4 min

Supremes stay awake during marriage circus

They asked more questions of naysayers

Amidst a media circus and a sea of lawyers, the Supreme Court Of Canada has heard the cases for and against the constitutionality of same-sex marriage.

Dozens of activists and supporters from both sides of the issue, and from all across Canada, packed the courthouse for the two-day event last month, with some people standing in line as early as 4am to ensure they would have a seat inside the courtroom itself.

They joined the more than 40 lawyers who also sat inside as members of some two dozen legal teams that presented various positions before the court.

Each of the 28 interveners – an unprecedented number – took between 10 and 20 minutes to present legal arguments. Most of them argued in favour of extending civil marriage to same-sex couples.

Gilles Marchildon, executive director of the queer lobby group Egale Canada, says that while he watched most of the first day’s proceedings on closed circuit television from one of the Supreme Court’s standing-room-only press rooms, he was lucky enough to get a ticket for a seat inside the court room for the hearing’s second day.

“I was thrilled to be there because it’s obviously an historic moment,” Marchildon says. “I think those who champion equality put their best legal foot forward and received wide respect from the court.”

Whatever the outcome – the Supreme Court could take months to issue an opinion – the hearings are a milestone for Canada’s queers. For the first time, after announcing in June 2003 that it would not appeal the Ontario, BC or Quebec decisions that ruled in favour of gay marriage, the federal government decided to move forward with same-sex marriage.

After drafting legislation, the federal government referred its proposed same-sex marriage bill to the Supreme Court for a legal opinion, asking three questions: does Parliament have the power to include same-sex couples in marriage; if so, is it consistent with the Canadian Charter Of Rights And Freedoms; and does the Charter protect religious officials from being compelled to perform a marriage for same-sex couples.

The case was originally scheduled to begin in April, but in January, Prime Minister Paul Martin tacked on a strange fourth reference question, asking the court whether excluding same-sex couples from civil marriage is compatible with the Charter. Some say the fourth question was added to delay a Parliamentary vote on the proposed legislation until after the federal election and perhaps as a backdoor appeal of the provincial court decisions.

The first day of hearings was filled primarily by the 16 interveners who spoke in favour of the government’s proposed legislation, which included the Canadian Human Rights Commission, Canadian Bar Association, United Church Of Canada and several couples related to the lower court decisions in BC, Ontario and Quebec.

During the opening presentation, several of the top court’s nine justices questioned the Attorney General Of Canada’s representatives, lawyers Peter Hogg and Michael Morris, regarding the legitimacy of the fourth question since the federal government has already chosen not to appeal the provincial lower court decisions.

“It seems to be a description for a political role for this court,” Justice Michel Bastarache said.

Lawyer Cynthia Petersen, who represented Egale, argued that just asking the fourth question alone “casts doubts on [the] lower courts’ decisions,” which “constitutes an abuse of process.”

“If you provide an opinion that differs from the lower court, the validity of [those decisions] will be questioned – that doesn’t provide clarity, that provides confusion,” she said. “You ought not to answer the question.”

Several interveners, however, completed their arguments without being questioned by the justices. In the end, although three days were originally set aside for the hearings, only two were needed.

“It went very quickly, I was very surprised that they got through all of the interveners they got through,” says Laurie Arron, Egale’s advocacy director. “I think we expected that the bench would be quite receptive. And you’re never sure – and we’re still not sure until they issue their opinion – but certainly all signs indicate that the court was quite sympathetic to our side.”

The second day featured a more active bench, as the justices grilled the anti-marriage interveners, who made up the majority of that day’s presenters, including the Attorney General Of Alberta, Focus On The Family, REAL Women Of Canada, Canadian Conference Of Catholic Bishops and the Church Of Jesus Christ Of Latter Day Saints.

“I just didn’t think that the opponents were very convincing. Now obviously I’m biased, but both in the substance of what they said and in how vigorously they presented it – and combined with the response of the judges – I just didn’t get the sense that they were buying the argument,” says Arron.

Conspicuous by their absence were protesters. Marchildon says he wasn’t surprised.

“I think generally people have a respect for the court and they know that there is a certain decorum, they know that, you know, now is not the time to protest,” he says.

Although the court has deferred its decision, Hogg told the court the government intends to introduce the proposed same-sex marriage legislation no matter which way the court rules. It’s expected to be a free vote, which means that conservative Liberal MPs can vote against the bill without bringing down the government.

Arron said that over the next several months Egale and other queer rights groups will continue to advocate the right of same-sex couples to marry.

“It’s still very close in Parliament… and we don’t know whether it would pass or not at this point. There is a lot of work to do, a lot of new MPs who need to be educated and probably persuaded,” he says. “We’ve got to work hard to line up the votes – they aren’t there yet.”