Legal Reasoning

On July 20, 2005, the Civil Marriage Act became law when it was granted Royal Assent through the signing of Bill C-38 by the Governor General of Canada. The Act, which extends the legal definition of civil marriage to cover same-sex couples, arose out of a number of controversial court decisions rendered in preceding years dealing with the topic of same-sex marriage and equality rights.

Of particular note is the case of Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3. where the Ontario Court of Appeals not only affirmed previous rulings in which the common law definition of marriage was found to be in violation of the Canadian Charter of Rights and Freedoms (henceforth: the Charter), but was the first court to neglect the suspension of remedy, foregoing the traditional deferral of remedy in favour of allowing Parliament to remedy the situation. Such a decision permitted the immediate provision of marriage to same-sex couples within Ontario, and opened the floodgates of controversy.

As a general exercise in reasoning, the subsequent sections first provide a summary background to the Canadian judicial process, followed by arguments both in favour of and opposing the decision of the Ontario Supreme Court. As a collaborative effort, the sections will provide the viewpoints of separate individuals arguing, from a framework of (im)proper interpretation of the Charter, for or against the decision handed down in Halpern et al. The arguments in the following sections do not necessarily reflect the true opinions of the authors and are only to be considered an exercise in objective reasoning.

Background to the Canadian Judicial Process and a Defence of Halpern et al.

Common law originated in the judicial recognition and enforcement of traditional usages and customs of the Anglo Saxon and later Norman peoples in the British Isles. As these judicial decisions were made, they in turn became part of the common law. The common law in contemporary Canadian society consists of all previous decisions by Canadian & British courts, as they are recorded in the case reports of these nations. The law of precedent, or stare decisis, is a self-imposed judicial rule that “like cases be decided alike”. The law of precedent is said to contribute to guaranteeing the rule of law (justice as felt equally and impartially to all persons) and ensures that continuity and certainty in the law is maintained (so as to not undermine it). The law of precedent also ensures that judges do not make decisions based on a personal whim or belief.

Morton points to Weiler’s assessment of what the proper role of a common-law judge is when he states that their role “is to derive specific rules from more general principles, as the situation demands. Since situations change, rules must change also” (Morton, 388). He continues by stating the same duty applies to appeal court judges in adapting “the common law to the changing needs and circumstances of contemporary society”. Morton states that while the certainty and continuity established by the law of precedent are “legal virtues”, adaptability and innovation are more important in the policy-making process. “The case for abandoning a strict adherence to precedent is especially strong in constitutional cases” (389).

With the Charter of Rights & Freedoms in 1982, Canada entrenched in a written constitution the rights and freedoms that had previously been left “unwritten” in the Constitution Act, 1867. As Morton points out the Constitution Act 1867 left the “primary responsibility of the preservation of liberty in an elected, accountable, representative legislature such as Parliament” (479). Due to the unwritten character of the Constitution Act the courts “had to assume that the legislature intended to respect traditional rights and liberties” and “this forced the judges to use the language of federalism when dealing with the logic of civil liberties[…] confusing the jurisprudence of both federalism and civil liberties” (481).

Prime Minister Trudeau, the then leader of the Liberal party, presented the Charter of Rights & Freedoms and “argued that a constitutional bill of rights would enhance national unity by emphasizing what Canadians hold in common—citizenship—now to be defined by a common set of rights against both levels of government (485). The Charter explicitly authorizes judges to review legislation for violation of enumerated rights (s. 24(1)) and to declare any law that is inconsistent with the provisions of the Constitution… of no force or effect” (485). As the charter is constitutionally entrenched it gave the courts a greater role in Canadian politics and policy-making which angered the opponents of judicial activism. “What was new with the […] the Charter was the growing transfer of the decision-making process from legislative assemblies to courts” (485). What also occurred with the Charter was a trend towards “rights talk” (488) and an increasing rumbling from opponents that judge-made policy changes affecting the public was undemocratic as it was left in the hands of unaccountable judges.

As Halpern et al. v. Attorney General of Canada et al. illustrates, the need for a judge-made decision was heightened as this was a constitutional case whereby a previously excluded group wished to be included in the institution of marriage. The past prohibition of same-sex marriage denied same-sex couples of benefits that came from marriage and as such denied such couples the right to marry and the right to the benefits that come from marriage. As a result, the prohibition may have resulted in various forms of discrimination against same sex couples. In effect, because gay and lesbian couples are a minority the law must protect those that are most marginalized. The prohibition from the institution of marriage appears to grossly violate same-sex couples’ individual rights in favour of the majority’s rights. As Dworkin states “decisions about rights against the majority are not issues that in fairness ought to be left to the majority”i. For this reason, among others, the role of the judiciary is critical in the case for same-sex couples being granted access to the institution of marriages.

As the case raised religious concerns due to the religious emphasis of the definition of marriage the judges were forced to examine the intent of the framers when writing up the Constitution Act and the Charter of Rights & Freedoms. As the role of judges has often been one of interpretation (as illustrated in the law of precedent, stare decisis) the judges were forced to examine the intent of the framers while also illustrating that changes in society also implicate the need for changes to the rules. Also, with glaring obviousness was the need to include the Charter emphasis on “individual rights”. As the charter is intended to protect individual rights of all Canadian citizens from both the provincial and federal governments.

The court outlined the process used to reach their decision in their final synopsis. This is often referred to as seriatim and is presented as the ‘opinion of the court’(533). It presented the arguments of both parties and provided the courts’ response to those arguments. ‘The Association’ presented the argument of the legal definition of marriage as constitutionally entrenched in the Constitution Act, 1867 as ‘the union of one man and one women’ with amendment requiring formal constitutional amendment which neither the courts nor parliament have the jurisdiction to reformulate (9). In response to this argument the court refuted such a claim by illustrating that s.91(26) gives authority to the federal government with regards to Marriage & Divorce and nowhere does it state in the constitution the ‘union of one man and one woman’ as this is assumed to be the intent of the original framers of the constitution by ‘the Association’. As stated by the courts in Halpern: “Marriage as used in the s.91(26) of the Constitution Act, 1867 has the constitutional flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures” (10).

The court also illustrates the ‘progressive’ direction Canada’s jurisprudence on constitutional interpretation has taken (9). The Charter introduced the ‘unremitting protection of individual rights and liberties’ and also, as stated above, placed a greater emphasis on the role of the courts as those responsible for interpreting its provisions as well as ensuring both levels of governments are held responsible for violations that may occur. “A constitution is drafted with an eye to the future[…]The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind” (9).

The existence of differential treatment and the apparent outcome of unequal benefits as a result of this has been illustrated by the prohibition of same-sex couples from the institution of marriage. The Attorney General of Canada posits that the “Modernization of benefits and Obligations Act gives same-sex couples equal benefit and protection under the federal law’ and that it is not the definition of marriage itself but rather the that the individual pieces of legislation that provide authority for the distribution of government benefits and obligations that are the source of differential treatment”(13). In response the court illustrates that the provincial government does indeed play a role in ‘providing licensing and registration regimes so that the marriage of opposite sex couples can be formally recognized by law” (14). The inability for same-sex couples to receive such formal recognition illustrates their exclusion and this creates a formal distinction between opposite-sex and same-sex couples and thus equates to differential treatment and unequal benefits that come with the institution of marriage and is indeed discriminatory. As stated by the court “it is clear that a law that has a discriminatory purpose cannot survive s.15(1) scrutiny[…] and has the effect of perpetuating the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society” (16).

The use of scholarly work and experts was used to illustrate that homosexuals are a historically disadvantaged group and as such their exclusion from the institution of marriage is seen as perpetuating such discrimination. The intent behind the framers of the Canadian Charter was to combat exactly this. It is clearly illustrated in the recognition of Aboriginal rights which are outlined in the Charter as well as other historically disadvantaged groups in s.15(1).

S.15(1) reads:

Every individual is equal before the 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 [emphasis added].

The ‘in particular’ illustrates the importance of recognizing those historically disadvantaged and disputing that sexual orientation is not a part of those historically disadvantaged would not be demonstrating the intent of the Charter’s framers. In fact, it would be taking a step backwards as opposed to its intent of ‘keeping an eye towards the future’. As stated in the court decision “s. 15(1) requires us to define the scope of the individual right to equality, not to balance the right against societal values and interests”(19). This illustrates the impartiality and judicial independence expected of judges. It is their examination and interpretation of the said violations on an individual’s rights and not whether society deems it to be in line with their societal values and interests. For this reason, politicians are excluded from such interpretation as their accountability to the public may introduce bias as the public is responsible for putting them in power. As Morton states “the need for judicial independence becomes even greater when the courts assume the additional role of ‘protector of the constitution’[…] appellate courts exercising the function of judicial review (with constitutional veto power) will be subject to more not fewer demands for institutional accountability” (181).

One argument against same sex marriage proposes that marriage is centered on ‘procreation’. This is ultimately flawed in that many individuals are incapable of procreating or do not wish to have children and would thus find themselves unable to marry. However, this is not the case as heterosexual couples are permitted to marry. Thus, illustrating the inherent bias in prohibiting same-sex couples to marry based on such inconsistent justification. There is also the argument that appeals to the long withstanding explanation of marriage as between heterosexual couples, historically. It is a logical fallacy, referred to as argumentum ad antiquitatem, and is a fallacy asserting that something is right because it is old. Slavery has been practiced for centuries but that does not mean it is right nor worth protecting. The protection of marriage (for fear of divorce rates) is also a weak argument as one can clearly see that divorce rates have increased dramatically in the past half a century before same-sex marriage was introduced. Secondly, the use of a slippery slope analysis is speculative and is fallacious, at best. Legal reasoning does not allow for such evidence that is grounded on the speculation that if same-sex marriage were legal that such future events would occur. Due to the fact that same-sex marriage had not been legalized prior to make such arguments are unfounded and weak.

An appeal to religious freedom has been used. Interestingly, it is not the formal recognition of marriage by religions that is the goal, here. It is legal recognition and the benefits that come with this recognition that are being questioned.

In Opposition to Halpern et al.

The justification of the claim of the Court of Appeal for Ontario regarding a violation of equality rights under section 15 of the Charter raises questions regarding the source of premises. In particular, the court sets out that sexual orientation is “an analogous ground of discrimination under section 15(1) of the Charter”

Section 15(1) of the Charter reads as follows:

15(1) Every individual is equal before and under the law and has the right to 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.

And so, strictly speaking, it seems as though the courts have ‘read-in’ the right to be free from discrimination based on sexual orientation, which was clearly left out of the Charter – perhaps because it is ‘discrimination’ of an inherently different type than those enumerated. The source of the fundamental premise in the court’s argument that the denial of marriage to same sex couples is a violation of their Charter rights is a matter of interpretation. It seems entirely plausible that a court made up of different judges, with different backgrounds, and bringing different ethical and moral prejudices, could have just as easily decided the very opposite using the same set of premises, and a different interpretation.

This draws attention to the fact that courts often take it upon themselves to make moral decisions that affect outcomes, and that laws, when subject to human interpretation, are not static things but ‘living documents’.

If, however, we concede that the traditional definition of marriage does violate the Charter of Rights and Freedoms, we must fully evaluate if this discrimination is reasonable and justified under Section One of the Charter. According to Section One of Charter, “the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section One allows for violation of rights under Section 15 if and only if these violations are deemed justifiable and reasonably by the courts of our democratic society.

In order to appeal to section one the Court had to determine whether the opposite sex requirement satisfied the tests derived from R. v. Oakes.ii Attorney General of Canada (AGC) submitted that “changing the definition of marriage to incorporate same-sex couples would profoundly change the very essence of a fundamental societal institution.”iii

Seemingly, the second specific purpose of marriage stipulated by the AGC namely “encouraging the birth and raising of children of the marriage” may be a pressing concern that requires us to maintain that only opposite sex couples should marry. Only heterosexual couples are able to naturally procreate children that are genetically related to both of their parents. It is possible for same sex couples to have children but they are limited to unnatural forms of procreation and/or adoption. We must acknowledge that in the case of adoption there is no relevant difference between adopted children and genetically similar children. However, adoption is only available to a minority of parents who are willing to wait extensive periods of time to adopt a child. Also, with birth rates declining due to the increase in the use of birth control and abortion fewer children are being place up for adoption. It must be noted that infertile heterosexual couples who wish to have children are the exception of the norm, however no homosexual couple can ever procreate. Making marriage available to same-sex couples therefore presupposes that they will also be given the right to adopt and receive medical assistance for procreation, and even the right to use surrogate mothers, because such couples are not fertile. However, alternative ways for couples to procreate is inherently problematic. Surrogacy may seem an attractive option for gay couples however; it often produces unexpected ill-desired effects on the surrogate mother. The emotional and psychological implications of surrogacy are too threatening to rely on it as a means of procreation. Due to the failure of other methods of procreation, having children through natural means, is indeed a pressing concern in our society. Consequently, the state must encourage natural procreation for the continuation of society.

The institution of marriage and the biological family are not merely arbitrary social constructs tyrannically imposed on the homosexual minority by the heterosexual majority. Instead they provide a necessary means to survival; sexual reproduction. If we make marriage available to same sex couples we are disregarding the importance of the institution of marriage. As Ronald Dworkin asserts by putting aside both the history of the institution and its place and meaning in ordinary moral and social commerce, the Court has reduced marriage entirely to law.iv Namely, marriage is an institution which the law in certain measure responds but which it does not itself create. By changing the definition of marriage we are recognizing pre-existing relationship, therefore “marriage no longer has anything at all to do with the bestowal of status which makes possible relations, which would not be possible in its absence.” Hence, it de de-institutionalized because it fails to add any benefit to couples.v

Additionally, research has indicated that is preferable for children to be raised by heterosexual couples. The primary reason is that although it is possible for gay men to be in a monogamous relationship for life, this seems only to be an ideal and not a reflection of reality.

A recent study on homosexual relationships finds they last 1-½ years on average even as homosexual groups are pushing nationwide to legalize same-sex ‘marriages.’ The study of young Dutch homosexual men by Dr. Maria Xiridou of the Am Amsterdam Municipal Health Service, published in May in the journal AIDS…found that men in homosexual relationships on average have eight partners a year outside those relationships. —Washington times

Another study reveals that child abuse is at its lowest when children live with both biological parents compared with higher rates for children who live with at least one no biological parent or caregiver.vi Therefore, we should prefer heterosexual couples in the adoption processing. Because child-rearing is at the heart of our society, we must error on the side of caution before we knock down the cornerstone of society that is responsible for creating future generations. One example mentioned by the AGC is that when our nation entered a dramatic social experiment on the family called “no-fault divorce,” the institution of marriage became increasingly unstable. Supports of the no-fault divorce movement claimed that the “till death do us part” portion of marriage was not imperative portion of definition of marriage. They were wrong. The impacts of increased divorce rates are reflected today’s children. Similarly, the same-sex proposition claims the “husband” and “wife” are not essential features marriage. If the institution of marriage changes it should be because of social conventions and not a legal matter. Before tampering with the definition of any social institution the burden of proof should be on same sex couples to show the allowing homosexuals to marry will promote the stability of the institutions we value.

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An Alternative Defence of Halpern et al.

In defence of the ruling passed down in Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3. – as it pertains to an interpretation of the pronouncements laid out in both the Canadian Charter of Rights and Freedoms and the Canadian Constitutional Act, 1867 – it is of practical concern to consider such judgements made in cases similar to Halpern et al. as a means of obtaining a broader perspective on judicial reasoning insofar as it is applied to a construal of the definition of marriage. Of particular note is the British Columbia case of EGALE Canada Inc. v. Canada (Attorney General).

While innumerable reasons have been forwarded in both defence and attack of same-sex marriage, those items at issue, under consideration of the proper application of the Canadian Charter of Rights and Freedoms (henceforth referred to as “the Charter”), refer to a particular set of arguments. As objective matters of concern, the particular issues may be phrased as the following:

1. Is the common law definition of marriage a bar to same-sex couples in such a manner that it violates the equality rights of the individual as given within the Charter?
2. If the answer to (1) is yes, is the common law definition of marriage saved under application of s.1 of the Charter?
3. Is the definition of Marriage entrenched within the Constitutional Act, 1867, and therefore immutable barring further constitutional amendments?

Section 15(1) of the Charter

The general common law definition of marriage arose from an English decision passed down in the case of Hyde v. Hyde and Woodmansee (1866), L.R. 1 P. & D. 130 (H.L.), where on p. 130, it is stated by the courts:

Marriage has been well said to be something more than a contract, either religious or civil — to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of "husband" and "wife" is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. (Emphasis Added)

Ignoring that the definition of marriage appears to be an understanding of the relationship from the perspective of a Christian based observation, the express statement regarding the specification of opposing genders as a necessary requirement for a union to be considered a marriage has been argued to be the particular item of concern when discussing Charter violations. In particular, the question is asked: does this definition of marriage violate s.15(1) of the Charter. In the decisions handed down in both the Halpern and the Egale cases, the courts stated that such a common law definition violates the equality rights of the individual as expressed in s.15(1) of the Charter.

While s.15(1) states:

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.

It is at once noticeable that the paragraph is not explicitly inclusive of sexual orientation as a particular basis to which protection from discrimination is to be guaranteed. However, leaving aside the particulars of the language itself, it may be argued that while sexual orientation is not expressly stated in the formulation of s.15(1) the Charter itself is not a document of absolutes in reference to language or conceptualization.

In Constitutional Cases, Dworkin (1997) has delineated two main interpretations of constitutional documents en masse. While the arguments are of such detail that a full analysis would require an entirely separate discussion, the salient points of his paper – as they relate to the case before us – may be summarized by the following distinctions regarding the construal of constitutional documents:

1. A constitutional document may be observed as a conceptualization of morality specific to the minds and views of the creators of the documents.
2. Alternatively, a constitutional document may instead be viewed as contextually sensitive set of rules that outline not a conceptualization of morality but rather appeal an open moral concept.

The distinction to be drawn is one where (1) describes an understanding of s.15(1) of the Charter to be exact in its description of what constitutes discrimination, and therefore exclusive to those categories outlined within the particulars of s.15(1). Under this interpretation of the Charter the common law definition of marriage does not violate the Charter itself, as no specification is made towards freedom from discrimination based on sexual preference. However, under the view of (2), constitutional documents are to be considered not so much as a set of specific rules, but as a general concept of morality that is open to interpretation on the grounds of what would be encompassed by that particular moral code under any given circumstances. An example given by Dworkin as a means of elucidating this latter view entails the statement that one must not treat others unfairly. According to Dworkin, it is certain that with such a statement there are necessarily specific examples in mind of what constitutes fairness, but to regulate obedience to the specific examples encapsulated in the mind of the creator (as under the first approach to interpretation) is to ignore the possibility that situations exist or may exist at some future time which have/had not been envisioned by the creator of the original statement. Further, such adherence to the former view of interpretation implies that whatever tenets of morality are under consideration have been correctly and absolutely construed for all time by the creators of the original document.

It is the latter view of constitutional documents as a framework for moral determinations that is endorsed by Dworkin and appears to be the prevalent view by the members of the judiciary under examination when considering s.15(1) of the Charter. Under this interpretation, s.15(1) is inclusive of, but not limited to the enumerated examples outlined within the particular section itself. The specific items listed are nothing more than simple examples from which one may abstract to other instances through analogous grounds.

The determination of whether or not certain characteristics constitute analogous grounds stems from an analysis outlined in the supreme court decision Law v. Canada (Minister of Employment and Immigration), [1999|1999] 1 S.C.R. 497 whereby a three-step test is proposed for the treatment of establishing whether or not discrimination exists (in reference to the characteristic in question):

1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
2. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? And
3. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?vii

The second step in the analysis makes specific mention of the inclusion of analogous grounds in the matter of discrimination, thereby stating a supreme court mandate specifically emphasizing a flexible interpretation of the Charter to include items and characteristics beyond those explicitly listed in s.15(1). Were this not the case, however, the specific language used in s.15(1) of the Charter itself intimates that the list of characteristics is not exhaustive by itself. The individual phrase: “….equal benefit of the law without discrimination and, in particular, without discrimination based on….”(emphasis added) from s.15(1) can, at most, be interpreted to mean certain characteristics (those enumerated) are of particular importance when preserving equality amongst all individuals. However, by virtue of the language used, the phrase itself is hard pressed to lend itself to the argument that only those items listed in s.15(1) of the Charter are to be protected against discrimination. Were that the accepted argument, it would follow that either all other characteristics that distinguish one individual from another to the exclusion of all else are open to discrimination under the law (and that this was either the intent of the creators of the document, or simply a short-sightedness on their part that we are now forced to accept and uphold), or that s.15(1) still serves to protect the equality of all individuals as there exist no other characteristics that serve to distinguish one individual from another – neither of which is a very convincing position.

Even considering the phrasing of s.15(1) coupled with the judicial mandate of flexible interpretation of the Charter, it is still necessary to establish the characteristic of sexual orientation as analogous grounds prior to application of the remaining steps of the Law Test.

For a characteristic to be judged as analogous to the explicitly enumerated characteristics, the characteristic in question must be considered to be either immutable or constructively immutable in that if it is possible to alter or change the defining characteristic, such change may only come about at a great cost to the individual. The prime opposition to judging sexual orientation as analogous to the enumerated characteristics arises from the argument that homosexuality is a choice and therefore not immutable. However, the argument that homosexuality as a sexual orientation is a choice that is not immutable then presupposes that heterosexuality as a sexual orientation is not immutable (constructively or absolutely). To claim otherwise is paradoxical, for the statement that individuals are born as heterosexual is to state that heterosexuality is not a choice, whereas simultaneously stating the homosexuality is a choice directly implies that there is a choice in the matter of sexual orientation and therefore heterosexuality is not an absolute and is in fact open to matters of preference (at no significant cost to the individual if one argues against the constructive immutability of sexual orientation), which contradicts the original statement of those who present the argument that homosexuality as a sexual preference is not immutable (be it constructive or otherwise).

From this perspective it seems unreasonable to claim that changing sexual preferences from homosexual to heterosexual comes at no great cost to the individual without similarly arguing that there would similarly be no great cost for an individual to alter their sexual orientation in a reverse manner. In light of this it appears that the determination of sexual orientation as being on analogous grounds is justified.

With respect to the first and third principles of the Law Test an effective argument for the justification of the judges’ decision in Halpern et al. (as regards s.15(1)) may be taken directly from the reasoning given in the original case of Halpern v. Canada, [2002] O.J. No. 2714 (Gen. Div.) case as well as from further reasoning forwarded by the courts in EGALE v. Canada (2001) 95 B.C.:.R (3d) 122 (S.C.) and from EGALE Canada Inc. v. Canada (Attorney General) (2003), 13 B.C.L.R. (4th) 1 (C.A.). The general consensus amongst the separate courts is to view the institution of marriage as a malleable convention subject to a form of evolution complementary to the social regime within which it is encapsulated. There is recognizable evidence given in both Halpern et al. and EGALE Canada Inc. demonstrating the social and legal shifts in the institution of marriage that have occurred over the past centuryviii.

The most common argument forwarded by those in opposition to the legalization of same-sex marriage argues for marriage as an institution that emphasizes the monogamous relationship between members of the opposite sex, for the purpose of procreation and child-rearing. However, there are two arguments which may be used as a counter to this line of opposition:

1. It is demonstrated in Halpern that numerous changes have occurred at the level of the legislature by which the concept of marriage has slowly evolved to a state by which the differences between married and unmarried couples is only truly evident at the legal level.
2. In EGALE it is argued that social changes have also had an impact on the traditional domain of marriage, that being of the reinforcement of opposite-sex procreation and child-rearing, such that advances in technology and attitude have diminished the importance of marriage in securing procreation. Not only are options readily available to single individuals (in the matter of procreation and child-rearing) but also are same sex couples increasingly participating in adoption and child-rearing.

Considering (2), the defence of marriage as an institution by which procreation is assured seems far from compelling, particularly if one also recognizes that permitting same-sex marriages in no way impairs the ability of heterosexual couples to produce offspring. Further, it is argued by Mr. Justice Blair, in Halpern (2002)ix, that the interpretation of s.15(1) of the Charter is dependent on the perspective one adopts in defining marriage as an institution. If one is to accept the traditional view as forwarded by opponents of same-sex marriage, whereby marriage preserves and reinforces procreation then the first step in the Law Test has not been met, as marriage then becomes a purely heterosexual institution and does not discriminate based on a particular characteristic of an individual. However, if one is to accept that marriage can no longer be preserved as the bastion of reproduction and the furtherance of the human species, then it appears that the common law definition of marriage does discriminate against same sex couples based on the simple characteristic of sexual orientation. As such, the first step in the Law Test is satisfied.

In turning attention to the third step of the Law Test one may look back at the first argument forwarded against the classical perspective of marriage. As legislative changes have reduced the number of differences between unmarried and married couples to that of a legal distinction, and marriage is no longer viewed as the prime institution by which procreation is assured, then what is it about marriage that is valuable to a couple?

As similar economic benefits have been assigned between same-sex and opposite-sex couples, it would appear that the remaining difference then resides in the social status conferred by the title of marriage itself. In Halpern (2003) the Attorney General argued that the barrier to marriage does not withhold a benefit from same-sex couples in the sense that federal legislation grants the same rights and privileges to same-sex couples as married heterosexual couples, without the need for same-sex couples to be married. However, Justice LaForme responded along the same lines taken by Justice Blair in the previous Halpern case, that such equality was only granted at the economic level and that marriage as an institution has social benefits in the sense that: “Marriage – to most of Canadian society is … the institution that accords to a union the profound social stamp of approval and acceptance of the relationship as being of the highest value.” Insofar as this may hold, the denial of this social validation to an individual, simply due to their sexual orientation, is considered to be an insult to the dignity of the individual(s) in question and does satisfy the third step of the Law Test, thereby permitting the assessment that the common law definition of marriage is discriminatory under s.15(1) of the Charter.

Section 1 of the Charter

Even while accepting that the common law definition of marriage does violate s.15(1) of the Charter, it has been forwarded in further arguments that the common law definition of marriage is saved under s.1 of the Charter, thereby permitting the violation of s.15(1) as a justified violation.

As s.1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It then becomes necessary to show that the violation of s.15(1) in the form of barring same-sex couples from marriage is, among other thingsx, justified to the extent that the purpose served in allowing such a violation is substantial and sufficiently important to permit the violation of the rights of another individual.

The prime argument put forth in favour of using section one in order to maintain the common law definition of marriage was forwarded in Halpern (2003) by the Attorney General of Canada (AGC). In paragraph [89] of Halpern it is shown that the AGC has stated:

…that marriage relates to the capacities, needs and circumstances of opposite-sex couples. The concept of marriage - across time, societies and legal cultures - is that of an institution to facilitate, shelter and nurture the unique union of a man and woman who, together, have the possibility to bear children from their relationship and shelter them within it.xi

However, as we have already shown, in arguing for the violation of s.15(1), that this view of marriage as existing only to further procreation is not fully convincing given societal and technological change, it fails to be convincing as an argument for adoption of s.1 in defence of the common law definition of marriage.

A further point to be made in Halpern is one that reflects on the fact that barring same-sex couples from marriage – and hence violating s.15(1) of the Charter – in no way facilitates the ability of heterosexual couples to procreate, nor does it somehow preserve the hypothesized power of marriage to induce procreation, or serve to protect or maintain the needs of heterosexual couplesxii.

The Constitutional Act, 1867

A final consideration must be given to the argument that even if a defence of marriage under s.1 of the Charter is to be discarded, the common law definition of marriage is still entrenched within the constitution, and any change to the definition of marriage would necessarily require a constitutional amendment.

Such an argument was forwarded by the court in EGALE v. Canada (2001) 95 B.C.:R (3d) 122 (S.C.), in which the trial judge argued the definition of marriage, as used in s.91(26) of the Constitutional Act, 1867 (CA) was the prevailing definition as stated in the case of Hyde v. Hyde, and therefore the parliament lacks the power to make a change to the definition of power, short of amending the constitution itself.

This argument takes us back to the initial discussion of Dworkin’s alternate views of constitutional documents and a discussion of whether or not they are open to flexible interpretation. In the case of the CA, in particular s.91(26), perhaps an analogy would serve to be illuminating. If indeed the CA is a concrete document where the class of subjects enumerated in s.91(26) have definitions that are entrenched in the specific time at which the CA was created, then the parliament only maintains legislative powers over those subjects as they were in the year of 1867. Under such a definition, if transportation had been included as a class or subject falling under subsection 26 of s.91, then with flexible interpretation, transportation as we know it and all laws governing it, would be inclusive only of modes of transportation that existed in 1867. Advances in means and methods of transportation would fail to be defined as transportation and the parliament would fail to have legislative powers concerning any new advance.

Such an analogy is not an original argument against strict interpretations of the CA, as the courts have indeed had to deal with additions to subsection 26 of s.91xiii.

Further, there is the argument forwarded by Justice Lemelinxiv that at the time of the definition of marriage, gay marriage was not inexistence due to the fact that homosexuality was illegal, so how could marriage be defined as anything but the union between a man a woman. This is not elaborated upon in the decision, however, one could reasonably argue that if a definition of a topic included in the CA arose from exclusion of alternative subjects due to a law preventing the existence of the alternative definition of a subject within the definition of the topic, then if said law is repealed it would seem to invalidate a foundation upon which the original definition of the topic rests.

Regardless, there appears to be a long history of progressive interpretation of constitutional documents within the courts as outlined in paragraphs [42] – [46] of Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3. As such, perhaps the strongest argument in defence of a more flexible interpretation of the CA rests more upon judicial precedence rather than any appeal to a moral concept, regardless of how appealing and reasonable it may seem.

Notes

• i. Ronald Dworkin, Constitutional Cases, from: Taking Rights Seriously, Harvard, 1997, pp. 131-149
• ii. R. v. Oakes, [1986] 1 S.C.R. 103.
• iii. Halpern supra note 4 at para. 133.
• iv. The Halpern Transformation:Same-Sex Marriage, Civil Society, and the Limits of Liberal Law. F.C. DeCoste
• v. ibid.
• vi. Catherine Malkin and Michael Lamb, “Child Maltreatment: A Test of the Sociobiological Theory,” Journal of Comparative Family Studies, 25 (1994): 121-133F; David Popenoe, Life Without Father, (New York: The Free Press, 1996).
• vii. Reproduced from: Law v. Canada (Minister of Employment and Immigration), [1999|1999] 1 S.C.R. 497
• viii. See para. [39] - [84] of Halpern v. Canada, [2002] O.J. No. 2714 (Gen. Div.)
• ix. See para. [80] – [84] of Halpern v. Canada, [2002] O.J. No. 2714 (Gen. Div.)
• x. For an explanation of what is required for a violation to be justified, see The Oakes Test: http://en.wikipedia.org/wiki/Oakes_test
• xi. See para. [89] of Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3.
• xii. See para. [93] of Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3.
• xiii. In particular, see para. [44] of Halpern et al. v. Attorney General of Canada et al. (2003), 65 O.R. (3d) 161. M. v. H., [1999] 2 S.C.R. 3. for a discussion of the addition of Banking, Incorporation of Banks, and the Issue of Paper Money as a class of topics falling under s.91(26).
• xiv. See Hendricks v. Quebec, [2002] RJQ 2506 (CSQ). 3.