Equality: Legally Married
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It used to be, everyone knew what marriage was. A man and a woman. Pledged to one another for life. It was such an easy and comforting notion for many people that they seldom stopped to consider how unfair it was, if you happened to be a man or woman who wanted to be pledged to someone of the same sex.
But in Canada an increasing number of people started considering how unfair it was. Considering it, and talking about it. And raising questions that were uncomfortable for some, but hugely important for others.
“The principle of equal marriage, really begins with the minority rights protections of the Charter of Rights in 1982.” Paul Martin, 21st Prime Minister of Canada
Watch the full interview with Paul Martin
In 1999, a spousal support case came before the Supreme Court of Canada. It was interesting for one reason, and one reason alone. The couple was two women. “Along comes M v H, and a very young but very talented young lawyer named Martha McCarthy who was hired by M to seek spousal support from her wealthy partner H, M was penniless,” said lawyer and gay rights activist Douglas Elliott. Elliott represented one of the interveners, the Foundation for Equal Families, in the M v H case.
Watch the full interview with Douglas Elliott
“She took the case on and was successful in the trial court level,” added Elliott. “It went to the Court of Appeal and it was at this point that the LGBT community perked up their ears and intervened”.
On May 20, 1999, in an eight to one decision, the Supreme Court of Canada ruled that spousal support extends to same-sex couples. In its decision, the SCC said the definition of spouse as one man and one woman was a violation of the Canadian Charter of Rights and Freedoms.
It really was a great leap forward.
Douglas Elliott -Lawyer and gay rights activist
Gay rights activists saw this as a turning point. But it was really only the beginning. The court had ruled in favour of spousal rights for gay couples, but had said nothing on the question of marriage. People in the LGBT community could take comfort in the fact that they could be spouses under law, but the law of the land still didn’t recognize their right to be legally married.
“It was a very hopeful decision that we had another building block towards marriage,” said former Crown attorney and gay rights activist Michael Leshner.
Michael Leshner and Michael Stark “The Michaels” married on June 10, 2003.
It was a step towards marriage but Leshner understood that court decisions provide answers to very specific questions, and it would take the question asked and answered in court to bring marriage rights to same-sex couples.
Leshner and his partner Michael Stark, who were to become known as “The Michaels”, knew that political or not, the same-sex marriage question was about to get asked. Loudly.
“We knew that unless and until there was an actual marriage case, we wouldn’t get to marriage because fundamentally marriage for same-sex couples was a political issue”. Michael Leshner
Watch the full interview with The Michaels
The M v H case had been won. Elliot and McCarthy had some momentum, and they knew they couldn’t squander it. They sensed that the social and political climate might be changing, and it was time to pursue a same-sex marriage challenge.
“We agreed that Martha was going to put together a group of couples who were going to pursue civil marriage. And I was going to approach the Metropolitan Community Church of Toronto about doing a religious marriage.” Douglas Elliott
Metropolitan Community Church of Toronto
But the question was how to do a legal religious marriage. Because a marriage performed in a licensed church is a legal marriage. Constitutional lawyer Kathleen Lahey, had an idea. One with legal roots going back nearly 500 years.
“Kathy Lahey gets in touch with me and said, ‘Doug do you know about the Banns of marriage?'” Elliott told CPAC, remembering his conversation with Kathy Lahey. “I said, well I grew up as an Anglican I’ve heard of them but so what?”
“She said ‘isn’t MCCT licensed to perform marriages?'”
“I said yes, recently, it took years to get that recognition but yes, they can perform heterosexual marriages, why?”
Lahey explained, “Under the laws if they are a licensed church they can use the publication of Banns as a substitute for a licence. Once they marry people they are deemed to be married under the law and they don’t need a licence. They don’t need anything else so you can actually have a wedding and present that as a de facto marriage and defy the government to stop you.”
Elliott and McCarty approached Reverend Brent Hawkes of the MCCT who agreed to put the idea to the test in the winter of 2000.
Reverend Brent Hawkes preformed the first legal marriage in the world on January 14, 2001
Two same-sex couples, Joe Varnell and Kevin Bourassa and Anne and Elaine Vautour wanted to get married. On Sunday, December 31, 2000, three weeks before the wedding, Reverend Brent Hawkes performed the first reading of the Banns, asking if anyone had a valid reason the couples couldn’t marry.
“On the first day, no one objected,” said Elliott. “I will admit, I had a tear in my eye.”
It wasn’t long, however, before someone came up with an objection.
We got a letter from the government saying, stop, cease and desist. This is an unlawful wedding that you are planning but they didn’t say what they would do if we went ahead.
Elliott responded saying that what they were doing was protected by the Charter of Rights and Freedoms and that the marriage they were going to perform was in fact, legal.
We have no intention of stopping. Stop us if you wish.
On Sunday, January 7, 2001, Reverend Hawkes read the Banns for a second time. Elliott was in the church that day too. But this time there were no tears of joy.
“Second reading of the Banns there were objections, and I have to say as somebody who belonged to that church it was really hard to hear anti-gay religious propaganda being spouted in our church.” Douglas Elliott
How hard was it? Elliot compares it to being black and listening to a Ku Klux Klan member, or being Jewish and listening to a Nazi speaking in a synagogue.
It cut like a knife.
Cutting it may have been, but what Reverend Hawkes had to decide was whether it was valid.
“If someone stands up and said they’re not old enough to get married or they’re already married to someone else, those are valid legal objections and you have to accept them. But if someone, as we expect, stands up and says this is against God’s ordinance then you are entitled to say that’s not a valid legal objection if you don’t believe it is.”
And Reverend Hawkes didn’t. The third time around, Hawkes concluded that while some of the objections may have been sincere, none of them were legal. The church, he said, would go through with the marriages.
On January 14, 2001, Joe Varnell and Kevin Bourassa and Anne and Elaine Vautour, were married by Reverend Brent Hawkes in the Metropolitan Community Church of Toronto.
“There had been a bomb threat. There had been death threats against Brent Hawkes. He was wearing a bullet proof vest. The police tactical squad was secreted away in the basement of the church.”
Elliott says it was a day he will never forget, and hopes no Canadian will either.
“It was world beating news that this marriage was taking place because if it was legal it was going to be the first legal same sex marriage in the world.”
But the Ontario government said no. When it came time to register the marriages, the province refused.
“Under the Vital Statistics Act the church was required to submit the documents for registration with the Ontario government.” Says Elliott. “The Ontario government was required to deposit them and make them public and then issue an official Ontario marriage certificate.”
That decision by the Ontario government sent the two newly married couples down a different path. They joined seven other same-sex couples, including The Michaels, who were already challenging the definition before the Ontario Supreme Court. The claim, in a case called Halpern v Canada, was that the traditional definition of marriage as being between one man and one woman violated the Charter.
It was fundamentally important that our freedom would come from court that would change the law and the law trumps Parliament.
Michael Leshner and Michael Stark
Elliott represented Varnell and Bourassa and Anne and Elaine Vautour, the two couples married in the Toronto church. Elliott said adding the married couples improved the case’s chances. Why? Well, because they were married.
“We were still an intervener in the civil couple’s case but we were now applicants and we had our own case that was driven by the church,” said Elliott, “The great advantage we had that no one in any country, in the world that tried same sex marriage had, we had married couples.”
Adding married couples to the case turned the tables on the government. It forced the province to explain why it would not register the marriages performed by a licensed church. Marriages for which there was no legal impediment. Marriages that were, well, marriages.
“We got the ruling. As I read each one it dawned on me that the collective decision was we won.”
On July 12, 2002, the Ontario Superior Court unanimously ruled that prohibiting same-sex couples from marrying was unconstitutional. Two out of three justices ruled that the government should be given two years to change the law. The third justice ruled that same-sex couples could marry immediately.
Within minutes of the decision, on the steps of the courthouse, The Michaels got engaged.
“What I thought was very important at the moment was and I guess it crystallized in the public mind was here was a court decision here where two men who had been together since ‘81 who couldn’t marry.”
Michael Leshner and Michael Stark
Elliott and the rest of the legal team expected an appeal from the provincial government. They didn’t get one. Instead, it was the federal government, which was also challenging the same-sex couples’ right to marry, that filed an appeal.
“Off we went to the Court of Appeal.” Said Elliott. “They were very interested in all the arguments about was there an alternative to marriage, did parliament have another option.”
I argued that there was no other option. Only marriage was marriage.
On June 10, 2003, in a unanimous decision, the Ontario Court of Appeal found that marriage was indeed marriage, and that excluding same-sex couples from marriage was a violation of the Charter of Rights and Freedoms. Ontario became the first jurisdiction in North America, and the third in the world, to recognize same-sex marriage.
The court’s decision also confirmed that Joe Varnell and Kevin Bourassa were indeed the first legal same-sex marriage in the world. But another couple was about to make history.
“Michael and I went out and bought new suits and rings and we were going to, if the decision was favorable, were going to marry that day.” Michael Leshner
Michael Leshner and Michael Stark got married in a small room in the courthouse just minutes after the decision was handed down, making them the first legal civil same-sex marriage.
We thought that it was critically important that the public see us married, legally married, even if we were just one couple.
Just weeks later, on July 17, Prime Minister Jean Chretien announced his Liberal government would not appeal. But they didn’t admit defeat either. Instead they asked the Supreme Court of Canada to give an opinion – called a reference – on whether limiting common law marriages to opposite sex couples only, was constitutional. Critics said it was a way to delay, and perhaps avoid, having to make a decision.
“It is a political move. It’s an attempt by the government to not rely on its own lawyers but to get the nine greatest minds in the country to say that this is legally valid. So, it is a political cover for the government in a way.” Douglas Elliott
Certainly, it bought the government some time. So much, in fact, that by late 2004, Canada had seen a federal election and there was a new Liberal Prime Minister who seemed to be aware of the winds of change sweeping Canada when it came to same-sex marriage.
“A lower court in B.C having come out against equal marriage was reversed by a superior court and then you had both Ontario and Quebec supporting equal marriage, and that was very important.” Said Martin, on why he thought the time might be right.
On December 9, 2004, the Supreme Court of Canada ruled that that the marriage of same-sex couples is constitutional, and that the federal government has the sole authority to amend the definition of marriage to include same-sex couples.
Less than two months later, on February 1, 2005, the federal government did exactly that. It introduced Bill C-38, the Civil Marriage Act, which defined civil marriage as “the lawful union of two persons to the exclusion of all others,” thus extending civil marriage to couples of the same sex.
On February 15, Prime Minster Paul Martin delivered a speech in the House of Commons in support of Bill C-38. He sent a message to the world that Canada was standing to protect the right of same-sex marriage.
Former Prime Minister Paul Martin
If we do not step forward, then we will step back. If we do not protect a right, then we deny it. Together as a nation, together as Canadians, let us step forward.
On July 28, 2005, Bill C-38, the Civil Marriage Act, became law. Marriage in Canada had changed. It was now two people, pledged to each other.
“By allowing same sex marriage it’s an acknowledgement that your relationships are just as valid and require the same rights and responsibilities as anyone else’s. It really just comes down to basic equality.” Michael Stark
Canada is the fourth country in the world to have legalized same-sex marriage.
“Legally Married” is the story of how the fight for equality plays out, not just in the courts but through protests in the streets, through politics in the House of Commons and provincial legislatures and through shifting social views. For a look at how the fight for justice is playing out in Canada today, CPAC’s Peter Van Dusen spoke with human rights advocate Amira Elghawaby, journalist and activist Desmond Cole, and human rights lawyer Michèle Biss.
Equality Rights in Canada Today: A Panel Discussion