most Canadians are quite comfortable with same-sex marriage, that editorial writers of major papers support it, the Netherlands has already acted, etc;

3. appeals to biology, religion and history have been rejected as a basis for discriminating against other groups—"discrimination is itself traditional".

Definitional preclusion permeates the AG’s reasoning at every step of the analysis, so that once you reject it as a justification for discrimination, there’s nothing left of the federal case.

Joanna Radbord then addressed the s.15 issues, examining:

1. the history and purpose of s.15;
2. the rejection of the similarly-situated test;
3. the rejection of the "relevancy/functional values" test;
4. the proper approach to s.15 articulated in the Law and M v. H cases;
5. the application of the principles to the case.

Joanna critiqued the AG’s attempt to argue that same-sex couples are not entitled to equality because they do not have heterosexual sex as an application of the similarly-situated reasoning that permeated the Court’s thinking until the rejection of the Bliss case.

Joanna then examined whether there was a denial of equality before the law, and emphasized that this, and other Charter questions, should be considered from the perspective of a reasonable person in the position of the claimants. She invited the judges to consider what factors they might be aware of if they placed themselves in the shoes of the applicant couples. As she said to the Court, your perspective would then include the knowledge:

• that your history is one of erasure, closetry and fear;
• that there are countries where lesbians, gays and bisexuals are still killed by the State;
• that the marriages of heterosexuals are celebrated and affirmed;
• that your mother failed to celebrate your relationship with your same-sex partner;
• that when you shop for a Valentine’s card, the cards are for heterosexuals only;
• that your friend attempted suicide because of the lack of family, State and legal support;
• that any two 18 year olds can get a marriage licence, even if they’ve known each other for a day;
• that any two 84 year olds, even if procreation is not a possibility, can get married—if they’re heterosexual; that your love is real and valid, but is not considered worthy by the State.

On that powerful note, we adjourned for lunch.

After the lunch break, there was a minor ruckus as Gwendolyn Landoldt, President of REAL Women plonked herself down in the seats reserved for the couples. Kevin and Joe were very butch in standing up to her, and Captain Taylor made her move back to her own seat.

Joanna then resumed, looking at the various ways in which there is discrimination through the denial of a benefit in a way which undermines human dignity.

Under s.1, Joanna addressed the AG’s lack of evidence of any harmful effects.

She emphasized that the courts must look to the objective of the infringing measure; in the case of a common law rule, this is the objective of the rule set out by the Courts.

The purpose of marriage itself is to support, recognize and affirm the commitment of two persons who wish to share their lives together. No legitimate objective of the exclusion has been identified, however.

The government’s purported objective is discriminatory, as are its assertions that lesbians, gays and bisexuals "do not fit", and are not "natural" and that heterosexual relationships are "uniquely worthy" of recognition.

Joanna concluded by examining the rational connection, minimal impairment and proportionality aspects of the s.1 analysis. No harm would flow from including same-sex couples, but the deleterious impact of the exclusion are numerous and severe.

Tomorrow, Martha will conclude her Applicants’ case, addressing the issue of remedy.

John Fisher

Day 2, November 6, 2001

For info on Day 2 check out Kevin and Joe’s site at http://www.samesexmarriage.ca/legal/ontario_case/Day2.htm. They will be reporting each day, in great detail!

Day 3, November 7, 2001

by Laurie Arron

I’m writing to let you know what happened today in the Ontario marriage challenge. For now, I just want to give you a quick update.

Today Roz Levine began her arguments for the Attorney General of Canada, or AGC. She will conclude tomorrow. It would appear that the first two days of arguments by our side were effective, as the judges peppered Roz with questions that seemed to indicate they just don’t buy her lame arguments, which we went to great lengths over the past 2 days to point out they were the same arguments used to justify all kinds of historical oppression, from slavery to bans on inter-racial marriage. That the AGC’s arguments are based on "definitional preclusion", a circular argument that asserts that marriage JUST IS heterosexual.

Roz went over the evidence and criticized our experts while lauding hers. She set out at great length the historical, social and legal context of marriage, namely that it is pre-legal and universally heterosexual. She said marriage serves 3 purposes:

1. Procreation
2. Fidelity (trust or monogamy)
3. Sacrament (the bond of love or contract)

Roz said all 3 are required and that while same-sex couples can meet the last two, they cannot procreate within the confines of the couple. If same sex couples could marry, then the institution of marriage would be destroyed and what would remain would not be marriage. Such a fundamental change, she said, could have all kinds of terrible and unpredictable consequences. THE SKY IS FALLING, THE SKY IS FALLING!!

Because we can’t meet this narrow ability to procreate, she says, we don’t have the capacity to marry. It’s not discrimination, she says, we just don’t meet the requirements. She analogized that our asking to marry is like a female asking to be called a male or a non-citizen claiming discrimination because only citizens can vote. She even claimed Parliament could exclude from marriage those heterosexuals who can’t procreate, and that the Charter would allow this.

The judges didn’t buy it. Justice Laforme said the issue isn’t history, it’s how marriage should evolve from here. He expressed amazement that marriage would be destroyed by our inclusion, but Roz insisted that would be the case. Justice Blair said the AGC’s narrow view of procreation seemed geared to exclude us and that in his view we CAN procreate. Roz responded that procreation is just a metaphor for the opposite sex requirement. "You mean procreation means opposite sex?" asked the judge. Yes, said Roz, otherwise civilization wouldn’t flourish as it does, that marriage is designed to bring together the 2 sexes.

Roz stated that marriages are more stable than common law relationships. Judge Blair asked if allowing same sex marriage would change the stats. Roz said she didn’t know. Judge Blair asked if marriage might not be shored up by allowing us to marry, in that it would strengthen our relationships. Roz said Parliament can target whoever it wants and there is no evidence allowing us to marry will end discrimination against us. Roz said we just want the word, and Judge Blair said that was an unfair characterization of our arguments, that we want all the goods that go with the institution.

Roz said words don’t change things, that the change from negro, to black, to african-american didn’t help them, so why should giving us the word marriage? Judge Laforme said the word "black" is not an institution, that we’re being denied access to an institution.

Later, Judge Blair said it seems the only thing same sex couples can’t do is couple heterosexually. Roz said if you let us in, it’s not marriage. Judge Laforme said "so it’s all about heterosexual intercourse? That’s what marriage is all about?" Roz asserted again that marriage would end if you let us in. Judge Laforme said if you let us marry, the 3 purposes of marriage remain so there is no change. Roz said that would be ignoring the evidence. Unbelievable!!

At one point in the afternoon we had 3 objections to Roz’ arguments. Even one is rare in a case like this but we had 3, all of which were upheld. First, Roz said she didn’t have a chance to cross examine Rosemary Barnes, one of our experts. Martha McCarthy and Cynthia Petersen rose to say that wasn’t so. Roz complained she was put under pressure to limit her crosses, but admitted she didn’t put Barnes on her short list. She said she figured she could expose her weaknesses in court. Judge Smith said she’d now had her chance to do that. The second objection came when Roz said the evidence in the B.C. case was the same. Cynthia jumped up and said Egale was a party in the B.C. case and the evidence was quite different there. Roz admitted that is true. Finally, Roz said that a passage in the M.v. H. decision referred to how the case wasn’t about child support, and Martha jumped up and said the section reference was not to child support but to falling within the definition of spouse for the purpose of spousal support if the couple have a child. Martha, being a family law lawyer, was of course right.

Those were pretty much the highlights of the day. Roz concluded with arguments about s.7 (right to life, liberty and security of the person) and s.2 (freedom of conscience and religion, expression and association). Not many questions there and pretty technical. It’s late and I said this would be quick, so I won’t get into them.

Corrigendum

Btw, a "corrigendum" is a fancy word for a list of corrections, which is what Roz (the AGC’s lawyer) handed up to the judges first thing this morning—a long list of incorrect footnote references. Pretty sloppy Roz!!

Anyway, I forgot to mention 2 things in my update. First, the reason I’m writing instead of John Fisher is that John had to leave court early to catch a train so he could be in Montreal tomorrow for the start of the marriage hearing there. Egale is part of the coalition intervening in Michael Hendricks and Rene Leboeuf’s case, which has the added wrinkles of Quebec law.

Second, I forgot to mention another objection, when Roz said the same issues were raised in the B.C. case. Doug Elliott quickly rose and said that MCCT was not involved in the B.C. case and nobody raised its freedom of religion and religious discrimination issues there. AGain, Roz admitted she had mis-spoken.

Finally, as far as how things look from here, seems we’ve got at least 2 of the 3 judges on our side at this point. Hard to read Judge Smith, who asked mostly technical questions. That doesn’t necessarily mean we’ll win, they could be persuaded otherwise over the next 2 days. Or they could just be playing devil’s advocate. But I don’t think so. Right now, the smart money’s on us!!

Laurie Arron

Day 4, November 8, 2001

Hi All,

Day 4, was another good day for us. Roz Levine of the AGC finished her arguments in the early afternoon, and we had time to hear from Lisa Sands of the AG Ontario, David Brown of the Association for Marriage and the Family in Ontario (Focus on the Family, REAL Women and the Canada Family Action Coalition) and Peter Jervis of the Interfaith Coalition (Catholics, Evangelical Protestants, Orthodox Jews and Muslims). Today the Interfaith Coalition will have 15 minutes to finish, and the rest of the day will consist of our reply arguments, delivered by Doug Elliott (MCCT) and Martha McCarthy (the 8 applicant couples).

Roz started the day by contending there is no violation of any of the freedoms in s.2—conscience and religion, expression, and association. She also said there is no separate freedom to marry, as has been recognized in the U.S. During the course of this argument she made the outrageous statement that race is not at the core of our humanity, rather our maleness and our femaleness are that which make us human and keeps us human. Can you count how many groups she offended with that one?

Roz quickly went through s.28, arguing it doesn’t create any new rights. Then she went on to s.1. This is the chance for the gov’t to justify any charter violation. To do so it must prove (and it has the onus) that the objective of the opposite sex restriction is pressing and substantial, that the restriction is rationally connected to that objective, that it minimally impairs our rights, and that the benefits of the restriction outweigh its harm (called "proportionality").

Once again, we were treated to a litany of "fundamental"s and the repeated assertion of the importance of context. She asserted that marriage is of "fundamental importance to allow society to continue". Apparently people would stop having children without it!! She cited LaForest from Egan, who said marriage is of "fundamental importance", is "firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate" and that while it would be possible to legally define marriage to include same sex couples, that would not change the biological and social realities. I just about know this passage off by heart, it’s been cited so many times in this case!

Justice Blair questioned Roz on the fact LaForest spoke for only a minority of judges, and a wrangle ensued about whether the late Justice Sopinka (who disagreed with LaForest on s.15 but also disagreed with Cory and Iacobucci on s.1) agreed with the statement.

Roz continued to repeat the word "fundamental" as often as she could, and then noted that the objective of our exclusion from marriage is to maintain and preserve the heterosexual model of marriage. The perfect circular argument.

On rational connection, Roz asserted that biology matters because on het unions allow procreation within the couple, without third parties. On minimal impairment she said the extension of common law recognition satisfies the test, and the fact of any lack of provincial recognition is irrelevant. On proportionality she said there is no evidence that the marriage restriction caused our marginalization and that its purpose is not to marginalize us. She also said there is no evidence allowing us to marry would rectify the marginalization. She said there will likely be unknown effects that may not be good.

All three justices gave Roz a hard time on that one! On questioning from Judge Blair, Roz admitted she didn’t know what the harms might be and said, and I quote: "I know that sounds lame". Laughter was heard. When pressed, Roz asserted that marriage could cause a loss of the cultural norm of opposite sex marriage (no, not that!!), a breaking of a sense of constancy in the mission of marriage, and a negative impact on women because the notion marriage includes the cost of child rearing will be weakened (you really do have to think hard to follow that one!).

Roz went on at length about deference, noting that other court has ordered such a major change, how even in Holland it was the legislature that made the change. She said even though it’s just a common law rule, the feds should be given "some modicum of deference". Surprising, since in B.C. the feds argued they should be given maximum deference. Judge Blair asked how much deference, on a scale of 1 to 10, and Roz meekly replied "maybe 5 out of 10".

On the remedy, what to do if our exclusion from marriage really is unconstitutional. Roz listed a number of pieces of legislation that would have to change: the Prohibited Degrees Act (so fathers couldn’t marry their sons), the Divorce Act (right now only opposite sex couples can get divorced), the Criminal Code (not sure about that one) and provincial legislation. She also noted that international legislation would have to change. She was questioned as to where in her record this list could be found, and responded it’s not in her record. Once again—sloppy!!

She argued that courts are not capable of the sort of process required to make such a fundamental change and the social policy choices that entails. She said that other stakeholders should be consulted before any change (i.e. those opposed to same sex marriage), citing the Corbiere case. She got that one wrong. Corbiere was an aboriginal rights case that said aboriginal people should be consulted, not that anti-aboriginal folks should have a say.

Roz stated that in the Netherlands, adoption remains outstanding, i.e. same sex couples are treated differently. She didn’t know the details. She was questioned on this and after some research by co-counsel, they discovered that the truth is same sex couples can adopt. The difference is that the usual presumption that the mother’s spouse is the child’s parent is reversed, and the non-biological parent has to adopt the child. This was done to protect the rights of the surrogate mother or sperm donor. However it’s not necessary as it is only a legal presumption and any surrogate mom or sperm donor could still assert rights against an opposite sex couple. In any case, I digress. The court seemed to think the difference just facilitated adoption, so no harm done (I hope!).

After lunch, Roz continued. One issue is when the court should change the common law. There are several lines of cases, as our side pointed out earlier. Some involve the Charter, some don’t. Two very different contexts. Roz just keeps arguing that cases in which the Charter was not engaged should govern, because they, of course, suggest caution when changing the rule, rather than the necessity of change given a Charter violation.

Roz noted the first step in determining remedy is to determine the extent of the inconsistency with the Charter. She put forward the notion that the problem may lie outside the het definition of marriage, which completely misses the point. She noted that "budget implications are not at issue here". Although a nothing statement in terms of the case, EGALE’s message testing shows this is a big concern of Canadians. So I was very happy to hear this admission, which I noted was made at 1:38 pm.

Roz said this is not a case like Vriend, where the words "sexual orientation" could be added to Alberta’s human rights legislation with "remedial precision". Judge Blair questioned her on why the words "two person" was not just as precise? Roz said the words are precise, but the issue is whether the remedy is precise. This sort of doublespeak has been heard throughout her submissions.

Roz argued that any remedy should be suspended to give Parliament time to consider social policy options and consult with "stakeholders". She said this is an ethical issue that requires consideration of competing values (i.e. inclusion versus prejudice) and there should be deference to other Western democracies, where they turn leave it to legislatures to determine this issue, "even the one where society evolved". I take that to refer to Holland, meaning she admitted that Holland is more evolved!!

Roz finished her argument on remedy and went on to the division of powers argument. Here she is on our side, and argued well that the division of powers gives the federal government jurisdiction over same sex marriage, that the Constitution does not prohibit it, as argued by the Association and accepted by Judge Pitfield in B.C. Btw, this notion has been ridiculed by lawyers and academics alike and has zero chance of winning at the Supreme Court of Canada.

Then the AG Ontario made a short presentation saying the feds have power over same sex marriage, that it had no choice in refusing to register MCCT’s marriages and it wants the case against it dismissed. Surprisingly, there were not questions about the provinces views on who has jurisdiction for RDP’s (registered domestic partnerships), which have been put forward by the feds as a possible remedy, but which would appear to lie outside its jurisdiction.

David Brown then argued for the Association for Marriage and the Family. I must admit, he’s a skillful orator, but while his arguments sound good on the surface they are not persuasive (to me at least!). He said a Constitutional amendment is required if same sex marriage is to be permitted. On the main issue, he said marriage requires 3 things—strong emotional bonds, economic interdependence and the capacity to have children. He said we have the first 2, but no the last. He said it would be "radical" to say that capacity doesn’t matter, that the consequence would be that such capacity could never be used as a basis for legal decision making about anything. That’s a load of crap! It’s relevance in any given situation would be assessed based on that situation.

David said this is a battle over language, and proceeded to look up "procreation" in the dictionary, I guess in response to the court’s apparent acceptance that same sex couples can procreate. He read that it means "bring offspring into existence by the natural process of reproduction". Judge Smith asked to look up "reproduction", which includes us. Btw, the whole concept the dictionary should be determinative is wrong, because dictionaries look to past usage, a point made very well in our expert evidence.

David said the issue of whether children do well with same sex parents is a matter of social policy and we simply don’t know the answer. He said children will be harmed because they will learn their parents are bigots. He said same sex marriage would be "radical experimentation" and should be left to Parliament.

He then went on to his division of powers argument, which resulted in a ton of questioning and his being pressed for the Constitutional definition of marriage. He said it’s the "union of one man and one woman". Justice Laforme asked for the source of this definition and said it seem "convenient" to delete all other aspects of marriage, many of which have changed since 1867.

Next was Peter Jervis of the Interfaith Coalition. He, like the others, argued the courts are not equipped to make such a monumental change. He was careful to note at the start that "nowhere is anyone saying these couples shouldn’t have dignity or recognition." Hollow words if I’ve ever heard any.

Peter said this case is not at all like Egan or M.v.H., because "spouse" is a legal construct and "marriage" is not. He said if we allow same sex marriage, then marriage will no longer be about the status of husband and wife, but instead about "committed conjugal partner". Justice Blair asked "why do I go from being a husband to being a committed conjugal partner?" Peter had no good answer, simply asserting that 2 men can’t be husband and wife and neither can 2 women.

Peter went on an on about needing evidence that marriage will not be de-stabilized. He seems to completely miss that the onus is on the government to prove it will be de-stabilized, which they clearly haven’t shown.

Justice Laforme asked him what is it that he fears? All Peter could say was that marriage won’t be the status of husband and wife, and that we have to look at the context. He said this is not like any common law rule and that marriage is fundamentally a religious institution. He then argued why MCCT’s freedom of religion isn’t violated (because it’s not forced to do anything) and why s.15 isn’t violated (because biology is relevant). Peter asserted that 99.9% of all kids are born the natrual way. Judge Blair asked if small numbers is his criterion. Peter answered that we must protect this fundamental unit. Fundamental. Fundamental. Did I mention "fundamental"?

Peter concluded by saying there is no hierarchy of rights, that many religious people could not participate in a redefined institution and so would be excluded (big crocodile tears). He said that despite any religious exemption (i.e. that opposing clergy won’t have to marry us) that clergy will face a dilemma and that mainstream folks will be stigmatized.

The Interfaith Coalition will finish its arguments this morning, followed by our reply.

Btw, there’s tons of information on EGALE’s website (www.egale.ca), including legal background, Q&A and the actual facta (that’s plural for factum, which is the written argument submitted by each party) from the case. There’s also information on both the B.C. and the Quebec challenges.

Also, I want to mention the Open House tomorrow (Sat Nov 10) at 9 Olive Avenue, Toronto (a few blocks north of Bloor, just west of Bathurst) at the home of Martin and Tamara. Straight but not narrow! You can meet the participants, learn about our public education plans, and come celebrate this historic occasion. It’s from 2-5 pm.

Cheers!!

Laurie

Day 5, November 9, 2001

Hi All,

A bit of time has passed, but in the interest of completeness here is my summary of Friday’s goings on in the Toronto marriage hearing.

After a few clarifying words from Peter Jervis, we heard from Iain Benson, Peter’s co-counsel for the Interfaith Coalition. Iain adopted the Association for Marriage and the Family’s (the other opposing intervenor) submissions that it would take a Constitutional amendment to permit same-sex marriage. He then went on to s.2 and s.15.

He began by saying that disagreement with one’s views is not rejection of a person (which seems to me to be the old love the sinner, hate the sin line—sort of like us saying it’s okay to be french as long as you don’t speak the language, or it’s okay to be catholic as long as you don’t go to church). He urged the court to respect all perspectives, including those of his clients, and not to look at this case "through a keyhole". Iain contended that though we say we make no claims on others, we want wider social acceptance and this necessarily makes claims on society. He said there are competing interests, which he termed a "collision of dignities". All this to argue that the court is no place to resolve this seemingly intractable problem, best to leave things as they are and leave it to Parliament.

Iain argued the court must consider the impact on his clients, from their subjective point of view, because freedom of conscience and religion is involved. (NOTE: this is an interesting issue—s.15 claims are to be viewed from the perspective of a reasonable member of the minority group, i.e. an objective test, whereas s.2(a) claims are often thought of from a subjective perspective, i.e. it doesn’t matter whether one’s religious beliefs are reasonable. Can one’s s.2(a) freedom of religion be infringed because the actions of others offend one’s religious beliefs? EGALE and MCCT are part of a coalition intervening in the Brockie case, in which a Christian printer claims that being forced to print letterhead for the Canadian Lesbian and Gay Archives would offend his religious beliefs and so violate his freedom of religion. We are arguing s.2(a) should not protect such discriminatory actions that take place in the public sphere, i.e. a commercial business, as opposed to within a religious institution or one’s home, which are in the private sphere.)

Iain took offense with the notion his clients (representatives of the catholic church, evangelical protestants, orthodox jews, muslims and sikhs) are homophobic or heterosexist. He said the court must plumb the deeper philosophical debate as set out in his clients’ affidavits. He noted the "universal" nature of their beliefs. He put forward s.27 of the Charter, which says multiculturalism must be considered.

He talked of the 3 "goods and goals" of marriage put forward by the AG Canada—fidelity, sacrament and procreation and asked if we can say that the advent of civil marriage ended the notion of sacrament. This seems rather odd, as it seems to be an argument for our side, not his. If the notion of sacrament can evolve without making it something other than marriage (the AGC said sacrament is the bond between the couple, whether religious, romantic or contractual), then why not the notion of procreation, which the judges had earlier indicated would seem to include us? Assuming of course (which we do not) that procreation is a necessary element of marriage.

Iain then brought up the bogeyman of polygamy, arguing that if the central aspect of maleness and femaleness is removed, why should marriage be limited to 2 people?

He talked of the "4th" good and goal of marriage, to draw people together. He said right now all ethnic and religious communities (except poor MCCT) could share in a common notion of marriage, and that invoking a new definition of marriage by "judicial fiat" would "sunder" this. He said Catholics and others could not accept this. Judge Blair asked him to expand, and he said Catholics and others would be forced to reject civil marriage as an institution, that this "re-arrangement" would exclude them. He said it would drive religious minorities to the margins and stigmatize their religious views. He said if the standard contemporary position is that homophobia is akin to racism then the "standard" religious position becomes the enemy of this "new conception of equality".

Judge Blair asked if that isn’t exactly what was argued in the inter-racial marriage case, and Iain said no, the churches at the time urged the overturning of the inter-racial prohibition. He said the court is being asked to rule that the behaviour / identity distinction is untenable and would seriously limit what religions can teach. He said it would set in motion a train of actions that threaten religious beliefs.

Judge Blair asked for an example of how this is explained in the affidavits. Iain read from the affidavit of Rabbi Novak (chair of U of T’s dept. of Jewish studies), who said the lack of respect for his religious views would be de-stabilizing and stigmatizing. Craig Gay (evangelical protestant) said it would pit the state directly against the heart of conservative protestant religious beliefs, that it wouldn’t convince evangelical protestants to change their views, it would just ignite resentment and force them to adopt a new term for heterosexual marriage. He said it would lead to a fragmentation of liberal society.

Iain then asked the soul-searching question, just what is a bisexual marriage? (Ow, my head hurts!)

The Interfaith Coalition closed by urging the court to leave such resolution of such moral issues to Parliament, not to act precipitously, not to preclude a process that is underway with an act of raw judicial power. Scary stuff, boys and girls.

That was it for the other side. Now it was our side’s turn to reply. EGALE was not permitted to make reply submissions, but Doug, Martha and Joanna were up to the task! Note that reply submissions tend to be choppy, as they respond to selected points of the other side.

Doug went first. He said the respondents seek to "freeze-dry" marriage. They use the term "essence" but essence is merely the properties of something and should not be confused with image. He noted all Victorian judges were white men, but this 19th century image of judges is not their essence, rather the essence of a judge is judgment, wisdom and courage.

Doug then pointed out the errors made by the Association in interpreting the Connolly case. The case was decided just days after Confederation and involved a white man who married a Cree woman under Cree law and sought to avoid any obligations to his Cree wife after he returned to Quebec. The judgment referred to marriage as being between a man and a woman and the Association argued this affirmed the heterosexual definition of marriage at Confederation. Doug noted that this case instead demonstrates 4 points: (1) the court held it was a valid marriage and so recognized that marriage has flexible boundaries; (2) the notion of limiting marriage to Christian marriage was rejected; (3) past decisions with such narrow views should not be considered to be the law; and (4) language is powerful, as the Cree woman was described not as the man’s wife, but as his "squaw" (a pejorative term). Doug noted that the AGC’s expert, in describing the ineffectiveness of move from the term "negro" to "african american", left one word off the list—"niger". There was a moment of tension in the courtroom, and then it passed.

Doug noted that in terms of context, we had spent considerable time on this, going over the history of marriage at length. Then he noted that the 3 "goods and goals" of marriage finally put forward by the AGC (they were quite coy about this in their factum) were actually St Augustine’s, who would view fidelity as "for life" and sacrament as a purely Christian religious thing. Thus modern marriage already excludes 2 of the 3 "necessary" purposes. Doug noted St. Augustine’s emphasis on sex, and said that in terms of the central teachings of Christianity, Christ had little to say about sex and much to say about love.

Doug then proceeded to criticize our opponent’s evidence, both in terms of substance and bias. For example, one of their "experts" on anthropology is the spokesperson for the Catholic Archdiocese of Toronto. Judge Blair questioned the lack of bias of all experts in the case, on both sides.

Doug argued that the opposing intervenors disagree with our recognition and said the AGC defined humanity in heterosexual terms, suggesting we are not included in the term. He noted that the rhetoric of people being outside of humanity was the basis for Nazi philosophy.

Doug said the AGC’s argument that marriage did not create discrimination against us is similar to the government of Alberta’s argument in the Vriend case, and argument that was unanimously rejected by the Supreme Court of Canada.

He said dictionary definitions always reflect the values of the majority, and that since we are a minority we will never be the norm (the AGC argued that same sex marriage was never the norm in any society).

Doug said the AGC accepted that the Hyde definition has changed, but can’t explain why we must be excluded.

Doug then turned to freedom of religion. He said there is government action, in refusing to register the banns marriages and directing the city of Toronto not to issue marriage licenses. He said denying us recognition reduces the status of MCCT’s unions and amounts to coercion. He argued the Adler case doesn’t apply as we are not seeking government funding, and the Jones case is inapplicable because there Jones, in resisting registering his religious school, was seeking to be excluded from the regulatory regime, whereas here we seek to be included in the regulatory regime. Doug said the AGC’s assertion that not recognizing MCCT’s marriages is like not recognizing a bar mitzvah misses the point, as marriage is the only ceremony that confers legal status. He said if communion was recognized as a legal coming into adulthood and bar mitzvahs were not, this would violate freedom of religion.

Doug noted that the AGC gave no reason why MCCT’s s.15 claim should be rejected and only provided "in terrorem" arguments on s.1. On remedy, he refuted the fed’s claims about process, policy choices and international affairs, noting that the partners of Canada’s gay diplomats are already recognized under C-23.

Doug said we are not trying to force anyone to do anything, except for the government to allow us to marry. MCCT supports other faiths’ right to exclude us from their religious marriage. Doug said that the argument that allowing us to marry would effectively exclude people with strongly held religious beliefs is reminiscent of Montgomery Alabama, where in response to being ordered by a court to open its parks to blacks, it closed all the parks.

Doug noted that the Interfaith Coalition wants their religious marriages recognized because they conform with their faith and don’t want MCCT’s recognized because they don’t conform with their faith. This is asking for state enforcement of their religion. That’s what they have now—it’s a privileged position they don’t want to lose.

They have a right to say we’re sinners, we have a right to say we’re not. It’s not a case of competing rights like Trinity Western. There, people expressing anti-gay views in the private sphere sought relief from government action, and the Supreme Court didn’t defer to government, it granted the relief sought. The Court drew a bright line between the public and private sphere of religious belief. This case is about the public sphere, i.e. civil marriage.

On the issue of a temporary suspension of the remedy, Doug asked if marriage were suspended for hets, would they patiently wait? Waiting has its costs. Parents die. Jim Egan and Jack Nesbitt died.

Doug recalled the Rosa Parks case, when she refused to move to the back of the bus. It wasn’t because the seats were less comfortable. It was an outward and visible marker of a system that characterized her as a lesser human. M.v.H. let us on the bus, and we are told not to complain we have to sit at the back. It’s time to do justice and end segregation.

Justice Blair asked for clarification on the remedy sought, and Doug said he wants an order declaring the validity of the two marriages performed by MCCT and an order requiring Ontario to register the marriages. Judge Blair asked for a definition of marriage. Doug noted no definition is necessary, just an order to eliminate the bar on same sex couples, but gave him one from the Catholic Encyclopedia—an "action, contract, formality or ceremony by which a conjugal union is formed or the union itself as an enduring condition." Judge Blair asked if a modified C-23 definition is acceptable, i.e. "the lawful union of two persons to the exclusion of all others". Doug said that would be fine. Judge Blair asked how the court is equipped to decide which definition to adopt.

Doug replied that the court is in the same position as Lord Penzance in Hyde—you have the power, Parliament never created a definition, you are well equipped to identify the offending portions and change them. With great respect, it is your duty to do this, not Parliament’s.

Next, Joanna Radbord spoke. She noted the s.15 test used by the AGC (the "relevance test") has been soundly rejected. She handed to the judges her "reply compendium"—two very thick volumes of legal materials to back up her arguments. Judge Smith was amazed. "You did this overnight?" she asked. Laughter arose as the judges joked they already had too many volumes to read.

Joanna noted that focusing on procreation as being relevant to s.15 is wrong, that it was soundly rejected in M.v.H. She said the AGC’s argument that the definition itself can’t be discriminatory is wrong, as it was in the Dred Scott case in the U.S. There a slave sought damages for assault and the U.S. Supreme Court ruled that slaves are not "citizens" and had none of the rights given to the "people of the U.S." under the constitution. This was based on the same definitional preclusion argument put forward by the AGC. Judge Smith commented that the definition itself could be discriminatory. Joanne also noted that the definition of child used to exclude illegitimate children, and that all 11 challenges to that were successful.

Joanna then got into a bit of a tussle with Judge Blair over evidence. Judge Blair said there are advocates posing as experts on both sides. Joanna said to look at their credentials to see if they are qualified. She then proceeded to counter the AGC’s arguments made against our experts.

Then it was Martha’s turn. She noted the AGC only put its purpose of marriage forward in its oral argument, that purpose being to maintain it as a heterosexual institution. She said this is both circular and discriminatory and so fails the first part of the s.1 test (meaning it fails the whole test). She noted that in s.1 the gov’t has the burden of proof, and referred to court to her motion to strike much of the AGC’s evidence so they could see in detail the problems with it. Judge Blair said it’s difficult to assess the evidence without live witnesses.

Martha noted that the AGC’s contention that the opposite sex definition of marriage has not been challenged in other countries is wrong, noting the three U.S. cases in Alaska, Hawaii and Vermont. She also noted Belgium has announced it plans to allow us to marry.

Martha challenged the AGC’s assertion that Loving v. Virginia (the U.S. inter-racial marriage case) has never been relied on in Canada, noting it was cited by our Supreme Court in both the Morgentaler and Miron cases. She also went over again the different types of common law cases and how the AGC confuses those in which the Charter was engaged and those in which it was not.

Martha then read from the Muslim cleric’s affidavit, how he sees homosexuality as sinful and degrading. Nasty stuff.

Martha then addressed remedy, arguing that the common law bar on marriage should simply be struck. Judge Blair insisted on her providing a definition of marriage. Martha said "Marriage may be contracted between 2 persons of the same sex or opposite sex." Judge Blair asked why that one and not the modified C-23 one (lawful union of 2 persons to the exclusion of all others). Martha said hers is more explicit regarding same sex couples, but that "2 persons" is okay. Judge Blair said "you can see the difficulty, we may not be qualified to do this". Martha responded that that is why its best not to define, but just to strike down the bar to same sex couples.

Martha argued that the judges have to give a remedy, that Vriend gave a very aggressive remedy, more aggressive than asked for here. She noted the words of the Supreme Court in Egan—"where is the threat?" Recognizing same sex couples takes nothing away from heterosexual couples. She said that "a little lame" is well below the s.1 standard. Roz stood up and objected to that characterization, even though it was her own words.

Then it was over. Judge Smith thanked all the lawyers for their "forceful, eloquent and very focused submissions" and said judgment would be reserved, meaning we have to wait for a decision. All chuckled at the notion it could have been otherwise.

So that was it. In my view the judges seemed to agree with us on s.15 and s.1, meaning they will find the ban on same sex marriage to be unconstitutional. I think that Judge Blair is quite concerned about actually giving us the remedy we seek rather than throwing it to Parliament. Not sure about the other two. Guess we’ll have to wait and see!!

Laurie

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada