Law and marriage

>> The Hendricks-Leboeuf case finally gets its day in court

by NOEMI LOPINTO

After three years of waiting, Michael Hendricks and René Leboeuf have finally seen the walls of a courtroom. The couple is challenging the legal definition of marriage to include same-sex couples. Two weeks ago, their case finally got before the courts, lasting a week and a day.

Day 1--Thursday, November 8 The hallway of the 15th floor was packed with media and supporters when Michael and René arrived at 9:15. As they spoke to journalists the lawyers arrived. Representing the couple were Anne-France Goldwater and her partner, Marie-Hélène Dubé, who were teamed with the attorney for the Quebec Coalition of Same-Sex Couples, Noël St-Pierre.

On the other side of the argument were André L'Esperance and Alexander Pless, from the office of Canada's Attorney General, as well as Benoît Belleau, for the Attorney General of Quebec. Representing the religious right, aka the Francophone Alliance of Evangelical Protestants of Quebec and the Catholic League for the Rights of Man, was Robert Reynolds.

There are three statutes being challenged by Goldwater-Dubé and the Coalition: Article 365 of the Civil Code, which contains an opposite-sex definition of marriage, federal Bill S-4 which affirms the opposite-sex definition in marriage, and Section 1.1 of the Modernization of Benefits and Obligations Act.

There was something about the federal attorneys--they looked like the "big guns." They wore brightly colored bowties, their suits were shiny, dark blues and royal greys. The provincial attorney looked like a poorer cousin. His suits were a dusty brown, and he looked every bit the paper pusher from Quebec City.

Hendricks testified first, describing how he and Leboeuf met in 1972-73. "Why, after all this time," Goldwater asked, "do you want to get married?"

"We're concerned for our future," Michael answered. "I am six years away from the Alzheimer's test. If I drop dead tomorrow, will René get the house? We saw dementia with HIV, we know how destructive it can be. If I get senile at the end, I can do no harm to him. Also, he would know that I made that commitment."

René testified next. "Marriage means acknowledgment that I am more than a gay man," he said. "I am a citizen, part of a family that is accepted by society."



The letter of the law

Goldwater paced back and forth in front of the court in her heels, gesticulating wildly, sometimes nearly shouting. "Nothing in the law defines love," she said. "The state does not use the language of poetry. It uses the language of law, and we use a simple word--marriage. These two men faced 28 years of prejudice, harassment, illness. They invested in their community and now they're going to do something for themselves: they are going to celebrate their love publicly. Not just in a parade, not carrying signs, but saying we are the same as you, as ordinary as you." She launched into casework, quoting four volumes worth of jurisprudence, naming the Acts, benefits and protections of marriage. "Sexuality and procreation have nothing to do with this," Goldwater said. "S-4 does not oblige procreation, does not even obligate consummation of heterosexual unions. Two prisoners in different prisons can marry, they have rights unaffected by the fact of confinement... If we don't prevent a bank robber, a rapist from marrying, why are Michael and René less worthy of the same consideration? "

Goldwater dared the government to stop wasting the taxpayers' money and table a new bill granting equality to same-sex couples. "There is nothing to stop them," she said, "from getting up tomorrow morning at 9:30 a.m. and slapping a new bill on the table." The next day, Friday November 9, Le Devoir had a front-page article in which the Minister of Justice, Paul Bégin, announced he was tabling a new bill that would legalize civil unions between members of the same sex. Cynicism was high in the courtroom, however, and the show went on.



Day 4--Tuesday, November 13 The other fed, Pless, urged that the objective of Section 1.1 of the Modernization of Benefits and Obligations Act is to extend to same-sex relationships the dignity and respect they deserve, while preserving a cultural perception of marriage. He said this objective was also reflected in Bill S-4. "One can support opposite-sex marriage without being motivated by hatred towards gays and lesbians," Pless said. "Many of the benefits sought or obstacles faced by the applicants are outside the power of the federal government to address." Pless said that Quebec is unique in Canada in that it offers no alternative to the institution of marriage for opposite-sex or same-sex couples. In other words, the problem lies with the province.

The Attorney General of Quebec had a different understanding of the problem. Marriage could not be changed in Quebec because it's a federal definition. Belleau said Article 365 of the Quebec Civil Code simply reflects the federal norm. In fact he used the word "reflect" six times, and the word "useless" seven times--as in, "It is absolutely useless to examine Article 365 or to debate our position, and absolutely useless to the applicants. Quebec has absolutely no authority to modify this definition of marriage," Belleau said.



Day 5--Wednesday, November 14 Reynolds, the religious right's man, ploughed through his arguments despite snickers, coughs and groans from the audience. He equated homosexuality with prostitution, incest, polygamy and adultery. "The inclusion of same-sex couples is a fundemental deconstruction of marriage and an attempt to destroy the importance of procreation and the raising of a family." He accused Goldwater of trying to abolish the institution and invoked the articles of the Charter founded specifically on freedom of religion. "We cannot pretend that the rights of homosexuals are more important than those of my clients." Leboeuf looked at Reynolds as if he smelled of particularly potent dog shit. Hendricks looked at the wall directly above Reynolds' head.



Day 6--Thursday, November 15, The lawyer for the Quebec Coalition of Same-Sex Couples, Noël St-Pierre, began by stating the position of the coalition: they ask that same-sex partners benefit from the same judicial protections, the same social recognition that opposite-sex couples, married or common-law, receive. He said contracts between same-sex couples are legally illegitimate, with no institution to make up for it. "The pretension that a child grows best in a married, heterosexual relationship is legitimate, but does not reflect reality," St-Pierre said. "We don't refuse protection to children who live with single mothers, we must protect children who live with homosexual parents. To say that Michael Hendricks is not being discriminated against because he could always marry a woman is like saying a woman in a religious regime could simply avoid discrimination by not being a lawyer, or by wearing a burqa. These are the arguments we have heard, to enjoy the privileges and happiness of marriage you ask them to become something they are not."

At the end of the last day, the lawyers thanked Judge Louise Lemelin. But Lemelin's decision--expected six months from now--is only a first step. The losing party is likely to continue appeals all the way to the Supreme Court. It will be very long marriage ceremony for Michael Hendricks and René Leboeuf. :