Canadian same-sex marriage litigation: individual rights, community strategy.

• Author: Davies, Christine

I INTRODUCTION II THE ISSUE Why Marriage? Why Not Marriage? The Legal Status and Definition of Marriage III SAME-SEX MARRIAGE LITIGATION IN CANADA: HISTORICAL OVERVIEW The First Wave: North v. Matheson (1974) The Second Wave: Layland v. Ontario (1993) The Third Wave: EGALE and Halpern Strategic Considerations: Common Law versus Charter Arguments EGALE: Trial Level Halpern: Trial Level EGALE: British Columbia Court of Appeal Halpern: Ontario Court of Appeal IV FURTHER DEVELOPMENTS V CONCLUSION Abstract

This article surveys the litigation history of same-sex marriage in the common law jurisdictions of Canada. Cases were pursued over a span of thirty years before litigants met with success in 2003. The most recent round of cases benefited from a multi-pronged approach utilizing both common law and Charter arguments. Overall, it is clear that the strategies were chosen and applied in order to reach the best possible results. The litigants were most effective when they humanized and contextualized the legal issue by relying on the plaintiffs' own words and feelings, as well as social science evidence. The lessons this article evokes, in terms of flexible, result-focused strategies, and the emphasis on bringing to light the true nature of LG BT identities, will be useful in future LG BT rights litigation.

Resume

Cet article represente un sondage historique des litiges de mariage entre personnes du meme sexe dans les juridictions Common Law du Canada. Des litiges ont eut lieu sur une periode de trente ans avant que les plaideurs obtiennent du succes en 2003. La ronde la plus recente de cas a beneficie d'une approche a plusieurs directions, utilisant des arguments bases tant sur la Common Law que sur la Charte. En tout et partout, il est clair que les strategies ont ete choisies et appliquees de facon a atteindre le meilleur resultat possible. Les plaideurs ont ete des plus efficaces lorsqu'ils ont humanise et mis en contexte les points de droit en utilisant les paroles et sentiments des plaintifs, en plus du support apporte par les sciences sociales. Les lecons que cet article evoque, en termes de strategies flexible et orientees sur les resultats, et l'emphase mise a illuminer la nature veritable des identites LGBT, seront utiles dans des litiges futurs portant sur les droits LGBT.

I INTRODUCTION

The 130 page document was available at the appointed hour and there were a few seconds of scrambling for copies, followed by a racket of Anxious page flipping as we all collectively held our breath. Soon however, Douglas Elliott, his hands shaking with emotion looked at us and beamed, "We won." (1) The legal fight for same-sex marriage in Canada has a long history, dating back well before the Canadian Charter of Rights and Freedoms. (2) Cases had been pursued over a span of thirty years before litigants met with success in the Courts of Appeal of British Columbia (3) and Ontario (4) in 2003. This article reveals the legal history of same-sex marriage in Canada; it seeks to assess where gays and lesbians have come from and how they have achieved their legal success. (5)

The usefulness of this article is in illuminating an important series of cases, both for historical interest and for the provision of some insight into litigation strategy for future legal battles. Lesbian, gay, bisexual, and transgender (LGBT) rights litigation affects more than simply the few applicants involved. Rather, the history of LGBT rights litigation shows that the community plays a role in the decision to litigate. (6) Furthermore, every instance of LGBT litigation is not merely about the present, but looks forward to the future. Gradually changing the law and public opinion helps gays and lesbians win their future cases.

The fight for LGBT rights is not 'dead' following the achievement of same-sex marriage. Further legal battles on behalf of the LBGT community are anticipated: the ban on blood and organ donations by gay men, the rights of lesbians and gay men in reproduction and family law, and funding for gender-reassignment surgery for transgender and transsexual persons are all emerging in the legal landscape as areas ripe for litigation. (7) The lessons this article evokes, in terms of flexible, result-focused strategies, and the emphasis on bringing to light the true nature of LGBT identities, will be useful no matter what challenges emerge in the future.

II THE ISSUE

Why Marriage? Why Not Marriage?

To the straight population, it may seem incomprehensible and surprising that many, if not the majority of gays and lesbians, once opposed the fight for gay marriage. At a recent panel discussion on same-sex marriage at the University of Toronto Faculty of Law, (8) Laurie Arron, National Coordinator of Canadians for Equal Marriage, (9) discussed the old tensions that existed within the gay community over the issue. He recalled an event he organized in 1995, in which a guest from the Hawaii litigation (10) was invited to speak as part of a panel on gay marriage to members of the LGBT community at the 519 Community Centre, a LGBT community centre on Church Street in the heart of Toronto's gay village. Arron described the topic as divisive and as having evoked "very strong emotional responses" from those present. (11) Cynthia Petersen, a prominent gay rights lawyer, spoke on that panel too and was also able to comment on it. Interestingly, though she fought so hard for gay and lesbian marriages in the courts only six years later, at the panel, Petersen had opposed the fight for gay marriage. Arron and Petersen spoke of the hostility directed towards marriage because of its status as a heterosexual institution. The political significance of the issue was at a level never before approached by community members. Many felt this was simply too huge a battle, too draining on community resources, while other practical areas, such as custody, required more attention. Some concerns had to do with the dangers of assimilation, of losing both a unique culture and the sense of solidarity and identity that came with membership in that community. The issue also had the potential to further divide the community between those who could benefit from it (gays and lesbians in long-term monogamous relationships) and those who would not (12) (such as the polyamorous) and who felt that this would lead to further stigmatization for those who did not closely follow the relationship structure of the heterosexual norm. This sentiment was quite widespread, and was noted by the Ontario Law Commission in its 1993 report on the Family Law Act:

A third possible objective for excluding same-sex couples ... is to prevent the assimilation of these relationships to a heterosexual model. While the Coalition for Gay and Lesbian Rights in Ontario argues that same-sex couples should receive the same legal recognition and incur the same obligations as heterosexual couples, others argue that same-sex relationships are fundamentally different from heterosexual relationships.... [P]artners may not perform traditional gender roles and they may not accept sexual monogamy and emotional exclusivity as ideals. Some commentators argue that inclusion of same-sex couples ignores real differences between couples and may create a division in the gay and lesbian community between those couples whose relationships conform to a heterosexual model and receive recognition, and other couples whose relationships do not fit this model. (13) In a similar vein, Jennifer Nedelsky, a law professor at the University of Toronto, has noted that the term "same-sex", rather than incorporating all of the various groups such as lesbian, gay, bisexual, and transsexual, has a simplifying and homogenizing effect. Same-sex marriage, notes Nedelsky, reinforces the couple as the unit in society, which is ultimately a conservative argument. (14) In the litigation context, the term simplifies the issue for the court, and manufactures for that purpose one coherent, discrete group claiming rights, albeit one that does not perfectly mirror the diversity of the real world.

Part of the reason this issue is of such importance is that law has a role to play in shaping individual and community identities. Some scholars have suggested sexuality is constructed through law as a discourse, with law having both a constitutive and symbolic role in how sexual identities and actions are characterized. (15) For example, Andrew Sharpe writes, "[L]egal discourse is implicated in the production ... of identity categories.... Conversely, the traditional LGBT reform agenda, with its 'progressive' and 'assimilationist' tendencies, is viewed as problematic." (16)

The review of this 1995 meeting at the 519 Community Centre and the issues arising from it is useful for this article in two ways. First, it sets out the controversial history of this issue within the LGBT community, which is often overlooked. Second, it illustrates how the LGBT community deliberated and made decisions as a community. Long before its ultimately successful legal challenges in 2000, EGALE organized national community consultations and distributed a questionnaire to its national membership to gauge support for the issue and to obtain input from the community on how to achieve legal marriage. (17) Although litigation is traditionally seen as arising between private parties, or between one private individual and an entity such as the government, LGBT rights litigation must be viewed in a different light. (18) Most cases were strategically planned by community leaders in everything from who the applicants should be and what evidence should be tendered, to the response of government and interveners. (19) A consideration of Layland v. Ontario (Minister of Consumer and Commercial Relations) (20) is interesting in this respect. The case was decided at the Divisional Court in 1993, with a 2-1 ruling favouring the traditional definition of marriage. It was appealed to the...