Ontario Superior Court Unanimously Rules in Favor of Same-Sex Marriage
[TORONTO, CANADA] - Michael Leshner's dream of one day dancing with his mother at his wedding may soon become reality.
Yesterday, three Ontario Superior Court judges unanimously ruled in a Divisional Court decision that the current legal definition of marriage is discriminatory, and ordered it changed to include recognition of same-sex marriages. However, the ruling was suspended for two years to allow governments to redefine the term "marriage."
In the precedent-setting decision, the judges ruled that prohibiting gay couples to marry is unconstitutional and a violation of the Canadian Charter of Rights and Freedoms.
The provincial and federal governments could appeal the decision, but neither had made a decision on the issue yesterday.
"The restriction against same-sex marriage is an offence to the dignity of lesbians and gays because it limits the range of relationship options available to them," Mr. Justice Harry LaForme wrote in his reasons for the ruling. "The result is they are denied the autonomy to choose whether they wish to marry. This in turn conveys the ominous message that they are unworthy of marriage."
|Michael Stark and Michael Leshner|
"I can now turn to my sweetie and say, `Will you marry me?' Leshner said to Stark at a news conference, receiving a quick reply.
"I'm glad he said yes," Leshner said with a laugh before the two shared a short kiss.
But a trip to City Hall by Leshner and Stark in an attempt to get a marriage licence yesterday was unsuccessful. City clerk Ulli Watkiss said she needed to get legal advice before she considered issuing one, but agreed to meet with the pair next week. The ruling clears a major hurdle in the long battle by same-sex couples to be legally recognized. Same-sex common-law partners already share the same benefits as heterosexual common-law couples.
Gail Donnelly and Barbara McDowall ? one of eight couples who filed the civil suit and attended the five-day hearing last November ? were delighted by the news.
"We always believed we are mainstream," McDowall said. "We're looking forward to celebrating our own marriage."
The case of the eight same-sex couples was heard with the case of two couples married, without benefit of legal recognition, by Rev. Brent Hawkes at the Metropolitan Community Church of Toronto in January, 2001. The two couples ? Kevin Bourassa and Joe Varnell, and Elaine and Anne Vautour ? were married under the ancient Christian tradition of reading banns. They used the tradition to avoid obtaining marriage licences from the city, then asked the three-judge panel to legally register their marriages.
The other eight same-sex couples ? after unsuccessfully applying for marriage licences from the city ? sought the right to obtain licences and have their marriages legally registered.
The Netherlands is currently the only country that permits such marriages.
The federal government opposed the applications, arguing that procreation is a basis that supports the ban on same-sex marriages.
"There is much more to marriage as a societal institution, in my view, than the act of heterosexual intercourse leading to the birth of children," Mr. Justice Robert Blair wrote in his reasons for the ruling. "Moreover, the authorities are clear that marriage is not dependent upon the presence of children."
LaForme stated, "I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage."
Asked what the ruling meant to him, Varnell said: "My family is no longer second-class."
When the couple learned of the court ruling they started screaming and hugging, they said, holding hands as they spoke to the media.
"The first person we called were my in-laws," Varnell said, noting emphasis on "laws."
Madam Justice Heather Smith ruled in the 129-page decision that the current definition of marriage as the lawful and voluntary union of "one man and one woman" is constitutionally invalid. LaForme wrote that that portion of the definition should state "two persons."
However, Smith suspended that order for 24 months to allow Parliament and the provincial Legislature to redefine the term "marriage."
"If no steps are taken by the government at the expiration of the two-year period, the common law will be written and gays and lesbians will have the right to marry," explained lawyer Martha McCarthy, who represents the couples.
Douglas Elliott, who represents the Metropolitan Community Church of Toronto, said he hopes the government won't appeal the decision.
"It would be nice if the Ontario government and the federal government took the clear message that they must act," he said. "They must act now to clean up all of the statutes and regulations to facilitate access to same-sex marriages."
An appeal would be a waste of taxpayers' money, he said. "Stop putting this additional burden on the lesbian and gay community of having to fight them all the way to Ottawa every time," Elliott said, directing his message to the government. "But if that's what they want, that's what we'll give them."
The province is still reviewing the decision before deciding whether to appeal, Ben Hamilton, press secretary to Attorney General David Young, said yesterday. The federal government must also decide, he said, noting it's up to Ottawa to define the constitutionality of marriage.
"If the federal government was to change the definition of marriage, as this decision puts the onus on them to do, that would have implications for every province and territory," he said.
But Ontario Liberal Party president and MPP Gregory Sorbara (Vaughan-King-Aurora) said the province shouldn't "hide behind the federal law" and should recognize gay marriages.
"The appropriate thing for the government to do is simply to register the marriages and get on with it," he said. "There's been a great deal of progress in the development of the law here. Look, when I was young, homosexuality was illegal... . While we have to respect that for some people this creates a high degree of discomfort, my view is that's changing."
It's too early to say if the decision will be appealed, said a spokesperson for the federal ministry of justice.
Derek Rogusky, a spokesperson for Focus on the Family Canada, said he is disappointed with the ruling and hopes it will be appealed.
"We will be continuing to argue for maintaining the traditional, and what we believe is the proper, definition of marriage," he said.
Rogusky said there's been no solid research on the impact on children of growing up with same-sex parents and thinks the area should be explored before "rushing" decisions.
The Ontario case is not the first to land in court. The British Columbia Supreme Court heard a similar challenge in July, 2001. Last October, the court dismissed the case, but the couples appealed the decision. The B.C. Court of Appeal has scheduled a hearing for next year. In Quebec, a decision is pending on a similar case heard last November.