Same-Sex Equality Issues

July 12th 2002, the Ontario Superior Court of Justice set a precedent on same-sex marriage rulings

On Friday, July 12th the Ontario Superior Court of Justice set a precedent by ruling that provinces are violating the constitutional rights of same-sex couples by refusing to issue marriage licenses. As a young gay male that actively participates in the gay, lesbian, bisexual, transgender (GLBT) community here in Calgary, I reviewed the details of the ruling with great interest and mixed feelings. It is difficult for me to appreciate or respect the opinion that same-sex marriages should not be permitted, because generally the same people that present that opinion are also of the opinion that the GLBT community participates in sexual behaviour that cannot be considered responsible. I am not in agreeance with this, but provided that it was true, would not same-sex marriages promote responsible sexual behaviour to the community that many accuse of being sexually irresponsible?

From a legal perspective, the Ontario Superior Court ruling states that refusing same-sex marriages violates the rights of same-sex couples and is unconstitutional. The same ruling states that determining eligibility for marriage is exclusively federal jurisdiction and not within the control of provincial governments. The Court further noted, “This discrimination cannot be justified by the government. The only rationale advanced by government for discriminating was based on the argument that only heterosexuals can procreate. Procreation is not the singular objective of marriage and, in any event, many same-sex couples now have and raise children. The government has advanced no pressing and substantial objective for maintaining discrimination; moreover, excluding same-sex couples from marriage is not rationally connected to the purported objective, the rights of lesbians, gays, and bisexuals are not minimally impaired, and the negative effect of the discrimination far outweighs any speculative benefits of the law.”

Does the Ontario Superior Court ruling affect other provinces? It certainly affects other provinces as it creates a Canadian precedent supporting constitutional challenges for same-sex marriages, but it does not bind other provinces to acknowledge the ruling. In a newsletter sent to members of EGALE, the editor stated, “In practice, a Registrar in another province might simply refuse to follow the Ontario judgement, which would then require a further constitutional challenge in that province. The courts of that province would doubtless find the Ontario court ruling persuasive, but would be free to reach a different conclusion. To truly cement a victory across the country, one of two things must happen: (a) a Supreme Court of Canada ruling extending the definition of marriage in both the common law and Bill S-4 would have binding effect across the country; (b) Parliament could legislate to extend the definition of marriage across the country.” A former Athabasca University student that completed Legal Studies 369 at that institution also commented, “I would venture to say that there is another possible way to “?cement a victory.’ If a similar decision was ruled in each provincial Superior Court, that should have the same effect as the two methods mentioned by EGALE.”

Another argument that has been presented in defence of the opinion that same-sex marriages should not be permitted is the “sacredness of the traditional family unit” and the role of marriage in relation to religion. This argument is usually presented by conservative religious individuals and organizations. Personally, I believe that it is possible to reconcile both involved groups and respect the opinions and rights of each. Marriage should have a role within religion and should also have a civil role outside of the religious realm for those who do not identify with organized religion. Religious organizations that are supportive and tolerant of persons that identify as homosexual should also have the right to perform marriage ceremonies for same-sex couples, but should not be forced to do so. The decision to perform ceremonies for same-sex couples should be an internal policy much like the policy of many religious organizations governing the membership of those who identify as homosexual.

Regardless of your opinion on this issue, your views are important and I would like to encourage you to contact your local Member of Parliament to express your opinion. You can obtain the contact information for your MP by visiting http://www.parl.gc.ca/ or by calling 1-800-OCANADA. You can also contact the Office of the Premier and the Attorney General of Canada to express your views, write letters to the Editor, or support organizations that represent your values. If you support same-sex marriage equality, please visit http://www.samesexmarriage.ca!

References:
http://www.religioustolerance.org/hom_marb2.htm
http://www.gfn.com/news/story.phtml?sid=11859
http://europe.cnn.com/2002/WORLD/americas/07/12/canada.gay.marriage.reut/index.html

Mark Gueffroy enjoys media and public relations consulting, and working in the non-profit sector. Mark identifies as a member of the gay, lesbian, bisexual, transgender (GLBT) community and is active in civil rights for the GLBT community. He welcomes your comments and may be reached by email at markcalgary@hotmail.com or by phone at (403) 669-8115.

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