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High Court In Canada Backs Gay Marriage

By Doug Struck
Washington Post Foreign Service
Friday, December 10, 2004; Page A01

TORONTO, Dec. 9 -- Canada's Supreme Court on Thursday declared same-sex marriages constitutional, underscoring the sharp contrast on the issue between Canada and the United States.

The court gave the go-ahead to Parliament to legalize gay marriage nationally, a step that has strong public support. If the law passes, Canada would join Belgium and the Netherlands as the world's only countries to fully legalize such unions.


Kevin Bourassa, left, and Joe Varnell, the first gay men in Canada to legally marry in a church, celebrate the Supreme Court's opinion at a Toronto bar. (J.P. Moczulski -- AP)

Lower court rulings already had upheld gay marriage in most Canadian provinces, leading to thousands of such weddings. Many have been between couples from the United States.

The court opinion was the latest sign that Canada is on a different track from its southern neighbor, where referendums banning gay marriage passed in 11 states last month. President Bush has said he will seek a constitutional amendment to prevent gay marriage from being legally imposed by "activist judges" and the "far-left minority."

Prime Minister Paul Martin of the ruling Liberal Party said Thursday he would introduce the gay marriage legislation early next year. Opponents promised a spirited fight in Parliament.

"We have to protect marriage," C. Gwendolyn Landolt, vice president of Real Women of Canada, a group opposed to gay marriage, told reporters after the decision. "Those Liberal members of Parliament have to know they are not going to be reelected" if they vote for the measure, she said.

Martin said he expected the measure to pass. "I've always thought Canada is the most postmodern country," he told reporters in Ottawa, the capital.

Toronto's annual Gay Pride Day parade draws hundreds of thousands of people, including nearly every successful or aspiring politician. Gay partners of Canadian military personnel get spousal benefits, and openly gay men occupy cabinet seats and other top government posts with barely a shrug from the public.

The main opposition Conservative Party opposes the marrying of gay couples in religious ceremonies but supports legal civil unions between same-sex partners.

"Canada is without a doubt one of the best -- if not the best -- places to live as a gay or lesbian person," said Douglas Elliott, a Toronto lawyer involved in the Supreme Court case and president of an international association that monitors laws on gays. "It's hard to believe that just a river separates us from the reality in the United States."

The situation has changed quickly in Canada, a country that many people used to consider more socially conservative than the United States, gays here say.

Eleven years ago, Charles Schouwerwou and William Shannon were refused a marriage license in Ontario. "The experience at City Hall was embarrassing. The clerks were horrified when we walked up to the desk," Schouwerwou recalled. "The woman started sputtering. She said, 'Oh, you can't do that.' "

This May, Schouwerwou, 44, and Shannon, 57, his partner of 17 years, went back to City Hall. "We were treated with incredible respect," Schouwerwou said. "There wasn't a bat of the eye. The clerk congratulated us. It was a warm feeling, except the form still has the words 'bride and groom.' They need to work on that."

"I think as a country and society, we have grown up a lot," added Schouwerwou, a conference planner in Ottawa. "We've gone from a society with fears and misgivings, to where same-sex couples are commonplace. We are taxpayers, we are parents, we are politicians."

Gays used to envy the freedoms in the United States, said Elliott, 48, who reflected on the changes in Canada on the eve of the Supreme Court opinion. "In the '70s and '80s, the police chief was kicking down the doors of bathhouses, and Anita Bryant came to Canada to say that gays were a threat to children. It was very, very scary."

Elliott said the seeds of change were planted by Prime Minister Pierre Trudeau in the late 1960s. "He came up with the wonderful phrase that the state has no place in the bedrooms of the nation. He persuaded us that if we wanted to be a modern country in a modern world, we had to embrace separation of church and state."

Elliott and other lawyers have won rulings in six of Canada's 10 provinces and one of its three territories that same-sex couples cannot be denied the marriage rights that are offered to heterosexual couples. In January 2001, after a favorable ruling by a court in Ontario, Joe Varnell and Kevin Bourassa became the first gay men in Canada to legally marry in a church.

Since then, six provinces have issued marriage licenses to thousands of same-sex couples, and significant numbers of gay men and lesbians from the United States have crossed the border to marry. There is no residency requirement for marriage.

The western plains province of Alberta, Canada's fourth-most populous, remains a stronghold of opposition to gay marriage. "We are disappointed," Ron Stevens, Alberta's justice minister, said Thursday. "But I need to be realistic about the court decision, and the reality is our ability to defend the marriage act has been restricted by the decision."

A federal law to standardize gay marriage rights was drafted in 2003 by the government of Prime Minister Jean Chretien, who also asked for an advisory opinion from the Supreme Court. Thursday's unanimous opinion gave the go-ahead to that legislation, while affirming that clergy members who oppose gay marriage cannot be forced to perform the ceremony.

"Our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life," the court opinion said, citing the advance of women's legal equality.

The court refused to say whether laws that restrict marriage to couples of different sexes were unconstitutional. The Martin government had sought that finding to give the Liberal Party political leverage to pass the legislation. The Conservative Party leader, Stephen Harper, called the court's reluctance on that point a victory for opponents of gay marriage.

"This decision should be made by elected representatives," Harper said in Ottawa. "The vote will be a very close one."


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