Court File No. 684/00

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

HALPERN et al

Applicants

and

CANADA (A.G.) et al

Respondents

Court File No. 39/2001

A N D B E T W E E N:

M.C.C.T.

Applicant

and

CANADA (A.G.) et al

Respondents

FACTUM OF THE INTERVENER

INTERFAITH COALITION ON MARRIAGE AND THE FAMILY

Part I—Overview

“Marriage” is not a legal construct. It is an institution that was not created by law; neither by the common law nor by statue. It is a pre-existing societal and primarily religious institution which has existed for millennia and has only been relatively recently recognized by legislation. Although it has been “recognized” by the common law, it has not been defined or developed like a usual common law rule. Unlike the legislative concept of “spouse,” considered in Egan and M. v. H., the institution of marriage was neither created by nor defined by legislation. This institution confers the status of “husband and wife”, and has been recognized by all major religious faiths and societal groups as existing uniquely between one man and one woman. What the applicants seek in this petition is nothing less than a fundamental redefinition and substantive change to this pre-existing religious and societal institution.

The Constitution Act, 1867 expressly acknowledges the existence of this uniquely heterosexual institution and authorizes federal and provincial legislation pursuant to ss. 91(26) and 92(12) in respect of “Marriage”. Therefore, legislative distinction which is expressly prescribed by the constitution cannot be subject to Charter review according to the principles established by the Supreme Court of Canada in Reference Re Bill 30 and Adler. Furthermore, what the applicants really complain of is not the fact that the legislatures have legislated in respect of “marriage” or the common law recognition. Rather, the applicants seek social recognition for the legitimacy of other forms of domestic partnership. These partnerships are not between “husband and wife”. This is beyond the scope of Charter review. The applicants believe that the word “marriage” symbolizes social and religious acceptance of the legitimacy of relationships. The applicants want the Courts to mandate social acceptance of a form of domestic partnership through fundamental judicial redefinition of the institution of marriage. As recognized by the Ontario Divisional Court in Layland, this is both unprecedented and beyond the role of Courts conducting Charter review.

This challenge is qualitatively distinct from previous legal challenges to the legislative concept of “spouse.” In Egan, M. v. H, and Vriend, the Supreme Court of Canada determined that the exclusion of an identifiable group—gay men and lesbians—from legislative benefits and statutory regimes contravened the Charter in certain respects (though in Egan the distinction was justifiable). However, as Justices Cory and Iacobucci recognized in both Egan and M. v. H., those challenges, and the justices’ opinions, did not touch upon the institution of marriage.

There is a legitimate and important societal interest in encouraging legislative initiatives that recognize and encourage mutually affirming and committed domestic partnerships. Parliament, in Bill C-23, and the legislatures have recently adopted statutory measures to protect and support “spousal” and same-sex domestic relationships, as they have been defined, and can adopt further legislative measures to recognize, register and provide benefits for domestic partnerships that are not between husband and wife. This is currently being considered by the Law Reform Commission of Canada under the rubric “Close Personal Relationships”. The fundamental redefinition of “marriage”, that would alter and change the essence of this institution to “committed conjugal partner”, is neither constitutionally required nor necessary to accomplish these legislative objectives.

Many important things exist independent of legal recognition. Justice and religion, to name two, have important legal and non-legal dimensions. To come to a proper understanding of the principles that are central to this case, it is important to understand the distinction between legal and non-legal spheres. An illustration of some important social realities that have an existence independent of legal recognition leads us to a consideration of both foundational institutions (such as marriage) and foundational concepts (such as rights and freedoms themselves). The institution of marriage, the conception of, and the political recognition of the rights and freedoms that motivated the enactment of the constitution logically pre-existed the documents themselves. For example, marriage, ethnicity, culture as well as our conception of justice that requires protection of the fundamental rights and freedoms including religion, freedom of thought and belief, opinion, expression, peaceful assembly and association are not dependant upon legal recognition in order to be important and even foundational. Furthermore, legal recognition neither creates nor defines them. While each of these in its own way may or may not be the subject of legal recognition, definition, regulation, qualification and enactment, the type and extent of legal “involvement” (for lack of a better word) requires careful attention to history, philosophy, religion and multi-cultural realities. The courts must recognize the limitation of their jurisdiction in consideration of such fundamental social phenomena.

Marriage, as a religious and societal institution, has only conferred the status of “husband and wife” upon a man and a woman. As Justices LaForest and Gonthier recognized in Egan and Miron, this institution is uniquely capable of the procreation of children and has served a unique and vital role in this and many societies. Modern scientific reproductive capability does not obviate this unique function. All major world religions confine the institution of marriage to men and women. The existence of some dissentient views, as evidenced by some of the affidavit material filed by the applicants in these applications, does not alter the fact that major world religions do not and cannot accept a fundamental redefinition of marriage to include same-sex partnerships. If the Court were to redefine the institution—“committed conjugal partner” could not be accepted by most major religious groups who solemnize the vast majority of Canadian marriages.

Religious clergy in many denominations and faiths would be, by their religious principles, unable and unwilling to solemnize these redefined marriages between same-sex partners. This could require clergy to withdraw from the solemnization of marriage which could cause significant societal consternation and could also lead to legal and human rights proceedings against both the clergy and religious faiths that refuse to participate in the solemnization of certain redefined “marriages”. Any new remedies should not require, or be capable of requiring, religious institutions, clergy or people of religious faith to solemnize or be required to recognize a “marriage” that is contrary to their faith-based conception of this religious institution.

In consideration of remedy, the Court should not embark upon a legislative exercise to redefine, through common law principles or declaratory relief, the category of marriage as requested. This is beyond the principles established by the Supreme Court of Canada in Schachter and in subsequent jurisprudence. Rather, the court should, if it determines there is a constitutional violation, grant declaratory relief and the remedy of suspension to permit Parliament and the legislatures to draft an appropriate legislative response that can balance the competing interests in society. Any such legislative response must take into account the important ss. 2(a) and 15 rights and the interests of religious faith groups in Canada pursuant to the provisions of s. 27 of the Charter. The legislature can provide for equivalent registration benefits and recognition of other forms of domestic partnership. This is currently being considered by the Law Reform Commission of Canada.

Part II—These Intervenor’s Factual Submissions

(i) The Legislative Context

Marriage is a societal and religious institution that has been recognized for millennia as an institution confined uniquely to the relationship between the male and female. It has confirmed a unique status in society of “husband and wife”. The religious basis for this unique status, confined to heterosexual couples, has been grounded in the interpretations of the holy scriptures of the primary religions of the Western and Asiatic world—Christianity, Judaism and Islam. It has also been recognized for millennia as a uniquely heterosexual institution in other societal and religious groups.

The status of marriage has neither been conferred nor created by statute or common law. Until the mid-eighteenth century in Western European legal traditions, marriage was recognized as a purely religious institution. It became judicially and legislatively recognized in Canada in the mid to late eighteen hundreds. The concept of civil marriage was subsequently introduced through a recognition of the status of marriage and the provision that it could be solemnized. However, the definition has never been prescribed by statute. Common law has recognized it as a pre-existing institution that predates not only the development of statutory but also common law.

Until legislative enactments the status of marriage could only be conferred through religious ceremony, solemnized by religious clergy, in most provinces and territories. The vast majority of Canadians continue to have their marriages solemnized though religious services performed by religious clergy. These marriages must conform with the common law and legislative requirements.

A number of restrictions have been placed on the capacity of people to marry. Both heterosexual and homosexuals are permitted to enter into Marriage as “husband and wife” in a context which is not proscribed by law. Legislative and common law proscriptions include laws against prohibited degrees of consanguinity, polygamy and bigamy.

In the Constitution Act, 1867, the Court specifically authorized Parliament to legislate in respect of marital capacity pursuant to s. 91(26) and the provincial legislatures with respect to the solemnization of marriage (s. 92(12)). Therefore, given this constitutional recognition of marriage and authorization of legislation in respect of marriage, any Charter challenge to legislation in respect of marriage is, effectively, precluded by the principles enunciated by the Supreme Court of Canada in Reference Re Bill 30 as further recognized by the Court in Adler. These Intervenors adopt the submissions of the Association for Marriage and the Family regarding s. 91 interpretative issues.

(ii) The Roman Catholic Conception of Marriage

In Canada almost 50% of Canadians are Roman Catholics. The Catholic Church believes and teaches that the matrimonial covenant can only be between a man and a woman and that “God himself is the author of marriage.” In addition, that “...the vocation to marriage is written in the vary nature of man and woman as they came from the hand of the Creator. Marriage is not a purely human institution despite the many variations it may have undergone through centuries in different cultures, social structures and spiritual attitudes.” The matrimonial covenant is, by its nature, ordered toward the good of the spouses and the procreation and education of offspring and is one of the seven sacraments recognized by the Church—alongside baptism, first communion, confirmation, reconciliation, priestly orders and the last rites. Catholics believe that sacraments are “efficacious signs of grace, instituted by Christ and entrusted to the Church, by which divine life entrusted to us.” Marriage is between a man and a woman and the institution is “prior to any recognition by public authority, which has an obligation to recognize it.” Marriage is not created by any public authority and, according to Catholic thought, the nature of marriage exceeds “in an absolute and radical way, the sovereign power of the State.” Marriage exists “...prior to the State and any other community, and possesses inherent rights which are inalienable.”

The only sexual relationship that is considered morally acceptable within Catholicism is the one that takes place within heterosexual marriage. Any other way to express sexuality by whatever relationship, heterosexual or between members of the same-sex, is considered by Catholic teaching to be morally wrong. Nevertheless, in Catholicism, the dignity of all persons is to be respected. Homosexual persons “must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” However, such respect does not involve any recognition of the legitimacy of sexual conduct outside of its appropriate context in heterosexual marriage. Sexual desires, like many human passions, must be evaluated by standards beyond the desires themselves. This is so for all human beings regardless of their sex or sexual orientation (and heterosexual desire is a sexual orientation as well). Recognition of same-sex marriage is not an option for Catholics since it is completely opposed to the Catholic understanding of the moral, religious, social and legal traditions that include the purpose of creation itself.

Catholics believe that the inclusion of same-sex relationship recognition into the institution of marriage would fundamentally change the existing institution, not just add to it. There is no “bright line” that can be drawn between civil marriage and marriage before religious clergy. This is so because of the nature of the intermeshing that exists between civil and religious authorities and because all citizens live in civil society and share its institutions and legal recognitions. This inter-connection is particularly the case with such public institutions as public education. What is deemed to be required in “the Supreme Law of Canada” will become, in the nature of things, part of the expected curriculum of public education. The concept of a “bright line” or “water-tight compartment” between civil and religious institutions breaks down when one considers the reality of contemporary legal challenges and the wide-spread nature of the claim for recognition made by the applicants in these proceedings. Those parents with a belief (religiously motivated or not) that same-sex conduct is wrong ought not to be put in the position of having this view forced upon their children by way of constitutional determinations on another issue such as “marriage.” It would be naïve to assume that this case will not produce just such a result when the flurry of recent Court cases in this Province and elsewhere have been in just this direction.

Catholics share the concerns of many about the threats already posed to the existing meaning of marriage due to changes made in recent decades. Many developments have damaged marriage already and it is already an institution under considerable stress.

Catholics are also concerned that due to the inter-related nature of civil society the inclusion of the claimants into the primordial institution of marriage will lead to the stigmatization and exclusion of those who hold different views on the acceptability of “same-sex marriage.” The language of “heterosexism” and “homophobia” is a language that attacks those who view heterosexuality as normative and attempts to turn the respectful disagreement with homosexual conduct into an “ism” akin to racism. This sort of loosely constructed stereotype, in addition to being highly controversial, stigmatizes religious traditions, threatens those who oppose it and fractures civil discourse. The appropriate approach to competing claims is a rich notion of “the common good” which appropriately considers and accommodates rights and duties. Those who claim that the Church’s teaching on the exclusivity of heterosexual marriage could “develop” to include same-sex marriage do not understand the foundational anthropology of the person that underlies the Catholic position or the nature of the development of doctrine within the Catholic tradition.

(iii) The Protestant Evangelical Christian Conception of Marriage

Conservative/Evangelical Protestants comprise approximately three million Canadians and include the fastest growing Christian churches in Canada. They develop religious, theological and social teachings from their interpretation of the divine authority of Christian scriptures. They believe that all human beings, regardless of sex, race creed or colour are created by and loved by God. They believe that the scriptures expressly establish the “uniquely heterosexual nature of marriage.” The evangelical understanding of marriage is as a covenant between man and woman, which has been ordained by God. Accordingly, marriage cannot, in the evangelical Protestant understanding, exist other than between male and female. More generally, the evangelical Protestant understanding of sexual morality mandates “the celebration and protection of the marital covenant”, an aspect of which is the corresponding proscription of the consummation of sexuality outside of marriage (excluding, for example, homosexual relationships and polygamous or adulterous relationships). marriage is ordained by God and has been made central to the created moral order, which is a universal moral order. Evangelicals thus understand that the reasons which underlie that moral order have the same rational force and normative significance for all persons, regardless of whether they are evangelical Christians. Evangelical Protestants believe that marriage is both an institution and a sacred covenant rather than simply a convention or social construction. Because of its divine origins, marriage cannot be redefined.

Because of their interpretation of scripture, evangelical Christians would not be able to accept the legitimacy of gay and lesbian marriages, regardless of whether homosexuals were granted the legal power to marry. Evangelical Christians feel subject to societal marginalization and perceive that their religious beliefs have come under attack in recent years. They sense not merely societal indifference to their religious beliefs, but increasing intolerance. They are concerned that the Courts, through judicial activism, are attempting to force evangelical Christians to accept gay and lesbian marriage, and other controversial social concepts, which contravene their religious teachings and principles.

Professor Gay points out that a judicially mandated redefinition of marriage to include same-sex unions could not secure recognition of the legitimacy of such unions from evangelicals, because of their interpretation of their scriptures. For Canadian evangelicals, it would mean pitting the state against the authority of holy scriptures and “over and against the very heart of conservative Protestant and religious belief.” Such a fundamental redefinition of marriage would be rejected as deconstructive of longstanding religiously-based moral traditions. Evangelical Christians are concerned about state initiatives that would be aimed at forcing them to accept the legitimacy of same-sex unions. Evangelical Christians would interpret the legal recognition of same-sex unions as an unjust and illegitimate imposition of the state upon religious conscience.

(iv) The Islamic Conception of Marriage

Islamic tradition teaches that only a man and woman can unite in marriage and that the Islamic personality of each person is incomplete until they marry. Islamic tradition teaches that a husband and wife are two pieces of the same whole and will not be spiritually fulfilled unless united in marriage. The marital unit can only be comprised of a man and a woman. This unit is essential as the environment in which to raise children. Muslim tradition teaches the complementarity of parenting between the sexes. This view of marriage as uniquely heterosexual and essential for the procreation and raising of children has continued for millennia and is constant in all Islamic communities around the world. It is a universal and unifying feature of Islam globally.

Islamic tradition accepts the dignity of gay and lesbian persons, however, if the state were to redefine marriage to include same-sex unions, this would have a detrimental impact on the Islamic community in Canada since it would result in a situation where the state would impose an acceptance of same-sex marriage (and therefore conduct) that would be contrary to and would invalidate Islamic religious belief. Such a fundamental redefinition of marriage would make it harder for Muslims to participate in Canadian society. This would cause confusion for Muslim children and youth in Canada as such a fundamental redefinition of marriage would directly conflict with Islamic teachings regarding the nature of marriage. This would result in the isolation of Muslims from full participation in Canadian society.

Although Muslims are permitted to build relationships and marry with people from other faith traditions this could not extend to an acceptance of marriage between gays and lesbians. Muslim religious traditions would teach that the Canadian state was taking action offensive to Allah. This would create an inherent conflict for Canadian Muslims. If Muslim clergy were required to solemnize same-sex unions they would have no choice but to disobey the law and face the consequences. Muslims would also be concerned about the impact that the redefinition of marriage to include same-sex couples would have on public morality and public education including schools that Muslim students attend. Muslims are concerned that because the public school system must teach a respect for the law, therefore, it would by necessity be required to teach an acceptance of a redefined conception of marriage. Muslims whose children attend the public school system would be forced to remove their children from the public school because such teaching would be directly contrary to their religious beliefs. Furthermore, Islamic schools, in order to be licensed, are required to adopt the public curriculum and integrate their Islamic teachings into that curriculum in order to fill their educational mandate. The redefinition of marriage could therefore lead to a situation where Canadian Muslims felt alienated within the public school system, and the Islamic school system would be placed in an untenable position. Muslims are very concerned that they would be increasingly stigmatized and marginalized and that the credibility of their religious thought and belief is and would be under attack. Canadian Muslims have contributed to Canadian society and wish to continue to be a fully participating community within this multicultural country. As a minority religious group, they are particularly concerned that such a fundamental redefinition of marriage would have a serious impact upon their religious community and their full participation in Canadian society.

(v) The Jewish Concept of Marriage

Judaism recognizes marriages and institutions that, while in place before the emergence of Jewish religious traditions, have continued to function both inside and outside of that religious tradition. However, Jewish religious tradition recognizes marriage only as a union between a man and a woman. marriage is regarded as an institution for all men and women as a result of the teachings of the Jewish holy scriptures. His institution is the basis for the procreative family.

Jewish tradition teaches that marriage is a natural institution that religious traditions have elevated to the level of the sacramental without, however, changing its earlier pre-religious character. Rabbi Novak summarizes that religious traditions, like Judaism, Christian, Islam and others, have preserved and protected a pre-existing institution that they did not invent. Civil marriage, which was recently invented, is clearly copied after the model of “natural procreative marriage” that has been preserved for millennia by religions like Judaism. Each religious tradition believes they have the right to insist that the state not radically redefine an institution that the state did not invent. The historic rationale for marriage being restricted to heterosexual unions is continued in Jewish teachings because circumstances for the conception and birth of children have remained the same. Although Jewish tradition does not accept, and most Jews cannot accept, gay and lesbian marriage, this should not be construed as a rejection of homosexuals as people. Judaism recognizes the dignity of all persons who are made in the image of God.

Under Jewish tradition, Jewish marriage does not require concomitant civil marriage. For most of Jewish history Jews have lived in societies where all marriages were initiated solely under religious auspices. Civil marriage, as it is known today began in the middle of the eighteenth century in Europe. Jews have participated in the institution of civil marriage because it did not fundamentally conflict with the requirements for Jewish marriage. If the state radically redefined marriage to include same-sex unions, many religious Jews would avoid civil marriage all together as its new requirements would violate principles that Jews regard as morally binding on all human kind as a result of their interpretations of their holy scriptures. A redefined civil marriage would be an institution in which religious Jews could not participate in good faith because it would conflict with their religious traditions. Civil marriage can only be an effective institution in a society where the vast majority of citizens recognize the civil validity of every other civil marriage and where it is an institution in which the vast majority of citizens can participate in good faith. Religious Jews could not participate in a fundamentally redefined institution of marriage. This could lead to the implication that religious Jews, Christians and members of other faith communities would be regarded as un-Canadian and lead to a situation where religious Jews would be perceived as a community opposed to the newly recognized “constitutional requirement”. This could lead to the marginalization and exclusion of the Jewish community and discrimination against Jews. This would strain the multi-cultural fabric of Canada. Many religious Jews in Canada believe that the judicial redefinition of marriage to include same-sex partnerships could be construed as a thinly veiled attack against their religious beliefs and principles and would not respect diversity and their religious faith. They view these as the development of destabilizing tendencies against the place of religion in Canada and the right of their community and religious communities in general to have their beliefs respected and not stigmatized in all aspects of public life. Religious Jews are extremely concerned about the impact of the redefinition of marriage which would fundamentally alter this institution in a manner inconsistent with their fundamental religious beliefs.

Jewish tradition teaches that marriage is a natural institution that religious traditions have elevated to the level of the sacramental without, however, changing its earlier pre-religious character. Although a small number of reformed Rabbis in Canada have a different understanding of the Jewish faith and Jewish tradition, their views are dissentient and held by a very small number (36) of Rabbis in Canada. The vast majority of Rabbis and rabbinic teaching reject the possibility of same-sex marriage. The affidavits of Rabbis Greenberg and Stevens do not reflect orthodox or traditional Jewish teaching. Neither speak for Jewish tradition. Jewish law, according to Rabbi Novak, cannot change or develop to accept homosexual marriage.

Part III—Issues to be Argued

The Interfaith Coalition on Marriage will argue the following issues on the hearing of these applications:

Part IV—Argument

(i) The common law recognition of the institution of Marriage which confers the unique status of “husband and wife” precludes the inclusion of same-sex partnerships within that institution.

The applicants seek a fundamental redefinition of the institution of marriage which has been recognized by the common law, and regulated by statute. However, the role of the common law in “recognizing” marriage is very different from usual common law rules or legislative provisions which have been challenged constitutionally. The institution of marriage was not a legally created construct. Because it pre-exists the law and has universally been recognized to be between “one man and one woman” it is unlike the usual category of common law principles which develop and change over time. Unlike the legislative category of “spouse”, which was considered in Egan and M. v. H., the institution of marriage was neither created by nor defined by statute. There is no statutory provision that defines marriage or prescribes that it is a status limited to persons of the opposite sex. Statutory provisions in federal or provincial marriage legislation such as the Marriage Act establish procedures for the regulation of the solemnization of marriage, including the recognition of the religious solemnization of marriage. Federal legislation provides certain restrictions on the capacity of marriage based on laws against consanguinity, polygamy and bigamy and deals with the dissolution of marriage.

The role of the common law in simply recognizing, rather than creating, the institution is clear from the case law. The judges have recognized marriage as an institution which confers the status of “husband and wife” as recognized by all major religious faiths. Judges have recognized that this institution has been limited, by the nature of the status conferred of “husband and wife”, as being essentially and uniquely heterosexual. Lord Penzance recognized in Hyde v. Hyde that:

Marriage has been well said to be something more than a contract, either religious or civil—to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and variable features? If it be of common acceptance and existence, it must need (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others. [emphasis added]

The fundamental purpose of law is the regulation of the relations between persons, and persons and the State or community. For the limited purposes of this case, legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship...sex is clearly an essential determinant of the relationship called marriage because it is and always has been recognized as a union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex. [emphasis added]

I find that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman and that persons of the same-sex do not have the capacity to marry one another.

One of the principal purposes of the institution of marriage is the founding and maintaining of families in which children will be produced and cared for, a procedure which is necessary for the continuance of the species... That principal purpose of marriage cannot, as a general rule, be achieved in a homosexual union because of the biological limitations of such a union. It is this reality that is recognized in the limitation of marriage to persons of opposite sex.

It is true that some married couples are unable or unwilling to have children, and that the incapacity or unwillingness to procreate is not a bar to marriage or a ground for divorce. Despite these circumstances in which a marriage will be childless, the institution of marriage is intended by the state, by religions and by society to encourage the procreation of children. Unions of persons of the same-sex are not “marriages”, because of the definition of marriage. The applicants are, in effect, seeking to use s. 15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.

It is of equal importance in the determination of the issue before me that the meaning of marriage is universally accepted by society in the same sense. “Marriage” is defined in Webster’s Third New International Dictionary (1961) as ‘the state of being united to a person of the opposite sex as husband or wife; the mutual relation of husband and wife; wedlock; the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family.

Similarly, in both Miron v. Trudel and Egan, Gonthier J. and LaForest J. recognized the fundamental role marriage has played as a societal and religious institution “from time immemorial.” As Justice LaForest wrote in Egan:

My colleague Gonthier J. in Miron v. Trudel has been at pains to discuss the fundamental importance of marriage as a social institution, and I need not repeat his analysis at length... Suffice it to say that marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of longstanding philosophical and religious traditions. But its ultimate raison d’etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

The Inapplicability of the Same-Sex Trilogy cases—Egan, M. v. H. and Vriend

The decisions of the Supreme Court of Canada in Egan, M. v. H, and Vriend are not apposite with respect to the issues raised by the inherently heterosexual nature of the institution of marriage. Here the impugned law—the common law and statutory recognition of the institution of marriage—is fundamentally different than a consideration of the statutory legal constructs which were considered by the Supreme Court of Canada in the Trilogy dealing with same-sex relationships. In each of those cases, the Court was dealing with under-inclusive legal constructs.

In Egan, the opinions of eight of the nine justices made it clear that the heterosexual nature of the institution of marriage was not being considered constitutionally invalid by virtue of the analysis in that judgment. The analysis of four justices (represented by the opinion of LaForest J.) accepted the constitutionality of the inherently heterosexual nature of the spousal category. Justice Cory, also writing for four Justices on this point, expressly stated that “any contention that this appeal will affect the societal concept of marriage can be set aside.” In M. v. H., Justices Cory and Iacobucci similarly specifically indicated that the judgment did not relate to marriage.

(ii) The common law precludes the recognition of same-sex partnerships as constituting a “marriage”.

The applicants suggest that there is no common law rule restricting “same-sex marriages”. This statement is inaccurate and reflects a misinterpretation of leading decisions of Canadian and British Courts. The common law recognition (or “definition” as it is incorrectly referred to) of marriage in Hyde v. Hyde is that marriage is an institution “that confers the status of husband and wife” and “may for this purpose be defined as the voluntary union for life or one man and one woman to the exclusion of all others”. This legal recognition has been followed and adopted in the Canadian common law during the last century by appellate Courts in Ontario, Alberta, British Columbia, the Federal Court of Appeal and by the Divisional Court in Layland. It has also been reaffirmed recently by the English Court of Appeal in Bellinger.

Other Courts have also followed this definition in Canada. In Re Noah, the Northwest Territories Court recognized an Inuit marriage on the basis that it conformed with the understanding of the essential nature of marriage as reflected in the Hyde v. Hyde definition, notwithstanding that this conception of marriage as being between one man and one woman developed pursuant to Inuit custom. Other courts have also followed Hyde.

The fact that the principle enunciated in Hyde v. Hyde, regarding whether England should recognize a marriage solemnized in a jurisdiction which permitted polygamous marriages has been overruled does not, in any way, affect the definition of marriage as being essentially heterosexual in that case that has been followed for almost 150 years. Similarly, the fact that another principle, established in Corbett, regarding the ability of a transsexual to engage in heterosexual sex, does not affect the definition of marriage as uniquely heterosexual, conferring the status of husband and wife, following that decision. The definition of marriage in both cases was recently relied upon and affirmed by the English Court of Appeal in Bellinger in relation to the issue of whether the status of male or female was relevant to the meaning of marriage. The court held that it was.

(iii) The common law cannot be used to fundamentally redefine the institution of marriage since this would not constitute an incremental development

In both the Charter and non-Charter context, the Courts have made it clear that the development of the common law should only be done incrementally and that any changes involving “general principles” or having significant or complex legal ramifications should be left to Parliament. In general, common law has been developed by judges in response to societal problems and the need for evolving principles. Therefore, common law incremental developments are small changes in evolving legal principles.

The fundamental re-definition requested by the Applicants to change marriage from the “institution conferring the status of husband and wife”—a religious and social institution from millennia—to a new legal construct of “committed conjugal partner” is a fundamental re-definition with broad societal implications and social ramifications; it requires fundamental change in legal and social principles. In Watkins, McLachlin J. established that the common law will change incrementally only if: “(i) the change is an incremental development in legally established principles; (ii) the change is usually to principles with respect to admissibility of evidence or the law of tort, contract or civil procedure; (iii) where change does not involve significant social or legal ramifications; (iv) where law that does not involve adopting a new principle; and (v) where law does not change longstanding legal tradition. These key factors are missing in this case.

In Salituro, and subsequently in Hill, the Supreme Court of Canada emphasized this point even more clearly in the context of Charter jurisprudence in which Justice Iacobucci clearly distinguished between the permissible incremental development of the common law in accordance with Charter values (if this was possible) and the role of the legislature which deals with law reform involving “complex ramifications”.

The Courts have recognized that the common law is justiciable pursuant to the Charter. In Dagenais, Hill and BCGEU v. B.C., the Supreme Court of Canada emphasized that common law “rules” should be interpreted and developed in accordance with the Charter. However, the common law recognition of the institution of marriage as conferring the status of “husband and wife” is not capable of redefinition or interpretation in the manner requested by the applicants without fundamentally altering the institution of marriage. The principle of incremental judicial common law reinterpretation of “rules” and legal principles in order to accord with Charter principles as identified in BCGEU, Swain, Salituro and Dagenais has no application in this instance.

Furthermore, as Iacobucci J. observed in Salituro, and Cory J. in Hill, courts should not change a common law “rule” if this would “upset the proper balance between judicial and legislative action”. Iacobucci J. wrote for the Court in Salituro:

Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the Courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. (p. 670)

...Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the Courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed. (at p. 675) [emphasis added]

Recently, in the corresponding marriage case in British Columbia, Pitfield J. determined that the remedy sought went far beyond the concept of common-law incremental change. He relied on Salituro in concluding that the changes sought were appropriately deferred to the legislature to consider. He stated at paragraphs 93 and 97:

[93] The change would affect a deep-rooted social and legal institution. The fact that marriage and divorce are specific matters assigned to Parliament by the Constitution Act, 1867 attests to the importance of marriage in our society and suggests that a change to accommodate gay and lesbian relationships should be made by the Parliament or provincial legislatures, if a change is to be made at all.

[97] The legal nature of marriage is so entrenched in our society, and the changes in law required so uncertain in the event same-sex marriages are to be recognized by the state, that Parliament or legislatures, and not the Court, must make the change. [emphasis added].

(iv) S. 2(a)—The Freedom of Religion of the Applicants is not violated.

The applicant MCCT alleges that the legal restriction on “same-sex marriage” infringes its religious beliefs because it has propounded “as a core teaching” that same-sex relationships and Christianity can be reconciled and it provides a safe harbour to those gays and lesbians fleeing denominations with more negative dogmas. It further alleges that the denial of legal recognition of same-sex partnerships as “marriages” sends a message that MCCT is not a “real” Church whose beliefs are illegitimate.

As observed by Chief Justice Dickson in R. v. Big M Drug Mart Limited, the constitutionality of an impugned law is determined by an analysis of both its purpose and effects. The purpose of the common law recognition of the institution of marriage has not been to limit the freedom of any religious group in society to practice or manifest their religious faith. Neither has the legislative regulation of the solemnization or capacity to marry by either Parliament or the legislatures. Rather, the purpose of legal recognition and regulation has been, as found by the Supreme Court of Canada in Egan and Miron, to recognize the fundamental societal role played by this institution in society.

Furthermore, as observed by Justice Wilson in Jones, marriage is one of many institutions in society which has both civil and religious aspects. Legal recognition of “marriage” is provided irrespective of whether it is solemnized through religious ceremony or civil ceremony. Furthermore, it encourages freedom of religion and diversity of religious faith by recognizing the solemnization of marriage by a wide variety of religious faiths. However, this recognition has not altered the fundamental nature of marriage as being an institution solely between one husband and one wife.

Both Canadian courts and legislatures have refused to recognize as lawful forms of marriage advocated by those whose religious faith permits or compels them to enter into forms of “marriages” which do not comport with the fundamental nature of marriage as being between one man and one woman. For instance, courts and legislatures prohibit polygamous marriages as bigamous which are conducted pursuant to the religious teachings of Mormons or Muslims in other jurisdictions. The arguments adduced by MCCT could justify polygamy or, indeed, multiple partner marriages. That this is not claimed is no answer to the fact that they could be on the very arguments as framed. There is no religious “right” to marry at law as claimed by the MCCT.

The effect of the common law and statutory recognition of the institution of marriage as conferring the status of husband and wife does not violate the religious freedom of the applicant MCCT. As noted by Chief Justice Dickson in R. v. Big M Drug Mart, “the essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal and the right to manifest religious belief by worship and practice or by teaching and dissemination.” There is no limitation on the ability of the MCCT to hold their religious beliefs, to teach them, promulgate them, or practice them openly. They are free to conduct religious ceremonies to solemnize marriages between men and women or same-sex partners and call them “marriages”. Indeed they have done so and have claimed that such “banns” ceremonies have produced significant benefits for their members despite having no legal effect. Legal registration, therefore, is unnecessary to hold the religious belief or manifest the religious practice claimed.

Nor is there any imposition of a direct or indirect burden on the applicants as a result of their religious belief through the legal recognition of the institution of marriage. There is no coercion to follow the religious beliefs of the majority such as the Ontario Court of Appeal proscribed in Zylberberg or CCLA v. Elgin County Board of Education.

As the Supreme Court of Canada recognized in both CCLA v. Ontario and Edwards Books & Art and Jones, not all legislation which has “any effect” on religious belief or practice will necessarily violate s. 2(a). It must be viewed contextually. The Government of Ontario’s refusal to register the same-sex unions solemnized by the MCCT was because the partnerships are not between “husband and wife” and therefore do not comport with the fundamental requirements of the institution of marriage, not because of MCCT’s religious views. Similarly, any religious group which believed in and purported to solemnize marriages between siblings or polygamous unions would be refused registration on the basis of the core heterosexual requirement of marriage, not on the grounds of religious preference.

What the applicants really seek is to solemnize other forms of domestic partnerships which are not between husband and wife and to appropriate the term “marriage” for those solemnized domestic partnerships. In order to do this, they must ask the Courts to fundamentally redefine and fundamentally change the institution. This redefined institution would not be between “husband and wife”: it would be a union between “committed conjugal partners” or “registered domestic partners”. There is no indication that such a fundamental redefinition is integral to the religious faith of the MCCT.

The absence of civil or legal recognition of a religious belief or practice does not abrogate or interfere with the ability to hold or manifest that religious belief or practice. In Edwards and Adler the Supreme Court of Canada held that the failure of the state to legislate support for particular religious practises did not violate those beliefs. Nor did the fact that legislation, with a valid secular purpose, was consistent with the beliefs or practises of some faiths, but not others, render it unconstitutional.

The Supreme Court of Canada recognized recently in Trinity Western University, as in other cases such as Jones and (B) v. Childrens’ Aid Society, that neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute. As recognized by the Supreme Court of Canada in Ross, these constitutional rights are inherently limited by the rights and freedoms of others through a contextual analysis. Furthermore, the Court recognized in Dagenais v. Canadian Broadcasting Corp. that it would reject a hierarchical approach to the delineation of Charter rights which allowed some rights to trump others. Rather, rights have to be interpreted in a balanced manner.

The recognition of the institution of marriage as conferring the status between one husband and one wife, which has been practised as a fundamental religious institution by all of the major world religions for millennia, advances the freedom of all religious faiths in Canada and encourages and advances the multi-cultural heritage of Canada. The many religious faith communities which promote this fundamental institution would have their fundamental religious freedoms severely affected by a constitutionalized rejection of the recognition of this institution in Canadian law and its replacement by a fundamentally redefined institution of “committed conjugal partner”.

(v) s. 15 Analysis—Application of the Law Test

(a) What is the “impugned law” being challenged?

In the Law decision, Iacobucci J. outlined for the Supreme Court of Canada the three part test to analyse a claim of discrimination under s. 15(1) of the Charter. The first step of the analysis is to determine whether the “impugned law” (a) draws a formal distinction between the claimant and others on the basis of a personal characteristic, or (b) fails to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment. The initial consideration, therefore, is what “impugned law” is being challenged by the applicant. It has already been stated that the Constitution Act, 1867, prescribed in s. 91(26), that Parliament has the constitutional jurisdiction to legislate in relation to matters involving “marriage and divorce”. Federal legislation has not altered or redefined this institution thereby recognizing and reflecting the institution of marriage which was understood in 1867 as uniquely heterosexual. The provincial legislatures were, pursuant to section 92(12), given jurisdiction over legislation relating to the solemnization of marriage. Provincial legislation, including the Marriage Act, has regulated the procedures under which it is solemnized without specifying or redefining the institution.

In considering the first step of the Law analysis, the question to be considered, therefore, is whether the constitutional and statutory recognition of the institution of marriage, without statutory redefinition, and the common law recognition of the institution of marriage draws a formal distinction between gay and lesbian individuals and others. The statutory provisions in both the federal and provincial legislation simply regulate the process whereby marriage is solemnized and establish certain restrictions based on laws against consanguinity, polygamy and bigamy. They draw no distinction between the applicants and others based on sexual orientation or any other “analogous ground.” They do, however, draw distinctions between those who can marry and those who cannot based on family status (consanguinity) or marital status. This is not a situation, like that in Loving v. Virginia, where access to the institution of “husband” and “wife” is prohibited by legislation or law. The applicants can participate in the institution of “husband” and “wife”. There is no legislative prohibition.

Second, the Court must consider if the common law recognition of marriage draws a formal distinction. The common law recognition of marriage does not create a formal distinction between the claimants and others. The common law does not “define” the institution of marriage. It recognizes that marriage is an institution that confers the status of “husband and wife” and that has historically been a religious institution. The status of husband and wife was conferred upon those who went through a religious ceremony in accordance with the traditions of their faith. Although the status of husband or wife is, by necessity, gender specific, the common law recognition of this institution does not “draw a formal distinction”, rather, the law recognizes a distinct status.

There is no distinction drawn by or created by the law, as there was in other section 15 cases dealing with same-sex rights. Neither can it be said that the statutory provisions dealing with “marriage” or the common law recognition of husband and wife fail to take into account the claimants disadvantaged position within Canadian society. The common law and statutory provisions which are challenged do not confer benefits in a discriminatory manner or deny access to benefits or legislative advantages. To the extent that legal benefits were afforded based on the status of marriage, through the definition of “spouse”, these legislative benefits have been extended to non-married heterosexual and homosexual “spouses” through legislative response over the past three decades.

In the alternative, if there is a distinction drawn or created by law, such a distinction is based upon the long-standing recognition of the biological fact that heterosexual couples alone are capable of procreation and, as such, play a unique role in society. Recognition of this biological reality has been held to be an acceptable ground for distinction between heterosexual marriage and same-sex relationships.

(b) Is there differential treatment?

The second step of the Law analysis is to determine whether the claimant is subject to differential treatment on the basis of an enumerated or analogous ground. The constitutional provisions of ss. 91 and 92 recognize the constitutional capacity of Parliament and the legislatures to legislate in respect of marriage. The institution, as it was understood as a heterosexual one, was constitutionally recognized and should be considered immune from Charter review.

The recognition of the status of husband and wife or the regulation of the process under which such status can be confirmed through solemnization creates no differential treatment. In the alternative, if there is differential treatment, such distinctions are validly based upon the biological, philosophical, social, religious and historical facts recognized by the Supreme Court of Canada in Egan, supra. and Pitfield J. in Egale et al.

Under the third step of the Law analysis the differential treatment must discriminate in a substantive sense given a contextual and purposive analysis of s.15. Section 15 was intended to remedy discrimination created by law or under law. It was not intended to require the Courts to fundamentally redefine a pre-existing religious or societal institution conferring a status which has been recognized by law. What is the context of this analysis? What the applicants essentially challenge is not the law’s recognition of the institution of marriage. Rather, the applicants do not like the historical nature of the institution of marriage, as recognized by law, and which only confers the status of being “husband and wife”. The applicants seek the judicial elimination of this institution and the creation of a fundamentally different judicial construct. They wish to redefine marriage not as conferring a status of “husband” and “wife” but rather in some other fundamentally dissimilar way as “committed partner”.

Their dispute is not with the role and function of the “impugned law” but rather with the fundamental definition of the underlying religious and societal institution as it has existed for millennia. They suggest that this institution is by its very nature under-inclusive and that this promotes pre-existing disadvantage and stereotyping of gay and lesbian people. As recognized by Southey J. for the Ontario Divisional Court in Layland: “the applicants are, in effect, seeking to use s.15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.”

In essence, this is a dispute over the symbolism and power of language—the semantic debate over the term “marriage”—and not about a legally created category. In addition, the applicants claim that the dignity of gays and lesbians is violated by the fact that their partnerships are not capable of having the status of husband and wife. Yet this status cannot simply be changed to provide what is sought—acceptance and recognition of same-sex partnerships as being between “husband and wife”. If the applicants want legislative recognition for same-sex partnerships, this request raises a political issue for the legislature, not a s.15 issue for the Courts.

(d) S. 15 must be subject to different interpretation where competing s. 15 and 2(a) claims are considered

As indicated in Law, the s. 15 analysis is not formulaic. It is contextual and purposive. It must be flexible to its context.

Approaches to existing Charter doctrine is insufficiently developed to deal with competing equality claims within s.15. The Court must be attentive to the nature of the equality claim and the wider context and competing notions of equality, including those emanating from within a religious conception. There are at least two distinct kinds of equality claims. First, there are those between a person or group and the state (“a state claim”). Most s. 15 cases to date have arisen in this context. A second category of claims, however, are claims that arise in a context which requires consideration by the Court of the competing s. 15 claims of different groups (“an intergroup claim” or a “horizontal claim”). It is important for the Court to ensure, in its approach to equality rights claims, that the kind of equality conflict is accurately identified and analysed. In an intergroup claim, the Court must consider, in a purposive and contextual analysis, the extent to which the equality interest of other groups and other constitutional interests (such as those arising under s-s. 2(a) or s.27), of other groups are affected. Charter jurisprudence is still developing and such factors as intergroup realities in a democratic society must begin to be part of the Court’s analysis.

In the context of the current applications, the claimants’ request for a fundamental redefinition of the institution of marriage creates a “collision of rights” and a “collision of dignities” within s.15 between the applicants, who object to the legal recognition of the institution of marriage and want the Courts to fundamentally change and redefine the institution, and those who do not. The fundamental redefinition of marriage which the applicants seek would violate the s.15 and s.2(a) rights of many Canadians of religious faith who will be alienated by virtue of their constitutionally protected religious beliefs from the fundamentally redefined conception. The principles of historic disadvantage, stereotypical treatment, vulnerability, marginalization and so forth are not of assistance here because all sides can claim them with justification. The Court cannot be the arbitrator of which group or groups are to be “more equal” than others.

This type of intergroup claim involves a consideration of the s. 15 and s. 2(a) rights of religious minorities. The fundamental freedom of “conscience and religion” is an important right and must not be diminished in relation to s.15 claims. As indicated in the affidavits filed, some of these religious minorities, such as the Jewish and Muslim communities, are very concerned about the impact of such a fundamental redefinition of marriage on the continued rejection, alienation, stereotyping and disadvantage historically suffered by members of their communities in Canadian society. Where substantive equality rights are at issue, it should be part of the Court’s consideration at the s. 15 stage, to give full scope to the equality rights of other s. 15 groups lest these rights be “made invisible” in the Court’s response to the equality claims of other groups. As the Supreme Court of Canada recognized in Swain, Mills and Trinity Western, Charter rights must be interpreted in the context of other competing rights and freedom.

(vi) The Application of Section 1

The Supreme Court of Canada has recognized in Egan, M. v. H., and other cases, the need to defer to the legislature, especially when a claim raises fundamental issues of social and political ideology and involves the fundamental redefinition of a legal, philosophical and religious tradition which underlies our law.

The Supreme Court of Canada has deferred to the legislature where the impugned law has involved claims of competing groups and required careful balancing. The Court has also recognized that where the limitation of Charter rights raises complex social policy issues and competing societal interests, incremental legislative initiatives can satisfy the s. 1 requirements. This is such a situation. Parliament and the legislature have substantially amended benefit conferring legislation involving the spousal category to include gay and lesbian partnerships . The Court should properly defer any further legislative initiative to Parliament and the legislatures, particularly where the Law Reform Commission of Canada is studying this very issue and various legislative alternatives. Contrary to what the MCCT asserts, it is not at all clear that the Parliament and the legislatures, once they have heard from religious communities that affirm traditional conceptions of male/female marriage, would choose to fundamentally redefine marriage to include same-sex partnerships rather than other legislative alternatives were that deemed necessary by a Court.

(a) The Objective of the Impugned Law

The law impugned by the applicants is a combination of: (i) the constitutional recognition of the institution of marriage in the Constitution Act, 1867; (ii) the statutory provisions recognizing the institution and regulating its solemnization; as well as; (iii) the common law recognition of the institution of marriage as conferring the status of husband and wife. As already articulated, the constitutional recognition of marriage as it was understood in 1867, was and is based upon the inherently heterosexual status of marriage, a status that retains in full measure its importance as a key focus for social, legislative and judicial support.

However, to the extent that the Court considers the statutory and common law recognition of marriage, the objective of legislatively recognizing marriage must relate to and further the fundamental role that this social institution has played for millennia in Western society. The fundamental role of this social institution has been recognized in Egan, Miron and Layland.

The objectives of the provincial legislation regulating the solemnization of marriage is to ensure that there are procedures for both the solemnization and registration of marriage. The provision of procedures for the civil solemnization of marriage, outside of religious ceremony, furthers this objective. It did not alter the recognition of the historical institution of marriage but simply provided for another procedure for its solemnization. The provisions which restrict the ability to marry on the basis of consanguinity has the objective of a biological concern to preserve the health of children who could be procreated in such a marriage. The objectives of prohibitions against polygamous and bigamous marriages reflect an historical understanding of the institution of marriage as being between one man and one woman. Similarly, federal legislation deals with the capacity to marry and the dissolution of marriage but does not define the institution. Unlike M. v. H or Vriend, there is no legislative scheme which is under-inclusive in which the Court would be required to consider the purpose or objective of the “under-inclusion”.

(b) The Proportionality Test

(i) Rational Connection

The common law recognition of the institution of marriage and the provincial regulations of the procedures for solemnization are rationally connected to and advance the fundamental role of this institution in Canadian society. This cannot be seriously challenged nor can the restriction of marriage on the basis of laws against consanguinity, polygamy or bigamy rationally deviate from the importance of recognizing this fundamental, social and religious institution. At confederation, the only marriage legally or socially recognized in Canada was that religiously performed. The legislative provision for and recognition of civil marriage, in a manner consistent with the religious institution, is also rationally connected to and promotes the fundamental role of this institution in Canadian society. These legislative provisions are specifically contemplated within the “matters” specified in s-ss. 91(26) and 92(12) of the Constitution Act, 1867.

(ii) Minimal Impairment

As emphasized in s.1 jurisprudence, the Court must consider whether the means chosen to accomplish the legislative objective impair constitutional rights as little as possible. Where there are competing claims by a number of groups in society, the Court will, in that context, defer to the legislative choices made by the legislature. To the extent that the Court determines that the recognition of marriage as a social and religious institution and the absence of a similar legislative recognition of other domestic partnerships constitutes a violation of s. 15, the Court should consider whether it will be possible to recognize marriage legislatively in a less intrusive manner. If not, deference should be made to the choice made by Parliament or the legislature, particularly where, as here, other important rights, such as the freedom of conscience, religion and expression would be curtailed or threatened by the remedy requested by the Applicants.

Parliament and the legislature cannot legislate to recognize and regulate the procedures for the institution of marriage in a less intrusive manner. Either marriage is recognized legislatively and at common law or it is not. Either the legislature prescribes procedures for the solemnization and registration of marriage or it does not. This is not a case where the legislature has engaged in “line drawing” by including one group and excluding others from a legislative definition or was the case with previous spousal benefits legislation, supra. Therefore, there is not a less intrusive means of accomplishing the objectives of the legislation and of fulfilling the constitutional mandate as set out ss. 91(26) and 92(16) of the Constitution Act, 1867.

As specified by the Oakes test and interpreted in subsequent jurisprudence, the proportionality analysis must undertake a comparative approach between the legislative objectives, the means chosen to accomplish those objectives and the deleterious effects on equality rights.

As observed by Cory J. in M v. H. and by the Supreme Court of Canada in Dagenais, the Courts should also consider the proportionality between the deleterious and salutary effects of the measures. The legislation recognizing, registering and regulating the solemnization of marriage has significant salutary benefits. It encourages and provides for marriage as it has existed for millennia. All society benefits from this institution including gays and lesbians.

Obviously, where the s.1 analysis is undertaken in a context in which there are inter-group claims which will involve other competing s. 15 rights and other constitutional rights (such as ss. 2(a)), the proportionality analysis should also consider the impact on these other rights. Where the remedy to a Charter violation in itself occasions another violation, there must be heightened scrutiny of the proportionality analysis. Redefining “marriage” to include same-sex couples will lead to violations of the s.2(a) and s.15 rights of these intervenors.

When the above analysis leads to the conclusion that the rights of both groups conflict in a way that cannot be resolved without preferring the political or moral position of one group over the other, the Court must recognize that it runs the danger of stepping into a legislative role. Unless it can be shown that other regimes would better balance the competing interests of different groups, line drawing and making difficult choices between different groups is best left to the legislature. In such circumstances, a Court should defer to the decisions taken by the legislature or, if the violation of the petitioning group is so egregious as to require some action, limit the remedy granted to declaratory relief in order to force the legislature to re-examine the competing rights at issue and search for other solutions which by their nature may be political and not legal. In this case nothing less than the continuing role of marriage as a legall recognized institution may have to be discussed.

The presence of s.27 in our Charter enshrines respect for diversity and highlights the importance of respect for a diversity of traditions and beliefs in our pluralistic society. It also underlines the importance of recognizing the need to balance the interests of competing groups through the proportionality analysis described above. In a society that prides itself on tolerance and diversity, the Court must be wary of legally sanctioning the preference for or elevation of one ethnic, cultural or religious group—or one set of “beliefs” held by such a group whether religious or not—over another. A judicially mandated redefinition of marriage to “committed conjugal partner” would have profound effects on the role of traditional religious and minority ethnic communities in Canada as is shown in all the affidavits filed on behalf of the Interfaith Coalition.

The proportionality analysis must consider the alternative regime that can be put in place (ie. through the registration of domestic partnerships) as well as the tact that the legislated advantages to spousal status (such as benefit schemes) are available to both same-sex and opposite sex spouses. There is thus no “benefit” that the law can confer on same-sex couples through redefinition of “marriage”. The benefit sought—a social acceptance—cannot be legally mandated. A thorough proportionality analysis can only lead to the conclusion that it would be an unnecessary and inappropriate use of judicial power to redefine marriage to include same-sex couples at the expense of the ss.2(a) and s.15 rights of religious communities and those who oppose same-sex marriage on ground of conscience however formed.

(vii) Remedy

In Schachter, the Supreme Court of Canada specified the remedial powers of Courts in considering remedies pursuant to s. 52 of the Constitution Act, 1982. This claim raises the issue of whether the Court should fundamentally redefine the institution of marriage as the applicants request or whether deference should be granted to Parliament and the legislatures to deal with any issues of under-inclusiveness or legislative failure to accommodate the needs of gay and lesbian people for legally registered and recognized institutionalized domestic partnerships. Given the absence of any legislative definition of marriage or common law definition of marriage, the applicants do not ask the Court to engage in a process of “reading down” or “reading in” legislative provisions to make unconstitutional legislation otherwise constitutional. Nor do they seek a reinterpretation of the common law in accordance with the principles in the Charter. Essentially they ask of the Court to engage in a process of complete legislative prescription which is well beyond what is said to be appropriate in Schacter.

In Vriend, the Court determined that a legislative lacunae or omission was constitutionally vulnerable. This is fundamentally different. The issue here is whether the Court should engage in a process of rejecting the legal recognition of a fundamental religious and social institution, “marriages and “marriage” and replace the societal and religious institution through creation of a new institution of the Court’s making in the face of clear rejection of the concept by elected member of Parliament and all major religious communities in Canada. The Court is being asked to go far beyond anything that it has done pursuant to s. 15 in respect of any spousal benefits claim raised by same-sex applicants. Should it accede to this claim, the Court would, in effect, be stating what beliefs should operate in the public sphere on a matter of fundamental importance where the claims of one group involve widespread philosophical rejection of the very social foundations upheld by other groups. Again, this is a matter far beyond a mere “equality” claim for valid “recognition” in Canadian society.

In the context of this claim, if the Court determines that there is a constitutionally indefensible legislative or legal vacuum that fails to accommodate the needs of certain domestic partnerships for recognition through marriage, the courts should defer to the legislature with respect to this issue. The legislature can balance competing interests, and if it is considered necessary, can create a legislative regime that legally recognizes domestic partnerships that do not fall within the institution of marriage but which the legislature determines should be legally recognized in some appropriate manner. Certain European jurisdictions register domestic partnerships and provide for legal recognition in a manner similar to the legal recognition provided for the institution of marriage. The Law Reform Commission of Canada is currently analyzing the issue. The Courts should defer to Parliament and the legislatures to implement such legislative responses that can be crafted in a manner that respects competing rights, s-s. 2(a) and s.15 and considers the multicultural interpretative requirements of s. 27 of the Charter.

In considering the remedy, if any, to be granted, the Courts should also consider the impact of such remedy on those citizens or groups who are opposed on grounds of conscience or religion to such remedy. Given the Court’s stated concerns about “substantive equality” this must apply, a fortiori to religious communities who have rights guaranteed by s.15 and ss.2(a), especially minority religious communities. The evidence indicates that the Catholic, Conservative Protestant, Orthodox and Traditional Jewish and Muslim communities cannot participate in or accept a fundamental redefinition of marriage which would include same-sex unions. They have a serious concern that any such judicial redefinition would not only alienate them from this institution but will very likely render them subject to further legal and political challenges that affect the rights of religious adherents in Canada.

The Court should also be wary of creating a confusing tapestry in Canada of different conceptions of marriage which could involve a redefined conception of “civil marriage”, which contradicts the institution of religious “marriage” pursuant to the tradition of many faith communities. The order the Court grants could lead to the withdrawal from the solemnization of marriage of many, if not most, religious clergy. Given that the vast majority of Canadians currently have their marriages solemnized before clergy, this could lead to significant social confusion. These intervenors submit that, if the Court determines that there is a s. 15 violation and chooses not to give deference to the legislature any remedy should be suspended for a period of time to allow Parliament and the legislatures to establish an alternative legislative scheme for the recognition of domestic partnerships which could include a wide variety of domestic relationships including same-sex domestic partnerships. Any necessary changes to legislative benefit schemes, although not sought in this proceeding, could also be considered.

In addition to the Preamble’s recognition of “the Supremacy of God” and “the Rule of Law” (and the two are conjunctive) two of the central principles of a free and democratic society are: 1) respect for the processes of democratic deliberation and; 2) the relationship between the judicial and the legislative branches of government. On the issue of same-sex benefits extension and prior judicial determinations to date both the Courts and Parliament have been clear that prior decisions and legislative extensions dealing with benefits have not been intended to challenge the primordial marital institution of male and female marriage. Given this recent highly contested and clear history of legal development and Parliamentary and legislative response to those decisions, the Courts should defer to the clear recognition by Parliament that recent extensions of benefits and obligations to same-sex couples should not include any alteration to the historic institution of marriage as between “one man and one woman.”

In these circumstances, the following statement of Iacobucci J. in Vriend is apposite:

As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a “dialogue” by some (see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and executive decisions to ensure constitutional validity, the Courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives (see Hogg and Bushell, supra, at p. 82). By doing this, the legislature responds to the Courts; hence the dialogue among the branches.

To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the Courts and the work of the Court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

It is submitted that the appropriate approach to the principles of a free and democratic society in this instance is to respect the institutional “dialogue” that has been ongoing in Canada for some years—a dialogue that has, both between the Courts and the Chamber and within the Chamber itself, spoken of maintaining the historic recognition of marriage as between “one man and one woman.” In these circumstances, and in addition to the strong constitutional arguments against such extension, the Court should resist the temptation to second-guess what the Parliament has so clearly indicated are its views on the matter. Indeed, the claim sought is so fundamental that it is the sort of change that ought to require the full rigour of a constitutional amendment.

Should the Court, however, decide that marital recognition should be extended to gay and lesbian partnerships, it is essential that the rights of other citizens be protected by, at the very least, the provision of conscience and religion exemptions in the judgment as that question is entailed in any redefinition of marriage that would include same-sex couples.