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

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

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 sp...

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