and
ONTARIO MINISTER OF CONSUMER AND COMMERCIAL RELATIONS
Respondent
ATTORNEY GENERAL OF CANADA
Intervenor
METROPOLITAN COMMUNITY CHURCH OF OTTAWA/
EGLISE COMMUNAUTMRE METROPOLITMNE d’OTTAWA
Intervenor
FACTUM OF THE METROPOLITAN COMMUNITY CHURCH OF OTFAWAI
EGLISE COMMUNAUTMRE METROPOLITMNE d’OTTAWA
PART I: FACTS
1. The Metropolitan Community Church of Ottawa/Eglise Communautaire Metropolitaine d’Ottawa (“the Church”) is a Christian church for all people with a special outreach to the lesbian and gay communities. The Church appears as intervenor and supports in general terms the position of the Applicants.
2. The Church accepts the facts as set out in paragraphs 2, 3, 4, 5, 6 and 7 of the Applicants’ factum.
PART II: THE ISSUES
3. The Church sees no appreciable difference between the statement of issues of the Applicants and the statement of issues of the Attorney General of Canada. It notes that neither the Respondent nor the Attorney General of Canada disputes that the Canadian Charter of Rights and Freedorns is applicable to the statutory and common law provisions defining marriage. Accordingly the Church does not address this issue (issue ‘A’ in the Applicants’ factum).
4. Of the remaining issues, the only matter upon which the Church differs from the other parties is the question of whether there is an existing prohibition upon same-sex marriage in Canada. The Church would therefore summarize the issues as follows:
A. Whether there is currently either a legislative or common law prohibition on same-sex marriage in Canada;
B. If so, whether such a prohibition infringes the equality rights of lesbians and gays under s.15(1) of the Charter;
C. If so, whether such an infringement can be justified in a free and democratic society under s.1 of the Charter;
D. The appropriate remedy which should be granted to address any discrirnination found to exist.
PART III: LAW
A. IS THERE AN EXISTING PROHIBITION ON SAME-SEX MARRIAGE?
5. It is submitted that neither legislation nor common law in Canada prohibit a lesbian or gay couple from marrying.
6. Pursuant to s.91(26) of the Constitution Act. 1867 (U.K), Parliament has exclusive jurisdiction over capacity to marry. The provincial legislatures have jurisdiction only over the formalities of the ceremony of marriage, pursuant to s.92( 12) of the same Act. The Ontario legislature would therefore not be competent to impose a restriction upon same-sex marriage, and it has not purported to do so.
Constitution Act. 1867 (U.K.), c.3, ss.91(26) & 92(12)
Re Marriage Legislation in Canada, [1912] A.C. 880 (P.C.)
Attorney General for Alberta v Underwood, [1934] S.C.R. 635
Marriage Act, R.S.O. 1990, c.M.3
“Requirements for Marriage Licence”, Office of the Registrar General of Ontario
7. Although Parliament would be competent to issue legislation restricting the right to marry to heterosexuals, it has not done so. The only federal legislation bearing upon the question of capacity to marry is the Marriage (Prohibited Degrees) Act, which deals only with prohibited degrees of consanguinity.
Marriage (Prohibited Degrees) Act, S.C. 1990, c.46
8. The other parties to this application all assume that the common law of Canada prohibits same-sex marriages while the Church accepts that the common law in other jurisdictions has denied the right to marry to homosexuals, the common law may vary from one jurisdiction to another.
Australian Consolidated Press V Uren, [1969)1 A.C. 590 (P.C.)
Hogg, Constitutional Law of Canada, (3rd ed., 1992), 2.4-2.6 ~ C-’
9. It is submitted that there is no existing common law prohibition on same-sex marriages in Canada. Canadian Courts have not authoritatively addressed the issue. The only case in Canada restricting the right to marry to heterosexuals is Re North and Matheson. This was a decision of the County Court of Winnipeg, it was delivered in 1974, was brought under the Manitoba legislation and reflected pre-Charter values. It is submitted that this one decision is not sufficient to create a general common law prohibition across Canada on same-sex marriages.
Re North and Matheson (1974), 52 D.L.R. (3d) 280 (Co. Ct. Wimi.) ~ [’~ A
10. In the absence of an authoritative ruling, it is respectfully submitted that in order to find that there is a common law prohibition on same-sex marriages in Canada, this Court would need to make a conscious decision to import into the law of Canada a common law prohibition which exists in other jurisdictions.
11. It is submitted that Courts should, where possible, interpret the law consistently with the values underlying the Charter.
R V Salituro, [1991] 3 5.CR. 654
R V Swain, [1991)1 S.C.R. 933
R V Cancoil Thermal Corp. (1986), 52 C.R. (3d) 188, at 193-195 (C.A.)
12. It is submitted that it is not appropriate for the Court in this case to create in Canada a common law rule which expressly infringes the equality rights of lesbians and gays and which entrenches discrimination against lesbians and gays by stigmatizing their relationships. The Court should not take an active role in fostering discrimination.
13. It is therefore submitted that the Court in this case should simply declare that the existing law in Canada does not prohibit same-sex marriage, and accordingly direct that the Applicants be issued with a marriage licence.
APPLICATION OF THE CHARTER
14. If, contrary to the Church’s submission in ‘A’ above, the Court finds that the existing common law in Canada does prohibit same-sex marriage, it is submitted that such a prohibition infringes s.15(1) of the Charter, is not saved by s.1, and consequently is of no force and effect.
B. SECTION 15
15. Section 15(1) of the Charter requires that there be:
a denial of one or more of the four equality rights;
based on an expressed or analogous ground;
which is discriminatory.
Andrews V Law Society of British Columbia, [1989] 1 S.C.R. 143
R v Turpin, [1989] 1 S.C.R. 1296
(a) The Equality Rights
(i) Denial of Equality
16. The Supreme Court of Canada has emphasized that each of the four basic equality rights in s.15(1) must be given its “full independent content divorced from any justificatory factors applicable under s.1” to help secure the “unremitting protection of equality rights in the years to come.”,
Turpin, supra, 1325-1326
17. An inquiry into whether there has been a denial of one of the four equality rights “will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics.”
R V Swain, supra, 992
18. Marriage law does not treat homosexuals equally. The law prohibits lesbians and gays from affirming their relationships through marriage, a prohibition not imposed on heterosexuals. Lesbians and gays are denied access to the legal institution of marriage by the operation of law.
19. In addition, the report of Professor Hobart identifies a number of specific benefits adhering to marriage, both in ‘non-literate’ and Western societies. These include the definition of legal rights, strengthening the relationship bond, legitimating offspring, defining parental roles, and creating social solidarity. It is as important for lesbians and gays as it is for heterosexuals to be able to define their legal relationship to each other, create social solidarity, strengthen their relationship bonds and legitimate offspring.
Affidavit of Charles Hobart, Motion Record of the Attorney General of Canada, Tab 3, at 77-79, 95-96 ff
20. The Applicants’ psychologist and sociologist, Dr Barnes and Professor Valverde, have also identified benefits which equal access to the institution of marriage would afford lesbians and gay men, including the reduction of stigmatization of lesbian and gay relationships, the strengthening of relationship bonds, benefits to children raised by lesbian and gay parents and the facilitation of the effective functioning of lesbian and gay relationships in times of crisis.
Affidavit of Rosemary Barnes, Application Record, Tab 5
Affidavit of Mariana Valverde, Application Record, Tab 6
21. McIntyre 3 states in Andrews that in assessing the scope of the rights to equality before and under the law, “the main consideration must be the impact of the law on the individual or the group concerned”. The State refusal to recognize lesbian and gay relationships through marriage stigmatizes those relationships as inferior, assigns them second-class status and reinforces stereotypes that lesbian and gay relationships are uncommitted, shallow and unloving. Professor Hobart acknowledges that reduction of the stigmatization of lesbians and gays is a real social benefit, in that greater societal acceptance of lesbians and gays gives them “the psychological resources for living satisf~4ng and productive lives.”
Andrews, supra, at 165
Affidavit of Charles Hobart, Application Record of the Attorney General of Canada, Tab 3, at 47
Affidavit of Rosemary Barnes, Application Record, Tab 5
Affidavit of Mariana Valverde, Application Record, Tab 6
Herek, “Myths about Sexual Orientation: A Lawyer’s Guide to Social Science Research” (1991), 1 Law & Sexuality 133, 145-148, 161-164
22. The Charter is founded on principles of individual choice. Deprivation of choice is itself a denial of equality. In Turpin the accused was not permitted to choose between trial by judge and jury or trial by judge alone. The Supreme Court of Canada adopted the view of the Court of Appeal that the issue was not whether one form of trial was more advantageous than another; “rather, the question is whether having that choice is an advantage in the sense of a benefit of the law.” The Court found that the denial of that choice was itself an infringement of equality before the law. A prohibition on same-sex marriage denies lesbians and gays the choice to structure their relationships in a way which suits their needs. Heterosexual couples have a choice as to how to structure their relationships. Lesbian and gay couples have no choice since they are prohibited by law from marriage.
Turpin, supra, at 1329-1330
R v. Morgentaler, [1988] 1 S.C.R. 30, 166
R v Salituro, [1991] 3 S.C.R. 654, 674
(ii) Marriage: no real benefit?
23. The response of the Attorney-General of Canada to these equality denials is to assert that the Applicants are requesting ‘merely’ an “abstract notion of equality which deals with emotional feelings and social validation rather than the operation of the law.” Counsel cites in support a comment from Andrews that the Charter does not deal with equality in the abstract. More specifically, however, McIntyre J.’s comment in Andrews was that the Charter does not provide for “equality between individuals or groups within society in a general or abstract sense [but]…is concerned with the application of the law”. Marriage is not just a social institution; it is a legal institution. There is no question that the inequalities alleged in the present case arise not in an abstract sense within society but by operation of law.
Factum of the Attorney-General of Canada, paras. 22 and 23
Andrews, supra, at 163-164
24. The rights denied to the Applicants are not abstract but are real social benefits, involving important issues of personal choice, as well as health and welfare. Moreover, the assertion that s.15 is not concerned with issues of emotional or social validation is inconsistent with the rulings of the Supreme Court of Canada that questions of human dignity are precisely the issues addressed by s.15.
Andrews, supra, at 171
R v Swain, supra, at 992
25. Laws in the United States have prohibited interracial marriages, restricted the right to marry of those unable to make child support payments, and denied the right to marry to prisoners. All of these laws have been struck down by the United States Supreme Court as inconsistent with the equal protection of the law. In no case was it suggested that denial of the right to marry was not an infringement of equality because marriage is not a ‘real benefit’ but only concerned with ‘abstract emotional considerations’. Even those cases which deny the right to marry to lesbians and gays were based on dictionary definitions, rather than any perception that access to marriage was not a real benefit.
Loving V Virginia, 388 U.S. 1, 18 LEd. 2d. 1010 (1967)
Zablocki v Redhail, 434 U.S. 374, 5 L.Ed. 2d. 618 (1978)
Turner v Safley, 82 U.S. 78, 96 LEd. 2d. 64 (1987)
Jones V Hallahan, 501 S.W. 2d. 588 (Ky., 1973)
Dean and Gill v District of Columbia, Unreported, Action No.90-13892, Jan. 2nd 1991, Bowers J. (Superior. Ct. D.C.); on appeal
26. The United States Supreme Court has recognized that maintaining racially-segregated facilities is a denial of equality, not because there is a denial of any tangible benefit but precisely because one group is stigmatized and treated as of inferior status.
Brown v the Board of Education of Topeka, 347 U.S. 483, 492-493; 98 L.Ed.2d.873, 879-881(1954)
Palmer V Thompson, 403 U.S. 217;29 L.Ed.2d. 438 (1971)
27. It is submitted that a law which prohibited Native persons from marrying, for example, could not survive scrutiny under the Canadian Charter on the pretext that all that was in issue was ‘social validation’ rather than any ‘real’ denial of equality.
(b) Sexual Orientation as an Analogous Ground
28. The Supreme Court of Canada has identified a number of criteria to determine what constitutes an analogous ground under s.15, including whether the group is “lacking in political power”, “vulnerable to having their interests overlooked and their rights to equal concern and respect violated”, susceptible to “stereotyping, historical disadvantage, or vulnerability to political and social prejudice
Andrews, supra, at 152
Turpin, supra, at 1333
29. By any standards, lesbians and gays form an identifiable group which has been historically disadvantaged, subjected to stereotyping, and victimized by social prejudice. In Brown V British Columbia, Coultas J stated:
“The history of western civilization records that from biblical times to our own, homosexuals have been subjected to discrimination because of their sexual orientation. As with other forms of discrimination, it is unjust for it fails to take into account individual merit, character or accomplishment. The form and extent of it is uglier, the cry more shrill since the onset of MDS.”
Brown V British Columbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294, 309 (B.C.S.C.)
30. Sexual orientation has now been recognized as an analogous ground in a large number of cases. In Veysey V Canada, the Federal Court of Appeal noted that counsel “has formally informed us that it is the position of the Attorney General of Canada that sexual orientation is a ground covered by s.15 of the Charter”, a concession cited with approval in Haig v Birch. In no case has a Court ever suggested that recognition of the right of lesbians and gays to equality might vary from case to case.
Brown v British Columbia (Minister of Health), supra
Veysey v Corninissioner of Correctional Services of Canada (1989), 47 C.R.R. 394 ~ (F.C.A.), affirming 44 C.R.R. 364 (F.C.T.D.) on different grounds.
Haig and Birch v Canada (1992), 9 O.R. 495, 500-501 (Ont. C.A.)
Knodel v. Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.)
Canada (Attorney General) V Mossop (1990), 71 D.L.R. (4th) 661 (F.C.A.), on appeal to S.C.C. on other grounds)
Egan V Canada, unreported, F.C.C., No.1252, December 2, 1991; on appeal on other grounds
Leshner v the Crown in Right of Ontario, unreported, Ontario Board of Inquiry, August 31, 1992
Douglas V the Oueen, unreported, Court No. T-160-90, F.C.T.D., October 27, 1992
31. It is possible that s.15 recognition may vary from case to case in relation to grounds which do not constitute fundamental personal characteristics or which have not formed the basis of a history of oppression. Sexual orientation cannot, however, be compared with one’s place of residence or with membership in the military. To say that gays and lesbians will sometimes be entitled to equality under s.15 and sometimes not is to trivialize a history of oppression, stereotyping and disadvantage, and subject human rights for gays and lesbians to crippling uncertainty.
Turpin, supra
R V Genereux (1992), 88 D.L.R. (4th) 110 (S.C.C.)
32. Any doubt that lesbians and gays form a historically disadvantaged minority is removed by the report of Professor Hobart, which details the historical oppression of homosexuals. Some of the instances of human rights abuses he cites include criminal sanctions against homosexuality, the imposition of the death penalty and castration of gay men.
Affidavit of Charles Hobart, Application Record of the Attorney General of Canada, Tab 3, at 55, 63-66, 73
33. In addition, lesbians and gay men have been treated as psychologically ill, and subjected to conversion therapies, including electroshock treatment, lobotomies and castration and hysterectomy; they have had to contend with a variety of offensive and damaging stereotypes depicting lesbians as masculine and sexually aggressive and gay men as child-molestors or effeminate; they are frequently the targets of assaults motivated by prejudice and face harassment in virtually all walks of life. The Equality for All report summarized the position:
“We were shocked by a number of the experiences of unfair treatment related to us by homosexuals in different parts of the country. We heard about the harassment of and violence committed against homosexuals. We were told in graphic detail about physical abuse and psychological oppression suffered by homosexuals. In several cities, private social clubs serving a homosexual clientele were damaged and the members harassed. Hate propaganda directed at homosexuals has been found in some parts of Canada. We were told of the severe employment and housing problems suffered by homosexuals.”
Report of the Parliamentary Committee on Equality Rights, Equality for All, October
1985, 26
Herek, supra
Gay Fathers – Some of their Stories. Experience and Advice, (Gay Fathers of Toronto, 1981), Appendix B
Ryder, Equal Rights and Sexual Orientation: Confronting Heterosexual Family Privilege (1990), 9 Can. Jo. Fam. Law 39, 78
34. The Church also notes that it is perhaps in the area of family law that lesbians and gays have been stereotyped and disadvantaged the most. Common myths about lesbian and gay relationships depict them as unloving, uncommitted and unfit to be parents. The extent of the refusal to accord equal recognition to lesbian and gay relationships and the degree of political powerlessness experienced by lesbians and gays in this area can be measured by the fact that the Attorney General of Canada has been able to identify over 50 federal statutes which fail to accord equal recognition to lesbian and gay relationships.
Factum of the Attorney General of Canada, Appendix B
Herek, supra
Ryder, supra
Hansard, Official Report of Debates on Ontario Human Rights Code, Legislative Assembly of Ontario, 2nd Session, 33rd Parliament, November 25,1986, 3620 ff
35. It is therefore submitted that sexual orientation is an analogous ground under s.15, both in the context of this case, and generally. To hold that the entitlement of lesbians and gays to equality may vary from case to case would place sexual orientation protection on an inferior footing to protection of other grounds such as race, sex, age, citizenship, religion or disability, and would require lesbians and gays to re-prove the same history of oppression in each new case.
(c) Discrimination
36. The Church fully supports the submissions of the Applicants on discrimination. In particular, it endorses the Applicants’ analysis of systemic discrimination, describing prejudice which is so ingrained in societal attitudes and institutions that it can become regarded as the norm/{The Church notes that the Supreme Court of Canada has expressly adopted the Abella report and affirmed that one of the purposes of s.15 is to address systemic discrimination and break down institutional barriers to equality.
Ontario Human Rights Commission v Simpson-Sears, [1985] 2 S.C.R. 536, 550-552
Brooks v Canada Safeway Ltd, [1989] 1 S.C.R. 1219, 1234
Action Travail des Femmes v Canadian National Railway Co, [1987] 1 S.C.R. 1114, 1138-1139
Andrews, supra, 174
37. The Attorney General of Canada asserts that “the distinction alleged to be discriminatory in this case is the fact that the common law definition of marriage reflects the societal concept of marriage.” In fact, the distinction alleged to be discriminatory in this case is the fact that, whatever the societal concept of marriage, the common law definition of marriage deprives gays and lesbians of choice, stigmatizes them, and reinforces stereotypes that lesbian and gay relationships are inferior.
Factum of the Attorney General of Canada, para. 35
38. The argument that “any inequality between heterosexuals and homosexuals in this area is created not by law but by society” is similar to the argument in Bliss that, in relation to the denial of benefits to pregnant women, “any inequality between the sexes in this area is created not by law but by nature”. This approach was firmly rejected by the Supreme Court of Canada in Brooks.
Bliss v A.G. Can., [1979] 1 5.CR. 183
Brooks, supra, 211-212
Leshner, supra, 136
39. To deny that there is discrimination by relying upon the way that marriage has traditionally been constructed and defined is circular. It is an attempt to justify the prohibition on the very basis upon which it is challenged. Essentially, the Applicants submit:
“The definition of marriage excludes lesbians and gays and therefore is discriminatory.”
The Attorney General of Canada’s response is:
“Marriage by definition excludes lesbians and gays and therefore is not discriminatory.”
The State denies that there is discrimination on the ground of sexual orientation simply by reference to the ground of sexual orientation.
40. It is precisely to avoid such circularity that the Supreme Court of Canada has held that the issue of discrimination cannot be examined solely by reference to the impugned law, but must involve “a search for disadvantage that exists apart from and independently of the particular legal distinction that is being challenged”, and, in particular, involves an analysis of “the place of the group in the entire social, political and legal fabric of our society”. Wilson J. noted in Turpin:
“If the larger context is not examined, the s.15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge is likely, in my view, to result in the same kind of circularity which characterized the similarly situated test clearly rejected by this Court in Andrews.”
Turpin, supra, 1332
Andrews, supra, 152
Leshner, supra, 131 ff
41. In examining the broader context, one need not look far to find disadvantage that exists apart from and independently of the law being challenged. “The social context which must be considered includes the pain and humiliation undergone by homosexuals by reason of prejudice towards them. It also includes the enlightened evolution of human rights social and legislative policy since the end of the Second World War, both provincially and federally”.
Haig & Birch, supra, 503
42. The Church also notes that distinctions based solely on a general characteristic or on the basis of association with a group will “rarely escape the charge of discrimination.”
Andrews, supra, 174-175
43. Excluding lesbians and gays from marriage inevitably creates a perception that lesbian and gay relationships are inferior and not considered worthy of the same recognition as heterosexual relationships, thereby contributing to the disadvantage of lesbians and gays within society.
44. In addition, the exclusion of lesbians and gays from marriage reinforces negative stereotypes about lesbian and gay relationships. In Swain, Wilson J. considered that a rule denying the mentally-disabled personal autonomy in the conduct of their defence in a criminal trial was discriminatory, since it “reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests.” In Tetreault-Gadoury v Canada, the Supreme Court considered that the denial of unemployment benefits to those over age 65 was discriminatory, since it perpetuated the “insidious stereotype9’ that elderly unemployed people are no longer fit for the job market. In the present case, the denial of access to marriage is discriminatory since it reinforces the stereotype that lesbians and gays do not form loving, committed, long-term relationships.
R v Swain, supra, 1035
Tetreault-Gadoury v Canada (E.I.C.), [1991] 2 S.C.R. 22, 40-41
“The Societal Concept or Marriage”
45. The Attorney General of Canada’s claim that the common law definition of marriage simply reflects “the” societal concept of marriage requires closer examination. The assertion that there is a singular exclusionary concept of marriage in society underlies virtually every argument advanced in the Attorney General’s factum.
Factum of the Attorney General Of Canada, paras. 8,16, 30, 31, 35, 42, 50, 56
46. The only evidence cited to support the proposition that the societal concept of marriage excludes lesbians and gays is the affidavit of Professor Hobart. While Professor Hobart’s reports contain some useful material, in neither report does he discuss either marriage or homosexuality in North America.
Affidavit of Professor Hobart, supra
47. In both of Professor Hobart’s reports the historical development stops short in the mid-nineteenth century. There is no mention of the significant developments both in the institution of marriage or in society’s treatment of homosexuality in the century or more since then. His analysis accordingly misses probably the most significant developments in each of the areas under examination. In the time since Professor Hobart concludes his analysis, homosexuality has moved from being a criminal offence to being protected by the Constitution. Similarly, recognition of the principle of equality for women has dramatically transformed and redefined the institution of marriage, with the ‘1women-as-property of her husband” model being gradually abandoned in favour of a model based upon women’s equality.
48. The evidence is not sufficient to establish the proposition that intolerance to homosexual marriage is even the dominant conception in Canada in the 1990s. What evidence there is suggests that at least a significant sector of society has a conception of marriage which extends to lesbians and gays. The Metropolitan Community Church performs thousands of Acts of Holy Unions for lesbians and gays throughout the world and is intervening in this case precisely because its social concept of marriage encompasses lesbians and gays. All the deponents for the Applicants have a conception of marriage which encompasses lesbians and gays, as do the nearly 10,000 individual lesbians and gays identified in the affidavit of Lydia Segal who have celebrated Act of Holy Union ceremonies.
Application Record of the Applicants
EGALE Report, Appendix 1
Affidavit of Virginia Reinecker, M.C.C. Motion Record, Tab 3
Lewis, “From this day forward: A Feminine Moral Discourse on Homosexual Marriage” (1988), 97 Yale L.J. 1783
49. Of the 183 authorities cited in the factum of the Attorney General of Canada as Appendix A, the Church has been able to identif~ oniy 3 authors whose perception of marriage excludes homosexuals:
Galston, “Pro-Family: A Liberal-Democratic Case for the Two-Parent Family”, (Winter 1990-91), The Responsive Community 14
Fein, “No: Reserve Marriage for Heterosexuals”, ABA Journal, January 1990, 43
Stott, Homosexual Partnerships? Why Same-sex Relationships are not a Christian Option (1985)
Factum of the Attorney General of Canada, Appendix A
50. It should also be noted that in Schachter, the Supreme Court of Canada referred to Knodel as a case involving “same-sex spouses”, and in the recent decision in Forrest v Price the Supreme Court of British Columbia described the gay couple as living for 13 years in a “committed, caring and loving relationship, tantamount in all respects to a traditional heterosexual marriage.”
Knodel, supra
Schachter v Canada (1992), 139 N.R. 1, 33 (S.C.C.)
Forrest V Price, unreported, No. C 913542, November 3, 1992, Boyd J. (B.C.S.C.)
51. The Courts have emphasized that modern Canadian society is founded upon principles of plurality, diversity and respect, and it cannot be presumed in the absence of evidence that all Canadians, or even the majority of Canadians, are too intolerant to accept the concept of lesbian and gay marriages.
R v Keegstra, [1990] 3 S.C.R. 697, 736
R V Oakes [1986] 1 5.CR. 103, 136
Andrews, supra
Turpin, supra
52. Moreover, the reliance placed upon the societal concept of marriage by the Attorney General of Canada seems, with respect, to be misplaced from a legal standpoint. The Applicants are not challenging society’s concept of marriage but the legal definition of marriage. The question must be whether the law itself can withstand Charter scrutiny. A law based on racial inequalities could not be justified by a claim that society itself is racist and the law ‘simply’ reflects the racism of society. Appeals to ‘the’ societal concept of marriage come dangerously close to appeals to popular prejudice.
Leshner, supra, 141
53. Reliance upon historic discrimination to justify the ongoing exclusion of lesbians and gays from marriage also runs directly counter to the admonition in Turpin that it is not an acceptable approach to Charter interpretation to claim that departures from the principles of s. 15 have been “widely condoned in the past”.
Turpin, supra, 1328
54. The report of Professor Hobart demonstrates that there is no one fixed form of marriage which has existed since time immemorial. At pp 95-96, he sets out eight changes to the institution which he describes as “revolutionary”. These changes demonstrate that marriage is a flexible institution which has existed in a number of different forms in number of different cultures, and is continually adapting to the demands of a changing society, and to reflect changing values.
Affidavit of Professor Hobart, supra
55. In particular, the oppression of women at one time formed part of the very basis of marriage. The institution was founded on the concept of women as the property of the husbands. Upon marriage the father transferred to the husband ownership in the woman who was incapable of owning her own property. A husband could not in law rape his wife because as his property she was his to do what he wanted with. This concept of marriage is wholly unacceptable in a society which now values equality for women, and the institution of marriage simply had to change to accommodate current social values, even though this required a fundamental restructuring of the “traditional definition” of marriage. It would have been no answer to women’s claims to be treated as human beings rather than chattels to respond “women have always been treated as objects” or “the traditional definition of marriage requires that you be treated as objects”.
Affidavit of Professor Hobart, supra, pp 81 ff
Duclos, “Some Complicating Thoughts on Same-Sex Marriage” (1991), 1 Law & Sexuality 31
Dunlap, “The Lesbian and Gay Marriage Debate: A Microcosm of our Hopes and Troubles in the Nineties” (1991), 1 Law & Sexuality 63, 69-70
Hunter, “Marriage, Law & Gender: Feminist Inquiry” (1991)1 Law & Sexuality 9
Gittins, The Family in Question (1985)
56. Similarly, it appears from Professor Hobart’s report that in almost every culture marriage has been based upon the ownership of women. The oppression of women is not justified by the fact that it is widespread throughout various different cultures, and the exclusion of homosexuals from marriage is not justified by the fact that few cultures recognise homosexual marriages.
Affidavit of Professor Hobart, supra, pp 81ff
57. In summary, the exclusion of lesbians and gays from marriage is discriminatory because it stigmatizes lesbians and gays, deprives them of relationship choices, and feeds negative stereotypes. Appeals to historical discrimination cannot bring a discriminatory law into conformity with the Charter.
C. SECTION 1
58. In order to justify a prohibition on same-sex marriages under s.1, the State must prove firstly, that there is a State objective which is sufficiently pressing and substantial in a free and democratic society to warrant overriding a constitutionally protected right or freedom; and secondly, that the means chosen to achieve this objective are proportional to the ends. The Church supports the submissions of the Applicants in their Factum in Reply on Section 1.
R v Oakes, supra
R v Edwards Books & Art Ltd, [1986] 2 S.C.R. 713
59. Any State objective advanced must be legitimate in a free and democratic society. The Supreme Court of Canada has identified the values of a free and democratic society to include:
“…respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”
R v Oakes, supra, 136
R v Keegstra, supra, 736, 756
60. The Attorney General of Canada frankly admits to difficulty in fitting this case within a s.1 analysis. It is submitted that the reason for this is that the common law prohibition on same-sex marriages is overtly discriminatory. It is difficult to find a reason, consistent with the Oakes principles of human dignity and respect, to justify a common law rule the very purpose of which is to exclude lesbians and gays. It would be similar to trying to identify a valid s.1 justification for the common law rule prohibiting women from holding public office.
Factum of the Attorney General of Canada, paras. 48, 49
Edwards v Canada (Attorney General), [1930] A.C. 124 (P.C.), reversing [1928] S.C.R. 276
61. Nonetheless, the Attorney General has advanced as a s.1 justification the State interest in “maintaining the social concept of heterosexual marriage.” It is submitted that this is a discriminatory rationale inconsistent with the principles of a free and democratic society. It rests upon the assumption that homosexual relationships “really are inferior” and are not worthy of the same degree of protection as heterosexual relationships. This objective is inconsistent with the basic guarantee of equality in s.15 and is “fundamentally repugnant because it would justify the law upon the very basis which it is attacked for violating [Charter rights]”.
R V Big M Drug Mart, [1985] 1 S.C.R. 295, 352
62. It is submitted that the State has no interest in promoting the stability and validation of heterosexual relationships over the stability and validation of lesbian and gay relationships. The social costs of relationship break-down are great. The State has an interest in promoting the welfare of ~ its citizens.
63. If the State wishes to protect the institution of marriage, it needs to ensure that the institution is not tainted by the stigma of oppression. As long as the institution of marriage is perceived to subordinate women and to discriminate against lesbians and gays, it will not engender respect.
64. Even if the State has an interest in protecting heterosexuals over homosexuals, this objective fails the proportionality test. Extending the right to marry to lesbians and gays does not threaten heterosexual marriages in any way. Recognizing lesbian and gay marriages will not inhibit heterosexuals from getting married nor from having children. The complete prohibition of lesbian and gay marriage is not proportional, since it wholly undermines the substantive right of lesbians and gays to equality.
65. The State bears a stringent onus of proof under s.1. No evidence has been adduced to show the societal importance of rigidly enforcing one family model over others, nor to show how heterosexual marriage will be damaged by extending the right to marry to lesbians and gays. In Leshner the Board affirmed the societal importance of according full recognition to lesbian and gay family relationships, and commented:
“[T]here is not one shred of evidence before us that extending employment benefits to gay and lesbian employees would undermine society or the state’s interest in promoting and sustaining families and relationships between its citizens.”
Leshner, supra, 70-71
66. Also, the Attorney General of Canada has asserted that granting the application in this case will automatically have the consequence of amending a large number of related Acts. The Church understands that the Applicants are simply seeking the right to affirm their relationship by obtaining a marriage licence. This does not necessarily mean that all the other Acts will be ipso facto amended. Many Acts contain definitions of “spouse” which are restricted to heterosexuals. While these Acts may well be inconsistent with the Charter, it will still be necessary to subject each Act to Charter scrutiny on a case-by-case basis.
67. The argument that the task of bringing the law of marriage into conformity with the Charter should be left up to Parliament is not particularly credible when the Minister of Justice has expressly stated that the issue of homosexual relationship recognition will be left up to the Courts.
EGALE Report, Appendix 1
68. In any event, the concerns of the Attorney General are not s.1 considerations, but are only relevant to the appropriate remedy to be granted to address that discrimination. If the Court feels that other Acts are likely to be affected by granting the application then it may well be appropriate to temporarily suspend the declaration that the common law prohibition is discriminatory, to give the legislature the opportunity to bring other laws into conformity with the requirements of the Charter.
Schachter v Canada (1992), 139 N.R. 1 (S.C.C.)
Singh v Minister of Employment and Education, [1985] 1 S.C.R. 177, 218-219
69. The Church notes that the Attorney General of Canada has not identified a single statute in respect of which sexual orientation is a legitimate disqualifying factor. Parliament may set up other valid criteria for entitlement to a benefit, such as whether a person is in a long-term relationship, whether or not a couple has children, or a couple’s level of income, but the Church cannot conceive of any circumstance in which sexuality alone is a constitutionally legitimate statutory test. It may therefore be wholly appropriate for the legislature to be given time to develop a constitutionally permissible statutory scheme. Ultimately, however, if the legislature were so minded, it could even simply amend the existing laws by inserting into each Act a definition of ‘spouse’ that require a man and a woman. This would require that each Act be challenged under the Charter on a one-by-one basis, and would alleviate any concerns in the present case about the ramifications of granting the application.
D. REMEDY
70. If the Court accepts the Church’s submission (in ‘A’ above) that there is no existing prohibition on same-sex marriage in Canada, then the only remedy required is a declaration clarifying the existing state of the law, and a direction that the Applicants be issued with a marriage licence.
71. Alternatively, if the Court considers that there is a common law prohibition on samesex marriage in Canada and that this rule is inconsistent with the Charter, then s.52(1) of the Constitution Act 1982 requires that the common law rule be of no force and effect. The Supreme Court of Canada in Schachter identified five remedies available under s.52(1) when a law is held to be unconstitutional, namely striking down, severance, either striking down or severance coupled with a temporary suspension of the declaration of invalidity, reading down, and reading in. What is clear is that one of these five remedies must be employed -an unconstitutional law cannot be left in existence.
Schachter, supra
72. Since there is an express common law prohibition which is overtly discriminatory, it is submitted that the appropriate remedy is to strike down that discriminatory prohibition.
73. If the Court is of the opinion that granting the application would necessitate an amendment to other statutory provisions, then it might be appropriate to consider striking down coupled with a temporary suspension of the declaration of invalidity, to give the legislature time to either bring other Acts into consistency with the Charter or insert definitions into other Acts to make clear that they are restricted to heterosexuals. In Reference re Manitoba Language Rights a suspension of invalidity was granted to enable the Manitoba legislature time to embark upon a wholesale translation of its laws, which were inconsistent with a constitutional requirement of bilingualism.
Reference re Manitoba Language Rights, [1985)1 S.C.R. 721
PART IV: ORDER REOUESTED
74. The Church respectfully requests that the Court declare any prohibition which may exist upon same-sex marriages inconsistent with the Charter of Rights and Freedoms, and consequently of no force and effect. The Church further requests that the Court direct that the Applicants be issued with a marriage licence.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Metropolitan Community Church of Ottawa!
Eglise Communautaire Metropolitaine d’Ottawa
per: John W. Fisher
c/o 67 Daly Avenue, Suite 1000 Ottawa, Ont.
K1N 6E3
(613) 234-6759