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Canadian same sex marriage Litigation Individual Rights Community Strategy Essay

This essay summarises and analysis a literature material in the form of an article namely “Canadian Same-Sex Marriage Litigation: Individual Rights, Community strategy written by Christine Davies.’ The author Christine Davies is a Student of Law at Sack Goldblatt Mitchell LLP in Toronto. With the assistance and guidance of Professor Lorraine of the University of Toronto in the Faculty of Law, Douglas Elliott and Cynthia Petersen, Christine is able to come up with the article and published it in 2008. This essay addresses the issue of marriage, the legal status and definition of marriage. It goes further clearly to outline the historical overview of the same-sex marriage litigation in Canada also bringing to light further future expected developments on the same (Davies, 2008. P. 32). The relationship or correlation between the law and the social change is quite close, a constitution can be well described as ‘mirror’ reflecting the nation socially and therefore it needs to protect and recognize the values of the society at large. The constitution is also as a living tree and thus it must grow or evolve in a manner consistent with the evolving social attitudes and policies.

The author of the article ‘Canadian same-sex marriage litigation’ seeks to explore the relationship that exists between the law and social change as it is evidenced in the changing judicial, political and also social approaches to the exciting issue of the same-sex marriage in Canada. The article surveys in details the litigation history of same-sex marriage in the common law within the jurisdictions of Canada. Cases involving the same were pursued over a span of thirty years before litigants finally succeeded in the year 2003 (Davies, 2008: P.2). These cases were well chosen, well strategized, coordinated and applied. The most recent cases just before the litigants won involved use of a multi-pronged approach to them utilizing both the common law and the Charter arguments and thus increasing chances of reaching the best possible results. Humanizing the issue and also contextualizing the legal phenomenon by mostly relying on the plaintiff`s feelings and words combined with the use of social science evidence put the litigants a notch higher in their struggle. The lessons brought to the surface by this article in terms of a flexible, Outcome-focused strategies and the much emphasis on unearthing the true nature of LGBT identities and nature will be very key in the future cases on LGBT rights litigation (Davies, 2008. P. 23).

The institution of marriage both a social and a legal concept which has mostly been based upon traditionally religious views and opinions based on heterosexuality. With the current changes of certain social values and emergence of groups such as, the LGBT community, over time this concept has been actively debated and has been subject to much controversy and contention. The controversy and contention surrounding this subject originates from the conflict which is evident between long-established traditional or religious beliefs which in turn have helped to shape the country, against the now growing heterogeneous environment which does not conform to these views.

The paper presents the deeply rooted tension and controversy regarding the institution of marriage versus the equality rights of the same sex couples or the gay and lesbian couples. This paper goes further to outline the key issues surrounding the recent social changes towards the same-sex marriages and its relationship with equality rights and the social role and function of the institution of marriage. The question of whether legal rules regarding marriage does, in a way, achieve the right balance between equality rights and the social role and function of this institution of marriage (Davies, 2008. P. 10). This contentious and controversial issue is worthy of examination since with time marriage has become a polarizing and complicated entity which in many key ways consequently affects the lives of many people in the country and world at large.

The legislative framework and approach to same-sex marriage in Canada addresses the merits and demerits of legalizing same-sex marriage in Canada and also the issue of civil unions for same-sex couples. In addition, the article determines the best option for balancing equality rights while at the same time not compromising the social role and function of the institution of marriage. Several scholarly articles and both past and current jurisprudence, existing legislation, and a few other secondary materials such as, surveys and public opinion polls are used in the analysis of this article.

In accordance with the Constitution Act of 1867, the federal government of Canada has exclusive control over “marriage and divorce,” while the provinces or provincial governments have control over the “solemnization of marriage” implying that the power to enact laws concerning marriage is within their jurisdiction. Despite the fact, this responsibility concerning marriage was quite clear there was still no proper or distinct legislative document or law that properly defined marriage. The only one piece of legislation that came close to defining it came from an interpretation of a particular clause found in the referred to as Modernization of Benefits and Obligations Act which states that “For greater certainty, the amendments done by this Act do not affect the interpretation and meaning of the word marriage which is, the lawful union between one man and only one woman to the exclusion of all others.”

It was clearly held that “Marriage is clearly understood throughout time and different cultures as an institution well designed to meet the unique and specific needs, capacities or abilities and circumstances of opposite sex couples and their children and thus regarded as an institution that brings together or unites the two complementary sexes thus providing a supportive and proper environment for the procreation and rearing of successive and future generations” (Davies, 2008. P. 14). The above state of affairs in regard to marriage meant that gay couples seeking to be legally united were propelled to take their claims to the courts of law.

Christine Davies article clearly brings out the issue of the legalization of same-sex marriage, first by giving out a well laid out surveyed out litigation of same-sex marriages within the common law jurisdictions of Canada. It has in an exemplary manner assessed the developments and the shifts in the litigation strategies from the trial-level strategies, which were quite multi-prolonged and both utilized common law and Charter arguments narrowing much thinner to emphasis on the violations of Charter rights (Davies, 2008. P. 2). The article clearly outlines to us how the claims or strategies are selected and applied in order to achieve the maximum best possible results.

This article is different from the one adopted and advanced by Nicholas Balla in his article, “Controversy over couples in Canada, the evolution of marriage and together with other adult interdependent relationships in that Balla surveys the evolution of the current debate concerning four types of intimate adult relationships that fall outside the known traditional definition of marriage that is common-law marriage, polygamy, same-sex partnerships, and non-conjugal interdependent relationships while Christine concentrates on the developments in the litigation process (Balla, 2014. Para. 2). The above mentioned articles together with “Losing the Feminist Voice article by Claire Young and Susan Boyd. All the three articles provide a good platform for proper studying and understanding the relationship between law of any country and the social change with the Christine David`s article amplifying this the more as shown below.The first leading claim or case regarding same-sex marriage was:

North v Matheson also referred to as First Wave

              In this case or claim, it was expected that the courts could rely on the judgments arising from Hyde v. Hyde & Woodmansee that happened in 1866 to arrive at the conclusion that, for the known Christian religious reasons, any union between two gay men is obviously unlawful and that marriage is an exclusive legal union between one man and one woman (Davies, 2008. P. 9).

Corbett v Corbett also referred to as second wave

              The second leading claim which, in a way, added on to the common law was in regard to the definition of marriage as was with clarity established in North v Matheson. The case of Corbett was a case that brought a challenged in regard to the issues around the marriage of a transgender individual (Davies, 2008. P. 11). In this case, the judge had a conclusion that when it comes to defining marriage the issue of building a family is a very essential component and, therefore, natural heterosexual intercourse is of importance and a key requirement in regard to the institution of marriage.

Layland v Ontario also referred to as the third wave

              The third case regarding same-sex marriage was that of Layland v Ontario and the argument was against the common law definition of marriage. The argument or claim was successfully acknowledged accepted by at least one judge out of three which was a very timely achievement for those in support of same-sex marriage (Davies, 2008. P. 2).

In Layland v Ontario case although the majority judgment still alluded to and supported the decisions made in North and Corbett, the dissenting opinion had a conclusion that the current jurisprudence regarding same-sex marriage is outdated or rather not fashionable in regard to the changing social values, and, therefore, as judges of the common law it is their prime duty to expand the definition of marriage so that it can meet the society`s changing and expanding needs or so as to reflect and mirror the values of the society and what is taking place by that time in the society.

In addition to the case above there was also a dissenting assertion as a direct resultant of the enactment of the Charter of Human Rights and freedoms. This made a change thus to be a necessity so as to conform to the Charters of Rights and Freedoms demands and requirements and that pursuant to s.15 of the Charter. The common law`s definition of marriage was, therefore, insufficient, unreasonably and unequal or discriminatory in its treatment towards gay and lesbian couples.

Halpern v Canada also known as the fourth wave

              The fourth case was known as Halpern v Canada which brought about the current approach towards same-sex marriage in Canada and thus bringing to a halt the debate to whether gay and lesbian couples were allowed to unite legally or to marry. The verdict or decision from this fourth case concluded that the current common law in the place definition of marriage was to a great extent unconstitutional given the fact that it violated an individual’s inalienable fundamental right to equal treatment without discrimination. As a result of this realization or decision, the federal government thus proposed a bill to that effect to the Supreme Court of Canada. The bill, Bill C- 38, became the center of the debate and thorough discussion for the case referencing to or in regard to Same-Sex Marriage (Davies, 2008. P. 15). The verdict or ruling in that decision led or prompted the federal government to come up with a new piece of legislation referred to as the Civil Marriage Act.

This Act is the current legislative authority governing the institution of marriage in Canada. This act broadens or expands the definition of marriage to also include gay and lesbian couples by stating that “Marriage, for civil reasons, is the lawful union of only two persons to the or thus exclusion of all others.” This removed the part that the union had to be between one man and one woman to the exclusion of all others.

Given the fact that the enactment of the Civil Marriage Act, and the social developments and changes which fostered the considerations of the advantages, as well as the demerits in which this act brought about or created is worth highlighting and noting. As was elaborated by the Law Commission of Canada, who support same sex marriage, it felt that an individual right to marry is a fundamental inalienable personal choice in which each Canadian citizen should enjoy and thus denying them their rightful access to be allowed to marry was an outright rejection in recognizing their personhood as human beings and of their personal aspirations. This argument that was greatly advanced by same-sex marriage supporters clearly demonstrated a direct form of human rights and freedoms violation through unequal treatment, which in turn points or allude towards possible consequences in which this outright denial of key rights could lead (Davies, 2008. P. 26). A good example of such a consequence in regard to continue this unequal treatment is that it could promote or lead to a very strong justifiable critiques towards the very obvious legitimacy of our most sacred law in the Constitution namely the Charter of Rights and Freedoms document, To be more specific the section regarding our very fundamental right to equality.

Further in support of those supporting same-sex marriages came the article. Losing the feminist Voice, debates and deliberates on the legal recognition or realization of same sex Partnerships in Canada that argued in support of the same that denying homosexuals and lesbians the right to marry would in turn add more weight and greatly reinforce the ongoing justification behind the existing disadvantages towards the minority groups, and thus create further future justification in the denial of other fundamental rights for these same minority groups.

The article goes further on to note that broadening or extending the definition of marriage to solve the contentious issues and do away with the underlying controversy to allow same-sex couples to marry will, in fact, strengthen the institution of marriage and family by bringing down the burden of the state.

The most prevalent arguments of all in relation to the demerits of same-sex marriage mostly focused on to a large extent, the perceived presumptions and misconceptions towards the gay and lesbian lifestyles, as well as the resultant effects in which the same will have both directly and indirectly on marriage. The opponents of same-sex marriage further focused on the importance of clearly maintaining the nature of marriage, as well as combating the future risks in which changing the definition of marriage was likely to bring on board. An opponent of same-sex marriage namely Gwen Landolt, strongly believed and held a very strong comment for the gay and lesbian lifestyle, stating with clarity that infidelity, separation and divorce are more prevalent in same-sex unions given that “their skill compatibilities are different”, and thus they cannot complement one another. Drug use is thus a very serious and recurring matter for such as these individuals.

The above comments allude through suggestion that that allowing homosexual couples to unite legally and marry could pose as a threat and an insult on the sacred institution of marriage. In addition to the above claims, Landolt also insisted that marriage should not just be treated as mere social construct and that it will be detrimental to simply change in an endeavor to respond to the changing society needs and values. She held firmly to the assertion that a marriage is a concept which has remained consistent through and through thousands of years, through many different cultures and hence its value in society at large is deeply rooted.

These arguments regarding the future implication in which changing the definition of marriage could foster and bring on board, the opposition or those opposing same-sex marriages argued that the inalienable fundamental equality right, in which the gay and lesbian groups have relied upon to in furtherance of their claim, has been interpreted so broadly or beyond the necessary extent according to s.15 of the Charter and could by implication create a very slippery slope for the sacred institution of marriage. This will in turn lead to a polygamous and probably to incestuous relationships being made legal in the country (Russell, 2008. 38).


              As a wrap up this essay has clearly analysed the article ‘Canadian same-sex marriage litigation’ highlighting the key points in the article such as the social developments in regard to same-sex marriages, how the issue of same-sex marriages relate with the equality of human rights and freedoms while at the same time being keen not to affect the social role of the marriage institution negatively. The same-sex marriage litigation needs to be assessed in terms of their impact and sustenance of the LGBT rights in regard to equality ensuring that they are not discriminated (Balla, 2014. Para. 4).

This litigation from the analysis of the article can be termed as quite successful although this does not imply that legal cases involving LGBT in days to come will necessarily be successful. It is therefore true that the constitution or the law is like a living tree that grows in accordance to changes in the society and should reflect the social values, practices and attitudes of the society. These kinds of alternative forms of relationship have been recognized by the laws of different countries in the world success in the cases in the Canada litigation can to an extent be attributed to this trend although other countries still continue to strictly oppose them.


Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships. (n.d.). by Nicholas Bala. Retrieved June 13, 2014, from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=481003

Davies, C. (2008). Canadian Same-Sex Marriage Litigation: Individual Rights, Community Strategy. Canada: Crc Press.

Russell, P. H. (2008). The Court and the Constitution: leading cases. Toronto: Emond Montgomery Publications.

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