In a 1995 opinion article for Saturday Night magazine, conservative columnist David Frum argued that gay and lesbian weddings would destroy the institution of marriage. “To revitalize marriage, we must constantly remind people of how much society honours it,” wrote Frum. “Nothing could be better calculated to diminish marriage in people’s eyes than an elite insistence on uni-sexing it. Gay marriage will look to much of the rest of society as a joke upon them, a campy parody of the central institution in their lives. The harm inflicted on the prestige of marriage is likely to prove very great; the last thing an already troubled institution needs.”
Today, Frum’s arguments are being used not only by pro-family groups opposed to gay marriages, but by lawyers for the federal government opposing a motion before the Ontario Superior Court in early November that would force the City of Toronto to grant marriage licences to eight same-sex couples.
In a hearing before three justices in Toronto, Rosalyn Levine, the lawyer for the federal government, said the three foundations of marriage are “procreation, fidelity and sacrament,” as defined by Parliament and the common law, and that by its very definition, marriage can only consist of a man and a woman. She added: “That institution is gone at the end of the day if one of those goals is taken away,” in response to a question from Justice Harry LaForme on whether marriage would fall if one of the foundations were no longer a requirement.
Levine is joined in her arguments by the Interfaith Coalition for Marriage. The coalition has intervenor status in the case, and consists of several religious organizations, including the Evangelical Fellowship of Canada, the Archdiocese of Vancouver, the B.C. Council of Sikhs, the B.C. Muslim Association, the Ontario Conference of Catholic Bishops, the Islamic Society of North America, the Ontario Council of Sikhs, and the Catholic Civil Rights League.
The case was brought before the court by a homosexual activist group called Equality for Gays and Lesbians Everywhere (EGALE), which argues the denial of marriage to homosexual couples is a violation of equality guarantees under Section 15 of the Charter of Rights and Freedoms. The case is being heard simultaneously with a challenge brought forth by the Metropolitan Community Church of Toronto, which “married” two homosexual couples in January after publishing banns. The church argues it is protecting its constitutional rights to freedom of religion and equality by suing the government of Ontario for refusing to register, or recognize the marriages. The cases have been launched even though same-sex couples currently enjoy nearly all of the financial benefits of marriage, as well as adoption rights.
The Ontario case comes on the heels of a stinging defeat for supporters of homosexual marriage in British Columbia. In early October, Justice Ian Pitfield ruled that while homosexual couples may have been denied their rights to equality under Section 15 of the Charter, such a denial was demonstrably justified pursuant to Section 1 of the Charter, because “no means exist to equate same-sex relationships to marriage, while preserving the fundamental importance of marriage to the community.” Justice Pitfield also said that, “Parliament may not enact legislation to change the legal meaning of marriage to include same-sex unions,” because under Section 91(26) of the 1867 Constitution Act, Parliament was given exclusive jurisdiction over marriage, and any attempt to change the legal definition of marriage would be self-defining a legislative power conferred upon it. He added: “Marriage, as a federal head of power with legal meaning at Confederation, is not amenable to Charter scrutiny. One part of the Constitution may not be used to amend another.” (See “B.C. Court protects traditional marriage,” in the November Interim.)
Janet Epp Buckingham, the general legal counsel for the Evangelical Fellowship of Canada, says the Interfaith Coalition’s fundamental argument is that “marriage has been defined by all cultures worldwide as being between a man and a woman.” She says that while gay and lesbian groups see marriage as a mere partnership between two people, “all religions see it as something more than that. Marriage is a covenant with God, it is Godly involvement in the relationship.” As marriage is such an important institution for the religious groups that form the coalition, Buckingham worries that changing the definition of marriage would “have a negative impact on all major religious communities in Canada.” She adds that while the gay community has promised not to force its views on religions which do not recognize same-sex marriages, “we have already seen the gay community have an impact on the theology of sexuality in a number of denominations. It’s easy to forsee a lot of pressure being placed on religious communities that oppose gay marriages.”
Asked about Levine’s performance before the court, Buckingham says the government counsel is “quite good,” but expresses disappointment in the government of Ontario’s lack of involvement in the case. Says Buckingham: “The government of Ontario is basically saying: ‘It’s the federal government’s responsibility. We’re going to follow what they say.’ They’re not making a very strong argument.”