7 July 2016
Same-sex marriage and recognition of same-sex relationships in Europe
(A constitutional perspective)
Prof. Angioletta Sperti, University of Pisa.
Case Summaries
Halpern et al. v. Attorney General of Canada, Ontario Court of Appeal, Canada (10 June 2003)
Procedural Posture
Constitutional challenge. The respondents argued that Canada’s common law definition of marriage violated the Canadian Charter of Rights and Freedoms. The case was transferred from a lower trial court to the Divisional Court. The government appealed the Divisional Court’s opinion in the Court of Appeal for Ontario. On appeal the following groups intervened: the Association for Marriage and the Family in Ontario (in support of the government); the Interfaith Coalition on Marriage (in support of the government); the Canadian Human Rights Commission (in support of the respondents); Egale Canada (in support of the respondents); the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage (in support of the respondents).
Facts
Two cases were joined and heard together by a panel of the Divisional Court. In the first, seven same-sex couples applied for civil marriage licences from the Clerk of the City of Toronto. Unsure of her ability to grant licences to same-sex couples, the Clerk held the licences in abeyance until a judicial ruling on the issue. The couples filed a complaint and their case was transferred to the Divisional Court. The Metropolitan Community Church of Toronto (MCCT) brought the second case. When the Office of the Registrar General refused to register same-sex marriages that MCCT had performed, it filed a complaint in the Divisional Court. In January 2001 these two cases were joined.
The Divisional Court unanimously held that the common law definition of marriage infringed the couples’ equality rights in a manner that was not authorised by the Charter. The Attorney General of Canada appealed to the Court of Appeal on the equality issue, and the couples cross-appealed on the issue of remedy. The couples asked the court to declare the common law unconstitutional and to redefine marriage, effective immediately.
Reasoning of the Court
The Association for Marriage and the Family in Ontario (“The Association”, an intervener that supported the government on appeal), argued that marriage was a constitutionally entrenched term that could therefore be amended only by means of the formal amendment procedures. The court rejected this argument, citing section 91(26) of the Constitution Act of 1867, which gave Parliament the exclusive authority to regulate marriage as it saw fit. No constitutional amendment was necessary. Second, the Court dismissed the notion that marriage is an inflexible institution. The Association’s understanding of marriage, the Court argued, went against Canada’s jurisprudence of progressive constitutional interpretation.
The Court also rejected MCCT’s position that the prohibition of same-sex marriage violated its constitutional right to religious freedom. According to the Court, this case was about marriage as a legal institution and was “not about the religious validity or invalidity of various forms of marriage”.
The bulk of the opinion subjected the common law definition of marriage to analysis under Section 15(1) of the Charter, which guaranteed equality before the law and the right to equal protection and benefit of the law without discrimination based on personal characteristics. Such an inquiry required the court to follow a three-part test, as outlined in Law v. Canada (Minister of Employment and Immigration). The test considered: (1) whether the impugned law drew a formal distinction between the claimant and others based on personal characteristics; (2) whether the law subjected the claimant to differential treatment on the basis of one or more of the enumerated (or analogous) characteristics in the Charter; and (3) if so, whether the difference in treatment had the effect of confirming stereotypes or perpetuating the notion that the claimant, because of a personal
characteristic, was “less capable or worthy of recognition or value as a human being or as a member of Canadian society”.
The Court found that the facts satisfied all parts of the test. The first inquiry required a distinction to be drawn. The common law, by limiting marriage to opposite-sex couples, clearly made a distinction between same-sex and opposite-sex couples. Likewise, the second inquiry was clearly satisfied. While the Charter enumerated specific classifications (race, national or ethnic origin, colour, religious, sex, age, mental or physical disability), the case of Egan v. Canada had established that sexual orientation was analogous to classifications listed in the Charter. Classifications based on sexual orientation therefore required equal protection.
The third factor asked, in effect, whether the law violated the claimants’ human dignity. Canadian courts understood the concept of human dignity to be a subjective matter. The Court quoted from Law v. Canada:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment ... Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly taking into account all of the circumstances regarding the individuals affected and excluded by the law?
Given the emphasis on the subjective effect of discrimination, it followed that the law did not have to be purposefully discriminatory. So long as claimants could show that their personal dignity had been compromised, then the law would not survive constitutional challenge. The Court outlined four contexts in which claimants could show that their dignity had been demeaned. These included, but were not limited to, situations characterised by: (1) any pre-existing disadvantage or stereotype, or the vulnerability of the claimants; (2) correspondence, or lack thereof, between the grounds of the claim and the needs, abilities or circumstances of the claimant or others situated similarly; (3) exclusion from the scope of inclusive ameliorative legislation of certain disadvantaged persons or groups in society; (4) the nature of the interest affected. The Court found each of these situations relevant here and concluded that the common law definition of marriage was in clear violation of human dignity.
Finally, having established that the prohibition on same-sex marriage clearly violated the right to equality before the law, the Court addressed Section 1 of the Charter. Under Section 1, a law in violation of Section 15(1) could be upheld if it was within “reasonable limits prescribed by law as can be demonstrably justified”. Under R v. Oakes the objective of the law had to be pressing and substantial and the means chosen to achieve the objective had to be reasonable and demonstrably justifiable in a free and democratic society. This required that the violation of rights was rationally connected to the objective of the law; that the law minimally impaired the Charter guarantee; and that the effect of the law and its objective were proportional, so that attainment of the objective was not outweighed by abridgment of the right.
The government proffered three objectives of the common law definition of marriage: it united the opposite sexes, encouraged childbirth and childrearing, and encouraged companionship. The Court found that the first objective favoured opposite-sex couples over same-sex couples. This violated human dignity and therefore failed. The Court also rejected the second objective, because same- sex couples were equally able to raise children and to bring children into their unions. Most importantly, however, the procreation argument failed, because the prohibition of same-sex marriage was unrelated to the birth rate of women in opposite-sex marriages. Although the Court considered companionship, the third objective raised by the government, to be a laudable goal, it held that “encouraging companionship cannot be considered a pressing and substantial objective of the omission of the impugned law”. Because the Court found no valid objective, it ruled that the common law definition of marriage was not saved by a Section 1 analysis. The Court ruled that same-sex marriages must be recognised and performed in Ontario.
Postscript
In 2005 Canada enacted the Civil Marriage Act, which contained a gender-neutral definition of marriage. By that time, court decisions had already legalised same- sex marriage in the majority of provinces.
Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs
Constitutional Court of South Africa (1 decembre 2005)
Minand)
Procedural Posture
Two separate constitutional challenges to the common law and statutory definitions of marriage in South Africa were consolidated. In the first case (a complaint that South African common law unconstitutionally excluded same-sex marriage), the South African government appealed lower court decisions that had found in favour of Marié Adriaana Fourie and Cecelia Johanna Bonthuys, a lesbian couple. Fourie and Bonthuys had cross-appealed the remedy of the lower court.
In the second case, the Lesbian and Gay Equality Project challenged the statutory definition in the Marriage Act and were granted direct access to the Constitutional Court.
Reasoning of the Court
The Court considered both cases together. Fourie and Bonthuys argued that the common law definition of marriage (“a union of one man with one woman”) violated the constitutional principles of equal protection and non-discrimination. The Lesbian and Gay Equality Project argued that altering the common law definition was an insufficient remedy because the Marriage Act required a marriage officiator to ask the parties to take each other as “your lawful wife (or husband)”. The Marriage Act, therefore, would also need to be amended.
The petitioners pointed to the Constitution’s equal protection clause, which read: “[E]veryone is equal before the law and has the right to equal protection and benefit of the law”. They argued that their exclusion from marriage violated equal protection. Similarly, they argued that their exclusion from marriage violated the discrimination clause, which prohibited “... discrimination directly or indirectly against anyone on one or more grounds, including ... sexual orientation ...”.
The State argued that the Constitution did not protect the right to marry and had no effect on the validity of same-sex marriage prohibitions. The Government recognised that there was discrimination against same-sex couples, but argued that marriage, as a symbolic title, should be limited to opposite-sex couples. It suggested granting same-sex couples partnership recognition under a name other than “marriage”.
The Government gave four reasons for defining marriage as only between a man and woman. Procreation was advanced as the first reason. The Government contended that procreation was the defining characteristic of marriage and that, because same-sex unions were not able to reproduce sexually, they could not meet the procreation requirement and should not be considered marriage. Religion was the second reason. The Government argued that expanding the common law and Marriage Act to include same-sex couples would be disrespectful to religion, and would destabilise centuries of religious traditions in ways that also would violate the Constitution’s promise of religious freedom. The third argument drew on international law. The Government noted that international law recognised only opposite-sex marriage and argued that South Africa should follow that precedent. Citing Joslin v. New Zealand, and international law, particularly the Universal Declaration of Human Rights, that defined marriage as between a man and woman, it contended that South Africa’s marriage law ought to mirror international definitions because, according to the Constitution, Section 232, “[C] ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”.
Finally, the Government suggested that the Constitution’s promise of religious freedom also demanded that same-sex unions be recognised only by legislative action and only outside marriage law. Section 15 of the Constitution guaranteed freedom of religion, belief, and opinion. Section 15(3)(a) provided that the right to freedom of religion did not “prevent legislation recognizing – ... (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion”. The Government interpreted this clause to mean that only the legislature could create a legal scheme to recognise same-sex couples; and that the clause also suggested that the Constitution envisioned that same-sex union law would exist outside marriage law.
Since all the parties agreed that same-sex couples were denied equal protection and were discriminated against, the Court focused on whether the creation of a union analogous to marriage but not called marriage would violate the Constitution.
First, the Court refuted the Government’s position that the Constitution did not protect the right to marry. Although the Constitution made no express mention of marriage, in the Court’s view this silence reflected the reticence of the makers of the Constitution to put the right to marry in strict constitutional terms. The rationale for this silence was that the constitutional values of human dignity, equality, and freedom encompassed the right of any two people to marry, regardless of their sex, gender, or sexual orientation. Furthermore, the case of National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs had explained that rapid changes in the makeup of South African families precluded a specific constitutional definition of marriage.
The Court next reviewed the line of LGBT cases in South Africa. It found that, despite the Constitution’s express protection against discrimination based on sexual orientation, discrimination persisted, especially in relation to marriage. The Court stated that “[T]he impact of the legal void in which same-sex couples are compelled to live is real, intense and extensive. To appreciate this it is necessary to look precisely at what it is that the law offers to heterosexual couples, and, conversely, at what it denies to same-sex couples.”
The Court outlined both the importance of marriage as a symbolic and legal title and also the inadequacy of any alternative title. According to the Court, marriage conferred upon the involved parties certain legal rights and obligations including the reciprocal duty of support; joint tenancy and ownership of property; automatic guardianship of children born or adopted into the family; and divorce rights and protections. There were also legal consequences for married couples in the laws of insolvency, evidence, and delict. The State’s marriage requirements (registration, paperwork, ceremony) reinforced the importance of marriage as a social and legal concept.