SUPREME COURT GIVES SAME-SEX MARRIAGE THE GO-AHEAD

story by Julie Weisberg / Capital Xtra! Dec 10 2004

Radiating palpable jubilation and relief, Gianluca Ragazzini stood beside long-time partner Dan Miller in the middle of the newly-polished marbled lobby of the Supreme Court Of Canada (SCC).

The Ottawa couple, one of the first married in Ontario last June, held hands while they spoke to throngs of reporters yesterday morning, after the SCC delivered its unanimous opinion in support of extending the right of civil marriage to gay and lesbian couples.

“This has been quite a roller-coaster. There have been several steps in the last year and a half, through all of the different appeals to the Supreme Court and the private [members] bills in Parliament, and all of these things, so, it has been an exciting year,” says Ragazzini. “And we wish we didn’t have to go through all of this struggle all of the time, but it’s a step forward toward our equality.”

Ragazzini, 42, and Miller, 61, have been together for more than seven years. The two say they hope the court’s decision will soon allow civil marriage to become a viable option for all Canadian couples -- regardless of their sexual orientation.

“When people celebrate their love, one of the things they do is get married. And for gay and lesbian people in the past, that was not an option –- you could be partners, you could be spouses, you could be any name you give it –- but you couldn’t say you were married,” says Miller. “And, hopefully, there will come a time when gays and lesbians will be able to say, ‘We are married,’ just like heterosexual couples.”

The SCC’s opinion, while non-binding, has cleared a monumental legal hurdle and opened the legislative doors for the federal government to redefine marriage to include gay and lesbian unions.

Currently, same-sex couples can legally marry in the provinces of Ontario, British Columbia, Quebec, Nova Scotia, Manitoba and Saskatchewan, as well as the Yukon.

“The Supreme Court today gave a green light to the government’s proposed equal marriage legislation, reflecting Canadian values and Canadians’ commitment to fairness,” says Alex Munter, co-chair of Canadians For Equal Marriage.

In addition, the SCC says religious officials opposed to same-sex marriages would be protected “from being compelled by the state” to bless those unions.

“Nothing in this act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs,” says the court in its written opinion.

Four questions had been referred to the SCC by the federal government regarding the constitutionality of its proposed legislation. The justices, however, declined to answer the fourth question, which tacked onto the original three in January shortly after Paul Martin became prime minister. It asked the court whether excluding same-sex couples from civil marriage is compatible with the Charter Of Rights And Freedoms.

In its opinion, the SCC states that by not challenging a number of earlier lower court rulings in favour of same-sex marriage, the federal government had “clearly accepted these decisions and adopted this position as its own.”

Justice Minister Irwin Cotler says the government will table its proposed same-sex marriage legislation once Parliament reconvenes in late January.

“We are going to move ahead with our legislation with all deliberate speed,” says Cotler.

He adds that while only cabinets members will be required to vote in favour of the proposed legislation, he is confident that a “significant majority” of MPs will “appreciate” that the legislation is “anchored on fundamental Charter rights.”

“The constitutional wind is blowing with us as we introduce this legislation,” says Cotler.

The Supreme Court’s decision yesterday comes only weeks after it held hearings Oct 6-7, to allow an unprecedented 28 interveners to present their positions on the proposed legislation. The majority of interveners, including the federal government, argued in favour of opening civil marriage to same-sex couples.

The federal government, under the leadership of former prime minister Jean Chretien, originally referred its proposed same-sex marriage bill to the SCC in July 2003, after announcing earlier that year it would not appeal the Ontario, BC or Quebec decisions that ruled in favour of gay marriage.

According to then-justice minister Martin Cauchon, this was done not only to ensure its constitutionality, but also to reassure the proposed legislation would not trample on the rights of Canadians opposed to same-sex marriage on religious grounds.

Originally scheduled to begin its reference hearings in April, the Supreme Court was forced to push back its proceedings to October, after the fourth reference question was added by Martin.

The speed with which the court has rendered its opinion, however, has taken many by surprise, as both activists and politicians alike had not expected the court’s opinion until sometime later next year.

Brent Hawkes, pastor of the Metropolitan Community Church Of Toronto, says the swiftness with which the court handed down its decision is revealing.

“It speaks to the strength of their ruling, because this is not a big argument. This is a clear cut case for the Supreme Court,” says Hawkes. “It was a really good balance between individual rights and freedom of religion, both were protected and can go forward now.”

The House Of Commons vote is expected to be close. Egale Canada executive director Gilles Marchildon is urging queer community members to contact their local MP –- even if he or she has publicly voiced their support for same-sex civil marriage in the past.

“Because, now the justice minister is tabling legislation, it’s not in the theoretical anymore. There is a bill before Parliament and each and every MPs voice is important,” says Marchildon.

Egale Canada lawyer Cynthia Petersen, who argued before the SCC in October, says even if the government’s proposed legislation is defeated in a House Of Commons vote, there are other avenues of equality available to Canada’s gay and lesbian community.

“One of the most important parts of the judgment today... is where they say that the rights that have been acquired by the same-sex couples that brought the litigation to the Ontario court and other provinces, are deserving of protection. So, there’s no question that all those marriages are valid and that those decisions are final and couples are going to continue to get married in the seven jurisdictions where it’s already a reality,” explains Petersen. “So even the worst case scenario isn’t such a bad scenario for us. It’s just a question of having to continue to fight [legally] instead of having it all cleaned up with legislation.”

Petersen says that given the recent undefeated track record of same-sex marriage cases in Canada’s highest provincial courts, it would only be a matter of time before civil marriage would be open to gay men and lesbians throughout the country.

“We don’t want to keep litigating. It is extremely expensive and it costs taxpayers’ dollars,” she says. “But if for some reason they can’t get it through the House Of Commons, or there isn’t sufficient votes because of opposition, it doesn’t leave us without a remedy.”