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Same-sex "marriage" verdict.

Part I

The events

On June 10, 2003, the Court of Appeal of Ontario ruled:

a) that same-sex unions must be part of the (federal) definition on marriage;

b) that the existing definition of "the voluntary union of one man and one woman for life thereafter" is unconstitutional because it contradicts the equality clause (s. 15) of the Charter of Rights and Freedoms;

c) that the new definition is the "voluntary union for life of two persons to the exclusion of all others;"

d) that this definition is of immediate effect (thereby bypassing both Parliament and an Appeal to the Supreme Court).

e) that the Clerk of the City of Toronto must issue marriage licences forthwith to the [six] same-sex couples who applied for the appeal.

The court case is known as Halpern et al. v. Attorney General of Canada et al. (June 10, 2003). The three judges involved were Chief Justice Roy McMurtry, Mr. Justice James MacPherson, and Madam Justice Eileen Gillese (a Catholic). The judgement was unanimous.

Martin Cauchon

Subsequent to the ruling, the Minister of Justice, Martin Cauchon, refused to appeal the ruling to the Supreme Court of Canada. Instead, on July 17 he proposed the new wording "Lawful union between two persons," thereby placing the Chretien government squarely behind the legal destruction of marriage as hitherto known.

One should recall that both Ministers, Chretien and Cauchon, were among the 216 MPs (against 55) who voted on June 8, 1999, to uphold the existing definition of marriage between a man and a woman, calling on Parliament "to take all the steps necessary to preserve this definition." That was supported once more when the Liberals and allies reinforced Section 1:1 of Bill C-23 on April 11, 2000 (passed 176-77), when they left the definition of marriage as it was.

Yet, on June 12, 2003, Messrs Chretien and Cauchon quickly packed the Standing Committee on Justice and Human Rights to vote 9 to 8 to return the issue to the House of Commons in favour of same-sex "marriage". This committee, in response to Mr. Cauchon's invitation in the fall of 2002 to dialogue about possible responses to the July 12, 2002, ruling of the Ontario Divisional Court in favour of same-sex "marriage," had spent six months listening to people and groups from across the country and was about to write a summary report. Their work went for nothing.

No wonder then that one must regard the latest promise that the new legislation "won't affect the freedom of churches" with a high degree of distrust. Four years from now somebody may decide to abolish this freedom.

Several members of the Standing Committee on Justice and Human Rights of the House of Commons charged that the June 10 Court ruling usurped the powers of Parliament. Committee member John McKay (Lib) called it a "pre-emptive strike" on the part of the Court. National Post columnist Gordon Gibson from Vancouver described the timing of the Appeal Court as a case of "contempt of Parliament" (June 12). Editorials, such as those of the National Post and the Sun chain of newspapers, denounced the obvious, outrageous judicial activism.

Other reactions

Among other reactions to the June 10 court ruling was that of the EFC (Evangelical Fellowship of Canada), an intervenor in Halpern et al. It pointed out that:

* nowhere else in the world has a court ruled that the heterosexual definition of marriage violates human rights;

* the Divisional Court overruled its own decision of 1993;

* the June 10 ruling was not an incremental step, but a total redefinition of marriage;

* this redefinition reduces "marriage" to a commitment between two people; there are many relationships which fill this description. [Real] Marriage, therefore, will lose its distinctiveness;

* one consequence may well be open discrimination against those who cannot accept the legitimacy of same-sex "marriage."

Also on June 10, the CCCB (Conference of Canadian Catholic Bishops), again an intervenor in Halpern et al via the OCCB, requested that the Minister of Justice, Martin Cauchon, appeal the ruling. It declared:

* the Court's finding that "the Attorney General of Canada (AGC) did not demonstrate any pressing and substantial objective for maintaining marriage as an exclusively heterosexual institution" is unconvincing and disappointing, and

* "we agree with the AGC that "the Charter was never intended to effect a wholesale alteration of the fundamental societal structures and institutions within which it emerged."

Following the announcement of the Justice Minister that the government would not appeal the June 10 Ontario ruling, the CCCB sent a letter to the Prime Minister on June 19 expressing the bishops' profound disappointment at the action taken. The letter made three points:

* "The prospect of the bill that you are preparing ... in support of the redefinition of marriage by including same-sex partners would mean a devaluation of traditional marriage as the basis of the family and as an essential institution for the stability and equilibrium of society.

* "Marriage understood as the lasting union of a man and woman to the exclusion of all others pre-exists the State. Because it pre-exists the State and because it is fundamental for society, the institution of marriage cannot be modified, whether by the Charter of Rights, the State, or a court of law.

* "The point is not that because same-sex partners cannot have access to marriage there would be discrimination. Rather, the contrary is true. Enlarging and thereby altering the definition of marriage in order to include same-sex partners, discriminates against heterosexual marriage and the family, which are thus deprived of their social and legal recognition as the fundamental and irreplaceable basis of society...."

On June 23 Ottawa Archbishop Marcel Gervais let it be known that no change in civil law or even a ruling from the Supreme Court would alter the Catholic Church's position on marriage. "In the Catholic Church," he said, "an attempted marriage of two of the same sex would not be recognized and the person officiating would be suspended from his sacred duties."

Part II

The judicial ruling on marriage

On July 8 the B.C. Court of Appeal adopted the Ontario Court of Appeal's definition, ordering marriage licenses to be issued in that province. On July 17 Martin Cauchon asked all provinces and territories to do the same. Shortly thereafter these provinces refused, wondering why the Minister of Justice would urge them to do so when the very legislation had not even been drawn up, let alone approved by Parliament.

Halpern et al. v. Attorney General of Canada et al.

June 10, 2003

There are aspects of this ruling (and of previous ones) which should concern all Canadians. In brief, the ruling is revolutionary, with the Court making the "gay" ethos its own while abandoning the world-wide traditional understanding. The judges present their arguments with the presumption that common-sense Canadians will readily see their reasonability and inevitable acceptability.

The judgement of twenty-four pages proceeds as follows:


* The legal definition of marriage in Canada as a new nation dates from 1866 (1).

* The appeal is about the recognition and protection of human dignity (2).

* Supreme Court (S.C.) Justice Iacobucci has stated that "human dignity means that an individual or group feels self-respect and self-worth" (emphasis added) (3).

* Marriage is one of the most significant forms of personal relationships (5).

* Same-sex couples are denied access to this institution "simply on the basis of their sexual orientation" (6).

* Sexual orientation is an analogous ground that comes under the umbrella of protection in S. 15 (1) of the Charter. [Analogous means that it is similar to, e.g., colour or race.] This aspect is based on earlier rulings such as the one quoted by the three judges when they refer to the statement of Justice Peter Cory in M v H [1999] at 52-53:

"In Egan v. Canada [1995] ... this Court unanimously affirmed that sexual orientation is an analogous ground to those enumerated in s. 15 (1). Sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs" (para. 5). In addition, a majority of this Court explicitly recognized that gays, lesbians, and bisexuals, "whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political, and economic disadvantage" (para. 174, per Cory J.; see also para. 89, per L'Heureux-Dube J.).

"(8) Historically, same-sex equality litigation has focused on achieving equality in some of the most basic elements of civic life, such as bereavement leave, health care benefits, pensions benefits, spousal support, name changes, and adoption. The question at the heart of this appeal is whether excluding same-sex couples from another of the most basic elements of civic life--marriage--infringes human dignity and violates the Canadian Constitution."

With respect to the Charter's equality clause [s. 15 (1)] the ruling proceeded as follows:

1) It first asserts that the existing law "discriminates." [Editor: note use of the term; it does not acknowledge the notion of "just/unjust" discrimination. Discrimination is always evil.]

2) It notes that same-sex groups have already been recognized as a disadvantaged group by the government and that certain remedial measures have already been undertaken (66). Same-sex people are a bona fide group therefore.

3) It notes that the common law's definition of marriage makes distinctions, by excluding same-sex couples. [Editor: It also excludes others ... but presumably these have not as yet established themselves as bona fide groups.]

4) It re-affirms that sexual orientation is analogous to the other S. 15 protected categories such as race. [Editor: See above under Egan v. Canada. In other words, homosexuals are "born that way," just like people who are black, white, or brown by birth.]

5) The Court fleetingly describes the nature of discrimination in daily life. It defines respect for human dignity to mean that an individual feels self-respect and self-worth. [Editor: This is a subjective notion--therefore independent of any objective standards.]

6) It asserts the existence of discrimination, [Editor: No proof is provided.] Are homosexuals sometimes harassed? Yes, says the Court (32 and 83).

7) It then defines sexual orientation as more than simply a "status." It involves choosing a partner (83).

8) The judges then examine some further aspects of what they call 'contextual' factors:

a) whether the "impugned" law takes into account the views of same-sex couples (91);

b) whether the existing law justifies the exclusion of same-sex couples;

c) whether the existing law accommodates the needs of same-sex couples.

Quoting the Court's own previous rulings, the judges easily conclude that the answer to these three aspects is No.

9) Another self-made "contextual factor" is, first, whether opposite-sex couples are more advantaged under the present law than same-sex couples. Clearly, the answer is yes, because same-sex couples are excluded.

10) Second, whether, after the federal government passed the Modernization of Benefits and Obligations Act in response to the M v H (1999) case, same-sex couples had their needs supplied. The three judges say No. Even the economic benefits are not yet equal, they say, and, furthermore, to equate the equality provision with economic benefits only is to take too narrow a view. What is at stake here is that "same-sex couples are excluded from a fundamental societal institution--marriage" (107).

11) This reasoning brings the argument to its (circular) conclusion: same-sex couples are excluded from the present law and from the institution of marriage and that will not do because it makes them feel unworthy and second-rate. The Court puts it this way:

"The societal significance of marriage, and the corresponding benefits that are available only to married persons cannot be overlooked. Indeed, all parties are in agreement that marriage is an important and fundamental institution in Canadian society. It is for that reason that the claimants [the six same-sex couples who brought the appeal] wish to have access to the institution. Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships. In doing so, it offends the dignity of persons in same-sex relationships" (107).

Consequently, the Court goes on to say, we declare that the definition of marriage as "the voluntary union for life of one man and woman to the exclusion of all others" violates s. 15 (1) of the Charter" (108).

When to implement?

There was one more thing left to do: when could this ruling be implemented? The original three judges who had ruled in favour of same-sex couples on July 12, 2002, Heather Smith, Robert Blair, and Harry LaForme, had given the federal government two years to come up with new legislation. However, LaForme had favoured the immediate amendment by the Court of the existing definition of marriage (by substituting the words "two persons" for "one man and one woman") but was overruled by his two colleagues (17).

The three Appeal Court judges, McMurtry, MacPherson, and Gillese, in another eight pages of quotes from the Supreme Court of Canada's recent judgements favouring homosexuals, decided that a change was a "pressing and substantial objective." Why? "The court," they quoted from Chief Justice Dickson in Oakes (136):

"... must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society...."

Part III

Analysis and Comment

I have already indicated inside the square brackets where the problems are. Let us begin, however, with the most controversial aspect--which is the very foundation for all Canadian court cases which have been favourable to the homosexual cause since Egan v. Canada (1995), namely, the assertion that homosexuality is analogous (similar) to the other items in the Equality Clause S. 15 (1).

Section 15 (1) of the Charter reads as follows:

"1. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, agc, or mental or physical disability.

"2. Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."

All items mentioned under section (1)--with the exception of religion--are characteristics of a physical nature acquired at birth. Homosexuals have never seen themselves as a religion. But it has been a point of homosexual activists to argue that they are born that way. Hence the conclusion by Mr. Justice Peter Cory in Egan v. Canada that their case is analogous.

This proposition is merely an assertion; it is both without scientific foundation and contrary to some forty years of investigation.

In 1991, for example, there was much ado about a Mr. Simon LaVay, a scientist who claimed to have proven that a certain part of the brain was slightly different in homosexuals from that of non-homosexuals. It turned out that he himself was homosexual; that he had based his "finding" on an extremely small sample of 35 cadavers; that he did not know whether the sixteen "heterosexual" cadavers had really lived heterosexual lives even when six of them had died of AIDS; and that he himself did not really claim that homosexuals are born that way. It was recognized as a case of self-pleading.

The truth is that, after half a century of trying, the claim that homosexuals are created by God and that, therefore, they deserve equal rights with normal people, is vacuous. Check the web site: <>. There you will find eight pages of scientific evidence answering the question: "Are homosexuals born that way?" There is no evidence that they are!

The Supreme Court verdict in Egan accepted the propaganda of the homosexuals instead of consulting the scientific evidence to the contrary. They based their subsequent rulings on these incorrect views.

Similarly, the assertion that sexual orientation "is either unchangeable or changeable only at unacceptable personal costs" is contrary to the facts. When they have the will to do so many homosexuals have been able to overcome this tendency or to control it, especially with the help of professionals.

Let us now follow the ruling in its various parts listed above as numbers 1 to 7.

Re 1: the use of the word "discrimination" no longer means what it used to mean, namely the ability to distinguish between one kind or another. For example, a wine connoisseur is supposed to have a discriminating tongue to recognize one wine from another. Today, the term discrimination is entirely pejorative because of the use made of it by, among others, homosexual activists in their claims to justify their lifestyle. Today we are forced to speak of just and unjust discrimination, with the note that homosexual activists refuse to acknowledge that "just discrimination" can apply to them.

Re 2: To note that "same-sex groups" have already been recognized as a disadvantaged group and therefore should be regarded as bona fide is disingenuous. Why? Because governments (federal, provincial or municipal) have all been coerced to pass new economic or legal statutes in the last few years by Courts or Human Rights Commissions or Tribunals who threatened them or individuals with legal or financial penalties.

Re 3: Yes, the traditional definition of marriage makes distinctions excluding every one, other than one man and one woman, pledging allegiance for the remainder of their lives. By destroying that definition, any two persons can now claim marital rights as soon as our ever-"evolving" and widening mores decide it is acceptable. Moreover, what is so sacred about two persons? Why not more?

Re 4: The June 10, 2003, Ontario Court ruling re-affirms that sexual orientation is analogous to race and colour. But no scientific evidence was presented during the trial of the original Court which issued its verdict on July 12, 2002. It was based on hearsay and unchallenged and unexamined claims only; again, no evidence was provided before the Appeal Court either.

Re 5: Human dignity is now seen as something purely subjective on the say-so of Mt. Justice Iacobucci, namely, that a person is discriminated against when he or she feels less self-worthy. But is there anyone who does not feel in some moment or other that his or her dignity has been injured? Are we now making laws on the ever-shifting sands of personal feelings? Apparently so.

Re 6: The Court signifies the existence of "discrimination" against homosexuals. But, again, no evidence was presented at trial, leaving the Court to assert it without proof. There is no evidence to show how much or how little, how widespread or how serious, these acts of "discrimination" are, or how many acts of violence are committed by homosexuals against one another.

Re 7: Here the Court attempts a definition of 'sexual orientation' by saying it is more than a "status" and that it involves choosing a partner. But the truth is that "sexual orientation" has never been defined by anyone. The homosexual community itself includes a large variety of people under that title, supposedly all of whom must be protected, including transsexuals, transvestites, bisexuals (whoever they are), and men loving boys loving men, and women loving girls loving women.

In their definition, the Court overlooks the difference between the condition and the act, a distinction universally accepted outside the "gay" community and, indeed, by many homosexuals themselves. In the end, homosexuals like other people, remain intellectually free agents. They are not robots controlled by unseen agents, nor animals controlled by Darwinian determinism. That is why the Catholic and Christian community teaches one to "hate the sin, but love the sinner." These are two separate entities. Anyone who denies this does a grave disservice to society as indeed the Canadian courts have done from Egan v. Canada in 1995 to Halpern et al. in 2003.


Judicial activism has proved a disaster for the country. Parliament must step in, remove the judges' ability to "read" their opinions into law, and halt the proposed legal destruction of marriage. It should halt the elevation of homosexual unions to valid family models as Chief Justice Beverly McLachlin did in December 2002. Parents, teachers, schools, and Canadian citizens in general do not accept same-sex unions as valid role models.

What to do? As Professor Ian Hunter put it, a showdown between Church and State may now be inevitable. "This is not something Christians should hope for," he said, "but it is something for which Christians need to prepare." Perhaps we should first have a showdown between, on the one hand, Canadians who oppose all judicial activism, and, on the other, the Liberal government of Jean Chretien (and that of his possible successor, Paul Martin). They have promoted and abetted the Courts in their unacceptable course of action for so many years.

And yes, let's face it, the Charter of Rights and Freedoms will have to be re-examined and, if necessary, abolished. There was no need for a Charter in the first place. Today, Parliament is in process of losing its governing powers while unelected judges invent new laws as they see fit, whether it concerns pay equity, or marijuana, or abortion, or same-sex "marriage," or the teaching of school children.

The same-sex union case illustrates what happens when secular ideologies insist on the separation of law and morality. With this abstract concept in mind they first destroy the idea that society should have a common morality because, they say, truth is unknowable. Every group will be allowed to pursue its own religious or secular "morality" which, of course, must be of private concern only. Tolerance will reign. All will be equal.

Alas, a vacuum inevitably will give way to surrounding pressures. Having destroyed the common (Judeo-Christian) morality of the land, groups will press for their convictions to be accepted, none more so than those who have turned vice into virtue and virtue into vice. Meanwhile, the judges of the country declare that national law has priority over religion and is to be respected above all. And so begins the tyranny of law, now independent of either philosophy or religion, and therefore intrinsically self-contradictory and incapable of renewing itself, as precedents, not truth, demand obedience and homage from all. All this is now visible in Canada.
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Author:de Valk, Alphonse
Publication:Catholic Insight
Geographic Code:1CANA
Date:Sep 1, 2003
Previous Article:Axioms to grind.
Next Article:Is marriage protected under the constitution?

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