MCCT v ONTARIO and CANADA - Equal Marriage for Same

Court File No. 684/00 ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT) BETWEEN: HALPERN et al Applicants and CANADA (A.G.) et al Respondents

Court File No. 39/01 AND BETWEEN: MCCT Applicant and CANADA (A.G.) et al Respondents

FACTUM OF THE APPLICANT METROPOLITAN COMMUNITY CHURCH OF TORONTO PART I - STATEMENT OF MCCT’S POSITION IN THIS APPLICATION

1. Kevin Bourassa loves Joe Varnell. Elaine Vautour loves Anne Vautour. Kevin and Joe were married to each other, and Elaine and Anne were married to each other, in a double wedding at their Church, the Metropolitan Community Church of Toronto (“MCCT”), on January 14, 2001. Their wedding, conducted in accordance with the

2 rites of their Christian faith, was a joyous and spiritual occasion. Their marriages were recognized as real marriages by themselves, their families, their friends and their Church. Their marriages were not recognized by their governments for the sole reason that they chose to marry someone of their own sex.

2. Canadians have the right and freedom to marry. There is no common law prohibition on same sex marriage, and there is no statute of Canada that imposes any such prohibition. In the alternative, any restriction that does exist is a common law restriction that reflects traditional Christian theology. Any such common law restriction should therefore be modified in order to conform to contemporary secular Canadian society. In the further alternative, any restriction that does exist violates the Canadian Charter of Rights and Freedoms (“Charter”) and the rights and freedoms of MCCT and its congregants, including their rights to freedom of association and freedom of religion under sections 2(a) and 2(d), their right to liberty under section 7 and their right to be free from discrimination based on religion, sexual orientation and sex under the equality provisions in section 15(1) and section 28. Because the Charter violation involves discriminatory purposes or a discriminatory effect, namely the imposition of one sectarian religious view of marriage by the state on those who do not share that belief, and discrimination based on sex and sexual orientation, the violation cannot be saved under section 1 of the Charter. The Registrar General of Ontario has no legal authority to refuse registration of the documents (“Documents”) tendered to him by MCCT in respect of the marriages in question in this application. The appropriate remedy in the circumstances is a declaration that the marriages are

3 valid and a mandatory order directing registration of the Documents. In its capacity as intervener in Halpern v. Canada, MCCT supports the granting of the relief sought by the Applicants in that Application. 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”); Halpern v. Canada, Court File No. 684/00 (“Halpern”); Affidavit of Reverend Doctor Brent Hawkes, sworn August 30, 2001, Reply Record of the Applicant MCCT at 29, para. 38 (“Hawkes 2”).

PART II - FACTS 3. The Applicant MCCT is a Christian Church. Under the leadership of Senior Pastor the Reverend Doctor Brent Hawkes, MCCT with its 450 members has grown to be the third largest congregation in the worldwide denomination to which it belongs, the Universal Fellowship of Metropolitan Community Churches (“UFMCC”). Affidavit of Reverend Brent Hawkes, sworn January 28, 2001, Application Record of the Applicant, MCCT, Vol. 1, Tab 3 at 31, paras. 4-5 (“Hawkes 1”).

4. UFMCC was established in 1968 with a central mission and teaching that Christianity and homosexuality are compatible. The foundation of the denomination’s distinct Christian theology is the belief that the traditional Christian view that homosexual acts are sinful is in error. It teaches that this view was based on misinterpretations of Scripture, as well as ancient, unscientific and outdated beliefs about the nature of human sexuality, beliefs that influenced early Christian attitudes toward sexuality in general, and homosexuality in particular. 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

4 condemnation of interracial marriage, MCCT teaches that Christianity can and should renounce its traditional condemnation of homosexual acts. Hawkes 1, at 31, 34-44, paras. 4, 14-45; Hawkes 2, at 21, para. 11.

5. The majority of the congregants at MCCT are lesbian or gay, many having left Christian denominations that taught them that their homosexuality was sinful. Hawkes 1, at 31, 32, paras. 5, 8; Affidavit of Kevin Bourassa and Joe Varnell, sworn January 24, 2001, Application Record of the Applicant, MCCT, Vol. 1, Tab 4, at 81 para. 14 (“Bourassa”).

6. Marriage is an important concept to Christians. Christians believe that Jesus Christ performed his first miracle during a wedding at Cana. MCCT has offered marriage to its heterosexual congregants for some time. MCCT offered “holy union” ceremonies in lieu of marriages to same sex couples, some of whom have been in relationships for 35 or 40 years. Reverend Dr. Hawkes estimates that he has performed over 250 “holy unions”. However, many such couples demanded the right to a “marriage”. MCCT felt constrained from performing marriages for same sex couples because it understood that the municipal authorities in Toronto would not issue a marriage license to same sex couples, a license which was thought to be a necessary legal requirement for a valid marriage. The Bible: New Revised Standard Version (“The Bible”), at John 2: 1-11; Hawkes 1,at 32-33, 45-46, paras. 9, 50, 53; Affidavit of Dr. Daniel Cere, sworn April 12, 2001, Record of the Intervener, The Interfaith Coalition on Marriage and Family, Tab 1, at 4, 26, paras. 5, 65 (“Cere”).

7. MCCT eventually learned that the ancient Christian tradition of publishing the banns of marriage was a lawful alternative to a marriage license issued by municipal

5 authorities under the laws of Ontario. It decided to embrace this Christian practice, which allowed it to marry in accordance with its own religious beliefs without needing the cooperation of the municipal authorities. Hawkes 1, at 47, para. 54; Marriage Act, R.S.O. 1990, c. M.3, s. 5. 8. Reverend Dr. Hawkes published the banns of marriage for two couples, Kevin Bourassa (“Kevin”) and Joe Varnell (“Joe”), and Elaine (“Elaine”) and Anne Vautour (“Anne”), on three separate Sundays during divine service at MCCT, namely December 10 (International Human Rights Day), December 17, and December 24, 2000. Elaine is herself a Deacon at MCCT. No lawful objections were received to the proposed marriages. Hawkes 1, at 47, para. 56; Affidavit of Elaine Vautour and Anne Vautour, sworn January 24, 2001, Application Record of the Applicant, MCCT, Vol. 1, Tab 5, at 83, para. 1 (“Vautour”).

9. On January 14, 2001 Reverend Dr. Hawkes presided at the wedding of Elaine to Anne and of Kevin to Joe at MCCT. He registered the marriages in the Church Register, and issued marriage certificates to the couples. Hawkes 1, at 48, para. 57.

10. In compliance with the laws of Ontario, MCCT submitted the required documentation for these marriages to the Office of the Registrar General pursuant to the Vital Statistics Act and the Regulations under the Marriage Act. The Registrar refused to accept the documents for registration, citing an alleged federal prohibition on same sex marriages. As a result, MCCT launched the present Application. This Application was joined with an existing Application in Halpern, an Application in which a

6 number of same sex couples seek marriage licenses and in which MCCT had previously been granted intervener status by Madam Justice Lang. Hawkes 2, at 29, paras. 37, 38; Halpern v. Canada, Court File No. 684/00; Vital Statistics Act, R.S.O. 1990, c. V.4, s. 19(1); Marriage Regulations, R.R.O. 1990, Reg. 738, s. 2.

PART III - ARGUMENT

I

HISTORICAL AND SOCIAL CONTEXT

11. In considering Charter rights, the Court must examine the historical and social context of the law in question. The analysis of the common law also benefits from this process. In R. v. Big M Drug Mart Ltd., Dickson J. noted that “…the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts”. R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 344 (“Big M”).

A. SOCIAL CONTEXT (i)

Canada’s Culture of Human Rights

12. As Justice Krever noted in Haig, the Charter context includes the “enlightened evolution of human rights” since the Second World War, a human rights movement in which our country has played a leading role. The progress of gays and lesbians toward equality has been a remarkable feature of this movement, shifting from the legal status of criminals or mental degenerates in the 1960’s to that of a

7 constitutionally protected minority with a right to equality before the law and enjoying wide support in society today. Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.) at 503 (“Haig”); Affidavit of William N. Eskridge Jr., sworn November 14, 2000, Application Record of the Applicant Couples, Vol. 3, Tab 1, at 31-34, paras. 61-67 (“Eskridge 1”); Hawkes 1, at 48, para. 59; Hawkes 2, at 21, para. 8; Affidavit of John Fisher, sworn January 10, 2001, Application Record of the Intervener EGALE, Tab 1, at 28, paras. 79-80 (“Fisher”).

13. The social context includes the increasing tolerance and even acceptance of gays and lesbians in society, here and in other democracies. For example, even Churches that still teach that homosexual acts are sinful, such as the Catholic Church, teach that homosexuals are entitled to love and respect. Even South Africa, once a pariah in the world because of its human rights violations, now affords constitutional equality protection to gays and lesbians. Transcript of the Cross-Examination of Suzanne Scorsone dated August 21, 2001, Reply Record of the Applicant, MCCT, Tab 6, at 180, Q. 65 (“Scorsone Transcript”); Eskridge 1, at 31-34, paras. 61-67.

(ii)

The Importance of Marriage to Members of MCCT

14. The social context includes the importance of marriage to members of MCCT. Elaine and Anne said: We love one another and are happy to be married. We highly value the love and commitment to our relationship that marriage implies. Our parents were married for over 40 and 50 years respectively, and we value the tradition of marriage as seriously as did our parents. Vautour, at 85, para.18.

8 15. For Christians, marriage is founded on love, and on freedom of choice. As with many other Canadians, for members of MCCT the capacity to marry and the right to marry the person of one’s choice is an incident of full membership in society, of “ full personhood”. The couples married at MCCT had this to say: We wish to have our marriage registered with the Registrar General for Ontario for many reasons. We believe that we have the freedom to choose whom to marry. We want to be recognized as a legally married couple. Vautour, at 84, para. 13. We believe that we should have the right, as should any other Canadian citizen, to choose, from those options available, how to formalize our relationship. By excluding us from marriage, the government is sending a message that same sex couples are second-class citizens as compared to opposite sex couples in Canada. We feel the impact of the government’s violation of our human rights every day in our lives... We deeply hope that our nation, with its rights and protections, will prove to be a country that stands for all Canadians, and will provide full and equal rights to marriage regardless of sex or sexual orientation. Bourassa, at 79, 81, paras. 8, 14; Vriend v. Alberta, [1998] 1 S.C.R. 493 at 580 (“Vriend”); and see generally Lahey, Are We Persons Yet?, Toronto: University of Toronto Press, 1999.

16. Marriage for Christians is a manifestation of religious belief, a commitment before and to God. It is a spiritual celebration. Gays and lesbians have been marginalized in our society, including by religious bodies. It is important to note the key role of MCCT in the lesbian and gay community as a spiritual haven, a refuge for those who have been made to feel unwelcome in other faiths because of their sexual orientation. Kevin and Joe said: For years, both of us were spiritually orphaned. We were both raised as Catholics and we both of us left the church as adolescents when we realized that, because of our sexual orientation, we were not welcome. Finding the Metropolitan Community Church of Toronto was an incredible experience, liberating us from the spiritual abuse and

9 intolerance of the past … At the front of the church’s sanctuary are the words, “My house shall be a house of prayer for all people”. Bourassa, at 81, para. 14; Hawkes 1, at 34, para. 13; Affidavit of Robert J. Hughes, sworn December 18, 2000, Application Record of the Applicant, MCCT, Tab 8, at 122, para. 3 (“Hughes”).

17. Marriage is a public affirmation of love before friends and family, and often, within a religious congregation. It is a status with well-recognized social significance that, rightly or wrongly, is perceived by many to be the commitment of the highest order of one person to another. Kevin and Joe said: Many people use terms to describe our relationship that indicate that they consider our relationship to be inferior to that of heterosexual couples. Many people think they are being kind when they refer to, “your friend Kevin” or “your friend Joe”. No one would dream of referring to the wife or husband in a heterosexual relationship as “your friend”, but it is considered polite to do so in our case. Bourassa, at 81, para. 12. The Supreme Court of Canada has observed that: Historically in our society, the unmarried partner has been regarded as less worthy than the married partner. Miron v. Trudel, [1995] 2 S.C.R. 418 at 498 (“Miron”).

18. Marriage is also a relationship with legal status. Despite many improvements in the law in recent years, married persons continue to enjoy a regime of more complete rights and obligations. For example, as Elaine and Anne noted: We have drafted Wills in order to protect ourselves should one of us predecease the other. If our marriage were legally recognized, this would not be necessary in the event of a death.

10 Vautour, at 85, para. 16; see An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6 (“Bill 5”); Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 20 (Part II). 19. Perhaps the best evidence of the importance of “marriage” to members of MCCT is that, despite the long-standing practice of blessing “holy unions”, same sex couples at MCCT have pressed for “marriages”. In fact, “marriage” was of sufficient significance to Elaine and Anne and Kevin and Joe that they were married even though they had previously been through “holy unions”. Kevin and Joe noted that the reaction of family and friends was very different to the “wedding”, as compared to the “holy union”: The reaction of our friends and family was vastly different at our wedding than it was at our holy union. The wedding was perceived to be the “real thing” in the minds of our witnesses and participants, and not a substitute or play-acting exercise. This perception of equality is extremely important as it shapes the attitudes of even those who are close to us, not just strangers who we encounter. Our parents did not create a wedding cake for us at our holy union, as they did for our wedding. Our parents did not bestow upon us treasured heirlooms at our holy union, as they did at our wedding. We were not considered “in-laws” of each other’s family, as we are now. The marriage ceremony has changed people’s attitudes, deepened family ties, and fostered acceptance of our relationship in the minds of those who love us. We can only imagine the impact of legal recognition on those who don’t know us, and on those who see our lives and existence as less than that of our heterosexual fellow citizens. Bourassa, at 80, paras. 9, 10.

B. HISTORICAL CONTEXT (i)

Legal Enforcement of Traditional Christian Teachings on Homosexuality and Marriage

11 20. A consideration of the historical record reveals that the alleged legal impediment to same sex marriages exists because of the historic influence of Christian theology on the law’s treatment of marriage and homosexuality. Legal restrictions on the rights of gays and lesbians are rooted in traditional Christian teachings. Similarly, the common law’s view of what constitutes a valid marriage has been based on the constitutionally unsound foundation of traditional Christian teachings about marriage.

21. These historical legal and social impediments explain the apparent “traditional” lack of recognition of same sex marriage in Canada to date. However, since the 1950’s, there has been an increasing secularization of Canada’s laws and conservative Christian dogma on marriage and homosexuality should no longer inform our law.

(a) Homosexuality, Religion and the Law 22. In order to understand the influence that Christian teaching has had on the laws affecting gays and lesbians, it is necessary to briefly consider the foundations of those teachings.

23. The ancient Hebrews had many laws that governed their behaviour, including their sexual behaviour. Christians refer to the Hebrew Scriptures as the “Old Testament”. The Old Testament contains two principal passages that some scholars and theologians have relied on as evidence of a prohibition on homosexual acts and which have had profound influences on the law. The first is the story of Sodom and Gomorrah, and the second is a passage in Leviticus.

12 The Bible, Genesis: 19:1-29, Leviticus 20:13.

24. In the tale of Sodom and Gomorrah, two angels visit Sodom and lodge with Lot, who is himself a sojourner in the city. A crowd demands that Lot’s guests be produced “so that we may know them”. Lot offers his daughters instead. When the crowd refuses this offer, the angels intervene and the crowd is struck blind. Later, God destroys Sodom and the other Cities of the Plain. Many modern Biblical scholars now debate the correct interpretation of the story of Sodom and Gomorrah. MCCT adopts the interpretation favoured by many scholars that the sin of Sodom was the threat of rape to guests, in gross violation of the duty of hospitality, and has nothing to do with consensual acts or loving relationships among gays and lesbians. Hawkes 1, at 40, para. 31; Bailey, Homosexuality and the Western Christian Tradition (London: Longmans, Green and Co. Ltd., 1955, reprinted in Hamden: Archon Books, 1975) at 1-28 (“Bailey”).

25. Leviticus 20:13 provides: “If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death; their blood is upon them.” This passage is found in what is also known as the “Holiness Code” that prescribes such conduct as eating kosher food. It is not binding on Christians. It prescribes many harsh penalties for violations, although there is no evidence that the ancient Jews in fact imposed capital punishment on those who, for example, breached this particular prohibition on “homosexual acts”. Many traditional Jewish scholars currently favour the interpretation that the only act expressly prohibited by Leviticus was anal intercourse between men. It was only subsequent interpretations of this passage that extended the

13 prohibition to other sexual acts between men, and to sexual acts between women. The Old Testament says nothing about lesbian acts directly. The Bible, at Leviticus 20:13; J. Boswell, Christianity, Social Tolerance and Homosexuality, (Chicago: The University of Chicago Press, 1981) at 93, 100-106 (“Boswell 1”); Affidavit of Rabbi David Novak, sworn April 17, 2001, Record of the Intervener, The Interfaith Coalition on Marriage and Family, Tab 3, at 86-87, 89, paras. 4, 12 (“Novak”); Bailey, supra at 29-37, 57-63; Hawkes 1, at 40, para. 32.

26. Jesus Christ was born in the Roman Empire. The Romans, like the Greeks they admired, do not appear to have had any general religious or legal prohibitions against homosexual acts as such at the time. The pagan Roman emperors, such as Hadrian, sometimes had well known public relationships with other men and the Emperors Nero and Elagabalus actually married other men. Despite this, Jesus Christ himself is not recorded as saying anything on the topic of homosexual acts. Exhibit “B” to the Affidavit of Jacqueline Murray, sworn January 24, 2001, Application Record of the Applicant, MCCT, Vol. 1, Tab 6 (“Murray”), at 100; Hawkes 1, at 41, para. 33; Boswell 1, at 84; Bailey, at 29, 37-41, 60-61; Eskridge 1 at 4, 8, paras. 9, 17.

27. Christians refer to the Scriptures relating to the life and teaching of Christ and his followers as the “New Testament”. There are passages in the New Testament that have been interpreted by some to condemn homosexuality. There is scholarly debate about what was meant by the authors, particularly Saint Paul’s use of the coined phrase “arsenokoitai” (“sodomites” at 1 Cor. 6:9 and at 1 Tim. 1:10). Rather than referring strictly to male homosexuality, some scholars suggest that the passages might refer to pagan religious prostitution. It has also been argued that Paul’s

14 manifest concern is not with homosexuality in general, but with lust and idolatry, and that he certainly did not contemplate “homosexuals” as we understand the term. Boswell 1, at 342-50 and 115-17; D.F. Greenberg, The Construction of Homosexuality, (Chicago: The University of Chicago Press, 1990) at 211-216 (“Greenberg”); Murray, at 100-101; Bailey, at 38-39; Hawkes 1, at 42-43, paras. 37-40; The Bible, at 1 Cor. 6:9, 1 Tim. 10.

28. Eventually, under Constantine, the Romans adopted Christianity as their state religion. The first law proscribing homosexual acts enacted and apparently enforced by the Romans was the law of the Emperor Justinian in 538. By this time, the prevailing interpretation of the Sodom story was that God destroyed Sodom because of its tolerance of homosexual acts. Justinian’s Code explicitly referenced the Sodom story, explaining that homosexual acts could not be tolerated by the state lest God destroy, not just the sinners themselves, but also those who ignored the sin. Hawkes 1, at 38-39, para. 26; Boswell 1, at 171; Bailey, at 73-79; Eskridge 1, at 11, para. 21.

29. Some scholars, such as the late Professor John Boswell, have argued that Roman social tolerance of homosexual acts prevailed into the Middle Ages notwithstanding Justinian’s Code and the state religion. Boswell has argued that this extended to the blessing of same sex marriages by the Christian Church. Boswell 1, at 169-174; Eskridge 1, at 11-14, paras. 22-25; See generally J. Boswell, Same-Sex Unions in Premodern Europe, (Toronto: Random House, 1994) (“Boswell 2”). 30. Christianity in the 13th century was preoccupied with issues of sexual purity, primarily for the clergy but also for the laity. Strongly influenced by Saint Augustine, the Roman Catholic Church endorsed the principle that the priestly elite should be

15 celibate, and that the laity were permitted to engage in sex only within marriage, and then only for the purposes of procreation. Greenberg, at 221, 225.

31. Most scholars agree that by the late Middle Ages Christian hostility to male homosexual acts increased, under the influence of writers such as St. John Chrysostom, St. Jerome, Thomas Aquinas, and Albertus Magnus. What had been viewed as a relatively minor sin that could be forgiven by reasonable penance came to be seen as a particularly wicked act deserving of extreme punishment such as castration and stoning. The first penal statue was enacted in France in the mid 13th century in keeping with these views, and imposed the penalty of castration and death by stoning. Many states followed the French example, often specifying a penalty of death by the “flames of purification”. Like the Bible itself, the law remained largely silent regarding lesbian sexual acts, which were never criminal in England or Canada. Greenberg, at 272; Bailey, at 25, 141-43.

32. In England, where homosexual offences were under the jurisdiction of the ecclesiastical courts, the prosecution of and punishment meted out for male homosexual acts had been generally less severe than among their Continental counterparts until the 16th century. In 1533, as part of his drive to wrest power from the Church, Henry VIII passed the first civil penal statute dealing with “the abominable vice of buggery”. The description of the crime as “abominable” echoed the language of Leviticus. The death penalty was specified for the guilty. This statute was variously repealed and re-enacted in the period of religious upheaval that

16 followed before being definitively re-enacted by Elizabeth I. Her Act noted that buggery was an offence “to Almighty God”. Bailey, at 145-152, especially 147-150.

33. In Canada, prior to the arrival of the French and English, the First Nations had no similar religious or other proscriptions of homosexual acts. Most First Nations recognized that some of their members were what we would call “gay” or “lesbian”. First Nations believed that such persons were “two-spirited”, that is that they had both a male and a female spirit, and that they were special or magical persons as a result. Many native cultures conceived of such persons as being of a third gender, and had a special name for them, such as the Lakota word winkte (Europeans used the term berdache, derived from the French word for male prostitute). Two-spirited persons often occupied a special place in their nations, and had relationships with others of the same sex. Their nations did not believe that these winkte were immoral, but rather that “God made them that way”. Eskridge 1, at 14-16, 23, paras. 26-32, 45; W. L. Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture, (Boston: Beacon Press, 1992) (“Williams”); Le Duigou, “A Historical Overview of Two Spirited People: a Context for Social Work and HIV/AIDS Services in the Aboriginal Community” Native Social Work Journal Vol. 3(1), September 2000, at 195-197 (“Le Duigou”); G. Kinsman, The Regulation of Desire, 2nd ed., (Montreal: Black Rose Books Ltd., 1996) at 92-93 (“Kinsman”).

34. With the arrival of the Europeans to North America, traditional Christian values were brought to this continent by missionaries who imposed their values on the First Nations in the name of “salvation” and “civilization”, values that many would characterize today as religiously intolerant, racist, sexist and heterosexist. Europeans

17 were horrified by the widespread practice of homosexuality among First Nations, and the social acceptance of the winkte. They saw these practices as evidence of a “heathen and savage sexuality”. They viewed the cross-dressing male winkte as “debasing” themselves by adopting the dress and role of women, since Europeans viewed women as men’s social inferiors. When First Nations succumbed to European diseases such as smallpox, the Europeans interpreted these outbreaks as divine punishment for “sodomy”. The reaction of Europeans was sometimes overtly violent. For example, the explorer Balboa had a group of aboriginal “sodomites” devoured by his dogs. This massacre was reported to the King of Spain as “a fine action of an honourable and Catholic Spaniard”. Eskridge 1, at 14-16, 23, paras. 26-32, 45; Williams, at 137, 138 and plate 5; Le Duigou; Kinsman, at 92.

35. The French brought the French penal law to Canada, including a law that criminalized sodomy. It is not known whether anyone was actually executed under the French regime for this crime, but history records at least one person who was sentenced to death and another who was banished on pain of death because of “sodomy”. The French law against sodomy was repealed as part of the secular reforms of the French Revolution, but by that time Canada was under English rule. Kinsman, at 98-99. 36. It was in the 19th century that the medical model of homosexuality emerged as an alternative to the Christian model of “sodomites” engaging in “sin”. The term “homosexual” was coined for the first time in 1870, and the concept of an innate sexual orientation emerged to compete with the Christian notion of “sodomy” as an

18 immoral expression of free will. Freud argued that laws penalizing “sodomy” were cruel and morally wrong – an “extreme violation of human rights” – because they punished persons for sexuality that was natural to them and not “sinful”. Greenberg, at 426; Eskridge 1, at 2-3, para. 6.

37. During the 1950’s, Sir John Wolfenden was asked to study law reform around sexuality. His landmark report decried British laws prohibiting male homosexuality as “the Blackmailer’s Charter”. He urged decriminalization of male homosexual acts between consenting adults in private. However, it would take over ten years before Parliament would act on this recommendation in England. Wolfenden, “Report of the Committee on Homosexual Offences and Prostitution” (London: Her Majesty’s Stationary Office, 1957) (“Wolfenden”); Greenberg, at 456.

38. At the same time, the Church of England commissioned a group to study Church teachings. The first theological book to question the validity of traditional Christian teaching that homosexuality was sinful was published by a member of that group, Dr. Sherwin Bailey, in 1955. Bailey, at vii. 39. The 1960’s were a turbulent time, when many traditional values were challenged. Racism, sexism, homophobia and the legal institutions that supported them were attacked. The Supreme Court of Canada’s decision to confirm the indefinite incarceration of an “incurable homosexual” in R. v Klippert provoked outrage. Justice

19 Minister Pierre Elliott Trudeau proposed and then implemented the Wolfenden approach, famously remarking, “the state has no place in the bedrooms of the nation”. Eskridge 1, at 31, para. 61; R. v. Klippert, [1967] S.C.R. 822 (“Klippert”); Kinsman, at 260-64.

40. Since the 1960s, North America has witnessed a social and political struggle between a gay and lesbian community determined to secure equality under the law, and religious conservatives, who have attempted to preserve and strengthen legal restrictions on gays and lesbians in an effort to preserve their own religious values in the law. A notable example was Amendment 2 in Colorado, an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. This notoriously offensive constitutional amendment proposed to deprive gays and lesbians of basic civil rights and outlaw discrimination protection for them. The law was quashed by the US Supreme Court in the 1996 decision in Romer v. Evans. Romer v. Evans, 517 U.S. 620 (1996) (“Romer”); Hawkes 2, at 26-28, paras. 2933.

41. Some of the most extreme elements in the religious right have continued to advocate violence against gays and lesbians, including Reverend Fred Phelps, who maintains a website at www.godhatesfags.com. Bishop Holloway notes that one Anglican Bishop at the Lambeth Conference stated that there were no homosexuals in Africa, and those that they found, they stoned. Hawkes 1, at 44, para. 43; Affidavit of Bishop Richard Holloway, sworn December 12, 2000, Application Record of the Applicant, MCCT, Vol. 1, Tab 11, at 173, para. 22 (“Holloway”).

20 42. Both legislators and judges have not hesitated to invoke traditional Christian teaching in order to defend laws that discriminate against gays and lesbians. For example, in his reasons in Vriend v. Alberta, a decision that was later reversed by the Supreme Court of Canada, Justice McClung quoted the United States Supreme Court in Bowers v. Hardwick with approval. He noted that state refusal to recognize “homosexual relations” was acceptable, as the recognition of a right to same sex relations would be “rebutting a millennia (sic) of religious teaching”. Vriend v. Alberta (1996), 181 A.R. 16 (C.A.) at 28; Bowers v. Hardwick, 478 U.S. 186 (“Bowers”).

43. The trend in Canada has been to increasing equality for gays and lesbians under the law. However, some groups in society, generally on conservative religious grounds, have fiercely opposed every statute or judicial ruling aimed at increasing equality for gays and lesbians. For example, as Dr. Hunt notes, despite the Catholic catechism of respect for homosexuals as human beings, official Vatican doctrine opposes any Church support for groups advocating a change in Church doctrine and opposes not just relationship recognition, but even anti-discrimination protection for gays and lesbians. Affidavit of Mary Hunt, sworn May 29, 2001, Reply Record of the Applicant MCCT, Tab 4, at 79, 80, 84, paras. 2, 7, 8, 18 (“Hunt 2”).

44. In the legislative arena, for example, the Catholic Archbishop of Toronto through his official spokeswoman and advocate, the affiant Dr. Suzanne Scorsone, actively encouraged Catholics to oppose Bill 167, (the proposed Equality Rights Statute Law Amendment Act, 1994). Bill 167 did not propose to re-define marriage, but merely to

21 grant gay and lesbian relationships some of the protections offered to common law heterosexual couples. Rabbi Novak, also an affiant in the present case, supported Amendment 2 in Colorado by filing an affidavit supporting the constitutional exclusion of gays and lesbians from anti-discrimination laws in that State. In the judicial arena, one example is the case of Vriend, where conservative groups such as the Evangelical Fellowship of Canada intervened in the Supreme Court of Canada to argue against the inclusion of “sexual orientation” in Alberta’s human rights legislation. Scorsone Transcript, at 177-178, Qs. 56, 57; Hawkes 2, at 26-28, paras. 29-33; Bill 167, An Act to amend Ontario Statutes to provide for the equal treatment of persons in spousal relationships, 3rd sess. (1994) (“Bill 167”); Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3 (“M. v. H.”).

45. Not all religious believers, and not all Christians, share the views of the conservative religious groups who have opposed equality for gays and lesbians. In Vriend, for example, the Alberta and Northwest Conference of the United Church and the Canadian Jewish Congress intervened in support of Delwin Vriend. The United Church of Canada filed a brief with Parliament supporting Bill C-23, The Modernization of Benefits and Obligations Act. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (“Bill C-23”); Affidavit of Rev. Donald Gillies, sworn December 15, 2000, Application Record of the Applicant, MCCT, Vol. 1, Tab 10, at 148, para. 4 (“Gillies”); Vriend v. Alberta, [1998] 1 S.C.R. 493.

46. In fact, the social debate that has taken place on equality under the law for gays and lesbians in the courts and legislatures has experienced a parallel debate within churches, synagogues, temples and mosques about the appropriate theological

22 position on homosexuality. The record reveals that in addition to UFMCC, many faiths no longer teach that homosexuality is a sin. These include Reform Judaism: as Rabbi Stevens notes, “virtually no Reform Jew would regard homosexual acts as sinful”. These views are shared by many conservative Jews, such as prominent Rabbi Elliot Dorf. The United Church of Canada recently repealed its previous stance that homosexuality is a sin, and many congregations have declared themselves to be “affirming” of lesbians and gays. The Canadian Unitarian Council has a long tradition of support for lesbians and gays, as does the Society of Friends (Quakers). Affidavit of Rabbi Elliot Stevens sworn May 29, 2001, Reply Record of the Applicant MCCT, Tab 5, at 131, 133, paras. 6, 13 (“Stevens 2”); Gillies, at 149, para. 8; Affidavit of Mark Morrison-Reed, sworn December 15, 2000, Application Record of the Applicant, MCCT, Vol. 1, Tab 7, at 104, para. 3 (“MorrisonReed”); Hughes, at 124-126, paras. 10, 11, 13, 14.

47. Even within more conservative faiths or denominations, such as Islam, Orthodox Judaism, the Roman Catholic Church and the Anglican Church, there are those who disagree with the official dogma that teaches that homosexuality is sinful. One of the most respected Anglicans in the world, Rt. Reverend Dr. Desmond Tutu, has been one of those who have spoken out for justice for gays and lesbians. Bishop Richard Holloway, the former Primus of Scotland, is another prominent Anglican who once thought of homosexuality as a sin but came to the view that,

“ … the love of Jesus Christ that was extended by Him to social outcasts in His lifetime, should not be denied by the Church to gays and lesbians.”

Affidavit of Katherine Young, sworn March 14, 2001, Record of the Respondent, The Attorney General of Canada, Vol. 2A, Tab F, at 698, para. 25; Affidavit of Rabbi Steven Greenberg, sworn May 31, 2001, Reply Record of the Applicant

23 MCCT, Tab 2, at 14-15, para. 15 (“Greenberg Affidavit”); Exhibit “B” to the Affidavit of Mary Hunt, sworn December 18, 2000, Application Record of the Applicant MCCT, Vol. 1, Tab 12, at 178 (“Hunt 1”); Holloway, at 170-171, 172, paras. 12,19.

48. The evidence reveals that the majority of Canadians profess a religious faith, and that almost 50% profess the Catholic faith. However, it also appears that a large majority of Canadians support equality for gay and lesbian relationships. It is thus apparent that many Canadians of faith support equality for gays and lesbians, regardless of the “official” teachings of their faith. Affidavit of Suzanne Scorsone, sworn March 15, 2001, Record of the Respondent the Attorney General of Canada, Vol. 2A, Tab E, at 632, para. 20 (“Scorsone”); Hawkes 1, at 48, para. 58; Hawkes 2, at 21, para. 8; Cere, at 26, para. 65; Hunt 1, at 178; Hunt 2, at 80, 85, paras. 9, 23; Fisher, at 28, paras. 79-80.

49. The alleged prohibition on same sex marriage is the one of the last legal vestiges of centuries of traditional Christian teaching that has enlisted the law in imposing its values on others by limiting the rights of gays and lesbians. While hostility to gays and lesbians may have once represented the view of the Christian majority in our society, it no longer represents the views of all, perhaps even most, Christians in Canada. It does not represent the social consensus in our country, and is contrary to our core equality values and our commitment to a secular society with religious freedom. To pretend that the alleged legal prohibition on same sex marriage is purely secular and has nothing to do with religious intolerance of homosexuality would be to ignore history and social reality. It is nothing more than state enforcement of a particular conservative or traditional religious teaching.

24 50. It can be seen that, beginning with decriminalization in 1969, Canadian law has moved increasingly away from enforcement of conservative Christian morality that views homosexuality as sinful and toward secular recognition of the inherent dignity and equality rights of gays and lesbians. This case marks one further step on this path. It marks the confluence of these reforms, and similar reforms that have seen an increasing secularization and respect for religious diversity in Canadian family law, as outlined in the following section.

(b) Religion, Marriage and the Law (i)

History of Marriage to 1793

51. Marriage is unique in our society: it is the only religious ceremony that is also vested with legal significance by the state, apart from the Coronation. This exceptional situation is explained by the historical connections between marriage and Christianity under our law.

52. Notwithstanding the historic links between Christian marriage and our law, the notion that from time immemorial and across all cultures that marriage has been recognized as limited to the lawful union of one man and one woman to the exclusion of all others is a popular myth. For example, marriage has not been exclusively heterosexual at all times and in all places. Same sex marriages existed in the past in the Roman Empire, for example, and in the Netherlands today.

25 Eskrdige 1, at 8-9, para. 17; Affidavit of Randolph Trumbach, sworn August 21, 2001, Reply Record of the Applicant Couples, Tab 5, at 181, 182, paras. 2, 6 (“Trumbach 2”).

53. Perhaps the most frequent departure from this allegedly universal norm is the widespread practice of polygamy. The case law alone reveals that polygamy has been practiced in Kenya, India, China, the United States of America and in Muslim countries such as Egypt, countries where, at least at some point in their histories, such unions have been socially, religiously and legally recognized. Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) (“Re Hassan”).

54. Perhaps the best example of the changing nature of conceptions of marriage through history is in North America itself. Before the introduction of European religions, values and laws, First Nations did not regulate marriage in the same manner as Christians. For example, history records that great Lakota chiefs and warriors such as Sitting Bull and Crazy Horse had many wives, including male winkte spouses. Thus, it may be fairly said that polygamy and same sex unions are, or at least were, more “traditional” in our country than monogamous heterosexual unions, because these forms of marriage pre-date the introduction of the Christian conception of marriage to this country by millenia. Eskridge 1, at 23, para. 45; See generally Williams, and especially at 38, 112, 225; See generally Le Duigou, and especially at 195-198. 55. As will be seen, the historic common law “definition” of marriage developed in England is an expressly Christian definition. However, the Christian concept of marriage itself has not been timeless and unchanging, but rather has changed over

26 time according to the cultural context of the surrounding society. The development of the Christian concept of marriage has also featured a tension between the state and ecclesiastical authorities. Murray, at 90.

56. The Christian concept of marriage has Roman, Jewish, Greek and Germanic roots, but has distinctive features which came to inform our law. Despite Christianity’s Jewish heritage, a stark contrast exists between the Christian concept of marriage and the historic Jewish concept of marriage. For the ancient Israelites, divorce was permitted; marriage was endogamous and was sealed with the giving of brideprice. Polygamy was commonly practiced among the ancient Israelites as recorded in the Bible, a custom that continued for Ashkenazi Jews into the Middle Ages and for Sephardic Jews into the 20th century. Murray, at 90-91; Exhibit “B” to the Affidavit of Randolph Trumbach, sworn November 20, 2000, Application Record of the Applicant Couples, Vol. 3, Tab 2, at 1 (“Trumbach 1”); Stevens 2, at 132, para. 9.

57. Like the Jewish faith, the Christian concept of marriage explicitly rejected the capacity for childbearing or the need for consummation as conditions for a valid marriage. However, reflecting the Greek culture of leading early figures in the Christian Church like Saint Paul, for Christians marriage was exogamous, monogamous and sealed by the giving of dowry. There was no Christian liturgy of marriage for the first three centuries of its existence, and marriage was a private act. The Christian Emperors initially permitted divorce, but it was later strictly forbidden in the Church. The indissolubility of marriage, marked during weddings with the

27 ritual recitation of the familiar Scriptural phrase “what God has joined together, let no on separate”, became a hallmark of the Christian concept of marriage for centuries. Murray, at 90-92; Trumbach 1, at 1-2; Stevens 2, at 132, para. 11; The Bible, at Mark 10:9.

58. Some respected scholars have written that the Roman practice of blessing same sex marriages was continued by the Christian Church until medieval times, when the codification and more consistent enforcement of canon law resulted in a official hostility by the Christian Church to both same sex marriages and homosexuality in general. Murray, at 99-100; Eskridge 1, at 11, 21-22, paras. 22, 41; Boswell 1; Boswell 2.

59. Christian concepts of marriage, like Christian doctrine on homosexuality, were influenced by negative medieval attitudes toward sexual pleasure in general. As Bishop Holloway notes: Although the authors of the Bible apparently did not see sexual matters as a priority, it was a subject of concern to a number of later prominent Christian theologians, notably St. Augustine and St. Jerome. From their teachings emerged the notion that the holiest condition for a Christian was celibacy, and that marriage was a distant second best for good Christians. Even within marriage, according to their teaching sex was only to be for the purposes of procreation and sex for pleasure even between married persons was sinful. … I believe that these Medieval Christian teachings, teachings that are very negative about sex in general, still influence the thinking of many Christians today, including their attitudes toward homosexuality. Murray, at 100-101; Holloway, at 170, para. 9.

60. While embracing the Roman concept of consent as the foundation of marriage, Christianity developed a theology that was at odds with polygamy, same sex unions and divorce. Moreover, Christianity’s emphasis on the primordial nature of consent

28 rejected the notion that slaves or serfs lacked the capacity to marry without the consent of their owners or lords, for otherwise they might be consigned to committing the mortal sin of fornication. This put the Church in conflict with medieval secular society, a society in which marriages were often controlled by families or lords for political or economic purposes. After over a thousand years of Christian history, by the 13th century canon law had codified Christian marriage in a manner that became widely accepted in Europe. Murray, at 94, 97.

61. The medieval Christian consensus on marriage that had taken a millennium to build began to unravel during the Reformation. Christians had always refused to recognize the marriages of Christians to “unbelievers”. The Reformation rift in the Christian Church between Protestants and Catholics thus caused a rift in the Christian concept of marriage: the question arose as to the validity of marriages between Protestants and Catholics. In addition, many Protestants also rejected the notion of marriage as a sacrament, and so some permitted divorce. Murray, at 98, 99.

62. Marriage remained under the exclusive jurisdiction of the ecclesiastical authorities in England until 1753 when the first statute regulating marriage was enacted, known as Lord Hardwicke’s Act. This Act recognized the marriages of the Established Church, the Church of England, as valid marriages. All other religious marriages had no legal recognition and there was no concept of civil marriage outside of a religious ceremony. The Act recognized two exceptions to this religious monopoly of the

29 Church of England, the marriages of Quakers and of Jews. In addition, the Act by its terms did not apply to the colonies beyond the seas. An Act for the better preventing of clandestine marriages, 26 Geo. II 7, c.33 (“Lord Hardwicke’s Act”).

(ii)

Marriage in Ontario – from English Rule in 1763 to 1950

63. Following the Royal Proclamation of 1763, the rights and privileges of the Catholic Church were preserved in the Province of Quebec. These were later confirmed and expanded in the Quebec Act of 1774. Although the Province, which included present day Ontario, was under the ecclesiastical authority of the Anglican Bishop of London, Governor Murray was given authority by the Crown to issue marriage licenses. J.J. Talman, “The Position of the Church of England in Upper Canada 17911840”, 1934 Canadian Historical Review 361, at 361-363 (“Talman”); Scorsone, Appendix B, at 653.

64. Aboriginal marriages received a unique treatment under English law. The Courts recognized that one could not travel three thousand miles by canoe and on foot to conform to the English rules of marriage, and that the native population was “for the most part unchristianized”. Thus aboriginal forms of marriage were given legal recognition, but only to the extent that they did not offend British Christian conceptions of marriage. Aboriginal spiritual and cultural marriage practices and beliefs that were morally offensive to the British were characterized as either mala in se or “incidental” to aboriginal custom, and therefore legally unenforceable. This partial respect for traditional aboriginal marriage beliefs and practices lead to the anomalous result that, while aboriginal customs would be recognized to the extent of creating a legally valid heterosexual marriage, a second such marriage, though

30 equally valid in accordance with native custom, would justify a criminal conviction for bigamy. Male winkte relationships were also criminalized under English laws of buggery that until 1861 imposed the death penalty on offenders, and the winkte were persecuted by the church and state alike. The Queen v. Bear’s Shin Bone (1899), 3 C.C.C. 329 (S.C. N.W.T.); Regina v. NanE-Qui-A-Ka (1889), 1 Terr. L.R. 211 (S.C.); Connolly v. Woolrich (1867), 17 R.J.R.Q. 25, 11 L.C. Jur. 1973 [aff’d] (1869), 17 R.J.R.Q. 266, 1 C.N.L.C. 151 (Que. Q.B.); Le Duigou, at 201-202; M. Walters, “The “Golden Thread” of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982” (1999), 44 McGill L.J. 711, at 716, 721, 724-726, 727-729, paras. 10, 17, 23, 25-26, 29-30; Bailey, at 151; Williams at 131-151, 180-181.

65. Loyalists founded Upper Canada, the future Province of Ontario. Many Loyalists had supported the concept of an Established Church in the Revolutionary War. Ontario’s first marriage law thus reflected the Loyalist commitment to attempting to “establish” the Church of England in Ontario. However, it made a concession to the social conditions prevailing in the young colony that apparently included a shortage of clergy and considerable informality in marriage. The Act ratified the “marriages” that had been performed in the colony to that point by a variety of public officials including the “Surgeon of the Regiment”. Authority was extended to Justices of the Peace to marry, but only until adequate numbers of Anglican clergy became available in their Districts. Otherwise, Upper Canada’s marriage law was even less religiously tolerant than the English statute. Only Church of England marriages were given legal recognition, with no exception for Jews and Quakers. All other Christian marriages were not recognized in law, let alone any non-Christian marriages. Talman, at 373-374; An Act to confirm and make valid certain marriages now comprised within the Province of Upper Canada, and to provide for future

31 solemnization of marriage within the same, 33 Geo. III, c.5 (“Ontario Marriage Act of 1793”).

66. The erosion and eventual demise of the notion of an Established Church or state religion in Ontario was reflected in the colony’s changing marriage laws, which gradually extended legal recognition to the marriages of other Protestant denominations and eventually recognized all Christian marriages, finally including Catholic marriages, in 1847. The civil marriage license was introduced to accommodate other faiths that did not follow the Anglican practice of banns. An Act to extend the Provisions of the Marriage Act of Upper Canada to Ministers of all denominations of Christians, 10&11 Vic., c. 18 (“Marriage Act of 1847”); Talman, at 361-375.

67. Eventually, in 1857 legal recognition was extended to the marriages of all religious faiths in what is now Ontario. Criminal penalties were reserved for those posing as licensed clergy. Jewish marriages, legally valid for over a century in England, were finally given legal recognition in Ontario. An Act to amend the laws relating to the solemnization of Matrimony in Upper Canada, 20 Victoria, c. 66 (“Ontario Marriage Act of 1857”).

68. 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 for over one hundred years. The law would further relax its theological grip on marriage and other relationships in the continuing human rights and sexual revolution. Marriage Act, 1950, S.O. 1950, c. 42, s. 25.

32 (iii)

Secularization in the modern era and the legal recognition of non-traditional heterosexual relationships

69. Traditional Christian beliefs were used to justify anti-miscegenation laws in the United States. The legal prohibition on inter-racial marriage was defended as arising not from legal inequality but from a lack of capacity stemming from the “natural” state of the persons that had been “ordained by God”. The United States Supreme Court rejected this religious or “natural law” justification for this restriction on the freedom to marry in 1967. Loving v. Virginia, 388 U.S. 1 (1967) (“Loving”); Eskridge 1, at 38-39, paras. 7881; Hawkes 1, at 42, para. 39; Affidavit of Barry Adam, sworn November 15, 2000, Application Record of the Applicant Couples, Vol. 3, Tab 4 at 8-9, para.29 (“Adam”). 70. Canada’s marriage laws had never fully embraced all conservative Christian teaching on marriage. Roman Catholic and Anglican Churches did and still do prohibit divorce, and while divorce had been difficult to obtain in the past, it had always been permitted since Confederation. Moreover, Canada’s divorce law by 1970 was secularized to permit divorce in a wide variety of circumstances contrary to conservative Christian teaching. Divorce Act, S.C. 1967-68, c. 24, (later R.S.C. 1970, c. D-8); Report of the Special Joint Committee of the Senator and House of Commons on Divorce, Ottawa: Information Canada; 1967, Record of the Respondent, the Attorney General of Canada, Vol. 7, Tab 12, at 2033 – 2040; W. H. McConnell, Commentary on the British North America Act, (Toronto: MacMillan, 1977), Record of the Respondent, The Attorney General of Canada, Vol. 6, Tab 0.1, at 1715 – 1718; Answers to Written Interrogatories by The Interfaith Coalition on Marriage and Family (“Interfaith Answers”), Answers of Abdalla Idris Ali, Tab 1, at 1-2, Answers of Dr. Cere, Tab 4, at 1-2, Answers of Ernest Caparros, Tab 5, at 1-2.

33 71. In 1978, the Family Law Reform Act (“FLRA”) was introduced. The Act extended statutory recognition for the first time to heterosexual couples that had been “living in sin” or “without benefit of clergy”. The courts also began to expand unjust enrichment doctrine to protect those in such “common law” relationships. This was another important secular legal reform that was contrary to conservative Christian teaching that views unmarried heterosexual relationships as immoral. Family Law Reform Act, S.O. 1978, c. 2 (“FLRA”); Pettkus v. Becker [1980] 2 S.C.R. 834; Hawkes 2; Interfaith Answers, Answers of Dr. Cere, Tab 4 at 6-7.

72. Since 1978, the rights and responsibilities of common law couples in Canada have been expanded, notably by Bill C-23, the Modernization of Benefits and Obligations Act, where the rights and responsibilities of common law couples and married couples were largely equalized. The Supreme Court of Canada in Miron has indicated that distinctions between married and unmarried couples are constitutionally suspect. Despite this, important distinctions remain in the laws of Ontario. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12; Miron v. Trudel, [1995] 2 S.C.R. 418; An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6.

(iv)

Secularization and the legal recognition of same sex relationships

73. The question of legal recognition of same sex marriage did not arise prior to 1969 in Canada, in part, because for a man to concede that he was in a homosexual relationship prior to 1969 would be to admit committing a criminal offence and to risk indefinite incarceration. Although lesbians had never faced this legal risk, pervasive homophobia and misogyny had both erased their existence and ensured that

34 public proclamation of their relationships would attract a high social penalty. In addition, Churches that taught that homosexuality was sinful would not have been willing to publish banns of marriage prior to the re-examination of theology sparked by the Wolfenden Commission. See generally, R. v. Klippert, [1967] S.C.R. 822. 74. In 1968, UFMCC began blessing “holy unions”. In 1974, a Winnipeg couple consisting of two men married in the Canadian Unitarian Council following the publication of banns. However, the Manitoba County Court ruled that the marriage was a nullity. Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.) at 281, 285 (“North”); Eskridge 1, at 32-33, para. 62.

75. The legal recognition of same sex relationships began in Sweden, quickly followed by Denmark, where there were systems of registered domestic partnerships introduced, beginning in 1989. This type of system is now in place in many European nations at the national level, such as the Netherlands, as well as at the regional level in places such as Vermont and Nova Scotia. Eskridge 1, at 33-34, paras. 64-67; Law Reform (2000) Act, S.N.S. 2000, c. 29.

76. Unlike in Europe, legal recognition of same sex relationships in Canada began with the Courts in the Charter era rather than the legislatures. The first such case was Veysey, and there were a series of cases leading up to two landmark Supreme Court decisions in Egan v. Canada and M. v. H. There were also a number of legislative initiatives largely spurred by these rulings.

35 Veysey v. Canada (Commissioner of the Correctional Services), [1990] 1 F.C. 3221 (T.D.) (aff’d on other grounds by the Court of Appeal on May 31, 1990, Court File A-557-89); Egan v. Canada, [1995] 2 S.C.R. 513 (“Egan”); M. v. H., [1999] 2 S.C.R. 3; and see Eskridge 1, at 34, para. 67; An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6; Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.

77. Only two of the Charter era cases have considered same sex marriage. The Supreme Court in M. v H. expressly and correctly excluded any comment on marriage, as marriage was not in issue in that case. The current state of the law following M. v H. is that legal distinctions between common law heterosexual couples and same sex couples are constitutionally suspect. M. v. H., [1999] 2 S.C.R. 3, especially at 48-49, Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.); EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365 (“EGALE”).

78. The Ontario Legislature passed Bill 5, An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H., to address the issue of same sex couples. Unlike Bill C-23, no attempt was made to equalize the rights of married persons and common law heterosexual couples. Accordingly, Ontario not only denies access to marriage to same sex couples, it also imposes an inferior regime of rights and responsibilities on common law couples. Ontario also went to the lengths of using separate nomenclature to label same sex couples as distinct, and, it is submitted, inherently inferior to heterosexual couples. An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6; Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.

36 79. In addition to the Ontario Legislature, a number of provincial legislatures have extended some of the rights and obligations of common law couples to same sex couples, but none have done so in the comprehensive fashion of the Federal Parliament in Bill C-23. See e.g. Law Reform (2000) Act, supra; Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.

80. The Netherlands is now the first country to pass a law recognizing same sex marriages, a trend which may continue in other European nations. Eskridge 1, at 33, para. 65; Affidavit of Dr. William N. Eskridge Jr., sworn August 2, 2001, Reply Record of the Applicant Couples, Tab 4, at 170-171 (“Eskridge 2”).

(v)

The religious debate on recognizing same sex relationships

81. The legal recognition of same sex relationships has been paralleled by a religious debate about the blessing of same sex relationships and same sex marriage. There is a wide spectrum of religious opinion in Canada today revealed in the record. The dogma of some faiths, such as that of the Catholic Church, is hostile to same sex marriage. However, as Dr. Hunt notes, as with other Church teachings on sexuality, some Catholics do not support this teaching. Some such as Rabbi Greenberg would not offer same sex marriage within their own faith, but would not deny it to others of a different faith. Some such as Bishop Holloway of the Anglican Church openly reject the dogma of their faith and advocate for the right to choose same sex marriage. Some would bless same sex relationships, but are uncertain about marriage. Some faiths are not dogmatic, but leave the question of blessing same sex unions or even

37 marriages to the individual congregation or clergy, such as the United Church, Reform Judaism and the Quakers. Some denominations officially support same sex marriage as part of their dogma, including the Canadian Unitarian Council and UFMCC. Hunt 1; Hunt 2, at 80-81, paras. 9-14; Greenberg Affidavit; Holloway; Gillies; Affidavit of Rabbi Elliot L. Stevens, sworn December 14, 2000, Application Record of the Applicant MCCT, Vol. 1, Tab 9 (“Stevens 1”); Stevens 2; Hughes; Morrison-Reed; Hawkes 1.

82. It is impossible to know the views of the majority of Canadians with certainty on the matter in issue. The record reveals that most Canadians profess some religious belief, with the largest group being Catholics. It also reveals, however, that a very large percentage of Canadians support equality for lesbians and gays, and a majority of Canadians appear to support legal recognition of same sex marriage. This indicates that many Canadians either disagree with the orthodox dogma of their faiths or believe that such theology is a private matter that should not interfere with the equal recognition of same sex relationships under the law. Hawkes 2, at 21, 23, para. 8, 17; Cere, at 26, para. 65; Fisher, at 28, para 79; Transcript of the Cross-examination of John Fisher dated June 19, 2001, at 24, 55-61.

(vi)

History of Legal Recognition of Banns of Marriage

83. The concept of “banns of marriage” is an ancient one, with a lengthier pedigree than civil licenses. As a Christian ritual it was formally adopted and codified by the Lateran Council of 1215. It involves a proclamation in the parish church of the couple of their intention to marry, by tradition during divine service on the three Sundays

38 preceding the wedding. The aim was to detect impediments, such as a prior marriage or vow of celibacy, which might not be revealed by the more informal weddings that had often taken place prior to that time. Murray, at 96-97 84. The practice of banns was continued by the Anglican Church following Henry VIII’s break with Rome over the dissolution of his marriage with Catharine of Aragon. When marriage was first regulated in England in Lord Hardwicke’s Act in 1753, the aim reflected in the official title of the Act was to avoid “clandestine marriages”. The Act emphasized the need for banns for a valid marriage, except for the Quakers and the Jews. Lord Hardwicke’s Act. 85. Although Lord Hardwicke’s Act did not apply to Upper Canada, the legislature of Upper Canada endorsed the practice of banns as the usual method of creating a legal marriage in its first marriage law. A substitute of a public notice was required where the marriage was by justice of the peace, such marriages being permitted only while there was a shortage of clergy. Lord Hardwicke’s Act, s. 18; Ontario Marriage Act of 1793.

86. Eventually, when the statute recognized the validity of marriages by other Christian denominations, provision was made for the issuance of licenses by the civil authorities as a substitute for the publication of banns. An Act to extend the provisions of an Act passed in the second session of the First Provincial Parliament of Upper Canada, intituled, “An Act to confirm and make

39 valid certain marriages now comprised within the Province of Upper Canada, and to provide for future solemnization of marriage within the same” 38 Geo. III c.4, s. 4-5.

87. The authority of churches to marry by publication of banns has been continued in every Ontario statute to the present day. Marriage Act, R.S.O. 1990, c. M.3, s. 5.

(v)

Summary

88. It can be seen that the legislative and judicial trend, from the 19th century to the present, and with rapid acceleration during the Charter era, has been to increasing secularization of our marriage laws, increasing respect for a wide range of religious beliefs and to legal recognition of enduring committed relationships, whether or not they conform to conservative Christian teaching. The alleged bar to same sex marriages is the last remnant of an archaic and discriminatory legal regime that imposed conservative Christian values on all Canadians regardless of their beliefs through the instrument of Canadian family law.

II

THE FREEDOM TO MARRY

89. Canadians have the freedom to marry. This right has four sources: a. at common law, a freedom to marry has been recognized; b. international treaties to which Canada is a signatory confer an express right to marry;

40 c. the Charter section 2 (a) contains a freedom of religion that should be interpreted in a manner consistent with international law, conferring a constitutional freedom to marry, and d. the Charter section 2(d) guarantees freedom of association, and should be interpreted in accordance with international law as conferring a constitutional freedom to marry, and e. the Charter section 7 should be interpreted in accordance with international law as conferring a right to choose to marry.

(a)

Common Law

90. The Supreme Court of Canada in Morgentaler quoted with approval the following statement about the freedom to marry from the decision of the United States Supreme Court in Loving v. Virginia: 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, 388 U.S. 1 (1967) at 12, quoted in R. v. Morgentaler, [1988] 1 S.C.R. 30 at 169 (“Morgentaler”); Baker v. Canada, [1999] 2 S.C.R. 817 at 862 (“Baker”). (b)

International law

91. The United Nations Declaration of Human Rights recognizes in Article 16, at paragraph 1, the right of all persons to marry. Canada is a signatory of this Treaty. The section provides:

41

1.

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Universal Declaration of Human Rights, G.A. Res. 217A, 3 U.N. GAOR., Pt. I, U.N. Doc. A-810 (1948) adopted by the General Assembly of the United Nations on December 10, 1948, Article 16.

92. Similar rights can be found in the International Covenant on Civil and Political Rights, article 23, at paragraphs 1, 2, 4, and the American Convention on Human Rights, Article 17, at paragraph 7. International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR, Supp. No. 16, U.N. Doc. A-6316 (1966), adopted by the General Assembly on December 16, 1966 and which entered into force on March 23, 1976 Article 23; American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, Article 17.

93. There is no language in these treaty provisions that would limit marriage to persons of the opposite sex or which would exclude homosexuals from the protection of international law. In fact, the United Nations Human Rights Committee (UNHRC) has found that discrimination against gays and lesbians violates international equality rights guarantees. The law of Canada, including the common law, is to be interpreted in a manner consistent with international law. Toonen v. Australia Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) (Human Rights Committee) (“Toonen”); Baker v. Canada, [1999] 2 S.C.R. 817 at 862.

42 (c)

Freedom of religion or conscience

94. Section 2(a) of the Charter guarantees “freedom of religion and conscience”. Marriage is an institution with such deep religious roots that it pre-dates the common law. Regulation of marriage was left under the jurisdiction of the ecclesiastical courts for centuries. As long ago as 1893, the Ontario Courts recognized marriage as a manifestation of religious belief protected by freedom of religion. The state continues to permit churches, synagogues, mosques and temples to set their own criteria for marriage and to determine how persons achieve the status of married persons. For many, including MCCT and its members, marriage is a manifestation of their religious beliefs and practices. As a result, the freedom to marry should be construed to be an incident of freedom of religion, especially as it accords with international law. See for example, Lord Hardwicke’s Act, s. 7; Eskridge 2, at 173-174, para. 11; R. v. Dickout (1893), 24 O.R. 250 (Q.B.) (“Dickout”); Baker v. Canada, [1999] 2 S.C.R. 817 at 862.

(d)

Freedom of association

95. Section 2(d) of the Charter guarantees “freedom of association”, one of the most fundamental rights in a free society. Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of religion. It is difficult to conceive of a chosen human association more intimate and more significant than marriage.

43 “Man, as Aristotle observed, is a ‘social animal, formed by nature for living with others,’ associating with his fellows both to satisfy his desire for social intercourse and to realize common purposes.” L. J. MacFarlane, The Theory and Practice of Human Rights, (1985) at 82, cited with approval in the minority concurring analysis of McIntyre J. in Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at 395 (“Reference Re Public Service”).

96. The Supreme Court of Canada has held that the institution of marriage might well be protected by freedom of association in combination with other rights and freedoms, although freedom of association would have no bearing on the legal consequences of marriage, such as control or ownership of matrimonial property. Interpreting s. 2(d) in this manner also accords with international law. Justice Pitfield erred in finding this freedom was not implicated because this freedom does not generally arise within families. This ignores the fact that marriage is an association of unrelated persons seeking to form family, not a relationship that arises within an existing family.

Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at 393 (minority concurring analysis of McIntyre J. adopted by the majority in this respect); Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.) (Kerans J.A.); Baker v. Canada, [1999] 2 S.C.R. 817 at 862; EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365.

(e)

Right to life and liberty

97. Section 7 of the Charter reads: 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.

98. With respect, the analysis of section 7 by the Court in EGALE exhibits a tautology or circular reasoning. Because the Court assumes marriage can only be heterosexual, it

44 finds that there is no infringement of section 7. This is circular reasoning, and a substitute for analysis rather than an analysis. The characterization of marriage as a “status created by law” does not exclude the application of section 7. Rather, it underlines the state interference of which this applicant complains: the state grants legal recognition of some religious marriages and not others. It forces members of MCCT who wish to marry to choose someone who is considered acceptable as a mate in the eyes of the state and other faiths, despite the teachings of MCCT. Justice Pitfield ought to have followed the same approach to section 7 that the His Lordship followed with section 15, namely to defer the question of whether limiting access to marriage to heterosexual couples is justified to the section 1 analysis. EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365.

99. Interpreting the freedom of association to encompass a freedom to marry would be in accordance with international law. It would also accord with persuasive dicta from the Supreme Court of Canada. Justice Wilson, in Singh v. Minister of Employment and Immigration, cited with approval the liberal approach of the United States Supreme Court in Board of Regents of State College v. Roth to liberty, where the Court said: 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.” Meyer v. Nebraska, 262 U.S. 390 at 399. In a constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. (emphasis added)

45 See e.g. Bolling v. Sharpe, 347 U.S. 497, at 499-500; Stanley v. Illinois, 405 U.S. 645; Board of Regents of State College v. Roth, 404 U.S. 909; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 205 (“Singh”); Baker v. Canada, [1999] 2 S.C.R. 817 at 862.

III

NO SUBSISTING COMMON LAW RESTRICTION

100.

There is no subsisting common law restriction of the right to marry to “one man

and one woman to the exclusion of all others”.

101.

The three Canadian cases that have identified such a restriction, Re North and

Matheson (a pre-Charter case), Layland v. Ontario and EGALE v. Canada ( postCharter cases) have erroneously relied on the 19th century case of Hyde v. Hyde and Woodmansee (“Hyde”). The Hyde decision has been misinterpreted in this regard. When placed in its appropriate historical, legal, and factual context, it is clear that the decision in Hyde is no longer good law in Canada. Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.); Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) (“Layland”); Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 (“Hyde”).

102.

Hyde decided a particular point in law: whether a man could obtain a divorce

from his wife in England where the marriage was a potentially polygamous foreign marriage that was valid in the jurisdiction where it was solemnized. In fact, the House of Lords stressed at the end of their decision that “this decision is confined to that object”. However, the case has been marshaled inappropriately as authority for an alleged common law bar to same sex marriage. The full quotation from Lord

46 Penzance in Hyde, whose speech is the apparent source for the so-called common law definition of marriage, is: “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others” (emphasis added).

As Justice Cory later noted in Re Hassan, the House of Lords in Hyde was defining “a Christian marriage”. Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 at 133; Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) at 434.

103.

The analysis of Lord Penzance in the case makes it clear that his common law

definition was based on an abhorrence of “Turkish and other infidel marriages” that were valid polygamous marriages in their homelands, but which treated the “weaker sex” in a “revolting” manner. This reveals both the conservative Christian bias of the common law rule propounded, and the fact that there was no universality of the propounded definition, outside of “Christian nations”, even in the 19th century world of Hyde. Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 at 133, 134, 136.

104.

Hyde specifically refused to recognize a potentially polygamous Mormon

marriage because it was found not to be a “Christian marriage”. However, less than 30 years later, in Ontario, the Court of Queen’s Bench reached a different conclusion. The Court expressly rejected arguments by the Crown that sought to characterize the Mormon faith as “not Christian” and Christianity as the “law of the land”. Chief Justice Armour concluded his brief reasons in support of quashing the conviction of a

47 Mormon minister for illegally performing a marriage with these words in respect of the Marriage Act then in effect: “The statute should receive a wide construction. It does not say “Christian” but “religious”. If it said “Christian” it would exclude Jews. The fundamental law of the Province makes no distinction between churches or denominations. Every person is at liberty to worship his Maker in the way he pleases. We have, or ought to have, in this country, perfect freedom of speech and perfect freedom of worship.” R. v. Dickout (1893), 24 O.R. 250 (Q.B.) at 254.

105.

The development of the law interpreting Hyde was carefully reviewed by Justice

Cory in the pre-Charter case of Re Hassan. Justice Cory pointed out that the harsh and discriminatory effect of Hyde had been criticized as inappropriate in Canada’s multicultural society for some time prior to 1976 when Re Hassan was decided. The case had been overruled first by case law and then by statute in England. Justice Cory found that Hyde, if it ever was the law of Ontario, was no longer the law of Ontario in 1976. The Divorce Act now expressly provides relief contrary to the ratio decidendi of Hyde. Hyde is no longer the law of Canada. Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) at 434, 436, 439; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 3.

106.

With due respect to the decision of Justice Pitfield in EGALE, His

Lordship erred in his analysis of Hyde. In fairness, the Court may have considered itself bound by an earlier ruling by the B.C. Court of Appeal, a decision that is not binding on this Honourable Court. There is no discussion of the Ontario case of Re Hassan. Justice Pitfield appears to rely on the incorporation of Hyde into the law of British Columbia by section 6 of the Marriage Act, R.S.B.C. 1996, c. 282.

48 As we have seen, Hyde never defined capacity to marry in Canadian law and has not been the law of Ontario since at least 1976. After British Columbia’s accession to Confederation, that province had no authority over capacity to marry. Any provincial legislative attempt to preserve or revive the Hyde capacity definition would be clearly ultra vires the province.

107.

In considering the applicability of Hyde to the facts in issue, the social and

historical context of the decision must be considered as well. The influence of ecclesiastical law that had previously exclusively regulated marriage was still strong. The decision reflects attitudes to non-Christian faiths, non-Caucasian races and women that were common enough in Victorian England, but which are at odds with the culture of human rights in 21st century Canada. England had an Established Church in 1866, and the only marriages that were recognized outside of the Established Church were the limited statutory exceptions of Jewish and Quaker marriages. As to same sex relationships, in the Victorian world of Lord Penzance, capital punishment for buggery had only recently been repealed in England and was still in effect in Scotland. Bailey, at 150-152.

108.

Moreover, even if Justice Cory was wrong in concluding that Hyde was no longer

the law in Ontario by 1976 and prior to the Charter, the Courts have consistently held in cases such as Swain, Hill v. Church of Scientology, Dolphin Delivery and Salituro that the common law must be interpreted in a manner that is consistent with the Charter. To enforce any Christian definition of marriage as the legal definition of

49 marriage is patently offensive to the Charter’s guarantees of freedom of religion and freedom from religious discrimination. The fact that some other religions may purport to share a similar definition cannot disguise the expressly Christian nature of the Hyde definition. R. v. Swain, [1991] 1 S.C.R. 933 (“Swain”); R. v. Salituro, [1991] 3 S.C.R. 654 (“Salituro”); Hill v. Church of Scientology, [1995] 2 S.C.R. 1130; R.W.D.W.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337, 353.

109.

What may have been a sensible interpretation of the “definition” of marriage in

Christian England in the 19th century can have no application to the multicultural society of 21st century Canada. Moreover, Hyde was “a” Christian definition of marriage. The evidence in this case, evidence that was not before the Court in EGALE v. Canada, makes clear that even many Christians today would not agree with a definition of marriage that excludes same sex couples, including members of the Applicant Church. In a case such as this, the Court has: “the responsibility of modifying the common law so as to make it constitutional in all its dimensions.”

R. v. Swain, [1991] 1 S.C.R. 933 at 1034; Hawkes 1; Holloway.

110.

Layland and North also relied on the English case of Corbett v. Corbett. That case

is a trial level decision of an English Court and is not binding on this Honourable Court. Although Justice Ormrod does not cite Hyde in support of his assertion of the allegedly timeless heterosexual nature of marriage, His Lordship must have been cognizant of this earlier definition from a higher English Court. As the Court

50 identifies no evidence or legal precedent for this bald definition, it should be given little weight.

Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 662; Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.) at 284-5; Corbett v. Corbett (Ashley), [1970] 2 All E.R. 33 (“Corbett”).

111.

Corbett also dates from a period when England had only recently decriminalized

private male homosexual acts. There is still no entrenched bill of rights in English law, and no widespread recognition of the legal rights and obligations of same sex couples in England, contrary to the situation in much of Europe. Most advances for gays and lesbians in England have been imposed by the European Court of Human Rights. In fact, English statute law still characterizes same sex relationships as “pretended family relationships”. Local Government Act 1988, c. 9, s. 28(1)(b); Grant v. South West Trains Ltd. Case C-249/96, [1998]E.C.R. I-621; Affidavit of Dr. Robert Wintemute, (not sworn), Reply Record of the Applicant Couples, Tab 7, at 210, 219, paras. 2, 14 (“Wintemute”).

112.

With its preoccupation with identifying scientifically the gender of the transsexual

spouse, Corbett also evidences attitudes discriminatory toward transsexuals that are not in keeping with the human rights culture of Canada, where transsexuals enjoy protection from discrimination under human rights law. Corbett should be given no more consideration in the Canadian context than Bowers. It is not the law of Canada, despite Justice Pitfield’s erroneous reliance on it in EGALE v. Canada.

51 Bowers v. Hardwick, 478 U.S. 186; Vancouver Rape Relief Society v. British Columbia (Human Rights Commission) (2000), 23 Admin. L.R. (3d) 91; Policy on Discrimination and Harassment because of Gender Identity, Ontario Human Rights Commission (approved by the Commission March 30, 2000); M.L. and Commission des droits de la personne et des droits de la jeunesse du Québec v. Maison des jeunes, [1998] J.T.D.P.Q. no 31 (Human Rights Tribunal).

113.

Since only an alleged common law restriction is in issue, at best, there can be no

need for legislative deference, for it is judges who have fashioned this rule and 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 rather than a radical change.

IV

NO LEGISLATIVE BAR TO SAME SEX MARRIAGES

114.

Some have suggested that s 1.1 of Bill C-23 constitutes a statutory bar to same sex

marriage. This is incorrect for a variety of reasons. First, the language used is intended as a guide to interpreting a statute that expanded recognition of lesbian and gay relationships. This may be contrasted, for example with the United States Defense of Marriage Act. Second, the language of the clause begins “Nothing in this Act affects the definition of marriage…”. It can scarcely be argued that a clause that says it does not affect the definition of marriage not only affects the definition of marriage, it actually creates a definition of marriage. Third, while Parliament may have been expressing its understanding or interpretation of the common law, it is not the role of

52 Parliament to interpret the common law. That role is reserved exclusively to the Courts under our system of government. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12; Defense of Marriage Act, United States Public Laws, 110 Stat. 2419 (104th Congr., 2nd Sess), adding to U.S. CA title 28, c.115, a new section 1738C, and adding to U.S. CA title 1, c1, new section 7; R. v. Salituro, [1991] 3 S.C.R. 654 at 670, 673, 675 and 678.

V

FREEDOM OF RELIGION

115.

Freedom of religion is a fundamental right of all Canadians. It is a right of great

antiquity and enjoys widespread recognition internationally. The Courts recognized Canadians’ freedom of religion even before the Charter as an “original freedom”. In Saumur v. City of Quebec, Justice Rand said: From 1760, therefore, to the present moment religious freedom has, in our legal system, been recognized as a principle fundamental character; and although we have nothing in the nature of an established church, that the untrammelled affirmations of religious belief and its propagation, personal or institutional, remain as of the greatest constitutional significance throughout the Dominion is unquestionable. Saumur v. City of Quebec, [1953] 2 S.C.R. 299 at 327 (“Saumur”).

116.

Legal protection of freedom of religion can be said to date back to the original

protection offered to the Catholic minority as reflected in the Quebec Act. Lord Dorchester was instructed by the Imperial Government in 1787 that he was to “...permit Liberty of Conscience and the free Exercise of all such Modes of Religious Worship, as are not prohibited by Law”. Ontario has had a Religious Freedom Act in effect since before Confederation that espouses freedom of religion as a matter of public policy.

53 Talman, at 365; David M. Brown, “Freedom from or Freedom for?: Religion as a Case Study in Defining the Content of Charter Rights” (2000), 33 U.B.C.L. Reverend 551-615 (“Brown”); Religious Freedom Act, R.S.O. 1990, C.R-22, originally enacted as 14 & 15 Vict. C.175.

117.

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 their discriminatory religious views on others who did not share their religious beliefs, even attempts to privilege one denomination over others. See e.g. Talman at 361.

118.

Immediately 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 of growth.” Re Drummond Wren [1945], O.R. 778 (H.C.J.) at 780.

119.

Notwithstanding this stated public policy, a particularly dark episode in our

history of religious intolerance unfolded in the 1940’s and 1950’s: the persecution of the Jehovah’s Witnesses. Their scandalous pamphlets angered the Catholic Church and provoked legal retribution by the federal government and the Duplessis regime in Quebec. However, the shameful intolerance of society and the state in Canada in this period is in marked contrast to the distinguished development of the law of religious

54 freedom in our Supreme Court in Boucher v. The Queen, Saumur v. City of Quebec, Chaput v. Romain et al. and Roncarelli v. Duplessis. Boucher v. The Queen, [1951] S.C.R. 265; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Chaput v. Romain et al., [1955] S.C.R. 834 (“Chaput”); Roncarelli v. Duplessis, [1959] 2 S.C.R.121; Brown, at 555-560.

120.

These cases established definitively that, even in the pre-Charter era, the state

was not allowed to impose any particular religious doctrine on an unwilling minority. Justice Taschereau said: In 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…

Chaput v. Romain et al., [1955] S.C.R. 834, quoted with approval in R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 325.

121.

Freedom of religion was expressly recognized in the Canadian Bill of Rights.

However, the Supreme Court found that the Bill only recognized freedom of religion to the extent it existed when enacted, and that it did not exempt religious dissidents from laws of general application in Robertson and Rossetani v. The Queen. Canadian Bill of Rights S.C., 1960, c.44 s.1(c); Robertson and Rossetani v. The Queen, [1963] S.C.R. 651(“Robertson”).

122.

In 1982, Canada’s laws became subject to the Charter. Freedom of religion was

enshrined in Canada’s constitution by section 2(a) of the Charter, without entrenching the supremacy of any particular religious dogma. Chief Justice Dickson

55 described freedom of religion in this way in Big M, the case which rejected the Robertson doctrine in the Charter era: Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 336.

123.

The Charter’s underlying theory was of liberty, freedom of choice and respect for

the dignity of all human beings. As Madam Justice Wilson said in Morgentaler: 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.

R. v. Morgentaler, [1988] 1 S.C.R. 30 at 169 at 166.

124.

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

56 significance that it is the only Canadian religious ceremony that also confers legal status.

125.

The English common law based its understanding of marriage on the Christian

concept of marriage as propounded by the Established Church, that is the lawful union of one man and one woman to the exclusion of all others for life. The historical record makes clear that Ontario restricted recognition of religious marriages prior to Confederation, and accorded special status first to Anglican marriages alone, then to other Protestant marriages, then to Christian marriages, and then to all religious marriages. It was only in 1950 that heterosexuals were free to marry outside of a religious ceremony.

126.

The current alleged prohibition is the last vestige of the religious discrimination

that has deep roots in the history of legal marriage in Ontario. The evidence makes clear that not only the Applicant but other Churches and Synagogues would offer marriage in this province but for the perceived legal impediment asserted by the federal and provincial governments. Hawkes 2, at 11, para. 2; Hawkes 1, 45-49, paras. 50-60; Morrison-Reed, at 104-106, paras. 5, 6, 9, 10; Stevens 1, at 131, para.18; see generally Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 and Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.).

127.

Since the Middle Ages at least, traditional Christianity has condemned

homosexual relationships as sinful, a view that until the late 1960’s was also given the sanction of the criminal law in Canada. The legal residue of Christianity’s

57 hostility to homosexual acts reflected in the former criminal law continues to manifest itself in the current alleged bar to legal recognition of same sex marriage.

128.

The evidence makes clear that the alleged restriction on same sex marriage

infringes the religious beliefs of the applicant in a fundamental manner. 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 more negative dogmas. In the case of marriage, that escape is incomplete, for the state purports to extend the fiat of those traditional churches into MCCT’s sanctuary by refusal to recognize marriages that conform to the doctrine of MCCT, while honouring the marriage doctrine of those traditional churches through state recognition. This relegates the same sex marriages at MCCT to the same status as the “infidel” marriages described by the House of Lords in Hyde, or to the second class status to which Jewish and Catholic weddings were relegated in pre-Confederation Ontario.

129.

For historical reasons and owing to our commitment to religious freedom, the

state in our system largely leaves the matter of who may marry and what constitutes a valid marriage to the practices of the religious body performing the marriage. Legal recognition of a church’s marriage ritual thus provides endorsement of the state to the legitimate status of that church legally and socially. The denial of legal recognition sends a message that MCCT is not a “real” church, that it has beliefs that are “illegitimate”, that MCCT is engaging in socially unacceptable activities and which

58 generally marginalizes and devalues the church compared to more traditional churches.

130.

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. 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.”

R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337. 131.

Moreover, the infringement is more sweeping than just its impact on MCCT, for it

is apparent that there is at least one other religious denomination whose official doctrine supports recognition of all same sex marriages, namely the Canadian Unitarian Council. Further, there are other faiths such as the Quakers and the Reform Jews who would permit individual rabbis or congregations to offer same sex marriages in the absence of legal impediment. The current situation in the United Church is somewhat more ambiguous. Even in denominations where the majority or prevailing view appears to be hostile to same sex marriage, such as Orthodox Judaism, Islam, Anglicanism and Roman Catholicism, the evidence reveals that there are those within those faiths who would who would either offer same sex marriage within their faith or recognize the validity of a same sex marriage offered by another faith.

59 Morrison-Reed, at 104-105, paras. 3-6; Stevens 1, at 131, para. 18; Gillies at 148-150, paras. 6-9; Affidavit of Lynda Clarke, sworn May 29, 2001, Reply Record of the Applicant MCCT, Tab 1, at 3 paras. 7-9; Hunt 2, at 84-86, paras. 21-26; Greenberg; Holloway, at 170-171, 173 paras. 12, 26.

132.

There can be no doubt that there are many evangelical Protestants, Muslims,

Orthodox Jews, Catholics and others for whom the concept of same sex marriage, particularly religious same sex marriage is anathema. See generally Cere, Novak.

133.

By its support for an exclusion of same sex marriage, the state chooses sides in

this religious debate. Moreover, it does so by coercing one group to accept the religious practice of the other by forcing them to exclude same sex couples from marriage. 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. Whether or not the views of MCCT represent the majority view in Canadian society is beside the point. As Chief Justice Dickson said: 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”. R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337.

134.

It is true that the Applicant is free to marry persons of the opposite sex. However,

that is not the limit that is in issue in this case. The fact that all religions are treated

60 identically does not insulate this restriction from Charter scrutiny. As Chief Justice Justice Dickson said in Big M, “The equality necessary to support religious freedom does not require identical treatment of all religions. In fact, the interests of true equality may well require differentiation in treatment.” Allowing gays and lesbians to marry at MCCT provided that they marry someone of the opposite sex is no different than permitting Jews to marry provided that they are baptized or allowing Catholics to marry so long as they renounce the authority of the Pope.

R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 347; Adler v. Ontario, [1996] 3 S.C.R. 609 at 657.

135.

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 life-saving medical treatment to children or the need to ensure minimal educational standards in schooling. As the Supreme Court articulated in Edwards Books, the Court must ascertain first whether there is a burden imposed by the law, and second whether the burden is trivial.

61 R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337; See e.g. R. v. Tucker (1999), F.T.R. 263; Jones v. The Queen [1986] 2 S.C.R. 284 at 298; Brown, at 565; Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (“Edwards Books”).

136.

Given the centrality to the theology of MCCT that homosexuality is not contrary

to Christianity, and given the historic importance of marriage to all Christians, it cannot be said that the effects of this alleged restriction on MCCT and its congregants are “trivial or insubstantial”. Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31 QL (“Trinity Western”); R. B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.

137.

Limits for the purposes of “protecting the fundamental rights and freedoms of

others” does not meant that the state may compel observance of a particular religious doctrine on a minority because of the importance of those religious beliefs to the majority. On the contrary, as Chief Justice Dickson said in Big M: In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially for those whose beliefs are being enforced) when, as here, it is non-action rather than action that is being decreed, but in my view compulsion is nevertheless what it amounts to. R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 350.

138.

In determining whether there is a burden on a religious minority, the assessment

must be done from the standpoint of members of those religious minorities.

62 Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (C.A.) at 654; Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341 (C.A.).

139.

Even if there is a burden imposed that is not trivial, the Court may still endorse

the limitation as constitutional if it injures others. For example, in Young v. Young the Court found that conduct that poses risk of harm to a child would not be protected. Young v. Young, [1994] 4 S.C.R. 3.

140.

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 the Applicant and others. Despite the allegations made in the record, it cannot be fairly said that the absence of such a prohibition would unduly interfere with the religious beliefs of others.

141.

It must be recognized 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 a measure of constitutional protection in the private sphere of activity. However, respect for religious faith should not be confused with a right to state enforcement of religious beliefs. Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31 (QL) at para. 36; R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 336-

63 337, 346-347, 350; see generally, Chamberlain v. Surrey School District No. 36 (2000), 80 B.C.L.R. (3d) 181.

142.

Persons holding conservative religious beliefs would be offended by same sex

marriage. However, in truth it is the homosexual act itself that violates their teachings. Moreover, for faiths such as the Catholic faith, unmarried heterosexual unions are also sinful and unworthy of legal protection. Interfaith Answers, Tab 1, Q. 3(a), 8(a); Tab 4, Q. 8(a); Tab 5, Q. 8(a); Tab 3, Q. 8(a); Hunt, at 177-178.

143.

Canadian law has never fully conformed to traditional Christian dogma in the

definition of marriage, nor to the definition in Hyde, since divorce has been legally permitted since 1867. Unmarried relationships, both heterosexual and homosexual, now enjoy considerable legal recognition under Canadian law.

144.

Those who hold conservative religious beliefs must already accommodate

themselves to a Canadian society that does not enforce all of their religious beliefs. Muslims must live with the sale of alcohol, and observant Jews and Hindus with the sale of pork and beef in our grocery stores. Catholics must accept the fact that divorce is not prohibited, as they have since 1867, and fundamentalist Protestants must accept that unmarried heterosexual relationships are recognized in law. Even those who condemn homosexual acts as sinful recognize the right of the state to refrain from criminalizing such behaviour. Hawkes 2, at 23, para. 17; Greenberg Affidavit, at 15-16, paras. 16-17; Interfaith Answers, Tab 1, Q. 2(a), Tab 3, Q. 2(a), Tab 4, Q. 2(a).

64 145.

The Supreme Court has recognized in Trinity Western that those who hold the

belief that homosexuality is sinful are entitled to those beliefs. However, they must accept constraints on those beliefs when they enter the public realm. Our society and our law recognizes as a matter of public policy and of our fundamental constitutional law that gays and lesbians, and their relationships, are entitled to equality. However offensive that principle may be to some persons of sincere religious faith, that is the law. Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31 (QL) at para. 31.

146.

Given the many changes that have occurred in our law that have recognized the

rights of gays and lesbians, including the recognition of gay and lesbian relationships, it is difficult to see how this measure would be any more offensive to the religious beliefs of those who view homosexuality as sinful than any other measure beginning with decriminalization. Interfaith Answers, Tab 1, Q. 3(a), 6(a), 7(a), 8(a), 9(a), 10(a); Tab 4, Q. 3(a), 4(a), 7(a), 8(a), 9(a), 10(a); Tab 5, Q. 7(a), 8(a), 9(a), 10(a).

147.

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. Rabbi Novak, Imam Ali , Dr. Gay and 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.

65 VI

EQUALITY

148.

In addition to the violation of section 2(a), the conduct of the governments clearly

violates section 15(1). The test for a violation of section 15(1) was recently set out by the Supreme Court of Canada in Law v. Canada. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (“Law”).

149.

The proper approach to analyzing a claim under section 15(1) of the Charter

requires a court to make three broad inquiries:

(a) Whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics; (b) Whether the claimant was subject to differential treatment on the basis of one or more of the enumerated and analogous grounds; and, (c) Whether the differential treatment discriminates in the substantive sense, bringing into play the purpose of s. 15(1). Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 524.

150.

The Supreme Court has held that the purpose of s. 15(1) of the Charter is to : “prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to

66 promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally deserving of concern, respect and consideration”. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 518.

151.

A court is required to engage in a comparative analysis taking into account the

surrounding circumstances of the claim and the claimant. The appropriate comparator must be evaluated from the perspective of the claimant. In Egan, Justice L’HeureuxDubé stated that the analysis must be both subjective and objective. Egan v. Canada, [1995] 2 S.C.R. 513 at 552; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 532 .

152.

The contextual factors to be considered include: whether there is a pre-existing

disadvantage, the relationship between the ground upon which the claim is based and the nature of the differential treatment, the ameliorative purpose or effects of the impugned legislation, and the nature of the interest affected. With regard to the last factor, Justice L’Heureux-Dubé stated in Egan that: “it is relevant to consider whether the distinction restricts access to a fundamental social institution, or affects “a basic aspect of full membership in Canadian society”. Egan v. Canada, [1995] 2 S.C.R. 513 at 556; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 540. 153.

For the reasons set out in the discussion of freedom of religion it is clear that the

alleged prohibition on same sex marriages is an infringement of the Applicant’s right to be free from religious discrimination under section 15(1). Canada’s marriage law has its roots in Christianity. The alleged prohibition is a clear remnant of this discriminatory origin of marriage as defined by the Anglican tradition that once was

67 the only legally recognized religious marriage in Ontario. The evidence reveals that even some Anglicans no longer support this restriction, but whether or not the definition is currently favoured by a majority within the Anglican Church or elsewhere is irrelevant. It is not a view held by many sincere Canadians of religious faith and discriminates against them on religious grounds.

154.

The alleged restriction, based as it is on historic Christian dogma, also reflects the

hostility to homosexuality that was the prevailing view in the Christian faith since the Middle Ages. While many Christians now take a different view of homosexuality, many maintain the historic dogma, a dogma shared with some other faiths. The sincerity of their religious views do not change the fact that the exclusion operates to discriminate against same sex couples, who are denied the fundamental right to choose to marry.

155.

It has been recognized by the Supreme Court of Canada in Egan and in M. v. H.

that discrimination against same sex couples infringes section 15 (1) of the Charter. While those cases did not concern themselves with marriage, it is apparent that this exclusion does discriminate against same sex couples. Apart from the immediate acquisition of benefits that accrue over time under Bill C-23, there are important rights and obligations that are only available to married persons under the laws of Ontario. Moreover, for gay and lesbian Christians, anything other than marriage does not allow them the dignity of their religious beliefs about their sexuality. See generally Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3.

68

156.

The pervasive and invidious nature of discrimination against gays and lesbians

has been the subject of repeated comment in the Supreme Court. In Vriend, Justice Cory characterized such discrimination as “cruel and unfortunate”. Vriend v. Alberta, [1998] 1 S.C.R. 493 at 543.

157.

Layland, a case which pre-dates M. v. H., erroneously relied on Hyde and should

not be followed on that ground alone. Moreover, the Layland court held that as homosexuals were free to marry persons of the opposite sex, the impediment resulted from their sexual preference and not any legal requirement. This type of analysis was subsequently rejected by the Supreme Court in Vriend, where the majority noted that the allegation that the distinction between heterosexuals and homosexuals was created by nature and not by the law was the same analysis rejected by the Court in respect of pregnant women in Brooks v. Canada Safeway and in respect of the hearing impaired in Eldridge. The Court in EGALE v. Canada also declined to follow Layland on this point, and found a violation of section 15 (1). Vriend v. Alberta, [1998] 1 S.C.R. 493 at 539 - 544; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624 (“Eldridge”); EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365.

158.

The alleged prohibition sends an implicit message that the state considers gay and

lesbian relationships to be less worthy than heterosexual relationships by withholding recognition to the religious marriages of the Applicant while extending recognition to all manner of religions that embrace a contrary dogma regarding homosexuality. This is made manifest in the material filed by the Coalition and the Association, which

69 allege that heterosexual marriage will be injured in that it would be devalued by extending the availability of marriage to same sex relationships. These materials make it clear that, for conservative people of faith, marriage is a valuable institution that is superior to other situations, and heterosexual unions are inherently superior to homosexual unions. This symbolic message of heterosexual and religious superiority, endorsed by the state, is what is really threatened by the removal of the alleged impediment to same sex marriage. Interfaith Answers, Tab 1, Q. 8(a); Tab 3, Q. 1(b), 8(a); Tab 4, Q. 7(a), 8(a).

159.

The alleged prohibition also violates section 15(1) and section 28 on the grounds

of sex. As has been held in Baehr v. Miike and Baker v. Vermont, the law draws a distinction on the basis of the gender of the partner, much as anti-miscegenation laws drew distinctions based on the race of the partner. This interpretation is also consistent with international law that treats sexual orientation discrimination as sex discrimination. Baehr v. Miike, 1996 WL 694235 (Hawaii Cir. Ct., Dec. 3, 1996); Baker v. Vermont, 744 A.2d 864 (“Vermont”); Toonen v. Australia Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) (Human Rights Committee); Baker v. Canada, [1999] 2 S.C.R. 817 at 862.

160.

As Justice Greer noted in her dissent in Layland, it is: “a basic theory in our society that the state will respect choices made by individuals and the state will avoid subordinating these choices to any one conception.”

Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 672.

70 161.

As this involves a common law restriction only, at best, there can be no need for

legislative deference for it is judges who have fashioned this rule and 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 rather than a radical change. R. v. Salituro, [1991] 3 S.C.R. 654 at 664-65.

162.

While the opponents of the recognition of same sex marriage mount the usual in

terrorem arguments about unforeseen consequences in urging caution, these can be disregarded. Adverse consequences have been predicted and failed to materialize over every important advance in gay and lesbian equality, from adoption to ending the ban on gays and lesbians serving openly in the military. There are predictable consequences, however, namely Canada’s advancement toward the “magnificent goal of equal dignity for all”, and “a sense of dignity and worthiness for every Canadian and the greatest possible pride and appreciation in being part of a great nation”. Vriend v. Alberta, [1998] 1 S.C.R. 493 at 535 per Cory J., Stevens 2, at 134, para. 16.

VII

NO SECTION 1 JUSTIFICATION

163.

If the existing restriction is imposed by the common law, given that it infringes

Charter rights, the correct approach is to amend it without conducting a section 1 analysis.

71 R. v. Salituro, [1991] 3 S.C.R. 654 at 675; R. v. Swain, [1991] 1 S.C.R. 933 at 978.

164.

In the alternative, it is apparent from the forgoing analysis that the objective or

effect of the current alleged limitation is to maintain the last vestige of an historic Christian definition of marriage, a definition that is no longer shared even by all Christians. This is the enforcement of religious dogma by the state in violation of section 2(a), and no section 1 analysis is required. The enforcement of religious dogma by the state can never be justified under section 1. The Supreme Court of Canada in Quebec v. Quebec Association of Protestant School Boards said: “An Act of Parliament or of legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guaranteed freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s.1” Quebec (Attorney General) v. Quebec Assn. of Protestant School Boards, [1984] 2 S.C.R. 66.

165.

In the further alternative, if a section 1 analysis is required, the first step of the

analysis is to examine the objective that the “limit on a Charter right or freedom are designed to serve” (emphasis added) per Dickson C.J. in Oakes, quoted with approval by Iacobucci J. in Vriend. The Government must demonstrate, not that the objective of marriage is pressing and substantial, but that the objective of the infringement of Charter rights or freedoms by withholding state recognition from the religious same sex marriages of MCCT is pressing and substantial. The Court erred in EGALE v. Canada by focusing on the undoubted importance of heterosexual marriage, rather

72 than ascertaining the less obvious importance of excluding same sex couples from marriage. Vriend v. Alberta, [1998] 1 S.C.R. 493 at 555; EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365 at 82.

166.

If the purpose of the limitation is to exclude same sex couples, the purpose is

discriminatory and cannot be justified under section 1. If the purpose of state recognition of religious marriage is to respect both the traditional role of churches in performing marriages while respecting religious diversity in Canadian society, imposing this limitation is the antithesis of this goal. It does not respect religious diversity but constitutes state enforcement of historic Christian dogma against those with differing views to the discredit of all people of faith. If the purpose of state recognition of marriage is to foster loving, committed and mutually supportive relationships, that purpose is undermined by limiting the laws recognition to heterosexual relationships only. If the purpose of marriage is to benefit children, this limit both deprives the children of gay and lesbian parents of the benefits of legal marriage and denies the gay and lesbian children of all parents of the hope and dream of marriage. per Greer J., dissenting in Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 677.

167.

In EGALE, Justice Pitfield articulated the section 1 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

73 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. In fact, Justice Pitfield’s analysis in this regard is virtually identical to that of Justice Gonthier in M. v. H., where that learned Justice was a minority of one. Justice Pitfield failed to articulate how a section 1 justification that was expressly rejected by an overwhelming majority of the Supreme Court in the context of common law relationships was nonetheless justified in the context of marriage. Therefore, the EGALE case must be regarded as wrongly decided on this point. EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365 at 71-85, M. v. H., [1999] 2 S.C.R. 3.

168.

There is no clash of rights here such as existed in Trinity Western that would

require a section 1 balancing of interests. The extension of recognition to same sex relationships will not imperil the recognition of opposite sex marriages of any other faith. As Justice Greer said in dissent in Layland: “…heterosexuals will not be circumscribed or in any way limited by extending to gays and lesbians the right to marry.” Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 677.

169.

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. This is a false choice. As Justice L’Heureux-Dubé

74 (dissenting) said in Mossop, which was quoted with approval by the majority in Miron: “It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values”. 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 forms.”

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 634; Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 675.

170.

Moreover, the same arguments advanced now about same sex marriage trenching

on religious freedom have been unsuccessfully advanced in respect of other measures aimed at improving gay and lesbian equality in other cases, notably in the case of human rights protection in Vriend. The Supreme Court in Vriend has ruled that the religious beliefs of some, even the majority, may not be relied upon by government to justify infringing the equality rights of gays and lesbians. See generally Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 353.

VIII

REGISTRAR GENERAL’S LACK OF AUTHORITY TO REJECT REGISTRATION

75 171.

The Registrar General of Ontario has no jurisdiction to pass judgment on the

validity of marriages, a matter exclusively within federal jurisdiction. He lacked the jurisdiction to refuse to register the documents tendered by MCCT in the absence of an express statutory prohibition or a Court Order. Mandamus lies against the Registrar where he has exceeded his constitutional authority by acting as a judicial officer in making decisions about capacity, or where Ontario has purported to regulate matters of capacity. Re Schepull and Bekeschus v. Provincial Secretary, [1954] O.R. 67, [1954] 2 D.L.R. 5 (H.C.).

PART IV - REMEDY 172.

Given that the alleged restriction is to be found in the common law, there is no

need to strike down any statute with a suspension. The Court need only declare that there is no valid continuing prohibition on same sex marriages. To the extent that section 1.1 of Bill C-23 purports to recognize or create such a prohibition, it should be declared of no force or effect under section 52 of the Charter.

173.

There is no need to suspend the remedy for the Court to permit the legislature to

consider “alternate” schemes. There is no sacrament of registered domestic partnership. For Christians, “common law status” is simply “living in sin”. Anything short of legal recognition of the same sex marriages of the Applicant will place its religious marriages in the same disadvantaged and demeaned position as Catholic and Jewish marriages in the Protestant hegemony of pre-Confederation Ontario.

76 174.

The deferential incremental approach, such as was advocated by Justice Sopinka

in Egan, is not the proper approach to an infringement of Charter rights. As Justice Iaccobucci said in Vriend, “If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words”. Vriend v. Alberta, [1998] 1 S.C.R. 493 at 559.

175.

It is also reasonable to conclude that, faced with a choice of refusing recognition

to all marriages and extending recognition to same sex marriages, the legislature would choose the latter course. Vriend v. Alberta, [1998] 1 S.C.R. 493 at 569-575; Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.) at 508.

176.

In addition, the Applicant seeks an individual remedy. It seeks a declaration that

the marriages of Kevin Bourassa and Joe Varnell and of Elaine Vautour and Anne Vautour are valid legal marriages.

177.

MCCT seeks an order in the nature of mandamus compelling the Registrar

General to accept registration of the documents evidencing these two marriages.

178.

In its capacity of intervener in the Halpern application, MCCT supports the relief

requested by the Halpern Applicants for the reasons set out in the Halpern Applicants’ factum, this factum and the factum of the Interverner EGALE. In particular, MCCT notes that it will not be able to meet the needs of all of its members

77 for marriage through the use of banns alone because Ontario law currently prohibits the availability of banns where one of the persons has been previously married. Marriage Act, R.S.O. 1990, c. M.3, s.18.

ALL OF WHICH IS RESPECTFULLY SUBMITTED Submitted this 15th day of October, 2001.

___________________________________ R. Douglas Elliott (LSUC #23685L1A)

___________________________________ Patricia A. LeFebour (LSUC #35964D)

___________________________________ R. Trent Morris (LSUC #35597N)

ELLIOTT & KIM LLP Barristers and Solicitors Suite 304 150 York Street Toronto, Ontario M5H 3S5 Tel: (416) 362-1989 Fax: (416) 362-6204 Solicitors for the Metropolitan Community Church of Toronto

78

TO:

The Attorney General of Canada Department of Justice Counsel, Public Law Section 3400 Exchange Tower First Canadian Place 130 King Street West Toronto, Ontartio M5X 1K6 Roslyn Levine, Q.C. Gail Sinclair Tel: (416) 954-8109 Fax: (416) 973-5004

AND TO:

The Attorney General of Ontario Constitutional Law Branch 7th Floor 720 Bay Street Toronto, Ontario M5G 2K1 Robert Charney Tel: (416) 326-4460 Fax: (416) 326-4015

AND TO:

EPSTEIN, COLE Barristers and Solicitors The Simpson Tower 32nd Floor 401 Bay Street Toronto, Ontario M5H 2Y4 Martha A. McCarthy Joanna L. Radbord Tel: (416) 862-9888 ext. 241 Fax: (416) 862-2142 Solicitors for the Applicants, Halpern et al.

79

AND TO:

City of Toronto Legal Department 13th Floor, West Tower, City Hall 100 Queen Street West Toronto, Ontario M5H 2N2 Leslie Mendelson Roberto E. Zuech Tel : (416) 392-7246/ (416) 392-7244 Fax : (416) 392-1199 Solicitors for Novina Wong, Clerk of the City of Toronto

AND TO:

STIKEMAN, ELLIOTT Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 David M. Brown Tel: (416) 869-5602 Catherine C. Phillips Tel: (416) 869-5540 Fax: (416) 947-0866 Solicitors for the Association for Marriage and the Family in Ontario

AND TO:

LERNER & ASSOCIATES LLP Barristers & Solicitors 130 Adelaide St. W. Suite 2400, Box 95 Toronto, Ontario M5H 3P5 Peter R. Jervis Jasmine T. Akbarali Tel: (416) 867-3076 Fax: (416) 867-9192 Solicitors for the Interfaith Coalition on Marriage and Family

80

AND TO:

SACK GOLDBLATT MITCHELL 20 Dundas St. W. Suite 1130 Toronto, Ontario M5G 2G8 Cynthia Peterson Vanessa Payne Tel (416) 979-6440 Fax (416) 591-7333 Solicitors for EGALE Canada Inc.

81 SCHEDULE A

Adler v. Ontario, [1996] 3 S.C.R. 609 Baehr v. Miike, 1996 WL 694235 (Hawaii Cir. Ct., Dec. 3, 1996) Baker v. Canada, [1999] 2 S.C.R. 817 Baker v. Vermont, 744 A.2d 864 Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.) Board of Regents of State College v. Roth, 404 U.S. 909 Bolling v. Sharpe, 347 U.S. 497 Boucher v. The Queen, [1951] S.C.R. 265 Bowers v. Hardwick, 478 U.S. 186 Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575 Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341 (C.A.). Chamberlain v. Surrey School District No. 36 (2000), 80 B.C.L.R. (3d) 181. Chaput v. Romain et al., [1955] S.C.R. 834 Connolly v. Woolrich (1867), 17 R.J.R.Q. 25, 11 L.C. Jur. 1973 [aff’d] (1869), 17 R.J.R.Q. 266, 1 C.N.L.C. 151 (Que. Q.B.) Corbett v. Corbett (Ashley), [1970] 2 All E.R. 33 EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365 Egan v. Canada, [1995] 2 S.C.R. 513 Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624 Grant v. South West Trains Ltd. Case C-249/96, [1998] E.C.R. I-621

82

Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.) Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 Jones v. The Queen, [1986] 2 S.C.R. 284 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) Loving v. Virginia, 388 U.S. 1 (1967) M. v. H., [1999] 2 S.C.R. 3 M.L. and Commission des droits de la personne et des droits de la jeunesse du Québec v. Maison des jeunes, [1998] J.T.D.P.Q. no 31 (Human Rights Tribunal) Miron v. Trudel, [1995] 2 S.C.R. 418 Pettkus v. Becker [1980] 2 S.C.R. 834 Quebec (Attorney General) v. Quebec Assn. of Protestant School Boards, [1984] 2 S.C.R. 66. R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 R. v. Dickout (1893), 24 O.R. 250 (Q.B.) R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 R. v. Klippert, [1967] S.C.R. 822 R. v. Morgentaler, [1988] 1 S.C.R. 30 R. v. Salituro, [1991] 3 S.C.R. 654 R. v. Swain, [1991] 1 S.C.R. 933 R. v. Tucker (1999), F.T.R. 263 R. B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 R.W.D.W.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

83

Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 Re Drummond Wren [1945], O.R. 778 (H.C.J.) Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.) Re Schepull and Bekeschus v. Provincial Secretary, [1954] O.R. 67, [1954] 2 D.L.R. 5 (H.C.). Regina v. Nan-E-Qui-A-Ka (1889), 1 Terr. L.R. 211 (S.C.) Robertson and Rossetani v. The Queen, [1963] S.C.R. 651 Romer v. Evans, 517 U.S. 620 (1996) Roncarelli v. Duplessis, [1959] 2 S.C.R.121 Saumur v. City of Quebec, [1953] 2 S.C.R. 299 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 Stanley v. Illinois, 405 U.S. 645 The Queen v. Bear’s Shin Bone (1899), 3 C.C.C. 329 (S.C. N.W.T.) Toonen v. Australia Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) (Human Rights Committee) Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31 QL Vancouver Rape Relief Society v. British Columbia (Human Rights Commission) (2000), 23 Admin. L.R. (3d) 91 Veysey v. Canada (Commissioner of the Correctional Services), [1990] 1 F.C. 3221 (T.D.) Vriend v. Alberta, [1998] 1 S.C.R. 493 Vriend v. Alberta (1996), 181 A.R. 16 (C.A.) Young v. Young, [1994] 4 S.C.R. 3

84 Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (C.A.)

85 SCHEDULE B

American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, Article 17. An Act for the better preventing of clandestine marriages, 26 Geo. II 7, c.33 (“Lord Hardwicke’s Act”). An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6 (“Bill 5”). An Act to amend Ontario Statutes to provide for the equal treatment of persons in spousal relationships, 3rd sess. (1994) (“Bill 167”). An Act to amend the laws relating to the solemnization of Matrimony in Upper Canada, 20 Victoria, c. 66 (“Ontario Marriage Act of 1857”). An Act to confirm and make valid certain marriages now comprised within the Province of Upper Canada, and to provide for future solemnization of marriage within the same, 33 Geo. III, c.5 (“Ontario Marriage Act of 1793”). An Act to extend the Provisions of the Marriage Act of Upper Canada to Ministers of all denominations of Christians, 10&11 Vic., c. 18 (“Marriage Act of 1847”). An Act to extend the provisions of an Act passed in the second session of the First Provincial Parliament of Upper Canada, intituled, “An Act to confirm and make valid certain marriages now comprised within the Province of Upper Canada, and to provide for future solemnization of marriage within the same” 38 Geo. III c.4, s. 4-5. Canadian Bill of Rights S.C., 1960, c.44, s.1(c). 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, sections 1, 2(a), 2(d), 7, 15(1), 28, 52. Defense of Marriage Act, United States Public Laws, 110 Stat. 2419 (104th Congr., 2nd Sess), adding to U.S. CA title 28, c.115, a new section 1738C, and adding to U.S. CA title 1, c1, new section 7. Divorce Act, S.C. 1967-68, c. 24, (later R.S.C. 1970, c. D-8), s. 3. Family Law Reform Act, S.O. 1978, c. 2.

86 International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR, Supp. No. 16, U.N. Doc. A-6316 (1966), adopted by the General Assembly on December 16, 1966 and which entered into force on March 23, 1976 Article 23. Law Reform (2000) Act, S.N.S. 2000, c. 29. Local Government Act 1988, c. 9, s. 28(1)(b). Marriage Act, 1950, S.O. 1950, c. 42, s. 25 Marriage Act, R.S.O. 1990, c. M.3, s. 5. Marriage Regulations, R.R.O. 1990, Reg. 738, s. 2. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (“Bill C-23”). Policy on Discrimination and Harassment because of Gender Identity, Ontario Human Rights Commission (approved by the Commission March 30, 2000). Religious Freedom Act, R.S.O. 1990, C.R-22, originally enacted as 14 & 15 Vict. C.175. Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 20 (Part II). Universal Declaration of Human Rights, G.A. Res. 217A, 3 U.N. GAOR., Pt. I, U.N. Doc. A-810 (1948) adopted by the General Assembly of the United Nations on December 10, 1948, Article 16. Vital Statistics Act, R.S.O. 1990, c. V.4, s. 19(1).