CANADA DEBATES SAME-SEX MARRIAGE Introduction

On June 10, 2003, Chief Justice Roy thing in its power to oppose same-sex Focus McMurtry, Mr. Justice James marriage. Premier Ralph Klein told This News in Re- MacPherson, and Madam Justice Eileen reporters, “If there is a move to sanctify view feature fo- cuses on the debate Gillese delivered a historic judgement. and legalize same-sex marriage as legal, over same-sex After methodically demonstrating how we will use the notwithstanding clause, marriages in Canada’s existing marriage laws vio- period, end of story.” In other words, Canada. In June lated the equality rights of gays and Klein let all of Canada know that he 2003 the Ontario lesbians under the Charter of Rights and was willing to turn to the rarely used Court of Appeal Freedoms, the Ontario Court of Appeal notwithstanding clause of the Charter of ruled that Canada’s marriage laws ruled that Canada’s marriage law Rights and Freedoms to exempt Alberta violated the Char- “demeans the dignity of same-sex from federal legislation having to do ter rights of same- couples” and is “contrary to the values with same-sex marriage. sex couples hoping of a free and democratic society” (The On June 17, federal Justice Minister to marry—echoing Globe and Mail, June 11, 2003). Then Martin Cauchon announced that the previous rulings from courts in B.C. the justices ordered that the definition government would not appeal the and Quebec. The of marriage be changed to “the volun- Ontario court’s decision and revealed decision set off a tary union for life of two persons to the the wording of draft legislation that flurry of debate as exclusion of all others.” They also would allow gay couples to marry. the government directed Toronto’s city clerk and the Cauchon said, “It’s a question of dig- decided not to appeal the ruling provincial registrar-general to accept nity. It’s a question of equality. And I and proceeded the marriage licences of two gay sincerely believe that the government is with legislation couples married in 2001 under the going in the right direction” (Toronto recognizing same- Christian tradition of publishing banns. Star, June 17, 2003). sex marriages. Within hours, Michael Leshner and In order to ensure successful imple- Michael Stark, one of the couples that mentation of the legislation, Cauchon figured prominently in the court case, sent the draft bill to the Supreme Court YV Sections were married in front of 50 friends at a of Canada for review. It has been asked marked with this symbol indicate ceremony in Toronto City Hall. Leshner to evaluate the legislation on the basis content suitable for said his “absolute faith in Canadian of the authority of the federal govern- younger viewers. values” proved instrumental in his ment to legally define marriage, the decision to persevere in the court battle compatibility of the act with the Charter to earn marriage rights for gays and of Rights and Freedoms, and whether lesbians. the Constitution protects religious While the courts had ruled in favour leaders who choose not to sanctify of same-sex marriage in previous same-sex marriages. It is expected that rulings in British Columbia and Que- the Supreme Court of Canada will have bec, the Ontario ruling called for imme- their review prepared by early 2004. diate action on the part of government. After that, the bill will be voted on in Most provincial justice ministers ac- the House of Commons. cepted the ruling and indicated that they The decision to formally legalize would abide by the decision of the same-sex marriages has been the source Ontario court. One provincial govern- of heated debate. Those favouring ment—Alberta—vowed to use every- same-sex marriages see the legislation

CBC News in Review • September 2004 • Page 30 as the next step along the road toward House of Commons. In other words, Under section 33 of equal civil rights for gays and lesbians. Liberals would not have to vote with the Charter (sometimes called the To many, it is an endorsement of equal their party and could oppose the bill. “notwithstanding rights for all Canadians, regardless of On August 8, 2003, The Globe and clause”), Parlia- sexual orientation. The side opposed to Mail reported that 48 Liberal MPs were ment or a legisla- same-sex marriages has taken the opposed to the legislation. Combine this ture can make a position that marriage is a key institu- number with the Canadian Alliance and particular law exempt from tion in building society, both in a pro- Progressive Conservative MPs opposed certain sections of creative sense and from the perspective to the bill and it appears that about half the Charter—the of family values. They see no need to of the MPs in the House are in a posi- fundamental redefine marriage, regardless of what tion to vote against same-sex marriage freedoms (in sec- the courts are saying. Some suggest that legislation. Meanwhile, an Ipsos-Reid tion 2), the legal if the government wants to introduce a survey in June 2003 stated that 54 per rights (in sections 7 to 14) and the “civil union” for same-sex partners that cent of Canadians favour same-sex equality rights (in would be fine—just don’t call it mar- marriage. A follow-up survey saw that section 15). How- riage. Several of Canada’s religious number drop to 49 per cent. (The Globe ever, a law that communities—such as the Roman and Mail, August 8-9, 2003) Clearly the limits Charter rights Catholic Church, the Evangelical issue is too close to call. under the notwithstanding clause Fellowship, and the Islamic Society of With the Supreme Court review of expires after five Toronto—have been vocal about their the draft bill pending, many political years. This clause is objections to same-sex marriage. analysts think that same-sex marriage used very rarely. From a political standpoint, it appears legislation will likely not be presented Source: that the parliamentary vote on same-sex in the House of Commons until early www.pch.gc.ca/ marriage legislation is going to be very 2004. That leaves plenty of time for charter-anniversary/ index_e.cfm close. Early in the process, Prime more debate, although some parliamen- Minister Chrétien announced that the tarians hope to debate the issue before bill would be put to a free vote in the the Supreme Court ruling. Did you know . . . Same-sex marriage Questions is already legal in 1. What reasons did the Ontario Court of Appeal give for supporting same- Belgium and the Netherlands? sex marriages? 2. How did Canada’s provincial and federal leaders respond to the decision?

3. Why did the federal government ask the Supreme Court to review their same-sex marriage bill?

4. Outline the arguments for and against same-sex marriages.

5. What evidence is there that Canadians are divided on the issue of same- sex marriage?

6. Where do you presently stand on the issue? Why?

CBC News in Review • September 2004 • Page 31 CANADA DEBATES SAME-SEX MARRIAGE YV Video Review

1. What happened on June 10, 2003, to change the definition of marriage in Please view the Canada? video carefully and answer the questions on this page. 2. What did Pierre Trudeau do to change the status of gays and lesbians in Canada? Further Research In order to keep abreast of the Supreme Court’s 3. What was “Canada’s Stonewall”? rulings on this issue visit www.sccc- csc.gc.ca. 4. Why was the Charter of Rights and Freedoms so important in the battle for gay and lesbian rights in Canada?

5. What role have the courts played in the ongoing quest for equal rights for homosexuals?

6. The Ontario court ruling was not the first decision in favour of same-sex marriage. a) Name the two provinces that handed down rulings before Ontario. Provinces: 1.______2. ______

b) What distinguishes these rulings from the Ontario one?

7. What did Canada decide to do instead of appealing the Ontario court’s ruling?

8. What protection is there in the same-sex marriage bill for religious groups that do not wish to sanctify same-sex marriages?

9. What position does the Vatican take regarding same-sex marriages?

10. Why did Prime Minister Chrétien reject the idea of a national referendum on same-sex marriages?

CBC News in Review • September 2004 • Page 32 CANADA DEBATES SAME-SEX MARRIAGE Document Study

Please read the An Act Respecting Certain Aspects of Legal Capacity for Marriage draft copy of for Civil Purposes. Canada’s same-sex From the Department of Justice marriage legislation and answer Proposal for an Act respecting certain aspects of legal capacity for marriage for the questions at civil purposes the bottom of the page. WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of Further Research family life for many Canadians; CBC Newsworld has WHEREAS, in order to reflect values of tolerance, respect and equality consis- both information and learning tent with the Canadian Charter of Rights and Freedoms, access to marriage for activities on same- civil purposes should be extended to couples of the same sex; sex marriages at www.cbc.ca/ AND WHEREAS everyone has the freedom of conscience and religion under the newsreal/ Canadian Charter of Rights and Freedoms and officials of religious groups are teachers.html. free to refuse to perform marriages that are not in accordance with their reli- Select “Past Lesson gious beliefs; Plans” and “June 11, 2003.” NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: • Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. • 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. • Consequential amendments will be added in the bill that is introduced in Parliament. Questions for the Supreme Court In the Reference, the Government of Canada has asked the Supreme Court of Canada the following three questions about the draft bill: • Is the draft bill within the exclusive legislative authority of the Parliament of Canada? • Is the section of the draft bill that extends capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Free- doms? • Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? Questions 1. State three things that the new legislation is seeking to change regarding the marriage laws of Canada.

2. Why do you think the government is asking for legal clarification of the wording of the bill by the Supreme Court? Who are they trying to protect?

CBC News in Review • September 2004 • Page 33 CANADA DEBATES SAME-SEX MARRIAGE Separation of Church and State

Jean Chrétien’s spokesperson Thoren used in the Old Age Security Act Hudyma put things into perspective violated the Charter of Rights and when she addressed the media in early Freedoms and “read in” sexual orienta- August 2003. She said: “The Prime tion to the equality rights section of the Minister has made his case several Charter. In 1999, the Supreme Court times and his position is clear. His instructed Parliament to proceed with position is that there needs to be a legislation recognizing the rights of gay separation between church and state and and lesbian Canadians. They made it as Prime Minister he has an obligation clear that gays and lesbians should not to protect the equality rights of all be “expected to wait patiently for the Canadians” (The Globe and Mail, protection of their human dignity and August 8, 2003). The separation of equal rights while governments move church and state has been a key theme toward reforms one step at a time.” The in Canadian history. Governments have Government responded in 2000 by endeavoured to guarantee that the amending 68 statutes that gave spousal decisions they make, while in accor- benefits to same-sex partners. To ap- dance with the societal values of Cana- pease fears that the stage had been set dians, are free of the influence of reli- to legalize same-sex marriage, marriage gious doctrine. was defined in the preamble of the bill as “the lawful union of one man and The Position of State: one woman to the exclusion of all To Legislate or Not to others.” However, the legal precedent Legislate was already there for the emergence of In 1967, then-justice minister Pierre a ruling favouring same-sex marriage. Trudeau proposed several amendments With the Supreme Court already “read- to the law in order to decriminalize ing in” sexual orientation to the equality homosexual activity. He said, “It’s rights of the Charter, it was just a matter bringing the laws of the land up to of time before the courts would force contemporary society, I think. Take this the state’s hand on the issue of same- thing on homosexuality. I think the sex marriage. That moment came when view we take here is that there’s no the Ontario Court of Appeal, echoing place for the state in the bedrooms of similar rulings in B.C. and Quebec, the nation” (www.cbc.ca – Indepth upheld a lower court’s decision regard- Backgrounder: Gay Rights). Trudeau’s ing same-sex marriage on June 10, criminal code amendments initiated the 2003. Reinforcement came shortly after gradual recognition of homosexual the ruling, first when the federal gov- rights by mainstream society. However, ernment promised to introduce same- it has been recent decisions in Canada’s sex marriage legislation and then, on courtrooms that have demonstrated real July 8, when the British Columbia developments in the fight for equal Court of Appeal lifted its ban on same- rights for gay and lesbian Canadians. In sex marriage. 1995, the Supreme Court of Canada To the federal government, granting ruled that the “opposite sex” definition gays and lesbians the right to marry has

CBC News in Review • September 2004 • Page 34 become a human-rights issue. This government to recognize the right of became clear on August 19 when the homosexuals to marry. These proceed- Prime Minister faced political pressure ings led to the historic decision by the from his own caucus and the media at Ontario Court of Appeal. While the the Liberal retreat in North Bay, MCCT has been a vocal religious and Ontario. When asked if he would hold a legal leader in the fight for same-sex national referendum on same-sex marriage, other churches have also marriage, Chrétien replied, “To have a supported the idea of sanctifying same- referendum to decide on the fate of a sex marriages—namely the United minority, it’s a problem. The majority Church of Canada and at least one will prevail on everything. Perhaps the diocese of the Anglican Church of French language would have been Canada. Hawkes summarized his banned in Canada for a long time if it position when he said, “I believe that had been a question of the majority most Canadians either support our right deciding. It’s why we have constitu- to marry, that is they accept same-sex tions. . . . It’s why we have a Charter of marriage, or they believe the state has Rights.” Chrétien’s likely successor, no business in telling us that we may Paul Martin, weighed in on the issue, not do so” (www.samesexmarriage.ca/ saying, “There are some issues that are legal/on_couples.htm). suitable for referendums. There are Other religious groups have voiced other issues for Parliament to deal with. their opposition to same-sex marriage. This is something for Parliament to deal Both the Evangelical Fellowship of with” (Toronto Star, August 20, 2003). Canada and the Islamic Society of Toronto have come out strongly against same-sex marriage. However, it has The Position of the been the Roman Catholic Church that Church(s): To Sanctify or has been most vocal in the debate. The Not to Sanctify Catholic Church indicated immediate Canada’s religious communities have disappointment in the court decision also brought their perspectives to the regarding same-sex marriage. By mid- forefront. The Metropolitan Community July, the Vatican issued a world-wide Church in Toronto (MCCT) brought written directive to Catholic politicians. same-sex marriage to the national stage “When recognition of homosexual in 2001 when Reverend Brent Hawkes unions is proposed for the first time in a used the Christian tradition of publish- legislative assembly,” the document ing marriage banns to marry a gay reads, “the Catholic lawmaker has a couple, Kevin Bourassa and Joe moral duty to express his opposition Varnell, and a lesbian couple, Elaine clearly and publicly and to vote against and Anne Vautour. The Province of it. . . . To vote in favour of a law so Ontario refused to register the mar- harmful to the common good is gravely riages. The province’s refusal to regis- immoral” (from the Vatican document ter the marriages, and the federal entitled “Considerations Regarding government’s inaction on the issue of Proposals to Give Legal Recognition to same-sex marriage legislation, Unions Between Homosexual Persons,” prompted the MCCT to work with a www.cbc.ca, July 18, 2003). Thus, the number of gay and lesbian couples to Vatican was weighing in on the issue initiate legal proceedings to force and directing Catholic politicians—like

CBC News in Review • September 2004 • Page 35 Jean Chrétien, Paul Martin, and Sheila The Catholic Church ascribes to the Copps—to vote according to their philosophy of natural law that St. religious tradition. Regardless of the Thomas Aquinas describes as participa- directive, Chrétien, Martin, and Copps tion in God’s divine law. Since mar- all agreed to vote in favour of same-sex riage, family life, and procreation are marriage legislation. At the end of July intertwined, marriage can only be 2003, Bishop Fred Henry of Calgary between a man and a woman. Thus, a said that Chrétien “doesn’t understand definition of marriage that includes what it means to be a good Catholic” same-sex partners would not be theo- and that he is “putting at risk his eternal logically sound because a homosexual salvation” by pursuing legislation couple cannot procreate. In fact, the recognizing same-sex marriages. Henry Catholic Church position on homosexu- went on to say, “I pray for the Prime ality is that homosexual acts are a Minister because I think his eternal violation of natural law and that homo- salvation is in jeopardy. He is making a sexuals should remain chaste. morally grave error and he’s not being Despite the vocal objections of reli- accountable to God” (The Globe and gious organizations like the Catholic Mail, July 31, 2003). Finally, Monsi- Church as well as other secular protest gnor Peter Showenback of the Canadian groups, the Chrétien government plans Conference of Catholic Bishops said to pursue same-sex marriage legislation. that Catholic lawmakers are “to use the The long battle to maintain a separation values that they have to oppose any between church and state rages on. legal recognition that would put such unions on the same basis as marriage” (www.cbc.ca, July 31, 2003).

To Consider 1. Briefly describe what is meant by the separation of church and state.

2. Write an outline of the position of the state on same-sex marriages. Make sure you include at least seven points.

3. Explain the position of the following on the issue of same-sex marriage: a) The Metropolitan Community Church of Toronto b) The Roman Catholic Church

4. In your view, is there a workable compromise between the views of church and state on this powerful issue? Explain.

CBC News in Review • September 2004 • Page 36 CANADA DEBATES SAME-SEX MARRIAGE Crossfire

“Exclusion from marriage—a funda- declare their commitment in the same The series of quotes mental societal institution—perpetuates way as any couple who love each other on this and the next page captures the view that same-sex relationships are enough to marry.” — Anthony Wilson- the essence of the less worthy of recognition than oppo- Smith in an editorial for Maclean’s, debate over same- site-sex relationships. In doing so, it June 23, 2003 sex marriage. Read offends the dignity of the person in the quotes and same-sex relationships.” — From the “Can we redefine marriage? Probably complete the questions that Ontario Court of Appeal ruling on not, that’s in the federal jurisdiction. follow. same-sex marriage, quoted in The Can we say that we will not recognize Globe and Mail, June 12, 2003 marriage in Alberta unless it adheres to the ‘opposite-sex’ definition that we Archives “Today, the court has fundamentally have in our act? Yes, I believe we can.” Visit the CBC’s redefined marriage. Other courts have — Alberta Justice Minister Dave Digital Archives site ruled that redefining marriage is too big Hancock revealing his government’s at www.cbc.ca/ a step to be made by the courts and decision to use the Charter’s notwith- archives and view the audio-visual file should properly be made by Parlia- standing clause to oppose federal same- entitled “Gay and ment.” — Bruce Clemenger of The sex marriage legislation, quoted in The Lesbian Emergence: Evangelical Fellowship of Canada, Globe and Mail, June 18, 2003 Out in Canada” for Catholic New Times, June 29, 2003 further research. “Society is not static. It’s in constant “Today is the death of homophobia in evolution. It’s a question of dignity. It’s the courtroom as we’ve known it.” — a question of equality. And I sincerely Michael Leshner, a man who played a believe the government is going in the key role in the court battle for same-sex right direction.” — Federal Justice marriage in Ontario. Leshner was Minister Martin Cauchon on the married to his partner, Michael Stark, government’s decision to proceed with within hours of the Ontario court ruling. same-sex marriage legislation, quoted Quoted on www.cbc.ca, July 13 on www.cbc.ca, July 18, 2003

“To take an institution so near and dear “To me, marriage is between a man and to so many people and change the a woman. If there are other arrange- definition in this way is going too far.” ments which happen to be man and man — Alberta Justice Minister Dave and other arrangements which happen Hancock, The Globe and Mail, June 19, to be woman and woman, that’s their 2003 business. And that should be called something else.” — Liberal MP Walt ‘It’s hard to understand the opposition. Lastewka, The Standard, August 25, Gays aren’t asking for government 2003 money, tax breaks, preferential status in seeking jobs, redress of past grievances, or other rights or privileges that would set them apart from others. Rather, gay and lesbian couples want to be able to

CBC News in Review • September 2004 • Page 37 “My question to MPs is: Given the way that they cannot cope with the reality law functions in our land, are you that not everyone has the same sexual convinced that by changing the defini- orientation that they do.” — MP Alexa tion of marriage that you are enriching McDonough reacting to Elsie Wayne’s our culture? . . . Wouldn’t it be prefer- comments regarding same-sex mar- able to deal with the fairness issue by riage, The Globe and Mail, May 9, giving same-sex partners their own 2003 definition but not break down the essential nature and component of what “Thousand of years of tradition, tried our society has built its self-understand- and true, outweigh anything that just ing on?’ — Brian C. Stiller, president of happens to be modern and catchy.” — Tyndale University College and Semi- Tim Dooling of the group Canadians nary in Toronto, Toronto Star, August Against Same-Sex Marriage, The Globe 3, 2003 and Mail, July 25, 2003

“It shouldn’t be marriage. If they want a “The sanctity of marriage is more union, it’s up to them. That’s it. Glory challenged by heterosexuals divorcing be to God to live in Canada, marriage is than by what other people—same-sex a man and woman.” — Conservative people—are doing.” — Federal Ama- MP Elsie Wayne on the issue of same- teur Sports Minister Paul DeVillers, sex marriage legislation, The Globe and Toronto Star, August 8, 2003 Mail, May 9, 2003 “If God is love, then wherever love is, “When I hear these members freak out God is. If love is present in same-sex at the notion that the definition of marriages— and it undeniably is—then marriage should be modernized I have God is present there also. No thinker to ask myself what world these mem- can convincingly rebut this.” — Ethics bers are living in? Maybe they are just columnist Tom Harpur, Toronto Star, insecure about their own sexual identity August 3, 2003

Analysis 1. After reading the quotes, indicate whether the speaker is for or against same-sex marriage. Just write for or against in the margin beside the quote.

2. Rank the “for” quotes and the “against” quotes from most relevant to least relevant. Be prepared to explain the reasons for your choices.

3. Select one quote with which you most disagree and explain why you disagree.

4. Select one quote that you feel most closely captures your view on the issue of same-sex marriage. Write a paragraph (7-10 sentences) explaining how the quote is a reflection of your point of view.

CBC News in Review • September 2004 • Page 38 CANADA DEBATES SAME-SEX MARRIAGE Putting Things into Perspective

This, too, shall pass this judgment about the flag, Prime James Travers is a Those things that most deeply Minister Lester Pearson, and na- national affairs tional unity: “A rag of appeasement, columnist for the divide us can also unite. Re- thrust upon us by a dictator who has Toronto Star. He member the great flag debate brings an interest- of 1965? Thought not. split the country.” A letter published by the Toronto ing perspective to By James Travers. Toronto Star, Star found a little optimism in the the same-sex August 21, 2003. Reproduced with marriage debate. In prevailing angst. “If all Canadians his opinion, the permission — Torstar Syndication will fight as vigorously under the debate can be Services new flag as they have over it, there viewed in light of is still hope for us as a great nation.” other historic By rough count, there are a couple There is, of course, still hope for us debates in Cana- of dozen flags flying around the as a great nation. But greatness dian history— modest resort where federal Liberals doesn’t come easily or without the debates that have are meeting this week. seen a deeply pain that is part of trading what is Every maple leaf turning in the divided Canadian familiar for what is right. populace eventu- summer wind stirs national pride; Pearson’s 1963 legislation was no ally come to a new not one stirs the party’s collective exception. understanding of a memory. By the time a new flag designed in controversial issue. That’s a pity for a caucus strug- Canada replaced an old one bor- Please read Travers’ gling with an issue as emotional and rowed from Britain, Parliament had article and answer sensitive as same-sex marriage. If been deadlocked for six months and the questions that Liberals were to look into their past, Pearson had been forced to invoke follow. they would find reassurance that closure on a debate that seemed those things that most deeply divide destined to leave permanent scars. can also unite. For those keeping score, 73 Con- Archives For most Canadians, the flag is the servatives led by John Diefenbaker For a fuller audio- most unequivocal of symbols. voted against a piece of cloth that visual account of Proudly sewn on backpacks by Cana- now seems as much a part of the Canadian flag dians and by Americans preferring Canada as hockey, the frozen north, debate, consider a to travel under another banner, its and peacekeeping. visit to the CBC distinctive simplicity is as easily Digital Archives at Despite all that hostility, despite www.cbc.ca/ recognized abroad as it is beloved at the refusal of a few diehard empire archives and view home. loyalists to lower the Union Jack or the file “The Great It was not always that way. the Red Ensign, the new flag was Canadian Flag Exactly 40 years ago this country hoisted on February 15, 1965. Debate.” and its Liberal government were as And then something happened ferociously tearing themselves apart that was even more worthy of cel- over the flag as they are today over ebration. extending marriage to gay and Canadians stopped arguing if lesbian couples. three maple leafs, Pearson’s pre- Then, as now, there were fears ferred version, was better than one, radical change would erode the or vice versa. They stopped arguing country’s values as well as its tradi- that the stripes should be blue, not tions. red, and that the flag failed to On the now yellowed pages of capture the essence of the country’s one newspaper, a columnist offered founding nations.

CBC News in Review • September 2004 • Page 39 Literally and figuratively, a new burden could be shifted to citizens flag was run up the pole and Cana- in a referendum, the Prime dians more or less happily saluted. In Minister’s response was unequivocal. concepts and phrases that wouldn’t Minority rights guaranteed by the become common for a couple of Constitution are not subject to the decades, the country found closure tyranny of the majority. The govern- and moved on. ment will, as it should, stay this There are differences between difficult course. finding a flag and changing the No one here is discounting just accepted definition of marriage and how difficult that will be. In some there are differences in the Canada cases, the views of caucus members of the ’60s and the one finding its are so different that they share only way through the early years of a emotional intensity. sometimes scary new millennium. Still, the way ahead is clear. There are also similarities. Liberals who know how to agree Pearson understood that a country to disagree will continue to debate, that had come of age in two world to search for loopholes the courts wars wouldn’t be fully formed with- will close with the Charter of Rights out its own flag. Knowing that, he and Freedoms, and to press ahead did what had to be done. with legislation. When the time Jean Chrétien also understands comes, they will vote not with party that a country that compromises whips on their backs but with their human rights is diminished. He, too, conscience. is doing what must be done. Whatever they decide, the sweep That determination surfaced here of history, the steady advancement again yesterday as a badly divided of human rights and, yes, the Consti- Liberal caucus tried to find an easy tution, make the outcome certain. way around what is now a signifi- Like the flag debate, this contro- cant political problem. When it was versy, too, will pass. suggested that the decision-making

Analysis 1. How is the flag debate of the 1960s similar to the same-sex marriage debate of 2003?

2. Matthew Mendelsohn, the director of the Canadian Opinion Research Archive, claims that the same-sex marriage debate is an indicator of gen- erational attitudes. According to Mendelsohn, younger Canadians are more inclined to support same-sex marriages while the 50+ generation are more likely to oppose same-sex marriage. Why do you think this might be the case?

3. Is Travers’ argument fair? Is the argument over the flag in the same league as an argument involving a societal institution like marriage? Be prepared to defend your position.

4. How do you think society will view the same-sex marriage issue in 40 years time? Explain.

CBC News in Review • September 2004 • Page 40 CANADA DEBATES SAME-SEX MARRIAGES Final Activity: The Charter and You

The Constitution Act was proclaimed ment of Prime Minister Pierre Further Research by Queen Elizabeth on April 17, 1982. Trudeau’s vision of a just society. The For more on the The companion to the Constitution was Charter makes clear the specific rights Charter of Rights and Freedoms: See the Charter of Rights and Freedoms, a and freedoms that all Canadians enjoy. the Charter at: document that represented the fulfill- http:// laws.justice.gc.ca/ Activity #1: Equality Rights en/const/ The gay and lesbian community has argued that their equality rights were annex_e.html; Read being violated, and the courts agreed. It was this effective use of the Charter about the Charter at: www.pch.gc.ca/ that won them their case. charter-anniversary/ Work with a partner and read Section 15 of the Charter of Rights and Free- index_e.cfm. doms. How might the gay and lesbian community have used this section of the Charter to argue that their equality rights were being violated? Report your findings to the class. Do you agree with the ruling? Explain.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Activity #2: The “Notwithstanding” Clause The drafting of the Charter of Rights and Freedoms proved to be difficult business for the politicians who put the document together. The main areas of disagreement revolved around an amendment formula and provisions allowing provinces to opt out of certain legislation. Eventually the premiers and the prime minister agreed to a way to amend the constitution and inserted the “notwithstanding” clause to give provinces the ability to pass legislation that could exempt them from certain parts of the Charter. This is the section of the Charter that Alberta Premier Ralph Klein vows to use if the government pro- ceeds with legislation regarding same-sex marriage.

Working with a partner, read Section 33 of the Charter. What are the limita- tions that Alberta will face if they opt to use this section of the Charter? Why do you think Klein is prepared to use the “notwithstanding” clause? What difficulties present themselves when a province decides not to recognize a minority group’s rights under the Charter? Record your findings and share your conclusions with the class.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

CBC News in Review • September 2004 • Page 41 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Activity #3: Religious Rights Some religious groups are very concerned about passing laws regarding same- sex marriage. One of the main fears these groups have expressed has to do with being forced to perform same-sex marriage ceremonies even though their religious doctrine forbids such ceremonies. This is one of the main reasons that Prime Minister Chrétien has asked the Supreme Court of Canada to review the draft legislation regarding same-sex marriages. However, the Charter also protects a person’s religious rights in Section 2 under the heading “Fundamen- tal Freedoms.”

Working with a partner, read Section 2 of the Charter. How could a religious group use this section of the Charter to defend its right not to perform same- sex marriage ceremonies? Record your findings and share your conclusions with the class.

Fundamental Freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. Extension Activity: You Be the Judge Read the draft legislation of “The Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes” at: www.cbc.ca/news/indepth/ background/gayrights_ottawalaw.html.

Prepare a report that answers each of the following questions in 7-10 sentences. • How will the act change the definition of marriage in Canada? Be specific. • What benefits do the gay and lesbian community stand to gain from the legislation? Please provide specific examples. • What provisions have been included to protect the rights of religious groups in the legislation? Are these provisions enough or should the government have gone further? • Finally, clearly state your position on the legislation. Should the act be passed by Parliament? Support your position with specific reference to your knowledge of the debate surrounding same-sex marriage and the Charter of Rights and Freedoms.

CBC News in Review • September 2004 • Page 42