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Couple celebrates end of 20-year fight
Judges rewrite definition of marriage
TRACEY TYLER AND TRACY HUFFMAN Crown Attorney Michael Leshner and his long-time partner Michael Stark were married by Mr. Justice John Hamilton in a hastily arranged ceremony in the jury waiting room of a Toronto courthouse, as a crowd that included everyone from judges to janitors looked on. Just hours before, the Ontario Court of Appeal rewrote the definition of marriage to include same-sex couples, saying denying gays and lesbians the ability to marry offends their dignity, discriminates on the basis of sexual orientation and violates their equality rights under the Charter of Rights and Freedoms. A unanimous three-judge panel, made up of Chief Justice Roy McMurtry and justices James MacPherson and Eileen Gillese, then took the issue further than any other court in the world. Gay and lesbian marriage became legal in Ontario, effective immediately. "Michael Leshner, will you please repeat after me," said Hamilton, as he began the short, civil ceremony. "I do solemnly declare that I do not know of any lawful impediment why I may not be joined in matrimony to Michael Clifford Stark." Both men repeated the declaration before pledging their vows. "I Michael, take you Michael, to be my lawful wedded spouse," said Leshner. "To have and to hold, from this day forward, whatever circumstances or experiences life may hold for us." Hamilton, an Ontario Superior Court judge, asked both men to place rings on each other's fingers, then made it official. "By the power vested in me by the Marriage Act, I pronounce you Michael, and you Michael — affectionately known as `the Michaels' — to be lawfully wedded spouses." "You are now married," said Hamilton, who later said it was "an honour" to perform the ceremony. Leshner, 55, and Stark, 45, kissed and popped champagne. Speaking to reporters, Leshner said he regards the court's judgment as, "Day One for millions of gays and lesbians around the world" and the culmination of a personal 20-year battle to end "legally sanctioned homophobia." "I wanted to put a stake through that sucker," he said. His 90-year-old mother, Ethel, who beamed and sang in her wheelchair, drew her satisfaction on a smaller scale. "I feel wonderful, if he does. And I'm sure he does — take a look at his face," she said. "I can't `rah, rah, rah.' I'm not the type of person to do that," she said. "I'm just happy my son is happy — I know he's getting a nice guy." While Leshner and Stark are believed to be the first gay couple to wed after same-sex marriage became legal yesterday, they may not be the first gay Ontario couple to be legally married. That distinction appears to fall to two same-sex couples who were married in a double ceremony at Toronto's Metropolitan CommunityChurch in January, 2001. The appeal court ordered the province to register marriage certificates issued to those couples, Kevin Bourassa and Joe Varnell and Elaine and Anne Vautour. The judges also ordered the clerk of the City of Toronto to issue marriage licences to Leshner and Stark and six other couples whose licence applications were held in abeyance pending a ruling by the courts. The province and the city told the judges during a hearing in April that they would abide by whatever the appeal court decided. Less clear is where the federal government stands.
STAFF REPORTERS
Two gay men said "I do" yesterday, after Ontario's highest court said "they can."
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The British Columbia Court of Appeal and a Quebec Superior Court judge have also ruled the common law definition of marriage violates the Charter's equality provisions, but didn't go as far as Ontario in immediately extending marriage to same-sex couples, preferring instead to give Parliament until July, 2004 to change the law.
The Ontario Court of Appeal said there's no need to wait: Changing the definition of marriage, effective immediately, won't create any public harm.
Federal justice department spokesperson Dorette Pollard said the government has until Sept. 9 to decide whether to seek leave to appeal the decision to the Supreme Court of Canada.
In the meantime, the government does not have the option of seeking a court injunction to stop same-sex marriages from taking place, she said.
If a further appeal to the Supreme Court is in the cards, it could return to the Court of Appeal to ask for a stay of yesterday's ruling, effectively putting it in suspension, Pollard said.
She was unable to say how that would affect same-sex marriages that have already taken place.
Opponents of same-sex marriage, however, had no difficulty expressing an opinion on yesterday's decision.
By reformulating the definition of marriage, the appeal court ignored "centuries of precedent" and rendered "ordinary Canadians' views irrelevant," said Derek Rogusky, a vice-president of Focus on the Family, whose interests were represented by The Association for Marriage and the Family in Ontario, an intervenor in the case.
In its decision yesterday, written not by one judge in particular but collectively as "the court," the appeal panel changed the definition of marriage from being "the voluntary union for life of one man and one woman," to "the voluntary union for life of two persons to the exclusion of all others."
A person's sense of dignity and self worth can only be enhanced by the recognition that society gives to marriage and denying people in same-sex relationships access to that most basic of institutions violates their dignity, the court said.
"The ability to marry, and to thereby participate in this fundamental societal institution, is something that most Canadians take for granted. Same-sex couples do not; they are denied access to this institution simply on the basis of their sexual orientation."
Preventing same-sex couples from marrying perpetuates the view that they are not capable of forming loving and lasting relationships and not worthy of the same respect and recognition as heterosexual couples, the court added.
It was ruling on an appeal from an Ontario Divisional Court decision last year. The Divisional Court said the common law definition of marriage as an exclusively heterosexual union was unconstitutional, but decided 2-1 to leave it up to Parliament to rewrite the law by July, 2004.
The dissenting judge in that case, Mr. Justice Harry LaForme, who would have changed the definition immediately, attended yesterday's ceremony.
In its 60-page decision yesterday, the judges systematically disposed of Ottawa's arguments for preserving marriage as a heterosexual domain, saying they were filled with irrelevancies, stereotypes and "circular reasoning."
The government argued that marriage has always been understood as a special kind of monogamous institution that brings the sexes together for the purposes of procreating, raising children and companionship.
That isn't something that lawmakers dreamed up; it predates the law, the government said.
Who invented the concept of marriage doesn't matter, the court said; What does is how gays and lesbians fare under a legal regime that excludes them from the institution.
The government was avoiding the main issue by arguing that marriage "just is" heterosexual and benefits society as a whole, the court said.
"The couples are not seeking to abolish the institution of marriage," wrote the judges. "They are seeking access to it."
With files from Mary Gordon
