Canada Court Tells Parliament to OK Gay Marriages

A Canadian judge recently ordered the nation's parliament to recognize same-sex marriages within two years. The ruling is seen as an important step in advancing the rights of lesbians and gay men under the law.

John Fisher

CALGARY, Alberta (WOMENSENEWS)-In a landmark ruling, an Ontario court judge has instructed the Canadian parliament to adjust family law legislation so that it recognizes same-sex marriages.

“I declare the common law definition of marriage as ‘the lawful and voluntary union of one man and one woman to the exclusion of all others' to be constitutionally invalid and inoperative,” Ontario Superior Court Justice Heather Smith concluded in the July 12 decision. In building her argument, Smith found that “the existing common law rule is inconsistent with constitutional values in modern Canadian society and offends the equality rights of gays and lesbians.”

Sexual orientation has been a prohibited ground for discrimination in Canada since 1995 and gay and lesbian couples already have the same status as heterosexual common-law couples. But non-discrimination is not exactly the same as equal rights. The couples who launched the Ontario court challenge-and similar challenges in Quebec and British Columbia-wanted nothing less than full equality with heterosexual couples.

“Instead of being recognized as an equal family, we are considered to have an ‘alternative lifestyle,'” Alison Kemper told the court. She and her partner, Joyce Barnett, have two children, raised by both of them since birth. They consider themselves a regular family.

“We're not very alternative,” said Kemper. “We're very ordinary. We'd like to be married because it's the ordinary thing to do with the feelings and commitments we share.”

Together since 1984, both Kemper and Barnett have been ordained within the Anglican (Episcopal) Church. “Both of us hold provincial licenses to solemnize marriages,” Kemper said. “We are able to offer others a ceremony that we cannot undergo.”

Seemingly overnight, all that has changed.

Questions about the Reach of the Ruling

Although the ruling gave parliament two years to act, nothing in the current federal law prevents any province from registering same-sex marriages immediately.

Canada now joins the Nordic countries, Germany and the Netherlands in sanctioning gay and lesbian marriages.

“The ruling, once it takes effect, would extend the federal definition of marriage,” said John Fisher, executive director of Equality for Gays and Lesbians Everywhere, “and federal law applies across all of Canada.”

One province, Alberta, has balked at gay rights in the past and shows signs of doing so again. Alberta refused to put sexual orientation into its individual rights protection act until forced to by a court challenge. And Alberta adopted an amendment to its marriage act two years ago that defines marriage as a union of a man and a woman.

“It simply will not happen in this province,” said Premier Ralph Klein, “because the sanctity of marriage and the solemnization of marriage under the marriage act is written law that it is between a man and a woman.”

But Fisher says that Alberta's statute “is almost certainly unconstitutional, because the provinces have no jurisdiction over the question of who can marry.”

Feminist Activism Helped Bring about Decision

The Canadian court's decision is the outcome of at least two decades of lobbying. Women's groups intervened strenuously in wording the non-discrimination rights clause in the 1982 Canadian Charter of Rights and Freedoms. Then, following the models of the National Association for the Advancement of Colored People and the NOW Legal Defense and Education Fund, groups such as the Women's Legal Education and Action Fund and the National Association of Women and the Law painstakingly built case law that widened the definition of equality. The court struck down Canada's restrictive abortion law in 1988. In 1989, the court ruled that discrimination on the basis of pregnancy is indeed sex discrimination and upheld rape-shield laws that kept sexual assault survivors' names out of the news.

In 1995, the Canadian Supreme Court ruled that sexual orientation must be included as a prohibited ground of discrimination under all Canadian human rights acts. This was followed by the 1999 case known as “M vs. H,” which recognized that community property laws applied to a lesbian couple after separation.

In 2000, Canada's justice minister introduced Bill C-23, which specifically prescribed common-law status for gay and lesbian couples, but specifically excluded them from marriage. That law inspired gays and lesbians to bring their court challenges. Some couples lost their challenge at the provincial level and are seeking permission to appear before the Supreme Court of Canada. But the Ontario couples won.

Kemper and Barnett cannot yet obtain a marriage license from Toronto City Hall-not until the province figures out how to handle the court decision. But their victory made them radiant with joy at the news conference following the justices' ruling.

Two other couples involved in the court challenge belong to the Metropolitan Community Church of Toronto, which offers an alternative to marriage licenses: the ancient tradition of “publication of the banns.” Under that tradition, the church issues weekly announcements of a couple's intention to marry for several weeks leading up to a commitment ceremony.

Last year, the church held a double Holy Union ceremony that united a lesbian and a gay couple. Given the recent Supreme Court decision, the strains of the Wedding March are likely to be heard regularly now at the Metropolitan Community Church.

Penney Kome is an award-winning feminist author and journalist based in Calgary. She wrote a national column for 12 years, a local column for four years, and has published six books.

For more information:

Equality for Gays and Lesbians Everywhere
Ontario Marriage Challenge:

The Women's Legal Education and Action Fund: