Canadian same-sex marriage litigation: individual rights, community strategy.
I INTRODUCTION II THE ISSUE Why Marriage? Why Not Marriage? The Legal Status and Definition of Marriage III SAME-SEX MARRIAGE LITIGATION IN CANADA: HISTORICAL OVERVIEW The First Wave: North v. Matheson (1974) The Second Wave: Layland v. Ontario (1993) The Third Wave: EGALE and Halpern Strategic Considerations: Common Law versus Charter Arguments EGALE: Trial Level Halpern: Trial Level EGALE: British Columbia Court of Appeal Halpern: Ontario Court of Appeal IV FURTHER DEVELOPMENTS V CONCLUSION
This article surveys the litigation history of same-sex marriage in the common law jurisdictions of Canada. Cases were pursued over a span of thirty years before litigants met with success in 2003. The most recent round of cases benefited from a multi-pronged approach utilizing both common law and Charter arguments. Overall, it is clear that the strategies were chosen and applied in order to reach the best possible results. The litigants were most effective when they humanized and contextualized the legal issue by relying on the plaintiffs' own words and feelings, as well as social science evidence. The lessons this article evokes, in terms of flexible, result-focused strategies, and the emphasis on bringing to light the true nature of LG BT identities, will be useful in future LG BT rights litigation.
Cet article represente un sondage historique des litiges de mariage entre personnes du meme sexe dans les juridictions Common Law du Canada. Des litiges ont eut lieu sur une periode de trente ans avant que les plaideurs obtiennent du succes en 2003. La ronde la plus recente de cas a beneficie d'une approche a plusieurs directions, utilisant des arguments bases tant sur la Common Law que sur la Charte. En tout et partout, il est clair que les strategies ont ete choisies et appliquees de facon a atteindre le meilleur resultat possible. Les plaideurs ont ete des plus efficaces lorsqu'ils ont humanise et mis en contexte les points de droit en utilisant les paroles et sentiments des plaintifs, en plus du support apporte par les sciences sociales. Les lecons que cet article evoque, en termes de strategies flexible et orientees sur les resultats, et l'emphase mise a illuminer la nature veritable des identites LGBT, seront utiles dans des litiges futurs portant sur les droits LGBT.
The 130 page document was available at the appointed hour and there were a few seconds of scrambling for copies, followed by a racket of Anxious page flipping as we all collectively held our breath. Soon however, Douglas Elliott, his hands shaking with emotion looked at us and beamed, "We won." (1)
The legal fight for same-sex marriage in Canada has a long history, dating back well before the Canadian Charter of Rights and Freedoms. (2) Cases had been pursued over a span of thirty years before litigants met with success in the Courts of Appeal of British Columbia (3) and Ontario (4) in 2003. This article reveals the legal history of same-sex marriage in Canada; it seeks to assess where gays and lesbians have come from and how they have achieved their legal success. (5)
The usefulness of this article is in illuminating an important series of cases, both for historical interest and for the provision of some insight into litigation strategy for future legal battles. Lesbian, gay, bisexual, and transgender (LGBT) rights litigation affects more than simply the few applicants involved. Rather, the history of LGBT rights litigation shows that the community plays a role in the decision to litigate. (6) Furthermore, every instance of LGBT litigation is not merely about the present, but looks forward to the future. Gradually changing the law and public opinion helps gays and lesbians win their future cases.
The fight for LGBT rights is not 'dead' following the achievement of same-sex marriage. Further legal battles on behalf of the LBGT community are anticipated: the ban on blood and organ donations by gay men, the rights of lesbians and gay men in reproduction and family law, and funding for gender-reassignment surgery for transgender and transsexual persons are all emerging in the legal landscape as areas ripe for litigation. (7) The lessons this article evokes, in terms of flexible, result-focused strategies, and the emphasis on bringing to light the true nature of LGBT identities, will be useful no matter what challenges emerge in the future.
II THE ISSUE
Why Marriage? Why Not Marriage?
To the straight population, it may seem incomprehensible and surprising that many, if not the majority of gays and lesbians, once opposed the fight for gay marriage. At a recent panel discussion on same-sex marriage at the University of Toronto Faculty of Law, (8) Laurie Arron, National Coordinator of Canadians for Equal Marriage, (9) discussed the old tensions that existed within the gay community over the issue. He recalled an event he organized in 1995, in which a guest from the Hawaii litigation (10) was invited to speak as part of a panel on gay marriage to members of the LGBT community at the 519 Community Centre, a LGBT community centre on Church Street in the heart of Toronto's gay village. Arron described the topic as divisive and as having evoked "very strong emotional responses" from those present. (11) Cynthia Petersen, a prominent gay rights lawyer, spoke on that panel too and was also able to comment on it. Interestingly, though she fought so hard for gay and lesbian marriages in the courts only six years later, at the panel, Petersen had opposed the fight for gay marriage. Arron and Petersen spoke of the hostility directed towards marriage because of its status as a heterosexual institution. The political significance of the issue was at a level never before approached by community members. Many felt this was simply too huge a battle, too draining on community resources, while other practical areas, such as custody, required more attention. Some concerns had to do with the dangers of assimilation, of losing both a unique culture and the sense of solidarity and identity that came with membership in that community. The issue also had the potential to further divide the community between those who could benefit from it (gays and lesbians in long-term monogamous relationships) and those who would not (12) (such as the polyamorous) and who felt that this would lead to further stigmatization for those who did not closely follow the relationship structure of the heterosexual norm. This sentiment was quite widespread, and was noted by the Ontario Law Commission in its 1993 report on the Family Law Act:
A third possible objective for excluding same-sex couples ... is to prevent the assimilation of these relationships to a heterosexual model. While the Coalition for Gay and Lesbian Rights in Ontario argues that same-sex couples should receive the same legal recognition and incur the same obligations as heterosexual couples, others argue that same-sex relationships are fundamentally different from heterosexual relationships.... [P]artners may not perform traditional gender roles and they may not accept sexual monogamy and emotional exclusivity as ideals. Some commentators argue that inclusion of same-sex couples ignores real differences between couples and may create a division in the gay and lesbian community between those couples whose relationships conform to a heterosexual model and receive recognition, and other couples whose relationships do not fit this model. (13)
In a similar vein, Jennifer Nedelsky, a law professor at the University of Toronto, has noted that the term "same-sex", rather than incorporating all of the various groups such as lesbian, gay, bisexual, and transsexual, has a simplifying and homogenizing effect. Same-sex marriage, notes Nedelsky, reinforces the couple as the unit in society, which is ultimately a conservative argument. (14) In the litigation context, the term simplifies the issue for the court, and manufactures for that purpose one coherent, discrete group claiming rights, albeit one that does not perfectly mirror the diversity of the real world.
Part of the reason this issue is of such importance is that law has a role to play in shaping individual and community identities. Some scholars have suggested sexuality is constructed through law as a discourse, with law having both a constitutive and symbolic role in how sexual identities and actions are characterized. (15) For example, Andrew Sharpe writes, "[L]egal discourse is implicated in the production ... of identity categories.... Conversely, the traditional LGBT reform agenda, with its 'progressive' and 'assimilationist' tendencies, is viewed as problematic." (16)
The review of this 1995 meeting at the 519 Community Centre and the issues arising from it is useful for this article in two ways. First, it sets out the controversial history of this issue within the LGBT community, which is often overlooked. Second, it illustrates how the LGBT community deliberated and made decisions as a community. Long before its ultimately successful legal challenges in 2000, EGALE organized national community consultations and distributed a questionnaire to its national membership to gauge support for the issue and to obtain input from the community on how to achieve legal marriage. (17) Although litigation is traditionally seen as arising between private parties, or between one private individual and an entity such as the government, LGBT rights litigation must be viewed in a different light. (18) Most cases were strategically planned by community leaders in everything from who the applicants should be and what evidence should be tendered, to the response of government and interveners. (19) A consideration of Layland v. Ontario (Minister of Consumer and Commercial Relations) (20) is interesting in this respect. The case was decided at the Divisional Court in 1993, with a 2-1 ruling favouring the traditional definition of marriage. It was appealed to the Ontario Court of Appeal, but LGBT community leaders intervened and persuaded those involved to abandon the litigation, since the issue was still so controversial and many other rights had yet to be won. (21) The preferred community strategy, according to Petersen, involved slow progress and developing building blocks with other rights, before turning to the issue of marriage. (22)
Many of those other rights were won during the 1990's. The right of gays and lesbians to serve in the Canadian Forces was established by Douglas v. R. (23) and Haig v. Canada. (24) Vriend v. Alberta (25) established the right to be protected equally by a provincial human rights code in situations such as employment. Egan v. Canada (26) unanimously held that sexual orientation was an analogous ground under s. 15. In M. v. H., (27) the Supreme Court held 8-1 that the definition of "spouse" in the Ontario Family Law Act, which failed to include same-sex couples, was unjustifiable sexual orientation discrimination. This final case, which established equality for gay and lesbian couples, and not simply gay and lesbian individuals, finished laying the groundwork for the fight for marriage.
At the recent same-sex marriage panel, Petersen, in response to my question on why she changed her opinion between 1995 and the recent marriage litigation, described how she eventually came to realize that there are people for whom marriage has deep personal significance, and developed an empathy for them. (28) Arron further noted that opponents had, over the years, stepped up a pre-emptive fight against gay rights and in particular, gay marriage, which they saw as the ultimate threat. The casting of marriage as a threat by conservative opponents, Arron related, drew the LGBT community together, and they came to see marriage as symbolic of their larger struggle. (29)
The LGBT community perspective thus came to be that while not everyone desired marriage, some did, and the community would rally behind and support their freedom of choice. (30) Such a perspective is reflected by EGALE's factum at the British Columbia Court of Appeal:
The Appellant EGALE recognizes that not all same-sex couples in Canada wish to marry. It is EGALE's perspective, however, that the within appeal nevertheless has implications for the equality, liberty and expression rights of all lesbians, gays and bisexuals, because the decision of whether or not to marry is one that individuals are entitled to make for themselves. Heterosexuals enjoy the inherent dignity of having the freedom to make their own choices over the fundamental personal decision of whether or not to marry. Denying same-sex partners that same freedom demeans the dignity of all lesbians, gays and bisexuals regardless of whether we are single or in a conjugal relationship, and irrespective of our own personal views on marriage. (31)
The marriage fight became symbolic of dignity, freedom, equality and full participation for a diverse coalition of LGBT people. Same-sex marriage litigation thus cannot simply be assessed from the perspective of a few applicants, but rather must be appreciated as having a wide reach and impact.
The Legal Status and Definition of Marriage
In all of the same-sex marriage cases, the courts had to grapple with the question of the legal status and definition of marriage in Canada. What is the definition? Where did it come from? Who could alter it? These questions had to be answered before the courts could contemplate the question of whether to grant the applicants access to marriage. Previous cases, such as North v. Matheson (32) and Layland, (33) had accepted that there was a definition of marriage, and that its source was the common law cases of Hyde v. Hyde & Woodmansee (34) and Corbett v. Corbett. (35) Hyde assessed the validity of a heterosexual marriage that took place in Utah where, at the time, polygamy was lawful. (36) The marriage, though monogamous, was "potentially polygamous" and was held to be void. In so ruling, Lord Penzance commented, "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." (37) Subsequently, in Corbett, which involved the marriage of a transgendered individual, it was held that an opposite-sex union was an essential requirement for marriage:
[S]ex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex. (38)
It was necessary to look to the common law because there were no Canadian statutes that defined marriage. (39) The only federal statute that came close was the Modernization of Benefits and Obligations Act, which included an interpretation clause: "For greater certainty, the amendments made by this Act do not affect the meaning of the word 'marriage', that is, the lawful union of one man and one woman to the exclusion of all others." (40) It was acknowledged by all parties to the same-sex marriage litigation that this clause did not define marriage, only clarified that the government was not doing SO. (41)
The Constitution Act, 18674 (42) also speaks to the legal status of marriage in Canada. Section 91(26) gives the federal government legislative authority over "marriage and divorce", including the capacity to marry. Section 92(12) gives provincial governments the power to enact laws relating to the "solemnization of marriage".
By understanding the legal definition and status of marriage in Canada, it is possible to highlight the legal ambiguities that existed before the litigation began, and how these ambiguities structured and were reflected in the ensuing litigation. The litigation strategy was anything but simple, and splintered into distinct areas: common law arguments, constitutional arguments, and Charter-rights arguments.
III SAME-SEX MARRIAGE LITIGATION IN CANADA: HISTORICAL OVERVIEW
Same-sex marriage litigation in Canada is best viewed as occurring in four 'waves'. The first of these was the 1974 case, North, (43) which stands alone before the Charter. The second wave was the Layland (44) case, which took place after the birth of s. 15, in a period of tremendous uncertainty for gay and lesbian rights. In a decision released the same year, Brian Mossop had been unsuccessful in challenging the denial of bereavement leave to same-sex couples under the Canadian Human Rights Act, with La Forest J. commenting, "While some may refer to [Mr. Mossop's] relationship as a 'family', I do not think it has yet reached that status in the ordinary use of language." (45) This was before sexual orientation was recognized unanimously as an analogous ground of discrimination in Egan, (46) and before the Supreme Court held in M. v. H. (47) that such discrimination was not justifiable under s. 1 of the Charter.
In 2000, a third wave of cases were launched in British Columbia, Ontario, and Quebec. (48) Some lawyers, such as Cynthia Petersen (British Columbia and Ontario) and Martha McCarthy (Ontario and Quebec) argued in more than one jurisdiction, and there was cooperation and coordination of strategy between the equality-seeking litigators. (49) Their greatest success was the Ontario Court of Appeal's ruling in 2003. In response to this, a fourth wave of litigation (50) commenced to tackle the issue in the remaining provinces and territories, and create a legal consensus stretching across the country. Eventually, such litigation became unnecessary as the federal government passed the Civil Marriage Act in 2005. (51)
The third wave was undoubtedly the most important of all the stages. These cases rocked the country, rattled the Cabinet, (52) and forced a complacent government to finally step up and introduce legislation to ensure legal harmony and equality across the nation. The third wave cases were the most significant in their impact, and their carefully crafted strategy is worth examining in detail for its success and impact on the LGBT community. Before turning to EGALE (53) and Halpern, (54) however, it is worth briefly reviewing the first and second waves so as to set out the findings and arguments that influenced the strategic decisions of the third wave.
The First Wave: North v. Matheson (1974)
The first decision relating to same-sex marriage in Canada was North. (55) Robert Wintemute characterizes North as "perhaps the first reported Canadian decision on sexual orientation discrimination outside the criminal law." (56) He further comments that, "Given that same-sex sexual activity had been decriminalized only five years before, it is not surprising that the claim failed." (57) The strategy in North was focused on the provincial marriage act, which was framed in gender-neutral terms. The applicants argued that where all of the requirements--as to publication of banns, medical certificates, witnesses ... etc.--have been satisfied, the marriage must be registered without regard to the validity or invalidity. (58)
The judge found that legislation provided no definition of marriage, but that the concept had been defined judicially in cases such as Hyde and Corbett. (59) Interestingly, the judge noted that "[i]t is of equal importance in the determination of the issue before me that the meaning of marriage is universally accepted by society in the same sense" . (60) This implied that the courts would be unwilling to accept a redefinition of the common law definition of marriage in the absence of significant societal progress towards or recognition of that goal, and likely informed later strategies which aimed to convince courts that society and the law had progressed sufficiently to accept a new definition of marriage.
The Second Wave: Layland v. Ontario (1993)
The second stab at litigating equal marriage came in 1993. Layland is significant for being the first post-Charter case to deal with gay marriage. (61) The applicant couple conceded the common law definition of marriage, but argued that it breached their s. 15 rights. The intervener, the Metropolitan Community Church of Ottawa, took the more radical position--later taken up by the applicants in EGALE and Halpern--that there was no restriction of marriage to persons of the opposite sex at common law. (62)
The majority judgment in Layland held that under the common law a valid marriage could only take place between a man and a woman. (63) No s. 15 violation was found by the majority: "In the case at bar, the disadvantage to the applicants arises directly from the legal distinction being challenged. It does not exist apart from nor is it independent of such distinction." (64) Impliedly, gays and lesbians were not protected under the analogous grounds of the Charter because they did not suffer discrimination outside the legal question of their capacity to marry. The majority judgment betrays an appalling ignorance of gays and lesbians, their lifestyles, hopes, needs, and dreams. It assumes that sexual orientation is merely a matter of preference, and ignores the significance of long-term same-sex relationships for gays and lesbians, implying that an opposite-sex relationship would be equally appropriate for a homosexual individual:
The law does not prohibit marriage by homosexuals provided it takes place between persons of the opposite sex. Some homosexuals do marry. The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law. (65)
The strategy in the later cases of EGALE and, especially, Halpern, which made use of social science evidence, as well as the applicant couples' affidavit evidence demonstrating their reasons for wanting to marry, likely had its roots in attempting to pre-empt such findings.
While North gave an unqualified 'no' to the question of equal marriage, the dissenting judgment by Greer J. in Layland was strikingly progressive and affirming of equality. This judgment was the first in Canada to accept the arguments of gays and lesbians seeking marriage equality. The case was thus an important milestone of success, lending force to arguments made in the third wave of cases nearly a decade later. Indeed, in all of these cases, the first line of argument was often that the court should simply adopt the dissenting judgment in Layland. Justice Greer found for gays and lesbians on both the common law and Charter arguments:
I am of the view that restricting marriages to heterosexual couples infringes and violates the applicants' s. 15(1) Charter rights and that such violation cannot be justified under s. 1 of the Charter. I also agree with the position of the Church that there is no common law prohibition against same-sex marriages in Canada. (66)
Elaborating on the common law aspect of his decision, Greer J. explained, "I disagree with my colleagues' conclusion that these cases should be applied, given what has taken place since the Charter was passed, and given the body of law which has applied s. 15 of the Charter." (67) She further noted the role of the courts in updating the common law:
I have noted that the common law must grow to meet society's expanding needs. It is clear from the supporting materials submitted by the applicants and the intervener Church, that gays and lesbians have been, for many decades, entering into permanent relationships which are sanctified by their Church. (68)
Justice Greer also invoked R. v. Morgentaler, (69) writing, "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," (70) and thus implicitly suggesting a willingness to decide the case based on s. 7. The later cases of EGALE and Halpern both included s. 7 arguments, though these were never accepted by the courts.
Justice Greer's dissent showed that both the common law and Charter arguments had a possibility of success. This influenced the decision in future cases to employ both strategies.
The Third Wave: EGALE and Halpern
This section will trace the evolution of the litigation strategy in the EGALE and Halpern cases. It will begin by setting out some of the strategic considerations that influenced the use of the common law and Charter arguments. It will then map out the shifts in the use of these arguments over time and across jurisdictions. The litigation strategy was at all times result-focused and responsive to the judgments of the courts as they were released. As such, it went through distinctive shifts. Early in the litigation, the strategy was very broad, employing a range of common law and Charter arguments. It was only much later in the litigation that the strategy narrowed on a Charter rights argument.
Strategic Considerations: Common Law versus Charter Arguments
Early in the litigation, the common law arguments were emphasized first, and the Charter arguments were left to the last of the alternative arguments. The reasons for emphasizing the common law arguments were strategic, and largely related to remedy. Cynthia Petersen kindly agreed to answer questions about the legal strategy, and explained the reasons, from her perspective, for emphasizing the common law argument. The strength of Greer J.'s dissent in Layland was influential, (71) and so too was the outdated nature of the English cases. (72) Of greatest concern to the litigation team, however, was the potential for a Charter violation to be 'saved' by s. 1 under the Oakes test. Egan showed that such a possibility did exist. (73) Although M. v. H. was a strong victory in passing the s. 1 test by ant 8-1 margin, marriage was a potent, symbolic, and potentially more divisive issue than simply one of access to common law marriage regimes. As Petersen explained,
That was the primary reason for pushing the common law arguments--because it meant the restriction against same-sex marriage could be found wanting and be changed without ever conducting a s. 1 analysis. It would deprive the government of an opportunity to justify the bar. (74)
The focus on the common law arguments was also strategic in terms of the immediacy of the remedy that the court could potentially offer. Petersen commented:
The other important reason [for emphasizing the common law] was remedy. We worried that if we got a s. 52 constitutional remedy, the court would order a long suspension, whereas a change in the common law rule would happen immediately, with no delay. (75)
In the Metropolitan Community Church of Toronto (MCCT) factum in Halpern, Douglas Elliott further implied that a suspension of a s. 52 remedy could be used by the court to permit the legislature to consider alternate schemes. This would be unacceptable, as in his words, "There is no sacrament of registered domestic partnership." (76) Thus, the common law strategy was put forward because it had the potential to lead to the most desirable result--immediate equality--and did not carry the threat of justification, delay, or alternative schemes under a s. 1 analysis.
While the lawyers emphasized the common law for strategic reasons relating to remedy, they had other reasons to emphasize the Charter arguments. The Charter is a well-known and somewhat iconic document in Canada, passing beyond the merely legal realm into the realm of symbol. (77) The Charter is known to the Canadian public, which for the most part has never heard of the arcane cases of the English courts. During the press conferences, the lawyers tended not to emphasize the nature of common law, the old Hyde case, or the court's duty to update the common law to meet modern standards. They went for powerful, punchy symbols. The Halpern couples documented this in an online diary: "'The essence of [the federal government's] arguments is bigotry,' Martha McCarthy told the gathered media. 'The Charter promises equality for everybody and there is no hierarchy of love.'" (78) This may be contrasted with the arguments in the facta, which emphasized the common law, leaving the Charter as the last of the alternative arguments.
As it would always be open to the government to change any common law definition crafted by the courts, or to override any finding of a Charter breach under s. 33(1) of the Charter, gaining public support for equal marriage formed an important part of the legal strategy, as people's opinions on the subject would influence any government response. Elliott has written, "Throughout these [legal] struggles, we were aware that even where legal battles were won, the war could still be lost. The threat of the notwithstanding clause was always looming over us." (79) Thus, public opinion remained important in order to influence politicians against using the override.
Aside from its symbolic or political value, Charter arguments have resulted in many important legal victories for gays and lesbians. Through cases such as Haig, Douglas, Vriend, and M. v. H., "[the LGBT] community has been legally and socially transformed by the power of section 15.... Resort to the courts, armed with the sword of section 15, has become common for LGBT communities. We have largely prevailed." (80) Past successes certainly influenced the use of the Charter in the marriage litigation. Indeed, Radbord and McCarthy have commented that M. v. H. 'compelled' the s. 15 result in Halpern. (81)
Although not immediately recognized at the outset of the litigation, there was yet another advantage in using Charter arguments. While the legal team initially preferred the common law arguments because they would allow the court to simply update the law without having to go through the 'justification' stage of a s. 1 analysis, it is apparent in hindsight that it was for this very reason that those arguments failed. As Petersen noted:
[The common law argument] would deprive the government of an opportunity to justify the bar. The government argued that was unfair/ unjust. In the end, I think that's why the common law arguments didn't work--the courts were concerned about overturning the bar without at least investigating the government's arguments about why the bar should be maintained. (82)
Charter jurisprudence gave judges a comfortable, reliable framework within which to analyze and test competing arguments. The flaw in advancing the common law argument was that if accepted, it would not allow for the other side to provide justifications for the ban. A ruling using this strategy would be a positive one for gays and lesbians, but it might be viewed as unjust if it failed to duly consider and explore the arguments on the opposing side. Such a ruling might not have the necessary credibility to improve LGBT equality more broadly in society, or to build the foundation for future legal successes.
As discussed earlier in this article, concerns were raised by the LGBT community regarding the potential of the marriage litigation to obscure or homogenize the true, diverse nature of the community and lead to the increased marginalization of certain members. LGBT equality rights cases cannot be viewed as simply a contest between two parties. Rather, the entire LGBT community is involved. Therefore, a legal history of same-sex marriage litigation in Canada must take into account the sensitivity of the litigation strategy to the needs and values of the entire LGBT community.
On the one hand, the common law strategies were arguably more empowering to LGBT individuals across Canada, because they simply asked the court to recognize the obvious presence and equality of those individuals and update the law accordingly. In so doing, the common law strategies asked the courts to make the law reflective of actual practices. It should be noted, however, that the common law arguments focused on the monogamous 'couple', arguably obscuring the true diversity of the LGBT community. As discussed above, this was seen by some to be problematic and disempowering.
On the other hand, a s. 15 analysis under the Charter must proceed using a comparator group, a group alike in every way except for the one distinction. (83) This required an argument of 'sameness' with heterosexuals, an assimilating argument that ignores the variety within gay culture. Other aspects of the culture, such as bathhouses, and other identifications that openly transverse sexuality, such as race, class, religion, and disability, were not made visible by or affirmed in such an analysis. (84) The tendency was to oversimplify gay and lesbian experiences, thus failing to reflect them accurately. (85)
There has been, furthermore, a trend in the Charter jurisprudence of oversimplifying the experience of sexuality. Justice La Forest wrote in Egan, "[I]t is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal COSTS." (86) This characterization was then cited in M. v. H. (87) and Halpern. (88) The concept suggested fixed, compelled sexualities, rather than sexualities that can enjoy some variety. The comment was troubling because it implied that if any element of choice existed, the courts would be less likely to grant equality to those making such choices. Moreover, it is questionable how well bisexual plaintiffs, who are 'capable' of forming relationships with either gender, fit into this definition.
What was also troubling about the s. 15 analysis, from the perspective of LGBT litigants, is its focus on human dignity. The Supreme Court has shunned formal equality in favour of substantive equality, eliminating any presumption that a denial of formal equality is an infringement of s. 15. (89) This approach is a barrier with a particular impact on gays and lesbians, who are more likely to face formal distinctions at law:
"[F]ormal equality", as it relates to groups defined by enumerated or analogous grounds, is an essential aspect of "equality". It tends to be trivialized by groups (for example, women and racial minorities) that have already largely achieved it (in the sense of the absence of formal sex and race distinctions in legislation). However, for groups such as gay, lesbian and bisexual persons who have yet to achieve it, and face potentially hundreds of statutes with express distinctions based on sexual orientation, "formal equality" looks quite attractive. (90)
To find an infringement of substantive equality, according to Law v. Canada, a court asks whether a reasonable person in the position of the plaintiff would perceive discrimination, and considers a number of contextual factors, such as pre-existing disadvantage, lack of recognition of needs and capacities, and the nature of the interests affected. (91) Plaintiffs are thus required to emphasize the indignities they suffer and portray themselves as weak, vulnerable, and despised, rather than as flourishing and equal. Radbord and McCarthy, lawyers for the Halpern couples, expressed a sentiment of uneasiness surrounding this process:
The focus on dignity is highly malleable and subjective, and forces the Court to pass judgment on the legitimacy and reasonableness of claimants' feelings. This is an uncomfortable exercise. It results in a personal and loaded judgment about the claimant, who must claim a loss of self-worth, and who ultimately faces a decision that her feelings are either legitimate or hypersensitive. While section 15 aims to empower the historically disadvantaged, the Law analysis requires a plea of victimization. (92)
It is difficult to reconcile the "plea of victimization" required by Law with the analysis undertaken in the common law arguments, and this conflict represented a cognitive dissonance between the two prongs of the LGBT legal strategy. On the one hand, gay people must already have been equal for the common law to be updated to reflect this, but on the other hand they must have been invisible or despised for the purpose of locating ongoing discrimination in a Charter analysis.
Indeed, gays and lesbians have managed to succeed in s. 15 cases, but only when they could convince the courts that they suffered indignity. The majority in Layland, for instance, failed to find a violation of s. 15 because it failed to find any indignity, writing that, "the disadvantage to the applicants arises directly from the legal distinction being challenged. It does not exist apart from nor is it independent of such distinction." (93) The Attorney General of Canada attempted to make a similar argument in EGALE:
Since the recent enactment of the Modernization of Benefits and Obligations Act, same sex couples presently receive substantive equal benefit and protection of the federal law. Same sex couples are, therefore, insofar as benefits are concerned, no longer in a disadvantaged position within Canadian society as compared to opposite sex couples. (94)
The troubling implication of such an argument is that if gays and lesbians are not seen as "disadvantaged"--that is, if they are not continually victimized--their protection under s. 15 is lost. In other words, although it would not be honest to suggest that no hatred of LGBT people exists, the marginalization of LGBT people in areas extraneous to the issues before the courts does not seem relevant and, therefore, would unnecessarily portray a vibrant group as pathetic and pitiable. Ultimately, the danger is that through such an analysis, courts may affirm and recognize hate as much as equality, indignity as much as dignity.
It would be a mistake, however, to dwell too much on concerns of associating the LGBT community with indignity. In the same-sex marriage litigation, the Charter rights argument was most effective when it made liberal use of the stories of LGBT people, in particular their desires to marry and the effects of being denied expression of those desires. Over time, the litigants learned this lesson and made greater use of the couples' own words and stories. In giving voice to these experiences, LGBT people in Canada were empowered and made legally visible. The potential negative effect of the Charter analysis was more than balanced by the inclusion of and attention to the applicants' stories and the recognition given to their diverse social practices, including the raising of children, the practicing of various religions, and the holding of commitment ceremonies. Indeed, the successful judgments often directly quoted from the applicants' affidavits. With respect to the results achieved, the litigation--and ensuing legislation--was stunningly affirmative of the equality of LGBT people.
EGALE: Trial Level
In June 2000, EGALE received case funding from the Court Challenges Program to assist with the same-sex marriage litigation. In October 2000, EGALE initiated legal proceedings in British Columbia on behalf of itself as an organization and five same-sex couples. (95) EGALE was represented by Joe Arvay and Cynthia Petersen. This action was commenced simultaneously with an action by the British Columbia government, which sought the right to marry gays and lesbians, against the federal government. In November 2000, an additional three couples initiated separate proceedings (the "Barbeau" couples), represented by Barbara Findlay and Kathleen Lahey. Following a change in government in British Columbia in June 2001, the government withdrew its support from the litigation, ostensibly because it did not wish to be in the position of suing the federal government. (96) The EGALE and Barbeau cases were heard together before Pitfield J. in the summer of 2001. (97)
The index to EGALE's factum submitted to the British Columbia Supreme Court (98) is instructive in an assessment of the early same-sex litigation strategy, because it highlights the flow and order of the arguments:
INDEX TO THE ARGUMENT
I. OVERVIEW OF THE PETITIONERS' POSITION
II. THERE IS NO RESTRICTION AGAINST SAME-SEX MARRIAGE IN CANADA
A. There is No Statutory Restriction Against Same-Sex Marriage
B. There is No Common Law Restriction Against Same-Sex Marriage
C. Marriage Licences Must Therefore be Issued to the Petitioners
This was followed by the argument that if there was a common law restriction against same-sex marriage, it must be revised by the court in accordance with modern social practices and established Charter values. (99) Far from being the centrepiece of its argument for equality, the Charter rights arguments were the last in the line of alternative arguments advanced by EGALE:
It is unnecessary, in light of the above submissions, to determine whether the common law restriction against same-sex marriage also violates specific rights or freedoms guaranteed by the Charter. Should this Court decide to do so, however, we submit that the impugned restriction infringes rights and freedoms guaranteed by ss. 2, 7 and 15 of the Charter. (100)
At the trial level, EGALE began by setting out why there was no common law barrier to same-sex marriage in Canada: the cases that found as such were in lower courts in other jurisdictions, and the cases they applied were of doubtful precedential weight and value. In Hyde, (101) the definition of marriage was inconsistent. At one point, Lord Penzance defined marriage in gender-neutral terms: "In Christendom it means the union of two people who promise to go through life alone with one another." (102) At another point in the judgment he defined marriage differently, and it is this definition which was frequently cited by the defenders of traditional marriage: "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." (103) EGALE then went on to suggest that the reference to the sex of the parties in the second definition was obiter dicta, as the issue of same-sex marriage was not before the court. (104) Corbett, furthermore, established that a spouse's inability to engage in heterosexual intercourse merely rendered the marriage voidable, and not void. (105) Later in the factum, EGALE noted:
Ironically, each decision has been rejected in respect of its ruling on the central issue decided by the court (i.e., polygamy in Hyde and gender-identity in Corbett), yet both cases have been accepted as authority for the rule that two people of the same sex cannot marry, an issue that was not even specifically considered by either court. (106)
Thus, if no definition existed excluding same-sex couples, EGALE contended they should be allowed to marry so long as they met all other statutory criteria. EGALE requested remedies of mandamus, which would require the issuing of marriage licences, and prohibition, which would prohibit the refusal of marriage licences on the grounds that the partners were of the same sex. (107)
As a second line of argument, EGALE suggested that if a common law restriction against same-sex marriage existed, the courts, as custodians of the common law, should remove such a restriction because it offended 'Charter values'. The common law should not be based on a singular religious perspective, such as "Christendom" in Hyde. (108) Similarly, Corbett was based on outdated ideas of women in marriage:
[Judge Ormrod in Corbett] declared the marriage in question to be void because, in his view, a post-operative transsexual woman is not "a person who is naturally capable of performing the essential role of a woman in marriage"--thus implicitly equating "performing heterosexual intercourse" with the "essential role of a woman in marriage". This outdated view of the "role of women" in matrimonial relations has come to be recognized as sexist and cannot properly form the basis of contemporary Canadian common law with respect to the validity of same-sex marriage.... The reasoning in the Corbett case and in the consummation jurisprudence more generally ... is not only sexist, but is also offensive to the dignity of people with disabilities. The cases stand for the proposition that a person with a physical or mental condition which disables them from having conventional heterosexual (penile/vaginal) intercourse lacks the legal capacity to contract a non-voidable marriage. ... (109)
EGALE cited R. v. Salituro, a case in which the court changed the spousal incompetence common law rule because it "reflects a view of the role of women which is no longer compatible with the importance now given to sexual equality". (110) In Salituro, the common law rule was offensive to women, and later updated because of its offensiveness to women. Here, EGALE argued, the common law restriction against gays and lesbians should be updated because of its offensiveness to straight women and people with disabilities. This argument lacked a certain amount of confidence in the court's willingness to vindicate the rights of gays and lesbians. It suggested a belief that the courts were more comfortable recognizing and accommodating the rights of other groups in comparison to gays and lesbians, and that respect for gays and lesbians did not fall under established Charter values. Although gays and lesbians had previously benefited from the courts, they still approached them with some uncertainty, deriving perhaps from the feeling, as Douglas Elliot has written, that "[w]hen I was young, the law was one of the chief instruments of our oppression". (111)
It was only after such an argument was made that EGALE turned to the assertion that the common law should be updated simply because it was out of date with respect to modern practices. As noted above, EGALE began its argument by focusing on why the common law was out of date with reference to straight couples and their marriages. EGALE first contended that it was out of date because it stated that marriage was 'for life', whereas today, high divorce rates and remarriage rates (for straight couples) rendered this obsolete. (112) EGALE then addressed the issue of the lived experience of LGBT people in contemporary Canadian society. It was here that the modern LGBT experience--which began with the escape from historical marginalization and degradation and evolved into the vibrant entrance into the mainstream--was put forth as a compelling reason for updating the law. If society had come this far, EGALE suggested, so too must the law evolve:
Public opinion regarding homosexuality, lesbianism, and bisexuality--which, until 1973, were pathologized as mental disorders by the psychiatric profession--has shifted dramatically toward acceptance of sexual diversity as a manifestation of normal human variance. Many same-sex couples now live together openly, accepting spousal responsibilities and receiving spousal benefits from employers, service providers, and all levels of government. ... Same-sex couples, as well as individual lesbians, gays, and bisexuals, are parenting children at rapidly rising rates. ... Many Churches, Synagogues, and other places of worship are welcoming the full integration of their lesbian, gay, and bisexual congregants by, among other things, celebrating same-sex relationships in public commitment ceremonies. ... In the context of these modern social realities, an antiquated common law rule that privileges heterosexual couples and deems them exclusively worthy of access to the institution of marriage is shamefully out of date. (113)
A problem with EGALE's argument at the trial level was that rather than emphasizing gays and lesbians as the proper focus of the analysis, it relied instead on the offensiveness of the impugned restriction to other equality-seeking groups. This strategy distracted from the court's task, and aside from being somewhat disempowering to gays and lesbians, it was not particularly effective. Understandably, this tactic was improved upon in Halpern and later on at the British Columbia Court of Appeal.
EGALE's Charter arguments largely focused on the violation of s. 15 based on sexual orientation. EGALE noted the Charter claim must be looked at contextually: "In this case, the relevant context includes not only the marginalized position of lesbians, gays, and bisexuals in Canadian society, but also the cultural significance of marriage as a societal institution." (114) Same-sex partners, EGALE argued, were denied the benefit of the law, since they lacked equal access to the same legal regimes as heterosexuals. Not only were gays and lesbians denied equal access to civil marriage, but they also faced a "patchwork" of inconsistent law across the country with implications for their mobility as couples. In addition, they faced obstacles due to waiting periods. (115) The decision to marry or not to marry, EGALE observed, was one of personal choice and freedom, with implications for individual autonomy and self-identity. (116) EGALE also briefly touched on the rights guaranteed by ss. 2 and 7 of the Charter. In its s. 2(d) claim, EGALE noted that "[m]arriage is obviously a fundamental form of intimate association, as well as a means of statement of one's love and commitment to one's chosen partner". (117) The restriction also offended s. 7 because, following Blencoe, "the right to liberty in s.7 protects the individual's right to make inherently private choices". (118) Findlay and Lahey made further submissions regarding the violation of ss. 2(b) (expression), 2(d) (association), 6, 7 (liberty and security of the person), and 28. (119)
The result at the British Columbia Supreme Court was largely negative for EGALE. Justice Pitfield rejected the first two common law arguments, finding that there was a common law bar to same-sex marriage and that it was not appropriate to change it. (120) Justice Pitfield's decision was based on Hyde and Corbett, and did not appear to be influenced by EGALE's submissions that these cases were offensive to equality-seeking groups. For instance, rather than being offensive to persons with disabilities, Pitfield J. held that the opposite-sex definition of marriage was reasonably rooted in the history of heterosexual reproductive practices:
I do not accede to the view that Corbett was wrongly decided because it focused on the "capacity" for intercourse and reproduction as the root of marriage. ... Rather, the phrase is a reference to the biological reality that if a child is to be conceived at all by two parties in a relationship, one of the partners must be female and the other male. (121)
Justice Pitfield went on to accept the Attorney General's argument that marriage "just is" heterosexual:
In my opinion, the fact that persons of the same sex may not legally marry is not a question of capacity. Rather the inability of same-sex couples to marry results from the fact that, by its legal nature, marriage is a relationship which only persons of Opposite sex may formalize. The requirement that parties to a legal marriage be of opposite sex goes to the core of the relationship and has nothing to do with capacity. (122)
Such statements likely motivated EGALE's later strategy of using social science evidence to elucidate the history and contemporary nature of marriage and family. Although some social science evidence was led before the British Columbia Supreme Court, (123) EGALE lawyers did not make good use of it in their factum. The expert evidence did not inform the arguments and did not appear to be a central part of the strategy. This shortcoming was improved upon in the Halpern arguments, as discussed below.
Justice Pitfield was also notable for going further in stating that Parliament may not change the definition of marriage, since this definition was frozen by the Constitution Act, 1867. (124) All subsequent judgements on same-sex marriage have rejected this finding. Perhaps surprisingly, given his conservative opinions in other areas of the judgment, Pitfield J. accepted that section s. 15 had been violated. Nonetheless, he concluded that the infringement was justified under section s. 1, because the meaning of marriage was frozen in 186712 (125) and because the Charter cannot be used to invalidate other provisions of the Constitution. In the alternative, he suggested that the infringement was justified under s. 1 based on the procreative purpose of marriage. (126)
Halpern: Trial Level
The strategy in Halpern differed in some important ways from the strategy used in EGALE. Elliott has commented that the same-sex marriage litigation in Ontario took a 'double-barrelled' approach. (127) One part was a secular civil marriage argument, made by Joanna Radbord and Martha McCarthy on behalf of a group of same-sex couples. The second part was a religious argument made by Douglas Elliott, Patricia LeFebour, and Trent Morris on behalf of the MCCT, and people of faith who wanted recognition for their same-sex marriages. This allowed the litigation team to tackle the issue of religion head-on, (128) while allowing the secular argument to proceed without adducing religious evidence or arguments. Elliott noted that although the case was not won on the religion aspect of s. 2 or s. 15, they succeeded in creating the context for the s. 15 sexual orientation analysis, by allowing the Court to find that the case was not about "Gays vs. God". (129)
Another notable shift in the strategy was the greater reliance on social science and historical evidence in the written and oral arguments. This can be viewed as taking into account some of Pitfield J.'s findings at the British Columbia Supreme Court, which necessitated the increased use of evidence to expose the true history and contemporary nature of marriage. Radbord and McCarthy have commented:
While judicial notice requires "notorious and undisputed facts", so-called common sense often reflects the perspective of dominant groups, such that judicial notice may lead to insensitivity to the realities of marginalized communities and the reinforcement of prejudicial stereotypes. Social science evidence may therefore be an important safeguard in advancing substantive equality for members of vulnerable minority groups whose experiences are unlikely to be represented in mainstream understandings. (130)
Indeed, the Halpern factum devoted four sections to historical and social science evidence: the history of marriage, its purposes, the effects of its denial, and the importance of equal marriage recognition to gays and lesbians. It was only on page 26 that Radbord and McCarthy began to set out their legal arguments. (131) In contrast, the EGALE factum discussed above set out the legal arguments right from the first page. (132)
Since the Attorney General's arguments about the nature and history of marriage were accepted in the British Columbia litigation, Radbord and McCarthy devoted considerable space to addressing the historical and contemporary meanings of marriage "to try to reveal the generalizations and stereotypes behind the Attorney General's claims to 'universal' truths ... we hoped the evidentiary materials would serve as a necessary antidote to the deeply-rooted prejudices with which we are all ingrained." (133) They presented evidence that marriage had changed and that same-sex marriages have existed before. This fuelled their argument for recognition of a different model of marriage from the one of 'complementarity' asserted by the Attorney General. (134) This model implicitly aligned itself with feminist causes of gender equality and dignity long recognized by the courts: "Since the 18th century, marriage has evolved from an arranged institution rooted in obligation, property exchange and male control. It is now a chosen institution based on companionship, love and equal partnership." (135) It was important that this definition was gender-neutral, and posited two equal partners rather than two different yet complementary partners. Under this model, there would be no logical reason to limit marriage:
Since the underlying purpose of civil marriage is to provide legal protection and support for those couples who are willing to make a mutual commitment to support and care for one another as a family, there is no reason for denying legal marriage to same-sex couples who want to enter into the marriage contract. (136)
It is possible that a negative judgement, such as that written by Pitfield J., was the result of an inadequate understanding of the claimants, of modern LGBT experiences, and of the meaning of access to marriage. Radbord and McCarthy countered this with a generous use of affidavit evidence. They later wrote of this strategy:
Perhaps the best evidence, though, is the story of the claimant. To discern whether a reasonable person in the circumstances of the claimant would feel an offence to human dignity, the court must "walk a mile" in the claimant's shoes. (137)
While it still drew from the experiences of other groups---especially the American miscegenation case of Loving (138)--the Halpern factum was grounded in the words of the claimants themselves. Rather than beginning with a dry legal argument, Radbord and McCarthy chose to open with a quotation from the affidavit of Dawn Onishenko on the subject of her love and desire to marry. Serious effort was made to present the couples as regular people and thus to situate the modern LGBT experience and the fight for equality within regular Canadian society:
Hedy and Colleen, Mike and Michael, Dawn and Julie, Michelle and Rebekah, A1 and Tom, C.J. and Carolyn, Barb and Gail, and Alison and Joyce. These are men and women, from all walks and stages of life, who simply want to share their love for their partner in civil marriage. They include a nurse, a psychotherapist, university students, a Crown Attorney, and a church deacon. Four of the couples parent children together, and three more of the couples hope to rear children together in the coming years. Some are Jewish, some Christian; two met and fell in love as Anglican clergy. Some have been previously married to a different-sex partner, some have married their same-sex partner in a non-legally recognized ceremony, and some await legal recognition before they will marry. A few have lived together a short time; others have already shared their lives more than 25 years. They hail from across Canada--from Adeytown and Marystown in Newfoundland, from lie du Grand Calumet, from Kingston, from Fredericton, from Saskatoon. All have a very ordinary, usually taken-for-granted wish: to marry the person they love. (139)
The factum of the MCCT at the Divisional Court level mirrored this strategy. It also began by drawing attention to the love of the couples and their celebration of this through the marriages performed by MCCT. It prioritized the common law arguments and the Charter was the last of its alternative arguments. Unlike EGALE and the Halpern couples, MCCT also made Charter rights submissions under s. 2(a) (religion) and s. 15 (religion). (140)
When Radbord and McCarthy finally got past the historical and social science evidence, their legal arguments were similar, though not identical, to those set out in the EGALE litigation. First, they suggested that there was no common law rule because the old common law cases had been "impliedly overruled" by recent decisions such as M. v. H. on same-sex spousal recognition. (141) They further argued that the judges should "discover the law as it exists today"', (142) and should be "influenced by changing social mores, new empirical information, and judicial comment in related cases". (143) Radbord and McCarthy thus grounded their arguments in the recent legal successes of gays and lesbians, as well as their social progress.
Radbord and McCarthy then argued that any existing law violated the Charter rights under s. 2 (expression, association, and conscience), s. 7 (liberty and security), s. 15 (sex and sexual orientation), and s. 28.144 The bulk of these arguments focused on s. 15. Although acknowledging the ban was "most obviously sexual orientation discrimination" (145) under s. 15, Radbord and McCarthy made further arguments based on sex:
The denial of the marriage licences draws a distinction on the basis of sex and sexual orientation. If the Halpern and Rogers application for a marriage licence said Colin Rogers instead of Colleen Rogers, Hedy Halpern would today be legally married. Instead, Hedy has chosen Colleen, and the government declares that their marriage is a "nullity". The State therefore denies Hedy Halpern the mate of her choice. In doing so, the law draws a distinction between the applicant and others, based on the personal characteristics of sex and sexual orientation. (146)
Radbord and McCarthy articulated nine ways in which exclusion from civil marriage violated s. 15:
1. Denies equal respect to same-sex relationships;
2. Withholds personal benefits associated uniquely with marriage;
3. Denies same-sex relationships community supports and security;
4. Withholds access to family law rights, obligations and protections;
5. Causes confusion and unfairness;
6. Withholds opportunities for familial bonds;
7. Denies gays and lesbians status as full citizens;
8. Withholds an important personal choice; and
9. Denies a fundamental human right. (147)
Within each section, they strongly relied on affidavit evidence from the couples and the experts to draw out the implications of the various denials. This evidentiary basis allowed them to present their Charter arguments very persuasively.
Radbord and McCarthy further asserted that the couples' s. 2 rights were violated. The marriage ceremony, they contended, was a statement or "expressive resource". (148) Freedom of association guaranteed that "a person will not be denied the freedom to belong and to associate as a married person". (149) Citing La Forest J.'s pronouncement that sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs", (150) they claimed the denial of access to marriage had implications for the individual's freedom of conscience. The ban, they argued, also offended the s. 7 liberty interest by interfering with the decision-making of gays and lesbians, and the security interest because of its effect on psychological integrity. 
The Divisional Court unanimously agreed that there was a common law rule excluding same-sex couples from marriage. This rule violated s. 15 (sexual orientation) and was not saved by s. 1. The court split on the question of remedy. Associate Chief Justice Smith declared the common law definition constitutionally invalid and inoperative, but would have suspended such a declaration for two years to allow for Parliament to enact its own remedial legislation, which could take various forms, and would allow the legislature to balance competing interests and values. (152) Justice Blair further held that if Parliament failed to do So, the common law respecting marriage would, after 24 months, be reformulated by substituting the words "two persons" for the words "one man and one woman"? (153) Justice LaForme would have redefined the common law rule effective immediately, noting that nothing else but equal marriage would satisfy the requirements of the Charter. (154)
EGALE: British Columbia Court of Appeal
The British Columbia Court of Appeal litigation occurred after the Divisional Court's decision and before the Ontario Court of Appeal's decision in the Halpern litigation. (155) The general structure and substance of the legal arguments remained the same, but there was a notable shift in EGALE's strategy: no longer did the factum begin with a dry recital of EGALE's position on the common law and the Charter. Rather, the strategy took a cue from Radbord and McCarthy, emphasizing the voices of gays and lesbians, their experiences in Canadian society, and the equality they had already achieved in their day-to-day lives. This information seemed to inform the legal analysis relating to the common law. Unlike at the trial level, EGALE suggested that any existing common law be updated, not because it offended other equality-seeking groups, but because
[c]ourts are the custodians of the common law. They possess not only the power but also the duty to ensure that the common law adapts and evolves to reflect the emerging social realities, needs, and values of our contemporary society. (156)
Arguably, this was an important strategic lesson learned from Pitfield J.'s judgment. The court would have to align itself with, and identify with, the applicant couples. As such, all arguments and criticisms proffered had to have as their roots the contemporary gay and lesbian experience.
EGALE also emphasized the 'equal partnership' model of marriage advocated by Radbord and McCarthy: "[T]he contemporary purpose of marriage is not to foster procreation, but rather to provide legal protection and support to those couples who are willing to make a mutual commitment to share their lives". (157) As discussed above, such a definition was necessary to counter the Attorney General's arguments of complementarity and universality, as well as Pitfield J.'s assertion of the procreative purpose of marriage. Given the many unfavourable findings of Pitfield J.--for instance, that marriage was frozen in 1867--much of the factum also had to be devoted to arguing why these particular findings were legally incorrect.
The British Columbia Court of Appeal allowed EGALE's appeal. It found that there was a common law bar to same-sex marriages arising from the common law definition of marriage. (158) This rule, the Court held, violated s. 15. Given that. any change to the rule would not be incremental, the s. 1 analysis was required. Nevertheless, the s. 15 breach was not saved by s. 1. (159) Justice Prowse further noted that no alternatives other than equal marriage were acceptable. (160) The unanimous remedy was to declare the common law bar of no force and effect, redefine the common law definition, and suspend the remedy until 2004 to give the government time to review and revise legislation. Yet the court did not go so far as to declare it would reformulate the common law if Parliament neglected to act, suggesting Parliament could still abolish marriage or use the override. (161)
Halpern: Ontario Court of Appeal
At the Ontario Court of Appeal there was a noticeable shift in strategy from the British Columbia Court of Appeal. The breadth of arguments narrowed considerably and the Charter rights argument appeared to largely replace all other arguments. The MCCT abandoned its common law arguments, and simply agreed with the trial level decision that the restriction offended s. 15 (sexual orientation), while also further arguing that it offended s. 2 (religion) and s. 15 (religion). (162) While Radbord and McCarthy continued to argue that there was no common law rule, little space was devoted to this as they focused much more of their attention on distinguishing between Charter values and Charter rights arguments:
In Charter Rights cases, where the government relies on a common law rule which breaches a Charter right, the Supreme Court of Canada has held that the Court is required to strike down the offending common law rule and craft a new rule which is constitutionally compliant. There is no deference accorded to the legislature--since there is no legislature to defer to and no legislation engaged by the question. ... Charter Values cases, on the other hand, involve different considerations since the Charter is not directly engaged. The leading Charter Values case is Salituro, in which the defence sought to rely on a common law rule of spousal compellability that continued to apply even where the spouses were separated. The Charter was not applicable, as there was no government action. However, Justice Iacobucci found the common law rule to be so antiquated and inapplicable in modern times that it should be "changed" in light of modern social values. He enunciated a test for cases involving the common law and Charter Values, which includes a requirement that the change be incremental. (163)
The 'Charter rights' approach, at this point, appeared to replace common law arguments as the preferred strategy. Previously, the couples had argued that the court should use 'Charter values' to inform and update the common law. Now they argued:
The Divisional Court accepted the [Attorney General of Canada's] argument and erroneously applied the Charter Values Approach to reach the conclusion that the court should defer to the legislature to remedy the Charter violation. This approach has no application to this case. The Court was required to apply the Charter Rights analysis and refashion the rule. (164)
The lawyers seemed to accept that the court was going to decide the issue based on the Charter, and wanted to shape how that analysis was going to take place. Specifically, they wanted to ensure the judges did not defer their responsibilities by holding that the proposed change was not incremental. Such a conclusion could result from the Charter values argument. While some factum space was devoted to the common law, it appeared the lawyers had zeroed in on one particular, preferred strategy: a violation of the s. 15 right. Notably, though Radbord and McCarthy had devoted a significant amount of space at the Divisional Court to the violations of ss. 2, 7, and 28, these arguments were essentially dropped at the Court of Appeal level.
The new streamlined strategy was also notable in the intervener EGALE's factum. At the trial level of Halpern, EGALE had maintained that no common law rule existed, even though less space was devoted to this argument than to the Charter argument. (165) By the time the case reached the Ontario Court of Appeal, EGALE had completely abandoned the notion that there was no common law rule or restriction against same-sex marriage. In the first paragraph of its factum, it wrote:
The lower court correctly held that there is no statutory provision barring same-sex couples from entering into a valid marriage. The Halpern couples have been denied marriage licences, and the MCCT couples have been denied registration of their marriages, because of a common law rule that a marriage between two persons of the same sex is legally void ... Before considering the Charter claims, however, it is useful to examine the origins of the impugned common law rule, in order to appreciate the weakness of the jurisprudential foundation upon which it rests. (166)
Petersen commented at the recent same-sex marriage panel discussion,
These arguments about the common law didn't work on any judge or at any jurisdiction--they only wanted to use the Charter. Much space had been devoted to the legal strategy in the factums, though this strategy had to change at the Court of Appeal. (167)
EGALE now stressed the "weak and ignoble foundation" of this common law rule, (168) not for the purpose of suggesting it be reformulated, but to indicate that little deference was owed to it in the consideration of remedy under s. 52. Echoing Radbord and McCarthy, Petersen now argued that cases such as Salituro were not applicable, and that the case should be decided based on Charter rights rather than the updating of the common law:
The Watkins-Hawkins-Salituro cases address only the issue of when a court should exercise its inherent jurisdiction to modify established common law principles to bring them into step with emerging social needs and contemporary values. They have no bearing on the court's jurisdiction-and obligation--to modify common law principles that are found to be constitutionally invalid by reason of their inconsistency with rights and freedoms guaranteed by the Charter. (169)
Petersen differed from Radbord and McCarthy in the remedy she requested. Radbord and McCarthy suggested the entire definition of marriage should be struck and replaced with a new definition of marriage that would include same-sex marriages. Petersen argued:
This then led to the almost inevitable conclusion that an extremely lengthy [24- month] suspension of the remedy was required, since the declaration was so broad as to create uncertainty about the legal validity of all existing and future heterosexual marriages. (170)
Thus, Petersen asked only to declare the law invalid
by limiting the declaration of invalidity to the extent of the unconstitutional inconsistency. ... Once the impugned restriction is declared inoperative, it is not necessary to consider reformulating the common law. The effective result of eliminating the unconstitutional restriction is to grant lesbians, gays and bisexuals the freedom to marry their same-sex partners. (171)
In this way, she sought to avoid Parliamentary interference and suspensions of invalidity. Yet this remedy would seem less satisfactory for gays and lesbians than a positive statement of inclusion by way of a new definition. Gays and lesbians could marry, perhaps, but would Canadians comprehend the meaning of this marriage if it remained undefined in understandable words for the public?
The Ontario Court of Appeal delivered a stunning victory for equality. The court did not comment on any of the common law arguments. Instead, it skipped right to the Charter questions. The court explicitly rejected the Attorney General's arguments about the timelessness and universality of marriage: "[A]n argument that marriage is heterosexual because it 'just is' amounts to circular reasoning." (172) It found that s. 15 was violated and was not saved by s. 1. (173) The court then explicitly and strictly applied the test set out in Schachter v. Canada (174) regarding constitutional remedies, holding that there was no evidence that a declaration of invalidity without suspension would pose harm to the public or the rule of law. (175) The court also granted the remedies sought by the MCCT relating to the acceptance of the marriage certificates for the MCCT couples. (176) The inclusiveness of the new definition and the immediacy of the remedy were breathtaking. Wintemute commented:
From a political perspective, the Ontario Court of Appeal's order was brilliant. One of the main reasons why many heterosexual individuals oppose equal access to civil marriage for same-sex couples is very simply "fear of the unknown". ... The Court could be said to have "let the genie out of the bottle", "created a fait accompli", or "pushed a nervous heterosexual majority into the swimming pool of marriage equality".... After seven days studying the BC and Ontario judgments, then Prime Minister Jean Chretien abruptly changed course in an historic "Statement of the Prime Minister on Same-Sex Unions". On 17 June 2003, he announced that the federal government would not appeal either appellate court judgment (or pursue its appeal of the Quebec trial court decision), and would instead introduce legislation complying with the opinions of ten of eleven judges in the three cases (and with recommendations of the Law Commission of Canada and the Canadian Human Rights Commission). (177)
IV FURTHER DEVELOPMENTS
In a decision released on July 8, 2003, the British Columbia Court of Appeal amended its remedy to align with the Ontario decision. (178) A fourth wave of litigation commenced and courts in Yukon, (179) Manitoba, (180) Nova Scotia, (181) Saskatchewan, (182) Newfoundland and Labrador, (183) and New Brunswick (184) agreed with the previous decisions. (185)
The federal government submitted a reference (186) to the Supreme Court, which only engaged Charter issues. The strategy for the interveners at this stage, including EGALE, and the couples from the various jurisdictions, thus became entirely about the Charter. In the public's eye, the same-sex marriage issue was all about the Charter, and no attention was paid to the early common law arguments made by the lawyers at the trial and appellate levels. This was reinforced by later political comments, such as the one by then Prime Minister Paul Martin: "The vote is about the Charter of Rights. We're a nation of minorities and in a nation of minorities you don't cherry-pick rights." (187) Thus, a mythology about the same-sex marriage issue emerged in which the issue and the legal battles were understood only with reference to the Charter. Statements such as that made by Paul Martin created a symbolic bond between gays and lesbians and other minority groups, which was perhaps appropriate given the number of references in the litigation to other equality-seeking groups such as women, the disabled, and African-Americans. A circle of inclusiveness was drawn around all these groups, with gays and lesbians not despised or marginalized, but belonging within the protected inside as part of one large, diverse Canadian community. The federal government eventually passed the Civil Marriage Act in 2005, entrenching a new definition of marriage across Canada: "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." (188)
This article has surveyed the litigation history of same-sex marriage in common law jurisdictions in Canada. It has assessed the nuances and shifts in litigation strategy in EGALE and Halpern, from the trial-level strategies, which were multi-pronged and utilized both common law and Charter arguments, to much narrower arguments at the Courts of Appeal, which emphasized violations of Charter rights. Overall, it is clear that the strategies were chosen and applied in order to reach the best possible results. The Halpern trial lawyers were able to learn from the decision in EGALE, and put greater emphasis on social science evidence and the applicants' stories in their arguments. At the appellate level, especially in Ontario, the lawyers were better able to determine which of their many strategies were most effective, and they focused their arguments closely on those.
There are several lessons to be drawn from the same-sex marriage litigation. One lesson is that the courts were responsive to the feelings and identities of the claimants. The litigants were most effective when they humanized and contextualized the legal issue by relying on the plaintiffs' own words and feelings to stir the empathy of the judges. Related to this, the litigation strategy was most effective when the focus of the analysis remained on LGBT individuals, rather than other equality-seeking groups. Social science evidence was useful in order to challenge any potential preconceived ideas or stereotypes that the courts may have had. Such evidence helped the courts understand the plaintiffs' perspective and provided a helpful background to the legal arguments. Perhaps the most important lesson was that strategies should be flexible and responsive to the judgments of the lower courts. Some arguments simply turned out to be more persuasive than others.
The lessons identified in this article will be useful as LGBT litigation continues in the future. For instance, the prohibitions on blood donations and organ donations by gay men is one area currently being litigated. (189) It is arguable that the bans are rooted in stereotypes that gay men are promiscuous and dangerous. LGBT rights litigation has the potential to uncover and combat these stereotypes. LGBT people feel that screening procedures should look to actual behaviour rather than sexual orientation, and that gay men in long-term monogamous relationships may be no more of a risk than any other donor. Social science evidence on gay relationships might be helpful in elucidating this point. Actual stories of gay men, including their relationships, sexual behaviour, their reasons for wanting to donate blood, and their feelings regarding this exclusion, must form an important part of the record as this issue is litigated.
Another case where these strategies would be useful is the litigation surrounding sex-reassignment surgery. While the litigation surrounding that issue has now been dropped in Ontario following Health Minister George Smitherman's decision to re-list the surgery only weeks before a scheduled trial, the strategies revealed by this article will be useful in the event that similar litigation picks up in another province. In Ontario, while part of the litigation strategy focussed on the Ontario government's abrupt discontinuation of the funding for the surgery without consultation of the province's doctors--the bad faith argument--the litigation must necessarily draw on the personal stories of transgender and transsexual people in Ontario, with their histories, identities, and hopes. (190) Interestingly, the gender-reassignment issue has also been controversial within the LGBT community, as it was set to be litigated under both disability and sex grounds. (191) Arguably, it is disempowering to base an argument for equality on disability grounds. (192) This is another example of the LGBT community's result-focused approach to litigation.
The same-sex marriage litigation should also be assessed in terms of its impact on building and sustaining the movement for LGBT equality. In this respect, the litigation can be viewed as very successful. As discussed above, the mythology arising from this litigation is powerful and situates LGBT individuals within a protected circle of equal Canadian citizens. The availability of equal marriage seems likely to further the trend of increasing acceptance of LGBT individuals in Canada. Public attitudes may shift gradually in response to legal and political rhetoric, which, it is hoped, will lead to more productive and satisfying lives for LGBT individuals--as well as less discrimination--both at the level of formal legal distinctions and subtler forms of discrimination. This certainly does not mean that every legal case involving LGBT rights in the future will be successful. Nevertheless, it does mean that the future should be regarded with optimism.
CHRISTINE DAVIES, B.A. (Toronto), J.D. (Toronto), Student-at-Law at Sack Goldblatt Mitchell LLP.
* The author wishes to thank Professor Lorraine Weinrib of the University of Toronto Faculty of Law for teaching an inspiring Constitutional Litigation seminar class and reviewing an earlier version of this essay; Douglas Elliott for taking the time to speak to the Constitutional Litigation seminar about his experiences in the same-sex marriage litigation; and most of all Cynthia Petersen for speaking several times to the Out in Law club at the University of Toronto and answering many questions about the plaintiffs' litigation strategy in the same-sex marriage litigation.
(1) Kevin Bourassa & Joe Varnell, "Love Wins Over Hate" (Website log of Kevin Bourassa & Joes Varnell, 12 July 2002), online: Equal Marriage for Same Sex Couples <http://www.samesexmarriage.ca/legal/ontario_case/Decision.htm#july12>.
(2) 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 [Charter].
(3) EGALE Canada Inc. v Canada (Attorney General), 2003 BCCA 251, 225 D.L.R. (4th) 472,  7 W.W.R. 22 [EGALE], rev'g 2001 BCSC 1365,  11 W.W.R. 685, 95 B.C.L.R. (3d) 122, [EGALE B.C.S.C.]
(4) Halpern et al. v. Canada (Attorney General) (2003), 65 O.R. (3rd) 161, 225 D.L.R. (4th) 529 [Halpern], rev'g in part (2002), 60 O.R. (3d) 321, 215 D.L.R. (4th) 223 (Sup. Ct. (Div. Ct.)) [Halpern Div. Ct.].
(5) This article will focus attention on the recent jurisprudence of the common law courts of Canada. The Quebec litigation mostly engages the civil law, and an in-depth analysis of civil law strategy is beyond the scope of this article. International cases are also beyond the scope of this article.
(6) It should be noted that the word 'community' is contentious. As Cynthia Petersen comments, "It's always hard to speak of the queer 'community' because there are, in fact many queer communities." Personal communication (28 October 2006) on file with the author
(7) See e.g. Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32,  O.H.R.T.D. No. 34; and Doe v. Canada (Attorney General), 2007 ONCA 11, 84 O.R. (3d) 81, 276 D.L.R. (4th) 127.
(8) Laurie Arron, Cynthia Petersen, & Brenda Cossman, "A Panel Discussion on the Political and Legal Fight for Same-Sex Marriage: A discussion of strategy, methods, successes, challenges and lessons" (University of Toronto, Faculty of Law, 26 September 2006) [unpublished] [2006 Panel].
(9) Canadians for Equal Marriage (CEM) is an offshoot of Equality for Gays and Lesbians Everywhere (EGALE) that was formed to deal exclusively with the marriage issue. It is a political lobby group located in Ottawa. Laurie Arron is also the former director of advocacy for EGALE.
(10) The case was Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). In a preliminary decision the court acknowledged that the marriage ban contravened the state constitution. In response to this, politicians were able to pass a state constitutional amendment banning gay marriage in 1998. The case was then declared moot in Baehr v. Miike, 92 Haw. 634,994 P.2d 566 (1999) (Table No. 20371). The reasons for the order are available online through Lexis: 1999 Haw. LEXIS 391.
(11) 2006 Panel, supra note 8.
(12) Same-sex marriage litigation is sometimes perceived as being limited in its impact to gays and lesbians only. In fact, the availability of a gender-neutral marriage regime also benefits transgendered persons. In Corbett v. Corbett (Ashley),  2 All E.R. 33 [Corbett], a marriage involving a transgendered person was declared a nullity because the defendant spouse was the 'wrong' gender and gender was considered an essential component of marriage. Such a result would be unfathomable following the same-sex marriage litigation.
(13) Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants under the Family Law Act (Toronto: Ontario Law Reform Commission, 1993) at 46. Subsequently, during the EGALE litigation at the British Columbia Superior Court, the same sentiments were cited in the Attorney General of Canada's factum.
(14) Jennifer Nedelsky, "Gay Rights and Religious Expression: An Irreconcilable Conflict?" (Lecture delivered as part of the Law, Religion and Society Series at the University of Toronto, Faculty of Law, 4 October 2006) [unpublished].
(15) Didi Herman & Carl Stychin, eds., Legal Inversions: Lesbians, Gay Men and the Politics of Law (Philadelphia: Temple University Press, 1995) at ix-xv.
(16) Andrew Sharpe, "Institutionalizing heterosexuality: the legal exclusion of 'impossible' (trans)sexualities" in Leslie J. Morgan, Daniel Monk, & Sarah Beresford, eds., Legal Queeries: Lesbian, Gay, and Transgender Legal Studies (London: Cassell, 1998) 26 at 27.
(17) Canadians for Equal Marriage, "Egale Equal Marriage Chronology" (1 July 2004), online: Egale Canada <http://www.egale.ca/index.asp?lang=E&menu=1&item=2093> [Chronology].
(18) An exception is the case of Vriend v. Alberta (1996), 184 A.R. 351, 141 D.L.R. (4th) 44 (C.A.) [Vriend]. In that case, someone who was "just an ordinary person" was fired and decided to fight it. See Douglas Elliott, "Constitutional Litigation Seminar" (University of Toronto, Faculty of Law, 18 October 2006) [Elliott, Seminar].
(20) (1993), 14 O.R. (3d) 658,104 D.L.R. (4th) 214 (Div. Ct.) [Layland].
(21) Debra McAllister, "The Attorney General: Guardian of the Public Interest in Charter Litigation" (2003) 21 Windsor Y.B. Access Just. 47 at 82-83. See also Elliott, Seminar, supra note 18.
(22) 2006 Panel, supra note 8.
(23) (1992),  1 F.C. 264, 98 D.L.R. (4th) 129 (T.D.) [Douglas].
(24) (1992), 90.R. (3d) 495, 94 D.L.R. (4th) 1 (C.A.) [Haig].
(25) Vriend, supra note 18.
(26)  2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan].
(27)  2 S.C.R. 3.
(28) 2006 Panel, supra note 8.
(31) EGALE, supra note 3 (Factum of EGALE at para. 4).
(32) North v. Matheson,  W.W.D. 55, 52 D.L.R. (3d) 280 (Man. Co. Ct. (Winn.)) [North].
(33) Supra note 20.
(34) Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 [Hyde].
(35) Corbett, supra note 12. An Ontario case, C.(L.) v. C.(C.) (1992), 10 O.R. (3d) 254 (Gen. Div.) held similarly on this issue.
(36) Supra note 34.
(37) Ibid. at 132-33.
(38) Corbett, supra note 12 at 48.
(39) That is, of course, until the federal government enacted in 2005 the Civil Marriage Act, S.C. 2005, c. 33.
(40) Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 1.1. This section has since been repealed by 2005, c. 33, s. 15.
(41) This is not to say that the government could not have defined "marriage". It could have done so if it had wished. Certainly, the government could not reasonably claim to have been caught off guard by the recent litigation. The first gay marriage case in Canada, North (supra note 32), was in 1972, so the government had close to 30 years to take action. Indeed, many private members bills (from equality-seeking MP Svend Robinson to traditionalist MP's Tom Wappel, Jim Pakiw, and Grant Hill) were introduced in the House of Commons over the years, none of which met with success. Furthermore, the increasing visibility of gays and lesbians in Canadian society, and their increasing litigiousness on many issues, should have signalled that such a case was inevitable. The government, by refusing to legislate, in effect deferred the issue to the courts.
(42) Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3., ss. 91-92, reprinted in R.S.C. 1985, App. II, No. 5.
(43) Supra note 32.
(44) Supra note 20.
(45) Mossop v. Canada (Attorney General), [19931 1 S.C.R. 554, 100 D.L.R. (4th) 658 at para. 47.
(46) Supra note 26.
(47) Supra note 27.
(48) Chronology, supra note 17.
(49) Ibid. "November, 2000: Egale hosts meeting of lawyers involved in the marriage challenges across the country to strategize around development of the evidence."
(50) See infra notes 179-185.
(51) Supra note 39.
(52) Hon. Bill Graham, "Lunch with Bill Graham" (Discussion held at the University of Toronto, Faculty of Law, 20 September 2005). Mr. Graham related that "panic" erupted in the federal Cabinet after the release of the Ontario Court of Appeal's decision in Halpern.
(53) Supra note 3.
(54) Supra note 4.
(55) Supra note 32.
(56) Robert Wintemute, "Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985-2005) and its Limits" (2004) 49 McGill L. J. 1143 at 1159 [Wintemute 2004].
(58) North, supra note 32 at para. 3.
(59) Ibid. at paras. 12-13.
(60) Ibid. at para. 15.
(61) Layland, supra note 20.
(62) Ibid. at para. 2.
(63) Ibid. at para. 4-6.
(64) Ibid. at para. 12.
(65) Ibid. at para. 20.
(66) Ibid. at para. 31.
(67) Ibid. at para. 42.
(68) Ibid. at para. 63.
(69)  1 S.C.R. 30.
(70) Ibid. at para. 46.
(71) Personal communication with Cynthia Petersen, supra note 6. See also EGALE B.C.S.C., supra note 3 (Factum of EGALE at para. 48).
(72) Personal communication with Cynthia Petersen, ibid.
(73) Supra note 26.
(74) Personal communication with Cynthia Petersen, supra note 6.
(76) Halpern Div. Ct., supra note 4 (Factum of MCCT at para. 173).
(77) "A constitution has been described as 'a mirror reflecting the national soul': it must recognize and protect the values of a nation." Peter W. Hogg, Constitutional Law of Canada, Strident Ed. (Scarborough: Thomson Carswell, 2007) at 1.
(78) Kevin Bourassa & Joe Varnell, "Ontario Appeal--Day 1" (Website log of Kevin Bourassa & Joes Varnell, 22 April 2003), online: Equal Marriage for Same Sex Couples <http://www.samesexmarriage.ca/legal/ontario_case/appeal/day_one.htm>.
(79) Douglas Elliott, "Secrets of the Lavender Mafia: Personal Reflections on Social Activism and the Charter" in Lorraine Weinrib, Constitutional Litigation: Cases and Materials Volume II (Faculty of Law, University of Toronto, September 2006) 69 at 77.
(80) Ibid. at 69.
(81) Joanna Radbord & Martha McCarthy, "Marriage (P)reference--Equality, Dignity and Individual Voices" (2005) 17 N.J.C.L. 213 at 235 [Radbord and McCarthy, "Marriage (P)reference"].
(82) Personal communication with Cynthia Petersen, supra note 6.
(83) Hogg, supra note 77 at 1157-58. Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65,  3 S.C.R. 357 at para. 1.
(84) See e.g. Mary Eaton, "Homosexual Unmodified: Speculations on Law's Discourse, Race, and the Construction of Sexual Identity" in Didi Herman and Carl Stychin, eds., Legal Inversions: Lesbians, Gay Men and the Politics of Law (Philadelphia: Temple University Press, 1995) 46.
(85) See e.g. Suzanne J. Lenon, "Marrying Citizens! Raced Subjects? Re-thinking the Terrain of Equal Marriage Discourse" (2005) 17 C.J.W.L. 405.
(86) Egan, supra note 26 at para. 5.
(87) M.v.H., supra note 27 at para. 64.
(88) Halpern, supra note 4 at para. 7.
(89) Robert Wintemute, "Sexual Orientation Discrimination as Sex Discrimination: Same Sex Couples and the Charter in Mossop, Egan and Layland" (1994) 39 McGill L. J. 429.
(90) Ibid. at 457-58.
(91) Law v. Canada, [19991 1 S.C.R. 497 at para. 60 [Law].
(92) Radbord and McCarthy, "Marriage (P)reference", supra note 81 at 247.
(93) Supra note 20 at para. 12.
(94) EGALE, supra note 3 (Factum of Attorney General of Canada at para. 38).
(95) Chronology, supra note 17.
(96) Egale Canada, B.C. Supreme Court to Hear Landmark Same-Sex Marriage Challenge, online: Egale Canada <http://www.egale.ca/index.asp?lang=E&menu=1&item=295>.
(97) Chronology, supra note 17.
(98) EGALE B.C.S.C., supra note 3 (Factum of EGALE).
(99) Ibid. at para. 2.
(100) Ibid. at para. 90.
(101) Hyde, supra note 34.
(102) Ibid. at paras. 132-33.
(104) EGALE B.C.S.C., supra note 3 (Factum of EGALE at para. 14).
(105) Ibid. at para. 18
(106) Ibid. at para. 28.
(107) Ibid. at para. 21.
(108) Ibid. at para. 31.
(109) Ibid. at paras. 41, 46.
(110)  3 S.C.R. 654 at para. 50 [Salituro].
(111) Elliott, supra note 79 at 70.
(112) EGALE B.C.S.C., supra note 3 (Factum of EGALE at paras. 53-54).
(113) Ibid. at para. 56.
(114) Ibid. at para. 92.
(115) Ibid. at paras. 108-12.
(116) Ibid. at paras. 114-15.
(117) Ibid. at para. 154.
(118) Ibid. at para. 155.
(119) Equal Marriage for Same-Sex Couples, British Columbia: Background, online: Equal Marriage for Same-Sex Couples <http://www.samesexmarriage.ca/legal/bc.html>.
(120) EGALE B.C.S.C., supra note 3 (Factum of EGALE at para. 9).
(121) Ibid. at para. 85.
(122) Ibid. at para. 119.
(123) For a list of expert evidence affidavits presented in the British Columbia litigation, see Queer Marriage, British Columbia Litigation, online: Queer Marriage <http://www. queermarriage.com/index.php?content=affidavits>.
(124) Ibid. at para. 10.
(125) Ibid. at para. 199.
(126) Ibid. at para. 207.
(127) Elliott, Seminar, supra note 18.
(128) It was felt that religion informed the Hyde judgment and implicitly the current restrictions on same-sex marriage.
(129) Elliott, Seminar, supra note 18.
(130) Radbord and McCarthy, "Marriage (P)reference", supra note 81 at 219.
(131) Halpern Div. Ct., supra note 4 (Factum of Halpern).
(132) EGALE B.C.S.C., supra note 3 (Factum of EGALE).
(133) Ibid. at 222.
(134) See Halpern Div. Ct., supra note 4 (Factum of the Attorney General of Canada at para. 154): "Instead, marriage is understood throughout time and cultures as an institution designed to meet the unique needs, capacities and circumstances of opposite sex couples and their children--namely, an institution that brings together the two complementary sexes and provides a supportive environment for the procreation and rearing of successive generations."
(135) Halpern Div. Ct., supra note 4 (Factum of the Applicant Couples at 7).
(136) Ibid. at 11.
(137) Radbord and McCarthy, "Marriage (P)reference", supra note 81 at 221.
(138) Loving v. Virginia, 388 U.S. 1 (1967). This case ended race-based legal restrictions on marriage in the United States.
(139) Halpern Div. Ct., supra note 4 (Factum of Halpern at para. 5).
(140) Halpern Div. Ct., supra note 4 (Factum of MCCT at para. 2).
(141) Halpern Div. Ct., supra note 4 (Factum of Halpern at paras. 9, 11).
(142) Ibid. at para. 22.
(143) Ibid. at para 20.
(144) Ibid. at para 32.
(145) Ibid. at para 42.
(146) Ibid. at para. 41.
(147) Ibid. at para. 46.
(148) Ibid. at para. 44.
(149) Ibid. at para. 51.
(150) Egan, supra note 26 at para. 5.
(151) Halpern Div. Ct., supra note 4 (Factum of Halpern at para. 56).
(152) Halpern Div. Ct., supra note 4 at para 5, Smith A.C.J.S.C.
(153) Ibid. at paras. 91, 93, Blair R.S.J.
(154) Ibid. at paras. 307-08, LaForme J.
(155) The Quebec trial level decision had also been released by this time. Justice Lemelin found two federal acts applicable only to Quebec, and part of the civil code of Quebec to be inoperative: Hendricks c. Quebec (Procureure generale)  R.J.Q. 2506 at paras. 211-12,  R.D.E 1022, J.E. 2002-1742.
(156) EGALE, supra note 3 (Factum of EGALE at para. 10).
(157) Ibid. at para. 54.
(158) EGALE B.C.C.A., supra note 3 at para. 7.
(159) Ibid. at para. 135.
(160) Ibid. at para. 156.
(161) Ibid. at para. 157.
(162) Halpern, supra note 4 (Factum of Metropolitan Community Church of Toronto at para. 6).
(163) Halpern, supra note 4 (Factum of Halpern at paras. 170-71).
(164) Ibid. at para. 173.
(165) Halpern Div. Ct., supra note 4 (Factum of EGALE at para. 5).
(166) Halpern, supra note 4 (Factum of EGALE at para. 1) ]emphasis added].
(167) 2006 Panel, supra note 8.
(168) Halpern, supra note 4 (Factum of EGALE at para. 21).
(169) Ibid. at para. 33 (emphasis in original].
(170) Ibid. at para. 47.
(171) Ibid. at paras. 48-52.
(174)  2 S.C.R. 679 [Schachter].
(175) Halpern, supra note 4 at paras. 145-48.
(176) Ibid. at para. 154.
(177) Wintemute 2004, supra note 56 at 1164.
(178) EGALE B.C.C.A., supra note 3.
(179) Dunbar v. Yukon Territory, 2004 YKSC 54, 8 R.F.L. (6th) 235.
(180) Vogel v. Canada (Attorney General),  M.J. No. 418,  W.D.F.L. 630 (Man. Q.B.).
(181) Boutilier et al. v. Canada (Attorney General),  N.S.J. No. 357 (N.S.S.C.).
(182) W. (N.) v. Canada (Attorney General), 2004 SKQB 434, 12004] W.D.F.L. 642.
(183) Pottle et al. v. Attorney General of Canada et al., 2004 O1T 3964, 21 December 2004 (Sup. Ct. Nfld. and Lab. (T.D.)), cited in Harrison v. Canada (Attorney General), 2005 NBQB 232, 290 N.B.R. (2d) 70 at para. 8 [Harrison].
(184) Harrison, ibid.
(185) Proceedings in the Northwest Territories were declared moot following the passage of the Civil Marriage Act. See Perrino v. Northwest Territories (Commissioner), 2005 NWTSC 83,  A.W.L.D. 218.
(186) Reference re Same-Sex Marriage, 2004 SCC 79, 12004] 3 S.C.R. 698.
(187) "Same-sex marriage law passes 158-133" CBC News (29 June 2005), online: CBC news <http://www.cbc.calcanada/story/2005/06/28/samesex050628.html>.
(188) Supra note 39, s. 2.
(189) The Canadian Blood Services' "Record of Donation" is a form which potential blood donors must fill out during a screening process before being allowed to donate blood, and it poses a question which has the effect of excluding gay men as blood donors: "Male donors: Have you had sex with a man, even one time since 1977?" The form maybe be viewed online: Canadian Blood Services <http://www.bloodservices.ca/CentreApps/Internet/UW_V502_Main Engine.nsf/resources/Can-I-Donate/$file/ROD_2008-04-24.pdf>. All men who have had sex with another man are excluded on the basis that they are engaged in activities at high risk of HIV infection, even if they are in long-term monogamous relationships. This policy is currently being challenged in Josef v. Ontario, File No. 99-CV-166969 (Ont. Sup. Ct.). In December 2007, Health Canada enacted similar regulations for cell, tissue and organ donations. See "Sexually Active Gay Men No Longer Allowed to Donate Organs" CBC News (7 January 2008), online: CBC News <http://www.cbc.ca/canada/story/2008/01/07/organ-transplant. html>.
(190) Cynthia Petersen, El-Farouk Khaki & Ummni Khan. "The Legal Rights of Transgendered Individuals" (Panel discussion held at the University of Toronto, Faculty of Law, 8 March 2007) [unpublished]. Petersen is involved in the litigation relating to gender-reassignment surgery, and discussed the controversy relating to litigation of transgender and transsexual issues under the headings of sex, disability and gender identity.
(192) Gender identity disorder is still listed under the DSM-IV, while sexual orientation was removed over 30 years ago.
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