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CONFUSION CREATED BY ONTARIO SAME-SEX MARRIAGE DECISION

On July 12, 2002, the Ontario Divisional Court handed down a decision that it is unconstitutional to restrict marriage to its traditional definition of a man and a woman to the exclusion of all others. It points out, as no other court decision has done, that the Charter of Rights is nothing more than a fancy cloak for judges to cover up the reality that their decisions are based mainly on their own personal ideology or philosophy rather than any law.

How else can one explain that on exactly the same set of facts, a BC Superior Court Judge, Mr. Justice Pitfield, in October 2001, stated that marriage, under our Constitution, can only exist between a man and a woman? He stated:

… the core distinction between same-sex and opposite-sex relationships is so material in the Canadian context that no means exist by which to equate same-sex relationships to marriage while at the same time preserving the fundamental importance of marriage to the community. …

… They cannot be equated except by changing the deep-rooted social and legal relationship around which Canadian society has evolved and continues to evolve.

Yet, Mr. Justice LaForme in the Ontario case stated:

… I agree with the view that the denial of equal marriage can - and no doubt does - reflect[s] and reinforce[s] existing, inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society. Further I agree that, given that this occurs it must have the effect of resulting in further stigmatization.

… Excluding gays and lesbians from marriage disregards the needs, capacities, and circumstances of same-sex spouses and their children. It declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages. In sum, marriage - as it is currently defined - fails to harmonize with or take into account the issues of gays and lesbians.

In reaching this conclusion on behalf of the Court, Mr. Justice LaForme had to jump over several hurdles. In particular, his own Court's previous 1993 decision, in the case of Layland v. Ontario, on the same set of facts, held that:

… under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman, and that persons of the same sex do not have the capacity to marry one another.

What happened to the law in the intervening years? Nothing. It is just that a different judge, with a different outlook or philosophy, sat on the Bench to decide the question.

The second hurdle over which the Ontario Divisional Court had to jump, is that Parliament itself voted overwhelmingly (216 - 55) in June 1999, in support of traditional marriage. The resolution of the House of Commons stated:

… marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.

During that debate, then Minister of Justice, Anne McLellan, stated:

We on this side agree that the institution of marriage is a central and important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us …

The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is the "union of one man and one woman to the exclusion of all others." That case and that definition are considered clear law by ordinary Canadians, by academics and the courts. The courts have upheld the constitutionality of that definition. …

In addition, in Bill C-23 (The Modernization of Benefits and Obligations Act) passed in 2000, which gave family benefits to same-sex partners, Justice Minister McLellan, included the following provision in the legislation:

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. ...

In short, it is perfectly clear that it is Parliament's wish that marriage exist between a man and a woman only. Some appointed judges think otherwise. In effect, the Ontario judges have dictated to Parliament, and to all Canadians, a radically different approach to our shared understanding of an institution which has been fundamental to, and at the very core of, our society. That is, three appointed judges have decided to sweep aside thousands of years of law, religious belief and tradition, using the vague words of the Charter as a sculpturing tool, to dramatically change the fabric of Canadian society in order to satisfy the demands of homosexual special interest activists.

DECISION CREATES FUTURE PROBLEMS

These judges have apparently not thought through their decision to grasp the problems it will create in future, should it become law. Consider the following:

1. Religious Persecution

The judgment makes no mention of the problems that will be faced by religious communities as a result of their decision. That is, the decision provides religious organizations and other conscientious objectors with no protection against the requirement that they perform marriages for same-sex partners, which would be contrary to their deeply held religious beliefs. If this decision is allowed to stand, religious denominations will inevitably be engaged, for generations to come, in difficult and expensive legal challenges to protect their religious beliefs. The homosexuals' legal expenses will, as in all of their court challenges, be paid by the federally-funded Court Challenges Program and because of this, they will show little hesitation in initiating these court cases.

As stated by Iain Benson, legal counsel for the intervenors, Faith Coalition in this case, a coalition of traditional Jews, Catholics, Evangelical Protestants, Hindus, and Muslims, (National Post, July 13, 2002):

It is imperative for Canada to remain free and democratic, pluralistic, diverse and tolerant. Sooner rather than later, the courts have to start giving equal time to divergent viewpoints and protecting those communities that are never going to marry same-sex people.

Religion is in the closet and sex orientation is out of it, and that's not equality.

2. Marriage Will Become Completely Unrestricted

If marriage is no longer restricted to a man and a woman, there is no principled basis on which marriage can be denied to other consenting adults in other relationships, such as those of two brothers, a brother and sister, a father and his adult daughter, or among three persons. Based on the reasoning of the Ontario Divisional Court, this will be the inescapable result of its decision.

As stated by Wm. Bennett, former US Secretary of Education under former US President Ronald Reagan, in his book The Broken Hearth: Realising the Moral Collapse of the American Family (Waterbrook Press, 2001) at p. 115:

… once marriage has been detached from the natural complementary teleology [design or general purpose] of the sexes, it becomes nothing more than what each of us makes of it. This way chaos follows: social chaos no less than intellectual and moral chaos.

The Ontario Divisional Court is the only court in the world to rule that the traditional definition of marriage offends human rights. This decision has created enormous confusion and chaos in regard to an issue that is fundamental to Canadian society.

FUTURE OF THIS CASE

This decision is now on appeal to the Ontario Court of Appeal. We can state categorically that the notoriously judicially activist judges on that Court will unanimously uphold the decision of the lower Court. However, it is a result of their mindset, not of the law.

The case will then be appealed to the Supreme Court of Canada, together with the BC decision, which is already on appeal to the BC Court of Appeal. These two cases will be joined in the Supreme Court with the Quebec same-sex legal challenge (now on reserved judgment). Two new judges will soon be appointed to the Supreme Court of Canada, replacing the now retired feminist judge, M. Justice Claire L'Heureux Dubé and Mr. Justice Gonthier, who retired in July. Realistically, with Jean Chrétien appointing their replacements, one cannot be confident that their mindset will be any different from that of the liberal judges currently on the Court.

REAL WOMEN'S POSITION

REAL Women, notwithstanding the expense and stress involved, will continue to intervene in these cases. It is our obligation to do so. When the history of this nation and its legal institutions are written, it can never be said that all Canadians accepted this outrageous decision of the Court. History must show that the Courts had a choice to decide the marriage case on reasoned, legal arguments. The Court will ignore these arguments at its peril. Judges cannot later exonerate themselves by claiming "no one raised objections to their decisions." We will.

Thank you to all our wonderful members who have so generously supported us, both morally and financially, in this important undertaking. We intend to continue our resistance to this assault on the well-being of our nation.

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