Gay marriage back in court

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Pro-family group faces top justices Wants traditional marriage examined

TONDA MACCHARLES (TS)

The Supreme Court of Canada reserved a decision yesterday on whether to allow religious and so-called pro-family groups to revive an appeal of the Ontario court decision legalizing same-sex marriage even though the federal government dropped that legal battle.

Although the court's five senior judges adjourned without a final decision, several appeared uneasy with the groups' request that it examine traditional marriage, now that the federal government has pressed ahead with same-sex marriage.

Justice Frank Iacobucci challenged the lawyers as to how the high court could reasonably force the government to "battle until the end" once it has conceded it is unconstitutional not to extend marriage rights to gays and lesbians.

The federal government decided not to appeal the June decision of the Ontario Court of Appeal, and moved in July to legalize homosexual marriage, first by referring a draft bill to the Supreme Court of Canada, asking if it is constitutional to do so.

During more than two hours of arguments, lawyers for the Association for Marriage and the Family of Ontario, and the Interfaith Coalition on Marriage and the Family pleaded with the court to weigh in on the real question: whether heterosexual marriage is constitutional.

They argued the government is going beyond what is "constitutionally required" in letting gays and lesbians wed, and said even incoming Liberal prime minister Paul Martin is not committed to same-sex marriage.

"We all know the current executive is going to change very quickly," said lawyer Peter Jervis, citing reports Martin will not push forward the same-sex policy that Prime Minister Jean Chr�tien has adopted.

But Chief Justice Beverley McLachlin cut him off abruptly.

"I am having trouble understanding how this is going to persuade us to your position. It seems to be an argument that Parliament is having problems dealing with a political issue that's divided Canadians. Is that a reason for this court to reach out and take jurisdiction in certain circumstances where it's quite unprecedented?"

Judge Iacobucci asked Jervis: "Is it not the government's discretion to pass laws that go beyond the minimum requirements of the constitution?"

Iacobucci, a former federal deputy justice minister, said if a government decides a policy change is "what is right, what we think is fair, what we think reflects contemporary society, how can the courts start to derail that in any way?"

Lawyers for the federal government, and the seven same-sex couples who fought for and won in the lower courts, asked the high court to refuse the religious groups' appeal.

"The whole purpose of this proposed exercise is political and not legal," said federal lawyer Graham Garton.

Garton cited the position of Justice Minister Martin Cauchon, who said in July "the government is doing the right thing at the right time." He said the religious groups want an advisory opinion from the court they can then carry to Parliament and "use it in political debate."

Lawyer Douglas Elliott, on behalf of the Metropolitan Community Church of Toronto, said the groups' sole raison d'etre is to oppose equality for gays and lesbians, and said it was hypocritical of the very groups who criticize judicial activism when courts rule in favour of homosexual equality to use the courts now to force their issue after the government's dropped it.

Lawyer Martha McCarthy told the court the judicial clock should not be turned back now that more than 1,000 gay couples have married in Ontario and B.C. "This would be an unheard-of expansion of the role of an intervener in a Charter case," she told reporters.

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