Public and legal opinion is knocking loudly on the parliamentary door.
The loudest knock came yesterday when the Ontario Court of Appeal ruled unanimously that same-sex couples have a constitutional right to be married. This judgment affirms similar unanimous court rulings in British Columbia and Quebec.
Four higher-court decisions, 10 judges, all in a row, unanimously and in less than a year; all agree that Canada's Charter of Rights and Freedoms guarantees that same-sex couples are entitled to the institution of civil marriage.
But the Ontario Court of Appeal went furthest. Whereas a previous lower court Ontario decision, along with the Quebec and B.C. ones, agreed that a window should be left open until July 12, 2004, to allow the federal government to amend its laws, the Ontario Court of Appeal decided not to suspend its ruling. In effect, it invalidated right away the opposite-sex restriction on marriage.
The lineup at Toronto City Hall started forming immediately.
Familiar faces could be seen: Michael Leshner and his partner Michael Stark have been pushing for the equal right to marriage for a long time. Kevin Bourassa and Joe Varnell, as well as Anne and Elaine Vautour, were married by Toronto's Metropolitan Community Church in January, 2001.
Across the country, there is jubilation among lesbian, gay, bisexual and transgendered people and our allies defending human rights for all. The decision confirms something we knew all along: Same-sex love and our relationships are just as valid and deserving of recognition as those of our heterosexual counterparts.
Religious institutions will continue to uphold their own values and celebrate in the ways they see fit. Human rights advocates are not seeking anything such as imposing same-sex marriages on all faiths. The Ontario Court of Appeal affirms this: "Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages."
Though this historic decision overtakes much of the debate by the House of Commons Committee on Justice and Human Rights as to what to recommend with respect to same-sex marriage, there is still an opportunity for leadership.
The committee should, for instance, urge the government to comply with the judgment and affirm the right of same-sex couples to marriage equal to that of opposite-sex marriage. After all, the writing is on the wall. The courts in three of Canada's most populous provinces, two of them court of appeal levels, have said that equal means equal for all.
Our federal parliamentarians should explore ways in which the laws across the land could harmonize the various court decisions. There's no sense in letting couples in Halifax or Winnipeg face uncertainty when those in Toronto and Vancouver are proceeding. The government needs to immediately clarify the situation of couples seeking to marry in other provinces and territories.
Challenging the decisions in either B.C. or Ontario, given the strength of the decisions and the degree of unanimity, would almost certainly be doomed to failure.
The current Liberal administration faces a choice. It can do the right thing and enact legislation to recognize equal marriage for same-sex couples. Or it can balk and be dragged into Charter compliance kicking and screaming, wasting tax dollars and legal resources.
The next Liberal administration would inherit the issue if it is not resolved. All three candidates for the party leadership have endorsed same-sex marriage to varying degrees, from the forcefully favourable position of Sheila Copps, to Deputy Prime Minister John Manley's recent statement in full support, to front-runner Paul Martin's commitment that there should be "no more appeals" following the Ontario decision.
If Prime Minister Jean Chrétien and Justice Minister Martin Cauchon can't take the plunge, their successors have already indicated they will.
So why wait? Is there anything to be gained by doing so?
No. A delay in moving forward accomplishes nothing.
Most opponents of same-sex marriage have strong religious views that won't change. We're not asking them to accommodate us within their churches. The decision doesn't affect them if we believe in the separation of church and state.
There is a growing consensus in Canada that same-sex couples should be allowed to marry. The courts have demonstrated that this is consistent with the values of equality as outlined in our Charter. If Mr. Chrétien is serious about leaving a legacy and doing the right thing, he should hear and heed the call.
Gilles Marchildon is executive director of Egale Canada.