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Canadian Suits for Legal Marriage
Reverend Doctor Brent Hawkes
© 2003, Partners


On January 14, 2001, two same-sex couples were legally married in a joint service before 1,000 people at Metropolitan Community Church (MCC) of Toronto using the ancient Christian tradition of the banns. Elaine Vautour married Anne Vautour, and Kevin Bourassa married Joe Varnell. The officiant was Brent Hawkes.

The Canadian government has illegally refused to honor these marriages with a legal marriage license. The province of Ontario was sued by Metropolitan Community Church Toronto on January 19, 2001, to recognize the marriages.

The following affidavit is a response to the defence made by the government and those offering affidavits in support of the government’s position.

Affidavit of Reverend Doctor Brent Hawkes
Court File No. 684/00
Court File No. 39/2001
ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)
BETWEEN:
HALPERN et al
Applicants and
CANADA (A.G.) et al
Respondents
AND BETWEEN:
MCCT
Applicant
and
CANADA (A.G.) et al
Respondents
AFFIDAVIT OF REVEREND DOCTOR BRENT HAWKES

I, BRENT HAWKES, of the City of Toronto, in the Municipality of Metropolitan Toronto, MAKE OATH AND SAY:

1. Since deposing my initial affidavit in these proceedings, Trinity College of the University of Toronto has conferred on me the degree of Doctor of Ministry.

2. I have read the affidavits filed on behalf of the Federal Government and the interveners who support them. I make this affidavit in reply to them.

3. I will have specific comments about particular affiants below. However, there are a few general observations that I would make about them based on certain themes I see emerging from them.

Majority Rule

4. It is extremely difficult to determine how many gays and lesbians there are in our society. The Canadian census is making a small attempt to gather data on this subject this year for the first time ever. I am prepared to concede that the gay and lesbian communities are a minority in this society.

5. I am also prepared to concede that our denomination is a small one in Canada.

6. It appears to be suggested that by some affiants that because lesbians and gays are a small minority in Canada, we should not have access to marriage. It also is suggested that the majority view should prevail, and that they speak for the majority.

7. Although Catholics may now constitute the majority in our society, it was not always so. I understand that in the early years of this province, when Catholics were in the minority, Catholic marriages were not legally recognized. Jewish marriages were also not recognized. That was wrong, and fortunately that legal discrimination ended a long time ago. However, our community still endures discrimination.

8. A recent Environics poll that was taken after the highly publicized weddings at our Church indicates that the majority of Canadians support the right of same sex couples to marry. Attached hereto and marked as Exhibit “A” to this my affidavit is a copy of the extract from the Environics website.

9. I do not believe that this matter of fundamental human rights should be decided on the basis of majority rule. However, as a factual matter, it appears to me that it is our opponents, and not us, who are out of step with the majority of Canadians on this issue.

Tradition

10. I am also prepared to concede that our religious beliefs are not traditional. However, Christianity itself was once a minority religion. Many early Christians paid with their lives for espousing a belief that was contrary to the majority view in their society.

11. A fair consideration of Christian tradition makes it clear that, even for conservative mainstream Churches, revelation has continued. Anti-Semitism has a lengthy history in the Christian tradition, but is now rightly condemned. Many traditional Christians once supported slavery, citing unequivocal biblical passages. The traditional religious basis of those practices did not make either of them morally correct. Discrimination is traditional.

Mutual Respect

12. A number of the affiants accuse us of failing to respect their religious beliefs. This case is cited as an affront to their religious beliefs. Dr. Cere, for example, waxes eloquent on the injustice of being accused of homophobia. This is a vivid illustration of the double standard that I have so often seen at play among our critics.

13. I reiterate that we do not seek to impose our beliefs on anyone. All faiths have the right to refuse to marry anyone that they reject on theological grounds. For example, presumably Rabbi Novak would refuse to marry Michael Leshner to Michael Stark even if one of them was a woman because although Michael Leshner is Jewish, Michael Stark is a Gentile.

14. Not one of the affiants offers an explanation as to how continuing to impose their beliefs on us by enshrining their theology in law respects our religious beliefs. Implicit in their comments is the assertion that because their beliefs are more traditional or more common, they are superior and entitled to legal sanction. According to this view, any deviation from this sanction infringes their religious freedom.

Living in Faith in a Secular Society

15. Christ Himself recognized the fact that people of faith may have to adapt to the reality of living in secular society. In Matthew chapter 22, verses 17-21, when asked if it was lawful to pay taxes to the pagan Roman ruler, Jesus said “Show me the money for that tax.” They brought him a coin, and Jesus said to them “Whose likeness and inscription is this?” They said, “Caesar’s.” And He said to them, “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.”

16. We live in a diverse secular society where no one’s religious beliefs should be imposed on others, and where all should be free to hold and practice their private beliefs. The notion that same sex marriage is a singular example of departing from traditional religious beliefs in our law is disingenuous.

17. In a pluralistic society, people of faith must make accommodations every day. Traditional Catholics must live with the availability of abortion and divorce for those who do not share their beliefs. Fundamentalist Muslims must live with the fact that Shari’ah is not the law of the land, so that polygamy is not possible and homosexuals are not outlawed. Orthodox Jews must live with the fact that non-kosher food is sold and consumed every day all around them. Even fundamentalist Protestants have had to accommodate themselves to people working on Sundays.

The Importance of Marriage to People of Faith

18. A number of the affiants stress the deep importance of the institution of marriage to people of faith. I agree that marriage is important to people of faith, which is why members of our Church wish to marry in accordance with our beliefs.

Young

19. At paragraph 46 of her affidavit, Professor Young quotes from Mark chapter 10, verses 5-6, as evidence that Christ said that a male and a female were necessary for a valid marriage. The passage quoted is actually in response to Mark chapter 10 verse 2, which reads, “and Pharisees came up and in order to test him asked, ‘Is it lawful for a man to divorce his wife?’” As Dr. Gay mentions at paragraph 5 of his affidavit, it is clear that this passage is a comment on divorce, not same sex relationships.

20. Many Christian faiths do not recognize divorce, in reliance on this passage. Professor Young fails to acknowledge that there is a normative dichotomy already arising from this passage today: divorce is lawful in Canada, whatever Christ may have said on the subject. This example points to the disparity between the “universal religious norms” that Professor Young purports to identify, and the current law of our land.

21. Professor Young also appears to equate Catholic teaching with Christian teaching in some of the sources cited by her. At least since Martin Luther nailed the 95 Theses to the door of a Catholic Church in Wittenberg, in 1517, the Catholic Church cannot purport to speak for all Christians.

22. With respect to paragraph 58 of her affidavit, Professor Young fails to acknowledge that the laws of Leviticus are not binding on the conscience of Christians. It is clear from verse 3 of Leviticus that this was an injunction to the ancient Israelites to avoid the practices of their non-Jewish neighbours in Egypt, and in the land of Canaan, who were idol worshippers.

23. Leviticus also permits slavery (Lev. 25:44), and contains such injunctions as the requirement to eat only kosher food (Lev. 11: 1-47), and the requirement that a man not trim his hair at the temples (Lev. 19:27) or make contact with a woman during her menstrual period (Lev. 15: 19-20), injunctions not required of Christians.

24. Professor Young does not acknowledge in her analysis the fact that common-law and homosexual relationships are recognized under our law even though these are not recognized in traditional Christian teachings.

Cere and Caparros

25. As Dr. Cere is a Roman Catholic theologian, and Dr. Caparros is an expert on Catholic Canon Law, their observations are only pertinent to Roman Catholics. As Dr. Hunt notes, and as I know from the disaffected Catholics who have come to our Church, not all Catholics agree with the official Vatican teaching on the subject of same sex marriage. The best evidence of that is that the two couples who we married are former Roman Catholics.

26. Further, it is my understanding that many aspects of Canadian law are at odds with traditional Catholic teaching in this area. For example, the most recent document from the Pontifical Institute on the Family makes clear that the Catholic Church is hostile to any legal recognition of both common-law and same-sex unions. Attached hereto and marked as Exhibit “B” to this my affidavit is a copy of the document entitled Marriage, the Family and “De Facto Unions.” While they have a right to their religious beliefs, it clearly indicates that Canadian law and indeed Canadian society do not follow traditional Catholic teaching in the area of relationship recognition. Accordingly, recognition of same-sex marriages would not represent the significant departure from the moral foundation of our law that is suggested by Dr. Cere and Dr. Caparros.

27. I agree with Dr. Cere that marriage is important to Christians and that for most Canadian Christians, a “real” wedding is a religious wedding that is recognized by the state. I reiterate that I would not expect the Catholic Church to be required to marry same-sex couples any more than they are currently required by law to marry two divorced Catholics, despite the lack of any civil prohibition on such marriages.

28. Dr. Cere’s emphasis on procreation is somewhat inappropriate, given that the Christian church, to my knowledge, has never required evidence of fertility as a requirement to marriage. Elderly women and sterilized persons, who are clearly incapable of reproduction, are not denied marriage by any Christian Churches to my knowledge.

Novak

29. Rabbi Novak filed an affidavit in the United States Supreme Court case Romer v. Evans (1996), 517 U.S. 620, in support of Colorado’s notorious Amendment 2. Amendment 2 read as follows:

    “No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”
30. I am surprised that a theologian of Rabbi Novak’s stature would support as pernicious an anti-gay law as Amendment 2. This was a draconian measure that purported to block any anti-discrimination law from being passed in Colorado; it went further, and imposed a “special disability” on gays and lesbians, disqualifying us as a class from the right to seek protection from the law. Fortunately, the Supreme Court of the United States struck down this “unprecedented” law in Romer (at para. 25).

31. I agree with the United States Supreme Court that the only reasonable inference is that Amendment 2 was motivated by animosity towards gays and lesbians, to make us “unequal to everyone else” (at paras. 28, 30).

32. Although Rabbi Novak suggests that his opposition is exclusively to same sex marriage, I have reviewed the affidavit he filed in the Romer case. It is clear that Rabbi Novak is in fact opposed to equality for gays and lesbians generally, on religious grounds. In contrast with the condemnation of Amendment 2 by Justice Kennedy, Rabbi Novak was unequivocal in his support of the law, stating in part:

    “The legal repeal of Amendment 2 would, in effect, require the State to admit that it has been in moral error in its endorsement of the traditional family in such matters as restricting the rights and benefits of marriage and parenthood to heterosexuals. That admission, and the precedent it would create, is contrary to the thrust of our moral and legal history, as well as to the moral beliefs of the vast majority of the citizenry of Colorado and the United States …
    “I am convinced that Amendment 2 is philosophically and historically well founded and that it should not be overturned by the court.”
33. Rabbi Novak’s enthusiastic support for Amendment 2 suggests to me that he would oppose many of the Canadian laws that currently protect gays and lesbians. Given the fact that leading Jewish organizations like the Canadian Jewish Congress have supported our struggle for equality, I would be surprised if he speaks for most Jewish Canadians, as he asserts.

Gay

34. As Dr. Gay notes in para. 5 of his affidavit, traditional Christian teaching has condemned divorce and adultery, although there is no prohibition on, or penal sanction associated with either under Canadian law to my knowledge.

35. With respect to para. 11, the term “kulturkampf” is particularly inappropriate to be used in this context, although Justice Scalia used it in his dissent in Romer. It is my understanding that historically this phrase was first used to describe efforts by the early German state in the 19th century to curtail the rights of Christians, especially Catholics. It is clear that during the struggle for gay and lesbian rights there has been an ongoing effort by conservative Christians and their allies to limit or take away our rights. We have made no effort to take away anyone’s rights.

36. Although we deeply disagree with fundamentalist religious teachings, we do not object to their right to hold them and to express them. If the Court grants us relief, our opponents should be entitled to continue to impose restrictions within their own churches, synagogues and mosques. They should not be permitted, as they effectively are in the current regime, to extend their religious requirements into our church, with the blessing of the state.

37. Since deposing my initial affidavit in these proceedings, it has come to my attention that I mistakenly omitted the documents I attempted to file with the Registrar on behalf of Kevin Bourassa and Joe Varnell and Elaine and Anne Vautour following their wedding ceremony at MCCT on January 14, 2001. I attach these documents to this my affidavit, marked as Exhibit “C.”

SWORN before me in the )
City of Toronto, in the )
Province of Ontario,)
This 30th day of )
August, 2001. ) ____________________
                              REV. DR. BRENT HAWKES

A Commissioner, etc.


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