The British Columbia Court of Appeal decision
Last Friday’s Court decision addressed the following points:
The B.C. Court of Appeal provided a concise summary of why equal marriage is important to same-sex couples:
“The affidavits sworn by the individual appellants reveal that their reasons for wanting to marry are the same as for many heterosexual couples. Those reasons include: love, reinforcing family support, social recognition, ensuring legal protection, financial and emotional security, religious or spiritual fulfillment, providing a supportive environment for children, and strengthening their commitment to their relationship. They simply want what heterosexual couples have – the right to marry the person with whom they are living in a committed relationship.” (para. 15)
Why the exclusion?
More to the point, why are same-sex couples denied equal marriage? The Court put it pretty succinctly:
“I can find no benefit whatsoever to the exclusion.” (para. 130)
Nothing but marriage will do
The Court of Appeal recognized that parallel regimes, such as RDPs (registered domestic partnerships) or civil unions, do nothing to remedy the unconstitutional exclusion of same-sex couples from marriage:
“[T]he redefinition of marriage to include same-sex couples… is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships, including the parallel institution of RDP’s, falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples “almost equal’; or to leave it to governments to choose amongst less-than-equal solutions.” (para. 156)
What other options does Parliament have?
Only two, according to the Court – abolish marriage altogether, or use the notwithstanding clause:
“If Parliament concludes that this result is unacceptable, it continues to have options available to it. It could, for example, abolish marriage altogether. This solution has not been advocated by any of the parties or the intervenors and is referred to by counsel for the appellants as “equality with a vengeance” in that it punishes both opposite-sex and same-sex couples equally, by denying marriage to both. In the alternative, it is open to the government to use its override power under s.33 of the Charter” (para. 157)
LaForest was in the minority in Egan
As happened during the public hearings before the Standing Committee, opponents of equal marriage cited the comments of LaForest J in the Egan case time and time again. As the Court noted, however:
“One extract from the authorities upon which significant reliance was placed by AGC, the B.C. Coalition and the Interfaith Coalition … is to the remarks of Mr. Justice La Forest in Egan v. Canada. There were five sets of reasons in Egan. In the passage quoted above, Mr. Justice La Forest spoke for a minority.” (paras. 93-94)
Dr. Cere’s evidence was not relied upon by the Court
Many of the academic and religious witnesses who opposed equal marriage for same-sex couples before the Standing Committee on Justice and Human Rights, were also witnesses before the Court, including Dr. Cere, whose comments have been much-cited by some Committee-members.
Just like the Ontario and Quebec courts, the BC Court of Appeal concluded that these witnesses had not articulated any reasonable argument for denying same-sex couples equal marriage:
“There is no meaningful evidence that points to any legitimate benefit to the rights denial.” (para. 130)
Parliament has power to legislate equal marriage
All three courts, in Ontario, BC and Quebec, have now unanimously rejected the view that Parliament cannot legislate equal marriage, instead adopting the position of the Attorney General of Canada:
“In essence, what the trial judge found was that the meaning of ‘marriage’ in s.91(26), ‘Marriage and Divorce; was fixed for all time as of 1867 … Given that ‘marriage’ refers only to a topic or ‘class of subjects’ of potential legislation, it cannot contain an internal frozen in time meaning that reflects the presumed framers intent as it may have been in 1867.” (para. 69)
There’s been enough consultation
The Courts have recognized that no amount of consultation will change the fact that some Canadians support equal marriage and others oppose it. It’s time to do what’s right:
“Given the extensive consultation engaged in by the Commission, of which the federal and provincial governments are aware, it cannot be said that the subject of same-sex marriage has not been well-canvassed and the input of the public invited. Further consultation will not change the fact that there are those in favour of same-sex marriage and those against it” (para. 150)
Religious freedom is not threatened by same-sex marriage
The Court affirmed that – even without a provision such as art. 367 of the Quebec Civil Code -religious institutions cannot be forced to marry same-sex couples:
“It is interesting to note that in Quebec, Article 367 of the Civil Code provides that no minister of religion may be forced to celebrate a marriage that his or her religion and the rules of his or her religious society do not recognize.
A concern was raised in this appeal by the Interfaith Coalition that, absent such a provision, religions whose beliefs preclude the recognition of same-sex marriage could find themselves required to participate in such marriages, or be discriminated against because of their beliefs
There is no hierarchical list of rights in the Charter; and freedom of religion and conscience must live together with s.15 equality rights. One cannot trump the other … The equality rights of same-sex couples do not displace the rights of religious groups to refuse to solemnize same-sex marriages which do not accord with their religious beliefs. Similarly, the rights of religious groups to freely practise their religion cannot oust the rights of same-sex couples seeking equality, by insistihg on maintaining the barriers in the way of that equality.” (para. 133)
The BC Court of Appeal affirmed the position that there is “no rational connection between the importance of procreation (and child-rearing) and the restriction of same-sex marriage”:
“There simply is no evidentiary basis to support the proposition that granting same-sex couples the freedom to marry would either diminish the number of children conceived by heterosexual couples, or reduce the quality of care with which heterosexual couples raise their children” (para. 126)
59 weeks until equal marriage
In the end, the Court struck down the common-law ban on same-sex marriage, effective July 12, 2004, the same date set by the Ontario courts. On that date, same-sex couples in Canada will have the equal right to marry. The Courts have given Parliament just over a year to bring their other laws (e.g. the Divorce Act) into conformity with the court decisions and the requirements of the Constitution. The clock is ticking, and now is the time for Parliament to act.
The public hearings
With you, I have attended many of the public and cross-country hearings on equal marriage. I have heard the appeals for inclusion from lesbians and gays, their family-members, and many social and religious institutions. I have also heard the concerns of those opposed.
Those opposed expressed only two concerns: religious freedom, which all 3 courts in BC, Ontario and Quebec have affirmed will not be threatened, and a generalized concern that “bad things might happen”. These unspecified “bad things” have ranged from the cataclysmic (”destruction of society”) to the absurd (heterosexuals will suffer an identity crisis), but have never been supported by anything other than speculation. Such speculation is nothing new. When “sexual orientation” was being added to the Canadian Human Rights Act in 1996, one Reform MP even suggested it could lead to “civil war”. None of these prophecies of doom have ever come to pass.
One Committee member predicted that once the Committee left the “chattering masses” in Ottawa and took to the road, we would see what Canadians really think. In reality, at every cross-country Committee hearing except the one in Steinbach, the majority of witnesses have spoken in support of equal marriage. Although protecting human rights is a constitutional obligation, not a popularity contest, polls have consistently shown in recent years that a majority of Canadians favour extending marriage to same-sex couples (Leger, 2001; Environics, 2001). The Liberal party’s own pollster, Michael Marzolini, the chairman of Pollara, has described same-sex marriage as “inevitable” (National Post, July 25, 2002).
I know that most Committee members are committed to the principle of equality, and have sincerely struggled with this issue. Now the time has come to make a decision.
The public is ready for this, the Courts are ready for this – please join with them in affirming basic fairness for all Canadians.
John Fisher, Egale Canada