doesn't exist without procreation. If you take it away, marriage doesn't
and lesbians can have fidelity and they can form a bond, and they can
have children through procreation"
couldn't have had a stronger indication than in M&H that the court
wants the law to be equally applied,"
must admit I am having trouble with what you are saying...you are denying
access to the institution - not the word."
is there in this day and age, that excludes gays and lesbians...?"
November 7, 2001
Day Three - The Ontario Divisional Court
As he has done each day in the courtroom, Captain Taylor began the morning by giving away a little more detail about the beautiful room that accommodates our case. Captain Taylor reminded us that we had previously been told of the careful restoration of this historical property. Today we learned that the room, a space that has surprisingly human proportions for a place of authority, is not exactly as it once was. The lower half of the walls had been a forest green colour, matching the leather tops of our desks. However the colour did not meet government standards for luminosity, so the shade was lightened to a very pleasant light green. The upper portions are light butter, in their original hue, we understand.
Roberto Zuech, City of Toronto, began today's session by explaining how the city came to be involved in this case. When asked to issue a license for a same sex marriage the city clerk's department was advised, by Ontario's Ministry of Commercial Relations (the agency responsible for registering marriages) that they would not register the marriage. Faced with "a dilemma", the city asked for an application to the Superior Court, which was stayed, and then they joined this case.
And that was the extent to which we will here from the City of Toronto. I'm not sure that the "City" is comfortable with the company he is keeping these days.
Martha McCarthy stood to respond to the Government of Canada's concern, expressed at the end of yesterday's session, that they might not be able to respond to our side's excellent case in just two days.
"In the interest of equality," Martha said, "there should be parity in any requests for extra time."
"This case is about our humanity," began Rosalyn Levine, the Attorney General of Canada's representative, with a promise that was all too short lived. "There are different aspects, but at its core is our femaleness and maleness."
But then she went on to say that the "preclusionary definition" that was so effectively outlined by our team in the past two days, was "a gross exaggeration of the situation."
The Attorney General ,or AG for short, went on the offensive, saying that we have "attacked" the definition of marriage.
"It's a unique institution, and the court has to decide whether to change marriage forever."
"The purpose of marriage has nothing to do with excluding the applicants," was the Government's position. "That is an effect, but the purpose of marriage, outside the law, at its roots, was to define an institution that would bring together the two core aspects of our humanity; our maleness and our femaleness, because at its essence this is the basis for humanity. If you take that purpose away, we have something else; the institution has changed. Marriage doesn't exist without procreation. If you take it away, marriage doesn't exist."
P.F.S. (Can You Guess The Appropriate Acronym?)
The AG's position was that there were three basic goods and goals about marriage: procreation (which was characterized as a 'no brainer' - an unfortunate turn of phrase that would be returned to later); fidelity, where "there is a relationship between the two parties in which they express explicit trust in each other, and in their relationship." The third attribute was sacrament, "the bond between two parties".
Justice Blair assured the AG that he will apply similar standards to her own evidence.
Justice Laforme challenged the government's characterization of the witnesses
" there isn't a lot of dispute about the witnesses, but there are exceptions and there are differences, and it has evolved, and it ought to evolve further. I'm not sure the applicants disagree with your witnesses, but there has been changes, and it is because of that that it's time for another change."
"Whether it should evolve is a matter of social policy," was the Government's reply. "Whether it must evolve, as a result of this case is a legal issue. Parliament has made a decision to maintain this institution. Is that a charter violation of the applicants rights?"
"If you take away procreation," said Levine, getting back to the compulsively sexual theme, "if you find that it is not an essential good and goal, then without procreation, same sex marriages are clearly marriage."
"It's about the possibility of procreation," Levine pronounced.
"Your position would be the institution of marriage would be gone?" Justice Laforme asked.
"That institution is gone if one of the goods and goals is taken away. They must remain in a complimentary relationship to each other," came back the confirmation.
Justice Blair wasn't buying it either.
"A same sex couple can meet everyone of the three goods and goals," his Honour said. "Gays and lesbians can have fidelity, and they can form a bond, and they can have children through procreation."
"Procreation in this sense is a metaphor of being opposite sex," Levine waxed poetically.
"You mean procreation means opposite sex, not procreation?" Justice Blair asked.
"Yes," said the AG. "Aristotle said it is fundamental to society. Society would cease to exist."
"That was true in Aristotle's day, but not today," Justice Blair replied.
"Marriage was designed to bring together the two sexes," the voice of the government persisted.
But she tried.
"Same sex marriage is an oxymoron," she said.
One wonders what the kids in the courtroom were thinking about Canada's position. Today was "Bring Your Kids To Work" day, and some of the lawyers from the "dark side" had brought their kids along to learn more about their Moms' and Dads' profession.
"You think it won't work if gays get married?" Justice Laforme challenged.
"I can't say that marriage won't work, but that is not the point. Do we have to go there?" she asked, but then acquiesced. "If you change it, things happen, sometimes for the good, as in no fault divorce."
Levine returned to the government's theme of a holy trinity: procreation, fidelity, and sacrament. Justice Blair, hearing his cue, likewise, returned to their earlier duet.
"Who's to say any of that will change if gays and lesbians marry?" His Honour asked.
"The evidence from the applicants is that there will be a benefit if marriage is extended to gays and lesbians," Levine said. "They want the institution, just the word, but not the goals. They want the word."
"Surely that is not fair," said Justice Blair.
The AG stumbled in response:
"In fact, what I will show you is that attributes are not that of in the word. You can look at those attributes and determine that those attributes flow from other circumstances from society. Having the word, there is no evidence that having the word will in fact do what they say it will do, in terms of marginalization, because there is no proof that it is the word that is causing discrimination."
Consider previous attempts to alter society by tinkering with the language, Levine suggested. We have displaced Negro, she began, not quite at the beginning, with words like "coloured" and then "black" and then "African-American", and that did not do away with racism.
"Each new coinage came to have the same negative connotations", she claimed. "there is no evidence that the word and the institution of marriage creates discrimination and the marginalization, which in fact the applicants have suffered over time."
"I must admit I have trouble with what you're saying," Justice Laforme said. "You use words like coloured, black; those are not institutions. You are denying access to the institution, not the word."
"It's simply to answer the applicant's claim that if we had a parallel institution, that would not meet their needs. They say it is all or nothing. It is in a different setting but simply the idea that they say that a parallel institution won't work because it has to be an institution with the nomenclature."
"Is making a selection of china really what marriage is about? Same sex relationships can, and have been celebrated, leaving aside religious marriages for the moment. My submission is marriage is one man and one women and not about the ritual and formality. The formality was added on top of marriage, and society norms and benefits were overlaid on top of it. Man and women is what remains protected in that definition. Everything else is an overlay and everything else can be received without destroying the institution of marriage."
This seems to have been the intent of Bill-C23; comply with the Supreme Court of Canada's judgements regarding equality for gays and lesbians, but only to a point. The Liberal government drew a line in the sand, despite the Court's expressed instructions not to do so; one man and one woman to the exclusion of all others.
We were then given an overview of the Canadian and International status of same sex marriage, in a helpful Captain Taylor sort-of-tour that led nowhere but to lunch.
As the court was adjourned, a stranger would have easily been able to tell the difference, by sight, between the two groups: darkness and light.
The Word - Part II
"Marriage itself does not cause differential treatment. It is everything else that lies outside of marriage," the AG continued after lunch, in her discourse on "the word". The purpose of marriage is not to recognize a relationship, she maintained, although she did see this as a collateral effect. Marriage was "simply a marker".
"Citizenship discriminates against non-citizens," Levine said. "So should you not have citizens?"
Does this mean that gays and lesbians are non-citizens? Perhaps; The Governement's position was that "the claimants have not proven that essential human dignity or innate human dignity is an issue or has been engaged by the fact that marriage targets one group and does not include them."
"The feelings of the applicants are genuine," Levine agreed, " but there must be more than the heartfelt sentiments of those who want to have this institution."
She then returned to her earlier attempt to discredit our team's evidence about the highly negative impacts to us, to our families, and to our communities, in preserving this last government form of discrimination against gays and lesbians. Again, the complaint arose about not having enough time for oral argument and further, she had not been granted permission, she claimed, to cross-examine our witnesses.
"No," she responded, incredibly, "she was not on our short list, because there were so many flaws."
"Which you just reviewed," Chief Justice Smith pointed out, wondering like all of us, perhaps, why the Attorney General's Office would spend so much of the court's time trying to discredit a witness that they didn't even deem worthy to cross examine. "And you chose not to cross-examine?" Chief Justice Smith asked.
The Song - Reprise
The dance continued, uninterrupted again, until that old familiar refrain returned, and we waited for the now familiar duet. This show had more reprises than an Andrew Lloyd Webber musical.
" the purpose and core attributes of marriage is capacity for procreation," came the familiar Government mantra.
"What is there, in this day and age, that excludes gays and lesbians ?" Justice Blair asked.
"If the purpose of marriage is to bring together a man and a women, then clearly it takes a man and a women to procreate," the AG replied.
"There are other ways of making that happen," Justice Blair said.
"But marriage is to have this unit of possibility for procreation," Levine insisted.
"Well, it was never in the cards until quite recently," Justice Blair said.
But still, the side of government insisted that keeping gays and lesbians out of marriage was necessary "in order to have civilization carry on."
"There seems to be ample evidence which could justify the inclusion of gays and lesbians. They just don't couple heterosexually. And that is the very essence of your argument," Justice Blair said.
"If you remove one goal, you don't have marriage anymore," she confirmed.
"You don't have that unless men and women have intercourse in this institution?" Justice Laforme asked? "If everything else is all there, and you don't have heterosexual sex, than you don't have marriage?"
We didn't believe it either.
"No," Justice Laforme replied. "I don't agree. The goods and goals you describe all remain."
Perhaps wishing she was in Vancouver, presenting last summer's case, the AG tried to mislead the court by saying that the B.C. case was virtually identical to this case. But clearly the procreation polka wasn't working here.
Cynthia Peterson and Douglas Elliott both stood to refute the obvious; only the government's case was the same, not the applicants (B.C. didn't even include the religious aspect that the MCC Toronto applicants bring to the case).
There were still more reprisals of the above themes, but mercifully, the clock brought down the curtain on this tired number. It seems that this is one show that won't make it past opening night.