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40-year struggle to have groundbreaking same-sex marriage recognized still not over

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The following is an open letter to Jim Rondeau, minister of healthy living, seniors and consumer affairs, from Winnipeg activist Rich North asking Mr. Rondeau to reconsider his refusal to register Mr. North's 1974 marriage to Chris Vogel, an act that figured prominently in the long struggle to have same-sex marriage recognized in Canada.

 

Dear Mr. Rondeau:

I received your letter of Aug. 26 in which you informed me that the government of Manitoba has once again decided to refuse my request to register my marriage in the Unitarian Church. I am writing today to urge you to reconsider this decision.

Your letter begins with the assertion that the discriminatory and homophobic law that existed in Canada in 1974, which prevented legal recognition of our marriage, continues to prevent legal recognition of this marriage today.

Your refusal is based on a false premise.

When Chris (Vogel) and I were married in the Unitarian Church in 1974, there was no discriminatory and homophobic law in Canada that prevented the legal recognition of same-sex marriage. There was nothing in federal or provincial statute law and no Canadian cases in common law that prevented the Schreyer NDP government from registering our marriage.

Prior to the case of North v Matheson, Canadian law in this area was undefined. Although same-sex marriage was not specifically mandated under Canadian law, it also was not prohibited. Rev. Norman Naylor was the Unitarian minister who married us, and he had participated in rewriting Manitoba's Marriage Act current at the time of our marriage. He told us that they had intentionally omitted gender references in the legislation to modernize the legislation. The Marriage Act referred to "any two persons," and not "one man and one woman."

When the NDP government of Manitoba refused registration, we sought a court order forcing the government of Manitoba to register our marriage. In North v Matheson, Judge Philp ruled the province was not required to register our marriage and declined to issue the court order we wanted. Judge Philp said that although neither the Parliament of Canada nor the Manitoba legislature had legislated that the union between two men isn't a marriage, nonetheless the words "any two persons" in the Marriage Act didn't mean two persons of the same sex.

In reaching his decision, Judge Philp said he relied on two judicial opinions of marriage, one dictionary definition and an encyclopedia definition. Both the judicial opinions were from British courts. The dictionary was Webster's Third New International Dictionary (1981), and the encyclopedia was Encyclopedia Americana (1964).

The judgment in North v Matheson ruled that marriage as understood in Christendom was defined as the voluntary union for life of one man and one woman to the exclusion of all others, and the characteristics that distinguish it from all other relationships could only be met by two persons of the opposite sex. Judge Philp concluded "I view it as self-evident that the ceremony performed Feb. 11, 1974, was not a ceremony of marriage, it was a nullity."

It was not until Dec. 18, 1974, when the court ruled the NDP government of Manitoba did not have to register our marriage that marriage in Canada was defined as a heterosexual institution. North v Matheson introduced into Canadian law the homophobic and discriminatory policy of Schreyer's NDP government.

In 1999, NDP justice critic Gord Mackintosh continued the NDP tradition of homophobia and discrimination. When then-justice minister Vic Toews announced plans to make sweeping changes to provincial legislation to comply with the Supreme Court judgment in the seminal case of M v H, Mackintosh insisted that the judgment in M v H did not have broad implications for the equality of same-sex relationships. This was in stark contrast to prevailing opinion and was not supported by the content of the ruling.

In 2001, the Metropolitan Community Church of Toronto married two same-sex couples using the Christian tradition of proclamation of the Banns and filed for registration of these marriages in Ontario. These marriages were a mirror image of our marriage in the Unitarian Church in 1974. The Ontario marriages set in motion the course of events that culminated in the extension of civil marriage to same-sex couples throughout Canada in 2005.

The marriages in the Metropolitan Community Church of Toronto in 2001 inspired me to apply again for registration of our marriage in the Unitarian Church. Justice Minister Gord Mackintosh refused a second time. He claimed that the province did not have the authority to register our marriage: "Only the federal government has the power to say who is married in Canada. The province only administers the paperwork... any changes or any lobbying would have to be directed to Ottawa."

University of Manitoba law professor Karen Busby disagreed. She said that while the federal government does have power over marriages and divorces, there was legal room for the province to make a decision. She pointed out that while the Marriage Act lists those that a person can't marry, like a sibling, it is silent on the gender of each partner. She also noted that the federal government itself had changed the common-law definition of marriage by removing from the Marriage Act that the union is for a lifetime. In spite of this, the NDP government of Manitoba refused to register our marriage.

Same-sex marriage is now the law of the land in Canada. In spite of this, your NDP government has again refused to register our marriage. Your letter states that you were unable to find a way to do what you truly believe should be done, and that under existing laws in Canada you cannot legally recognize our marriage. You claim that you cannot register our marriage because it occurred before the 2004 case of Vogel v Canada, which resulted in a court order requiring the NDP government of Manitoba to legally recognize same-sex marriage. It is a fundamental legal principle, you assert, that legislation is not retroactive.

I would like to draw to your attention the Wikipedia entries on same-sex marriage in Manitoba and Ontario. The first legal same-sex marriages recognized in Ontario are the marriages that occurred in the Metropolitan Community Church of Toronto in 2001. The legality of these marriages was questioned at the time, and they were not registered until after June 10, 2003, when the Court of Appeal for Ontario in Halpern v Canada (Attorney General) extended marriage to same-sex couples.

In Ontario, the Liberal government registered the same-sex marriages in the Metropolitan Community Church, which had occurred several years before the law recognized the validity of these unions. The Liberal government of Ontario also recognizes the legality of the first same-sex marriage, which was registered by mistake in 2001 when the Office of the Registrar General did not recognize the names as both being women and issued a marriage certificate. In 2003, the province of Ontario ignored the law and waived the usual waiting period to allow the first civil marriage hours after the first civil marriage licence was issued.

In 1987, the NDP government of Manitoba followed in the footsteps of the Liberal government of Ontario when it included sexual orientation in human rights legislation. In 2004, the NDP government of Manitoba followed in the footsteps of the Liberal government of Ontario when it accepted the extension of civil marriage to same-sex couples. In 2013, the NDP government of Manitoba followed in the footsteps of the Liberal government of Ontario when it passed anti-bullying legislation that mandated gay/straight alliance clubs in all publicly funded schools.

The province of Ontario has found a way to recognize same-sex marriages that occurred before the court order, which redefined marriage in Ontario in 2003. I have provided your government with an extensive file of background information to support my request for registration, and I urge you to review this file. I am enclosing a few items that may be helpful, but it is only a small portion of the case for registering our marriage that I have presented to your government.

Justice deferred is preferable to justice denied, and I urge your NDP government to follow in the footsteps of the Liberal government of Ontario once again and register our marriage.

I look forward to an affirmative response.

 

Yours truly,

Rich North

 

Read Jim Rondeau’s Aug. 26 letter:

Can't see the viewer below?  Read the letter in a new window (PDF).

Republished from the Winnipeg Free Press print edition September 19, 2013 A15

History

Updated on Thursday, September 19, 2013 at 6:58 AM CDT: Adds letter from Rondeau

8:18 AM: Clarifies that letter from Rondeau is the Aug. 26 letter

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