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INTRODUCTION
There are currently three cases; in British Columbia, Ontario and Quebec, before Canadian courts challenging the heterosexual definition of marriage. All three cases have been heard at the first level of court and appeals are pending. This paper will provide comment on the decision of the Ontario Superior Court of Justice (Divisional Court) in Halpern v. Canada.1
Although approximately two-thirds of Canadians support the right of same-sex couples to choose to marry, the same-sex marriage debate has been contentious both within the gay, lesbian, bisexual, and transgendered (glbt) communities and in broader Canadian society.2 As Justice Blair noted in his reasons for judgment in Halpern, the "question [of same-sex
marriage] is deeply controversial" and "touches the core values and beliefs of Canadians across a broad cultural, political, moral and religious spectrum".3 Thus, the debate with respect to same-sex marriage is wide ranging and engages both core beliefs and constitutionally protected notions of equality. At one end of the spectrum, there are those who believe that freedom to choose to marry the partner of one's choice is an important milestone in equality jurisprudence. At the same time, there are some who take this freedom to choose as being so clear that they are surprised to learn that the bar to same-sex marriage exists. However, complicating the debate, there are others who hold the view that marriage is an antiquated and patriarchal institution to which there is little value in attempting to gain access. At the other end of the spectrum, there are those who find the concept of same-sex marriage morally repugnant and fear that allowing same-sex couples the right to choose to marry the partner of their choice will destroy the institution of marriage entirely. The debate between those who seek recognition of the freedom to marry the partner of one's choice and those who wish to restrict marriage to opposite sex couples has resulted in a number of legal challenges to the bar to samesex marriage.
On July 12, 2002, for the first time in Canada, a threemember panel of the Ontario Divisional Court found in Halpern that the common-law rule barring same-sex marriage violates section 15(1) of the Canadian Charter of Rights and Freedoms4 (Charter) and is not saved by section...