"Just as Christianity came to renounce its traditional support for slavery, its historic anti-Semitism and its religious condemnation of interracial marriage, MCCT teaches that Christianity can and should renounce its traditional condemnation of homosexual acts."
restriction against same-sex marriage is an offence to the dignity of lesbians
and gays because it limits the range of relationship options available to them.
The result is they are denied the autonomy to choose whether they wish to marry.
This in turn conveys the ominous message that they are unworthy of marriage."
law, like the traveler, must be ready for the morrow. It must have a principle
our country there is no state religion. All religions are on an equal footing,
and Catholics as well as Protestants, Jews, and other adherents to various religious
denominations, enjoy the most complete liberty of thought. The conscience of each
is a personal matter and the concern of nobody else. It would be distressing to
think that a majority might impose its religious views upon a minority…"
heterosexuals will not be circumscribed or in any way limited by extending to
gays and lesbians the right to marry."
this country, the separate but equal doctrine was rejected by the Supreme Court
in Andrews… as a loathsome artifact of the similarly situated approach. One cannot
avoid the conclusion that offering benefits to gay and lesbian partners under
a different scheme from heterosexual partners is a version of the separate but
equal doctrine. That appalling doctrine must not be resuscitated in Canada forty
decades after its much-heralded death in the United States."
British Columbia Court erred in EGALE v. Canada by focusing on the undoubted importance
of heterosexual marriage, rather than focusing on the real question of whether
it were important to exclude same sex couples from marriage.
There are no partial remedies in a case like this. For MCCT it is marriage or nothing. A suspended remedy will cast into limbo the marriages of Joe and Kevin and Elaine and Anne.
Legal - Ontario
March 27, 2003
for marriage equality and freedom
Elliott & Kim LLP:
Ontario divisional court agreed (July 12, 2002) that the government acted unjustly in denying recognition of same-sex marriages solemnized by the church (January 14, 2001). The court gave the government two years to align marriage laws with Canada's Charter of rights and freedoms. The decision has been appealed and will be heard in the Court of Appeal for Ontario in April 2003. The following has been extracted from the legal factum that presents MCC Toronto's case for same-sex marriage.
The Divisional Court found that the common law definition of marriage as “the voluntary union of one man and one woman to the exclusion of all others” violated the equality rights guaranteed by the Canadian Charter of Rights and Freedoms (“Charter”), and that such violation was not justified under section 1.
In the result, the new common law definition will take effect on July 12, 2004 unless Parliament acts in the interim.
The Divisional Court found that the definition infringed the section 15(1) equality rights of gays and lesbians, and that this infringement was not justified by section 1 [of the the Charter]. The Court found no infringement of MCCT’s section 2(a) rights and made no section 1 analysis on that basis. The Court did not address MCCT’s arguments with respect to its right to religious equality under section 15(1).
MCCT’s cross-appeal seeks to reverse the Divisional Court’s judgment that the common law bar to same sex marriages does not violate MCCT’s freedom of religion under section 2(a), and the Court’s failure to address the issue of religious discrimination under section 15(1) and seeks a declaration in this regard. In addition, MCCT also takes the position that the remedy proposed by Justice LaForme [immediate remedy declaring the MCCT marriages valid and legal] is the appropriate remedy, and, in fact, the only remedy available in the circumstances.
MCCT believes in the continuing process of revelation with respect to sexuality. Just as Christianity came to renounce its traditional support for slavery, its historic anti-Semitism and its religious condemnation of interracial marriage, MCCT teaches that Christianity can and should renounce its traditional condemnation of homosexual acts ... the law should resist allowing the civil process of enforcing Charter rights to be distracted by such a debate. The law should not take sides in such a debate. It should support a reformulation that does not prefer one religious view to another, and permits those who decline to recognize same sex marriage to continue to do so.
Justice LaForme made the following findings on [the Charter's] section 2(a):
Justice LaForme’s analysis was incorrect for the following reasons:
a) Although there is no requirement that the law recognize any religious marriages, once the law chooses to recognize religious marriages, it cannot discriminate on the basis of dogma.
b) There was state action. From the perspective of MCCT the Registrar refused to accept the marriage documents for registration. More broadly, this constituted the state imposition of a particular definition of marriage on MCCT and its congregants.
c) Finally, the question is not so much whether the definition of marriage protects one religion over another, although it does; rather, it is whether the state is imposing a religious view at all, a violation which is compounded when the result is to impede the religious practices of another group.
In 1950, marriage was finally permitted through a purely civil ceremony by a judge or other official. This ended the religious monopoly on marriage that had existed in Ontario since its foundation. The current prohibition is the last vestige of the religious discrimination that has deep roots in English law’s enforcement of England’s state religion.
None of the marriages of the Interfaith Coalition’s constituents [fighting against same-sex couples to maintain discrimination] would have been valid legal marriages in Ontario [if marriage laws had not evolved].
Freedom of Religion
The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.
Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.
Canada has a special history of freedom of religion because of the unique place of Quebec as a Catholic province within a Protestant Empire. However, the degree of religious toleration has always been imperfect. There have been attempts by both individuals and the state to impose discriminatory religious views on others who did not share their religious beliefs, and even attempts to privilege one denomination over others.
following the Second World War, religious discrimination was recognized by the
Courts as offensive to Canadian public policy. In thus advancing the common law,
the Court quoted with approval the observation of Justice Cardozo that “... the
law, like the traveler, must be ready for the morrow. It must have a principle
There can be no doubt that marriage is a ceremony and a status with deep religious significance to many Canadians. It is a ceremony of such religious significance that it is the only Canadian religious ceremony, aside from the Coronation, that also confers legal status.
MCCT has propounded as a core teaching that same sex relationships and Christianity can be reconciled, and has provided a safe harbour to those fleeing denominations with dogmas inconsistent with this core teaching. In the case of marriage, that escape is incomplete. The state, by its refusal to recognize marriages that conform to the doctrine of MCCT, purports to extend the fiat of those traditional churches into MCCT’s sanctuary, for no other reason than the sexual orientation of the persons seeking to be married. At the same time, the state honours and endorses doctrine of traditional churches through state recognition of their marriages. This relegates the same sex marriages performed at MCCT to the same status as the “infidel” marriages ... or to the second class status to which Jewish and Catholic weddings were relegated in pre-Confederation Ontario.
The denial of legal recognition sends a message that MCCT: (a) is not a “real” church; (b) that it has beliefs that are “illegitimate”; and, (c) that MCCT is engaging in socially unacceptable activities. This message generally marginalizes and devalues MCCT compared to more traditional churches. The state is coercing MCCT into denying a religious ceremony to its members and enforcing a restriction that is repugnant to its theology in order to conform to the state’s view of acceptable religious belief.
The Divisional Court erred in finding there was an absence of government action or constraint in this case. As Chief Justice Dickson said in Big M: Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.
As Chief Justice Dickson said in the context of the ban on Sunday shopping in Big M, the theological content of this alleged legal restriction: " …remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture. "
There is no obligation on the law to recognize religious marriage as a legal institution. However, once it decides to do so (as it has done), it cannot withhold recognition to any religious marriage except in a constitutionally lawful manner.
The legal context is that the state has decided to legally recognize religious marriages. It has declined to recognize the MCCT marriages solely because the couples are of the same sex. In doing so, the state imposes traditional Christian dogma about marriage as an exclusively heterosexual institution on an unwilling Church. This situation offends the Charter, for as Justice Lemelin noted in Hendricks, quoting Big M with approval: "What may appear good and true to a majoritarian religious group, or the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of the tyranny of the majority."
This intrusion into the religious sphere is without parallel in any other aspect of Canadian life. It is far more intrusive and direct interference with religious practice than the interference with commercial pursuits imposed by the Sabbath enforcement legislation in issue in Big M.
The Divisional Court erred in finding that the common law definition did not “protect one religion over another.” In fact, as the Quebec Superior Court alluded to in Hendricks, the Interfaith Coalition has intervened in this case to maintain a status quo and to control a legal definition of marriage that conforms to their religious concept of marriage, at the expense of other views.
Limits to Religious Freedom
Like all other freedoms, freedom of religion is not absolute. As Chief Justice Dickson observed in Big M, it is subject to “such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Examples of reasons to limit freedom of religion are the desire to create a common day of rest, the need to provide lifesaving medical treatment to children or the need to ensure minimal educational standards in schooling.
One of the reasons for limiting freedom of religion is in order not to interfere with the freedom of religion of others. It is clear that the position taken by the governments in this case (apart from the City of Toronto) infringes the freedom of religion of MCCT and others.
MCCT recognizes that the religious doctrine of some faiths is hostile to same sex marriage. This is generally based on the view that homosexuality is sinful, and in at least some cases on the view that only sexual activity within marriage, or perhaps only procreative sex within marriage, is moral. Those religious views should be respected, and indeed enjoy constitutional protections in the sphere of private activity. However, respect for religious faith should not be confused with a right to state enforcement of religious beliefs.
MCCT does not seek to compel anyone to marry same sex couples. MCCT seeks recognition of the marriages that it has performed in conformity with its own religious teachings ... others are free to refuse to recognize them as “real” marriages because of their religious beliefs. However, the government of Canada may not refuse to recognize them as legal marriages. As Justice Lemelin noted in Hendricks, section 2(a) [of the Charter] will protect clergy who refuse to marry people on religious grounds if the common law rule is reformulated.
Freedom to Marry
"Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” In a constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed."
Justice Wilson, in Singh v. Minister of Employment and Immigration (1985) citing U.S. Supreme Court in Board of Regents of State College v. Roth.
As Justice Lemelin noted in Hendricks, section 2(a) [of the Charter] will protect clergy who refuse to marry people on religious grounds if the common law rule is reformulated. That Canadians have and should have the freedom to marry is supported by at least five important sources:
a) common law
b) international treaties to which Canada is a signatory (Universal Declaration of Human Rights, 10 December 1948)
c) the values underlying section 2 (a) of the Charter (freedom of religion and conscience);
d) the values underlying section 2 (d) of the Charter (freedom of association); and
e) the values underlying section 7 of the Charter "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.";
"The freedom to marry has long been recognized as one of the ‘vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival … [The] freedom to marry … resides with the individual …”(Loving v. Virginia, USA, 1967, quoted by the Supreme Court of Canada in Morgentaler
Change the law now
As this involves a common law restriction only, at best, there can be no need for legislative deference. It is judges who have fashioned this rule and judges can modify it. Although this change is significant and important, both for its substantive and symbolic content, given the context of increasing recognition of same sex relationships through legislation and judicial rulings in this and other democracies, it must be seen as an incremental change. MCCT agrees with Justice LaForme, and disagrees with Justice Blair, that a change can be both profound and incremental.
As the Court found, Parliament has not acted to define marriage so the normal process of the state justifying a piece of legislation is inapplicable.
of Charter protection not justified
In EGALE, Justice Pitfield articulated the section 1 [over-ride of other Charter protections] justification as procreation. In doing so, he quotes from the section 15 analysis of Justice LaForest in Egan, an analysis supported by only 4 of 9 Justices. Moreover, this biological, essentialist or procreation justification has subsequently been expressly rejected by an overwhelming majority of the Supreme Court in M. v. H. Justice Iacobucci noted that, given that some heterosexual couples do not procreate and some homosexual couples do, the exclusion is “simultaneously underinclusive and overinclusive” and lacking any rational connection with the alleged objective.
There has been an attempt in this case to create the illusion of conflict between the equality rights of gays and lesbians and the religious freedom of those who view same sex relationships as sinful. In reality, the Court is never forced to choose between these interests. As Justice L’Heureux-Dubé (dissenting) said in Mossop, which was quoted with approval by the majority in Miron:
And as Justice Greer (dissenting) said in Layland, quoting with approval from the Leshner decision:
"…marriage and the “traditional family” are sustaining institutions
of society, but that they should not be used as a means to impose discrimination
and disadvantage on others. Support for the traditional family or for the institution
of marriage should not entail the exclusion and disadvantaging of other family
"…marriage and the “traditional family” are sustaining institutions of society, but that they should not be used as a means to impose discrimination and disadvantage on others. Support for the traditional family or for the institution of marriage should not entail the exclusion and disadvantaging of other family forms."
As Justice LaForme noted, in millennia of regulating marriage under the common law by the Courts, the Courts have never hesitated to act rather than waiting for Parliament to speak. Lord Penzance did not shrink from creating the very definition in issue out of concern for Parliament’s views. It is appropriate for the Courts to refer a defective statute back to the legislative branch for repair. It is inappropriate for the judiciary not to repair outmoded common law principles that the judiciary has itself created.
This is the first instance of a declaration of invalidity of a common law principle coupled with a suspension. Moreover, the length of the suspension exceeds any granted in any other constitutional case.
MCCT submits that this is a case like Vriend, where the solution is clear but the legislature is unwilling to act. In such circumstances, as the guardian of the Charter rights of minorities, the judiciary must act to preserve those rights.
A Registered Domestic Partnership regime would not be constitutionally possible, and would require a constitiutional amendment to impose due to the division of roles in marriage between provinces and the federal state. The resulting institution would not be a binding, portable relationship comparable to marriage, which is required under the Constitution. It would allow traditional faiths to have their forms of marriage granted legal recognition, while MCCT would be performing legally meaningless same-sex union ceremonies.
Abolition of religious marriage would also require a constitutional amendment. The abolition of religious marriage is a heavy-handed response unworthy of our system. It is reminiscent of the response of officials in Montgomery, Alabama, when they were forced by the Courts in 1958 to end racial segregation in the city parks: the parks were closed.
The third option, opening marriage to same sex couples with certain restrictions, is similarly inadequate and impossible under our constitutional framework. This option could not be advanced by the federal Parliament since issues such as filiation are matters of provincial law. The federal government has no jurisdiction to legislate in this area.
For the foregoing reasons, these “alternatives” to marriage are mythical and illusory. They are not available under our division of powers and are not constitutionally valid. Where no constitutionally valid legal alternative exists, there is no reason for the Court to defer to Parliament. Rather, the Court is under a positive obligation to amend the common law rule to conform to the Charter. None of the alternatives suggested would be constitutionally permissible in the circumstances, and only the precise remedy proposed by MCCT is available.
With the exception of the abolition of marriage, the various options proposed all result in a “separate but equal” regime. As Justice LaForme stated in the Divisional Court:
should be recalled that at one time African-Americans were entitled to sit on
the same bus as “whites” and in seats that were equally comfortable to other seats.
They just could not sit at the front of the bus because those equal seats were
reserved for “white people.” As well, African-Americans were entitled to drink
water and to use toilet facilities that were in all other respects equal to those
used by white people. Once again, they could not do so from the same fountain
or use the same toilet as whites. Each of those were – although once seemingly
credible concepts – discredited and rejected by courts in the United States."
"It should be recalled that at one time African-Americans were entitled to sit on the same bus as “whites” and in seats that were equally comfortable to other seats. They just could not sit at the front of the bus because those equal seats were reserved for “white people.” As well, African-Americans were entitled to drink water and to use toilet facilities that were in all other respects equal to those used by white people. Once again, they could not do so from the same fountain or use the same toilet as whites. Each of those were – although once seemingly credible concepts – discredited and rejected by courts in the United States."
a) by declaring that the common law rule that marriage be between “one man and one woman to the exclusion of all others”, so found, be reformulated to read “two persons to the exclusion of all others”, regardless of the sex of those persons;
b) by declaring that there be no suspension of the remedy and that the reformulation of the common law rule requested by MCCT take effect immediately;
c) by declaring that the marriages of Kevin Bourassa and Joe Varnell and of Elaine Vautour and Anne Vautour are valid legal marriages and ordering that the Registrar General accept registration of the documents evidencing these two marriages;
d) by declaring that the common law prohibition of same sex marriages infringes MCCT’s freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”), and that such infringement is not justified under section 1 of the Charter; and,
e) by declaring that the common law prohibition of same sex marriages is an infringement of MCCT’s right to be free from religious discrimination under section 15(1) of the Charter and that such infringement is not justified under section 1 of the Charter.
MCCT asks that the AGC (Attorney General of Canada) appeal be dismissed with costs to MCCT, and that the cross-appeal be allowed with costs against the AGC.