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Canada's Gay Lobby Set to Sue for Marriage Rights
Inclusion of marriage definition in equality bill backfires

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(Parliament Hill) -  The amendment made to Canada's equality bill during the Commons committee stage - to include a traditional definition of marriage in the interest of "certainty," is having unexpected results.

Gay rights groups say that the amendment is providing ammunition for a legal challenge of the bill, should it pass with the amendment intact, together with a similar challenge to the common law definition of marriage.

"[Gays and lesbians in relationships] should be treated the same as other spouses ... if this includes an institution that is obsolete and needs to be renewed once in a while, well, [let's do it,]" said Claudine Ouellet, a lawyer and the Director General of Coalition gaie et lesbienne du Quebec.

"We have to avoid the 'separate but equal' trap ... we must have the same choices or it's still discrimination based on sexual orientation and we'll see you in the courts once more," the activist continued.

The remarks were made during Ms. Ouellet's testimony to the Senate Standing Committee on Legal and Constitutional Affairs, which is currently studying Canada's equality bill entitled C-23 or 'An Act to Modernize the Statutes of Canada in Relation to Benefits and Obligations.'  The bill passed second reading in the Senate May 9th.

Lawyer David Corbett, counsel for the Foundation for Equal Families, the organization which filed suit against the federal government in 1999 alleging discrimination in almost the same number of laws the equality bill proposes to amend - a suit that remains pending - concurred in his testimony to the Senate Committee.

David Corbett
"This will be litigated," Mr. Corbett said with the comfort and ease of a store clerk changing a 20, in reference to the existing common law definition of marriage as well as the equality bill's traditional one - the now infamous Clause 1.1.

Upon being questioned the witnesses to the Committee explained that a future challenge, based on Section 15 of the constitution's Charter of Human Rights and Freedoms - which states that all Canadians are equal under the law, will be distinguished from previous discrimination cases.

"It's evolution," said Ms. Ouellet.  "We need to recognize that marriage includes two spouses, regardless of sexual orientation," she continued, and compared the case to the evolution of equality for blacks in the US and women in general.  Putting equality for American blacks in the law didn't change things automatically, she said, and the prediction that giving women the right to vote would cause social chaos didn't come true, either.

Mr. Corbett explained that a previous challenge would likely be distinguished because the majority decision was weak and the court's ruling was based on the traditional definition of marriage.  Flowing from that, marriage wasn't deemed discriminatory - anybody was declared free to marry a member of the opposite sex.

"It's still a completely open question on what the judiciary will do," said the lawyer.  He speculated, however, that they will not just assume a traditional definition of marriage in subsequent rulings.

"On a substantive basis what they will do to marriage is an open question ... [but] they will have to distinguish civil marriage from religious institutions - they're not the same thing," Mr. Corbett concluded.

To define or not to define

"The only thing we have here is [Clause] 1.1," exclaimed Senator Beaudoin, raising his arms in the air, of the definition of marriage inserted into the equality bill.  "That's all we have here!" he repeated.

Indeed, the gay and lesbian group representatives at the Committee were in general agreement that the amendment had changed the equality bill significantly.

We will all end up in the court with C-23 if it's passed as is it.  That's a promise.
- Claudine Ouellet
"It had nothing to do with marriage until [Clause] 1.1," declared John Fisher of Equality for Gays and Lesbians Everywhere (EGALE).  "Now all this controversy [exists] about marriage," he continued, saying that the bill was truly only an equality one for same sex cohabiting couples before the concept of marriage was introduced.

EGALE's recommendation was that the Senate recommend the removal of Clause 1.1 in sending the bill back to the Commons.

When asked by Senator Joyal if they were sure about the chance of the bill not being enacted if amended - and he referenced the "people presently suffering and suffering a lot," Mr. Fisher replied:  "That's a chance we're willing to take."

"It was a long board meeting," added EGALE President Kim Vance.  But EGALE's principle is equality and Clause 1.1 contradicts that, she said.

"Adding it didn't change the voting pattern [in the Commons]," stated Ms. Vance, apparently speculating that withdrawing the controversial marriage definition won't change the pattern, either.

The Ministry of Justice has given us a clear target.
- David Corbett
Alternatively, as a compromise, EGALE is suggesting that either the definition be amended to stop short of the 'one man and one woman' phrase or that the Senate send the bill back to the Commons with a 'reservation' on the clause - of which the public would take note.

Mr. Corbett of the Foundation for Equal Families said his organization didn't officially care if the definition were removed or not.  It shouldn't be there, he said, but it was more important to pass the bill quickly.

In fact, the litigator is happy the amendment was made.  He intends to use it if and when the Foundation sues for the right of gays and lesbians to marry.

"[Clause] 1.1 is an easy target because of the way it was brought in ... [It's like putting] 'We believe in family' at the top of a bill" declared Mr. Corbett.  Furthermore, he said it in no way approximates the elaborate definition of marriage contained in points throughout the Common Law.  Ms. McLellan's definition is too simplistic, he argued.

"No consultations occurred on it," he continued.  "It's a rearguard action to satisfy people who don't like same sex couples," he stated.  It's not good law-making, he said, but he's delighted it happened, anyway.

We should have the courage to legislate when it's necessary.
- Senator Beaudoin
The representatives of Canada's gay and lesbian rights groups were in general agreement on the amendment being bad law.

And taking this kind of apparently nebulous legislation approved by the Commons and nipping it in the bud is one of the roles of the Senate.

"That's your job," Ms. Ouellet told the Senators in reference to doing the right thing legally versus weighing public opinion.  "You're not elected," she reminded them.

The lawyer and activist for gay and lesbian rights closed by saying she believes the Senators will do their best, but if the work is not complete on this "we'll be back."