Type of paper: Essay

Topic: Law, Criminal Justice, Social Issues, Love, Marriage, Relationships, Religion, Democracy

Pages: 4

Words: 1100

Published: 2020/10/31

New WowEssays Premium Database!

Find the biggest directory of over
1 million paper examples!



The case of Harper V. Attorney General was set to address the issue of the legal approval and documentation of the marriages that were of same-sex couples. The Metropolitan Community Church of Toronto (MCCT) had announced the wedding bans and presided over the weddings after which it approached the registrar for documentation.
The case consisted of seven couples, all homosexual. The first couple was Julie Erbland and Carolyn Rowe. The couple wished to validate their commitment and wish to create a recognized family. The application for certificates was not denied. But it was kept pending for further clarification as per the clerk of Toronto. The other couples, Kevin Bourassa and Joe Varnell and Elaine and Anne Vautour, were marred at MCCT. The couples explained the reason for their union was companionship and the desire to raise a family in a respectable and legal institution. The pastor of MCCT issued the bans of marriage for the couples and presided their weddings where after. The pastor requested for the documentation of the marriages from the registrar in accordance with the Marriage Act, R.R.O. 1990, Reg. 738, s. 2(3). The registrar denied the approval by claiming the existence of statutes that prohibit same-sex marriages. The nature of the claim was based on the legal status of the validity of same-sex marriages.
The court derived the remedy and claimed that it defines marriage as the “legal union of one man and woman.” The claim of the church on “infringement of the right to religion” was dismissed on the basis that the case was not about the freedom of the religion, rather, it focused on the legal status of same-sex marriages (Strasser, 2002).
The case required a reform to be done in the definition of a marriage by the parliament. The common law defined a marriage as a union between two adult human beings, a man and a woman. However, the homosexual couples argued that the common law was in opposition with the Charter of Human Rights and Freedoms.
The denial of the issuance of marriage certificates was a form of sexual discrimination according to the common law that requires the equal treatment of people regardless of their sexual orientation. The common law gives all the people the right to access amenities and services.
The definition of marriage on the basis of child bearing as presented by the district court was also dismissed because the rearing of children in a healthy environment did not require heterosexual couples. The Definition of marriage in s. 91 (26) was also deemed flexible enough to accommodate the changes that the Canadian society was going through. Other states and countries were cited as an example to the capability of heterosexual families to raise families. In addition to that, the court ordered for the reform of the definition of a marriage institution by the parliament. According to the Human Charter of Rights and Freedoms, s. (1) the common law had broken the rights and freedoms of the common citizen.
The judiciary reasoned that the division court was wrong in its claim that there existed a common rule that spoke against same-sex marriages. The division court had ruled that the law of the state did not accommodate marriages between people of the same sex. The argument was found in s 91 (20) of the constitution Act. The act explains what is needed of a couple to be legally united in marriage. Among them are age, consent of the parties and the existence of a valid reason for the union. As explained by the couples that were presented in court, the grounds for marriage were legitimate and the parties had met all the requirements. The parties were also willing to enter the union out of respect and the wish to be recognized as legally united by the state and the society.
The case has facts on the existence of homosexual couples that had followed all the necessary procedures to legalize their union. The church had announced the marriage buns with no opposition from the individuals or the state. The church conducted the ceremony, only to be denied registration by the clerk. The couples are qualified to be united as a couple except that there is the common law that defines a marriage as a union between a “man and woman.” The couples presented their case and the reason for the marriage and they were legitimate.
Another issue arises upon the clam of the church that the division court had violated the people’s right of the practice of the religion of will. The marriages were not an issue of religion, for it was not a religious requirement to unite gay and lesbian couples. Thus, the church’s claim for remedy was dismissed.

The couples that were united by the MCCT were allowed the legal documents and their unions were legalized. A number of couples dropped out from the case. The court also ruled the claim of the church of being treated unconstitutionally in regard to the free practice of religion without discrimination was dismissed. The argument was given that the case was about the legal status of homosexual marriages and not the violation of the rights of the practice of religion (Strasser, 2002). The cross appeal of the MCCT was not justified because the state had not broken the rule against the obstruction of the freedom of worship and religion.
The court did not establish whether the division court had broken the law by declaring the unions unconstitutional. However, the problem was found in the common law that was referred to the parliament for reform. The argument of the church was out of context and the act of the clerk not to register the marriages was also not outright unconstitutional. An absolute remedy was not offered.


The constitution underwent reform in the definition of a marriage union because of the requirement of the Charter of the Human Rights and Freedoms. The Gay and lesbian couples presented their case with the claim that their human rights and freedom were being violated by the denial of registration. The Human Rights Charter opposed the common law that stated that a marriage should be between am man and a woman on the ground that it was discriminating against people that wish to do otherwise. However, according to the case of Halpern et al. v. Attorney General of Canada et al, the human rights charter was not violated for the definition of marriage was flexible enough to accommodate them. The rigidity lay in the judgment of the division court .
In conclusion, the case was about the legal nature of gay marriages. It also highlighted the coverage of the common law and whether it caters for the rights of all the citizens. There is also the question of adherence to the Charter of Human Rights and Freedoms. The common law of Canada has is laws stipulated in accordance to the charter. However, the ruling on the case required the common law to be reformed in the definition of a marriage union. The cases presented are all relevant, except for the additional claim of the church, MCCT whereby they claim that the freedom of religion and worship has been violated.


Allen, D. W., & Lu, S. E. (2013, Feb). The Grounds For Marriage:. Retrieved Feb 6, 2015, from
UBC.CA: http://faculty.arts.ubc.ca/lhao/seminars/allen-lu13.pdf
Strasser, M. P. (2002). On same-sex marriage, civil unions, and the rule of law: Constitutional
Interpretation at the crossroads. Westport, Conn: Praeger.

Cite this page
Choose cite format:
  • APA
  • MLA
  • Harvard
  • Vancouver
  • Chicago
  • ASA
  • IEEE
  • AMA
WePapers. (2020, October, 31) Judicial Decision Essay Example. Retrieved December 01, 2021, from https://www.wepapers.com/samples/judicial-decision-essay-example/
"Judicial Decision Essay Example." WePapers, 31 Oct. 2020, https://www.wepapers.com/samples/judicial-decision-essay-example/. Accessed 01 December 2021.
WePapers. 2020. Judicial Decision Essay Example., viewed December 01 2021, <https://www.wepapers.com/samples/judicial-decision-essay-example/>
WePapers. Judicial Decision Essay Example. [Internet]. October 2020. [Accessed December 01, 2021]. Available from: https://www.wepapers.com/samples/judicial-decision-essay-example/
"Judicial Decision Essay Example." WePapers, Oct 31, 2020. Accessed December 01, 2021. https://www.wepapers.com/samples/judicial-decision-essay-example/
WePapers. 2020. "Judicial Decision Essay Example." Free Essay Examples - WePapers.com. Retrieved December 01, 2021. (https://www.wepapers.com/samples/judicial-decision-essay-example/).
"Judicial Decision Essay Example," Free Essay Examples - WePapers.com, 31-Oct-2020. [Online]. Available: https://www.wepapers.com/samples/judicial-decision-essay-example/. [Accessed: 01-Dec-2021].
Judicial Decision Essay Example. Free Essay Examples - WePapers.com. https://www.wepapers.com/samples/judicial-decision-essay-example/. Published Oct 31, 2020. Accessed December 01, 2021.

Share with friends using:

Please remember that this paper is open-access and other students can use it too.

If you need an original paper created exclusively for you, hire one of our brilliant writers!

Related Premium Essays
Contact us
Chat now