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THE QUEBEC SAME-SEX MARRIAGE COURT CHALLENGE

The Quebec Same-sex Marriage Challenge was heard in Montreal before Madame Justice Louise Lemelin of the Quebec Superior Court. The arguments lasted seven days, commencing November 8 and ending on November 16, 2001.

There were five lawyers arguing on behalf of traditional marriage - two lawyers from the federal Attorney General, two from the Quebec provincial Attorney General's office, and Robert Reynolds, a Montreal lawyer arguing on behalf of the faith coalition, which consisted of the Catholic Civil Rights League and a French-speaking Evangelical Protestant church. On the other side were two female lawyers representing the two homosexual applicants and the lawyer for the intervener's coalition group, which consisted of the homosexual lobby group, EGALE, and some trade unions and professors.

Unfortunately, REAL Women was unable to participate in this Quebec same-sex marriage challenge as we could not stretch our funds to cover this intervention. If we had done so, it would have drained our resources to the point of endangering the future of our organization. As a result, we most regrettably had to step out of direct involvement in this court challenge.

Interestingly, Quebec is the only province in Canada which does not provide financial benefits for common-law couples. It was, therefore, significant that on the second day of the hearing (November 9th), the Quebec government suddenly, and without prior notice, tabled legislation that, if passed, would provide same-sex benefits, as required by the Supreme Court of Canada in the M and H decision handed down in May 1999. (See Reality, July/August 2001, "Supreme Court Deconstructs Canadian Society," p. 7.) This proposed legislation provides that same-sex partners may register their relationships as a "civil union" (similar to Nova Scotia's "domestic partnership" legislation which was passed last June) before a justice of the peace or in a religious ceremony, if permitted by that denomination. They would then have inheritance rights, benefits, welfare and tax laws, the same as legally married couples. However, they would not be allowed to adopt children. Since marriage is a matter of federal jurisdiction permitted to members of the opposite sex only, such civil unions would not be registered as legal marriages.

In view of this new development, the Attorney General of Quebec asked for a joint motion to suspend the hearing until the new legislation was in place. The lawyers for the homosexual petitioners and interveners would not agree to this, but insisted on pressing on with the case in the obvious hope of achieving "everything," i.e., legal marriage for same-sex partners, rather than merely receiving the financial benefits of marriage under the proposed legislation. As a result, the arguments were resumed.

If Madame Justice Lemelin agrees with the arguments of the homosexual petitioners, this will require that she must find three statutes unconstitutional. These are Article 365 of the Quebec Civil Code, which defines marriage as a union between a man and a woman; the federal Harmonization Act (April 20, 2001), which states that the Quebec Civil Code is in harmony with the federal law of marriage (i.e., a union between a man and a woman only); and Bill C-23, Modernization of Benefits Act, passed in 2000, which also provides in its preamble that marriage is between a man and a woman only. Madame Justice Lemelin will also have to find that the courts have the constitutional right to re-define marriage contrary to the conclusion of Mr. Justice Pitfield, of the BC Supreme Court, last October, who stated that changing the definition of marriage would require a constitutional amendment. If Madame Justice Lemelin supports the petitioners' arguments, it would, in short, be quite a large leap in the law. However, anything is possible, especially if she should desire to make a "name" for herself by supporting the homosexual agenda. Certainly the biased media would praise her name if she did so. One can only hope that the aforementioned mountain of legal reasons will prevent her from doing so.

For now, we await this decision. Whatever the outcome of this case, REAL Women hopes and prays that we will have the financial ability to intervene in the Quebec Appeal Court and the Supreme Court of Canada, where this case and the other two same-sex marriage challenges (BC and Ontario) will eventually be resolved.

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