Michael Leshner, far right, and his husband Michael Stark are pictured during their marriage ceremony at Toronto’s City Hall in 2003. Mr. Leshner’s mother, left, beamed throughout while the couple's lawyer, Martha McCarthy, middle, acted as ring bearer.DARRYL JAMES/The Globe and Mail
Martha McCarthy is a family lawyer and partner at McCarthy Hansen & Company LLP. She was counsel to the applicants in Halpern v. Canada.
On June 10, 2003, we drove to Toronto’s Osgoode Hall to receive the judgment of the Ontario Court of Appeal in Halpern v. Canada. I wore a white suit and my lucky shoes, and we blasted Celine Dion’s A New Day Has Come as our battle cry on the drive down. At 9:30 a.m., the Registrar of the Ontario Court of Appeal handed me and my co-counsel Joanna Radbord a brown envelope with the decision inside. We ripped it open and madly flipped to the back page. We had won our clients the freedom to marry.
At 3 o’clock that afternoon, two of our applicants, Michael Leshner and Mike Stark, were married at the courthouse. After the ceremony ended, Joanna and her partner, Maretta Miranda, were married in the judge’s chambers.
The next six months were a blur. The federal government’s decision seven days later not to appeal was unexpected by all (except maybe the judges who had decided the case; I always suspected the court knew exactly what it was doing to the government’s incentive to appeal by allowing marriages to begin immediately). We celebrated the victory by weeping at the weddings of our clients – in city halls, backyards and fields full of flowers – with veils that were loaned and wedding cakes made sweeter by the victory. We witnessed the changing of minds and the forging of bonds across families, and watched as huge numbers of Americans came to Canadian cities to be married. And we danced in the streets. Pride weekend, which followed just a few weeks later, was infused with pure joy and belonging.
Then, evangelism became the order of the day. I spread the good news to every group who asked me to speak to them – lawyers, judges, students, business people, doctors, academics, you name it – in at least a dozen countries. I told a joke to every audience of non-Canadians for the next several years that sums up the purpose of the mission: “The sky has not fallen, and heterosexuality remains remarkably popular in Canada.” This one-liner encapsulated our country’s contribution to the global discourse around equal marriage for the next two decades: We did it in Canada, and everything is okay.
The Halpern decision was the first court decision in the world to call for full and immediate marriage equality. Although the Netherlands and Belgium had both passed legislation for it (in 2000 and 2003, respectively), this was the first time that a court decision recognized marriage as a fundamental right and ordered a government to issue marriage licences immediately. Parliament would eventually pass federal equal-marriage legislation in 2005, but from the outset the Halpern decision had massive international effects. Statements such as, “Canada has been doing this since 2003,″ have been included in marriage-equality legal decisions around the world. This is not a new phenomenon – Canadian constitutional law has had significant international influence in the decades since our very first decisions under the Charter of Rights and Freedoms. Much of the credit for this is owed to Canadian justices participating in education and networking programs with judges from around the world.
In the time since Halpern recognized marriage as a fundamental human right, most of us just accepted it and moved on. Judges in family court don’t even notice if the parents are two women or two men any more. But maybe, just maybe along the way, we became complacent. (Full disclosure: I now believe my generation took our own gender equality rights entirely for granted as we navigated life as young professional women. I certainly did.)
And who could blame us? Alastair Nicholson, the beloved former chief justice of Australia’s Family Court, once wrote of “the wave of law reform rolling relentlessly forward.” We won; why shouldn’t we assume that what was won could not be taken away? Before the leak of last year’s U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (overturning Roe v. Wade), it never crossed my mind that the wave could actually roll back and out of our reach.
It is clear that now is no time for complacency. There’s no secret agenda in the U.S. any more. The religious right is coming for equal marriage, along with many other fundamental rights – even at the highest court. Supreme Court Justice Clarence Thomas called for it explicitly in Dobbs.
It’s important to remember that a month after Halpern was decided, the U.S. Supreme Court decriminalized same-sex sexual behaviour for the first time. It took 12 more years for that court to order states to issue marriage licences to same-sex couples in Obergefell v. Hodges, after an intentional grassroots strategy developed significantly by Evan Wolfson of the Freedom to Marry Project (as well as the Lambda Foundation and the ACLU) which involved continuing education and ad campaigns. A few years before Halpern, Gallup found 35 per cent of Americans were in favour of equal marriage. By the time Obergefell was decided in 2015, the approval rating had risen to 60 per cent. Grassroots strategies are effective. Speaking up, over and over again, telling our truths, works.
I know this is an oversimplification. But complacency is costly. If America is teaching us anything right now, it is that we still need to be ready to fight. I recently heard Robbie Kaplan, the fierce human-rights lawyer, speak just days after she won E. Jean Carroll’s sexual-abuse case against Donald Trump. At one point she casually said that she had decided to issue a claim over the 2017 Unite the Right rally in Charlottesville, Va., simply because no one else was prepared to do it. Maybe, I thought, so much of the angst that we Canadians feel currently is our powerlessness. I wish there was someone we could just sue to stop the steady erosion of individual rights we’re witnessing. Put us in, coach! But there isn’t. Instead, we watch the train wreck in slo-mo and hope it doesn’t cross the border.
So then where do we put our fear and loathing? We need to speak up, demand better, be a little less polite. Go see the Rosalie Abella documentary. Watch John Lewis’s Ted Talk. Read activist Glennon Doyle’s memoir Untamed. Take speaking opportunities at family dinners, boardroom tables, patios with friends and discussions with colleagues in other countries. Keep our eyes on the grassroots work, and be ready to sue if nobody else will.
Now is still the time for us to cherish and celebrate – vocally, loudly – our freedom to marry. We must keep being that beacon that says: look at us, over here in Canada. This is how you do it. This is substantive equality. That is one way to ensure that the wave keeps rolling in the right direction – relentlessly forward.
And let’s celebrate today like we’re dancing in the parade in the summer of 2003. Those were immaculate vibes.