1974 Same-Sex Marriage Refused Recognition: How a Technicality Teetered a Tribunal Towards Tumbling Through Time on Same-Sex Marriage

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Richard North and Chris Vogel had their marriage ceremony in a Unitarian church back in 1974, but as of 2018, they are still struggling to have their wedding recognized in law. Following their wedding, the couple applied for a provincial marriage certificate but were denied because the laws in place at the time restricted same-sex marriages. The couple subsequently went to court to have their marriage legally recognized, but the court found that the laws at the time were not “intended to recognize the capacity of two persons of the same sex to marry” and proceeded to declare their marriage legally null and void.

Given that marriage laws have been modernized between now and 1974 so as to allow same-sex marriage, the couple again sought to have their marriage recognized in 2015 by bringing their case before the Human Rights Board of Adjudication, which is a part of the Manitoba Human Rights Commission. Unfortunately, the tribunal’s recently published decision was restricted by the previous court ruling on their marriage that had determined the original ceremony had been a nullity. The tribunal noted that “the complaint has more to do with administrative law and the obstructive lingering of court rulings which impede the exercise of statutory discretion” and that “it is simply not open to a statutory delegate to exercise its discretion in a manner contrary to law.” It continued to say that “a human rights adjudication is not the forum in which to overcome binding judicial pronouncements. It is well beyond my jurisdiction as a mere adjudicator to overturn, revise, or ignore a court ruling, even an historical decision from 1974.” Ultimately, the tribunal was forced to conclude that it was obligated to respect the previous court decision and it could not overrule it’s finding that the 1974 marriage ceremony was a nullity.

This is a situation fraught with bitter irony. Since the previous ruling prevents their marriage from being analyzed under modern Canadian law, the couple is left worse off than if they had never chosen to wage a court battle over their initial denial of a marriage certificate in the first place. The tribunal even acknowledged this, stating “it is neither fair nor just that the law refuses to recognize the 1974 marriage of a homosexual couple whose long-standing activism and advocacy have made it possible for same-sex couples of today to take for granted their right to marry.” The tribunal then made note of the fact that it would essentially be up to the federal Parliament to pass an act overruling the initial court decision that had declared their marriage a nullity. This is due to the fact that although provinces have the constitutional power to solemnize marriages, it is up to the federal government to decide what constitutes a marriage in law; the province cannot unilaterally recognize the couple’s marriage.

Both the couple and the Manitoba Human Rights Commission are now seeking a judicial review of the 1974 decision from the Manitoba Court of Queen’s Bench. Although the couple could simply opt to have a new marriage, they still believe having the earlier marriage recognized is important for personal, symbolic, and legal reasons. Chris Vogel says he feels “that once was enough. We paid the various fees and charges associated with the marriage proper … and we did it, and our families and friends came, and co-workers and stuff, we really felt that that was enough.” But unfortunately, for now, administrative law has superseded human rights.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.

About the Author

Ryan Poirier
Ryan Poirier holds a Bachelor of Arts from the University of Manitoba with a double major in both Political Studies and Economics. He is currently attending his first year of Law at Robson Hall.