Court File No. 684/00
Court File No. 39/2001
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HALPERN et al
CANADA (A.G.) et al
AND B E T W E E N:
CANADA (A.G.) et al
AFFIDAVIT OF REVEREND DOCTOR BRENT HAWKES
I, BRENT HAWKES, of the City of Toronto, in the Municipality of Metropolitan
Toronto, MAKE OATH AND SAY:
1. Since deposing my initial affidavit in these proceedings, Trinity College of the
University of Toronto has conferred on me the degree of Doctor of Ministry.
2. I have read the affidavits filed on behalf of the Federal Government and the
interveners who support them. I make this affidavit in reply to them.
3. I will have specific comments about particular affiants below. However, there are
a few general observations that I would make about them based on certain themes
I see emerging from them.
4. It is extremely difficult to determine how many gays and lesbians there are in our
society. The Canadian census is making a small attempt to gather data on this
subject this year for the first time ever. I am prepared to concede that the gay and
lesbian communities are a minority in this society.
5. I am also prepared to concede that our denomination is a small one in Canada.
6. It appears to be suggested that by some affiants that because lesbians and gays are
a small minority in Canada, we should not have access to marriage. It also is
suggested that the majority view should prevail, and that they speak for the
7. Although Catholics may now constitute the majority in our society, it was not
always so. I understand that in the early years of this province, when Catholics
were in the minority, Catholic marriages were not legally recognized. Jewish
marriages were also not recognized. That was wrong, and fortunately that legal
discrimination ended a long time ago. However, our community still endures
8. A recent Environics poll that was taken after the highly publicized weddings at
our Church indicates that the majority of Canadians support the right of same sex
couples to marry. Attached hereto and marked as Exhibit “A” to this my affidavit
is a copy of the extract from the Environics website.
9. I do not believe that this matter of fundamental human rights should be decided
on the basis of majority rule. However, as a factual matter, it appears to me that it
is our opponents, and not us, who are out of step with the majority of Canadians
on this issue.
10. I am also prepared to concede that our religious beliefs are not traditional.
However, Christianity itself was once a minority religion. Many early Christians
paid with their lives for espousing a belief that was contrary to the majority view
in their society.
11. A fair consideration of Christian tradition makes it clear that, even for
conservative mainstream Churches, revelation has continued. Anti-Semitism has a
lengthy history in the Christian tradition, but is now rightly condemned. Many
traditional Christians once supported slavery, citing unequivocal biblical
passages. The traditional religious basis of those practices did not make either of
them morally correct. Discrimination is traditional.
12. A number of the affiants accuse us of failing to respect their religious beliefs. This
case is cited as an affront to their religious beliefs. Dr. Cere, for example, waxes
eloquent on the injustice of being accused of homophobia. This is a vivid
illustration of the double standard that I have so often seen at play among our
13. I reiterate that we do not seek to impose our beliefs on anyone. All faiths have the
right to refuse to marry anyone that they reject on theological grounds. For
example, presumably Rabbi Novak would refuse to marry Michael Leshner to
Michael Stark even if one of them was a woman because although Michael
Leshner is Jewish, Michael Stark is a Gentile.
14. Not one of the affiants offers an explanation as to how continuing to impose their
beliefs on us by enshrining their theology in law respects our religious beliefs.
Implicit in their comments is the assertion that because their beliefs are more
traditional or more common, they are superior and entitled to legal sanction.
According to this view, any deviation from this sanction infringes their religious
Living in Faith in a Secular Society
15. Christ Himself recognized the fact that people of faith may have to adapt to the
reality of living in secular society. In Matthew chapter 22, verses 17-21, when
asked if it was lawful to pay taxes to the pagan Roman ruler, Jesus said “Show me
the money for that tax”. They brought him a coin, and Jesus said to them “Whose
likeness and inscription is this?” They said, “Caesar’s”. And He said to them,
“Render therefore to Caesar the things that are Caesar’s, and to God the things
that are God’s”.
16. We live in a diverse secular society where no one’s religious beliefs should be
imposed on others, and where all should be free to hold and practice their private
beliefs. The notion that same sex marriage is a singular example of departing from
traditional religious beliefs in our law is disingenuous.
17. In a pluralistic society, people of faith must make accommodations every day.
Traditional Catholics must live with the availability of abortion and divorce for
those who do not share their beliefs. Fundamentalist Muslims must live with the
fact that Shari’ah is not the law of the land, so that polygamy is not possible and
homosexuals are not outlawed. Orthodox Jews must live with the fact that non-
kosher food is sold and consumed every day all around them. Even
fundamentalist Protestants have had to accommodate themselves to people
working on Sundays.
The Importance of Marriage to People of Faith
18. A number of the affiants stress the deep importance of the institution of marriage
to people of faith. I agree that marriage is important to people of faith, which is
why members of our Church wish to marry in accordance with our beliefs.
19. At paragraph 46 of her affidavit, Professor Young quotes from Mark chapter 10,
verses 5-6, as evidence that Christ said that a male and a female were necessary
for a valid marriage. The passage quoted is actually in response to Mark chapter
10 verse 2, which reads, “and Pharisees came up and in order to test him asked,
‘Is it lawful for a man to divorce his wife?’” As Dr. Gay mentions at paragraph 5
of his affidavit, it is clear that this passage is a comment on divorce, not same sex
20. Many Christian faiths do not recognize divorce, in reliance on this passage.
Professor Young fails to acknowledge that there is a normative dichotomy already
arising from this passage today: divorce is lawful in Canada, whatever Christ may
have said on the subject. This example points to the disparity between the
“universal religious norms” that Professor Young purports to identify, and the
current law of our land.
21. Professor Young also appears to equate Catholic teaching with Christian teaching
in some of the sources cited by her. At least since Martin Luther nailed the 95
Theses to the door of a Catholic Church in Wittenberg, in 1517, the Catholic
Church cannot purport to speak for all Christians.
22. With respect to paragraph 58 of her affidavit, Professor Young fails to
acknowledge that the laws of Leviticus are not binding on the conscience of
Christians. It is clear from verse 3 of Leviticus that this was an injunction to the
ancient Israelites to avoid the practices of their non-Jewish neighbours in Egypt,
and in the land of Canaan, who were idol worshippers.
23. Leviticus also permits slavery (Lev. 25:44), and contains such injunctions as the
requirement to eat only kosher food (Lev. 11: 1-47), and the requirement that a
man not trim his hair at the temples (Lev. 19:27) or make contact with a woman
during her menstrual period (Lev. 15: 19-20), injunctions not required of
24. Professor Young does not acknowledge in her analysis the fact that common-law
and homosexual relationships are recognized under our law even though these are
not recognized in traditional Christian teachings.
Cere and Caparros
25. As Dr. Cere is a Roman Catholic theologian, and Dr. Caparros is an expert on
Catholic Canon Law, their observations are only pertinent to Roman Catholics.
As Dr. Hunt notes, and as I know from the disaffected Catholics who have come
to our Church, not all Catholics agree with the official Vatican teaching on the
subject of same sex marriage. The best evidence of that is that the two couples
who we married are former Roman Catholics.
26. Further, it is my understanding that many aspects of Canadian law are at odds
with traditional Catholic teaching in this area. For example, the most recent
document from the Pontifical Institute on the Family makes clear that the Catholic
Church is hostile to any legal recognition of both common-law and same-sex
unions. Attached hereto and marked as Exhibit “B” to this my affidavit is a copy
of the document entitled Marriage, the Family and “De Facto Unions”. While
they have a right to their religious beliefs, it clearly indicates that Canadian law
and indeed Canadian society do not follow traditional Catholic teaching in the
area of relationship recognition. Accordingly, recognition of same-sex marriages
would not represent the significant departure from the moral foundation of our
law that is suggested by Dr. Cere and Dr. Caparros.
27. I agree with Dr. Cere that marriage is important to Christians and that for most
Canadian Christians, a “real” wedding is a religious wedding that is recognized by
the state. I reiterate that I would not expect the Catholic Church to be required to
marry same-sex couples any more than they are currently required by law to
marry two divorced Catholics, despite the lack of any civil prohibition on such
28. Dr. Cere’s emphasis on procreation is somewhat inappropriate, given that the
Christian church, to my knowledge, has never required evidence of fertility as a
requirement to marriage. Elderly women and sterilized persons, who are clearly
incapable of reproduction, are not denied marriage by any Christian Churches to
29. Rabbi Novak filed an affidavit in the United States Supreme Court case Romer v.
Evans (1996), 517 U.S. 620, in support of Colorado’s notorious Amendment 2.
Amendment 2 read as follows:
“No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation.
Neither the State of Colorado, through any of its branches or departments, nor any
of its agencies, political subdivisions, municipalities or school districts, shall
enact, adopt or enforce any statute, regulation, ordinance or policy whereby
homosexual, lesbian or bisexual orientation, conduct, practices or relationships
shall constitute or otherwise be the basis of or entitle any person to have or claim
any minority status, quota preferences, protected status or claim of discrimination.
This Section of the Constitution shall be in all respects self-executing”.
30. I am surprised that a theologian of Rabbi Novak’s stature would support as
pernicious an anti-gay law as Amendment 2. This was a draconian measure that
purported to block any anti-discrimination law from being passed in Colorado; it
went further, and imposed a “special disability” on gays and lesbians,
disqualifying us as a class from the right to seek protection from the law.
Fortunately, the Supreme Court of the United States struck down this
“unprecedented” law in Romer (at para. 25).
31. I agree with the United States Supreme Court that the only reasonable inference is
that Amendment 2 was motivated by animosity towards gays and lesbians, to
make us “unequal to everyone else” (at paras. 28, 30).
32. Although Rabbi Novak suggests that his opposition is exclusively to same sex
marriage, I have reviewed the affidavit he filed in the Romer case. It is clear that
Rabbi Novak is in fact opposed to equality for gays and lesbians generally, on
religious grounds. In contrast with the condemnation of Amendment 2 by Justice
Kennedy, Rabbi Novak was unequivocal in his support of the law, stating in part:
“…The legal repeal of Amendment 2 would, in effect, require the State to
admit that it has been in moral error in its endorsement of the traditional
family in such matters as restricting the rights and benefits of marriage and
parenthood to heterosexuals. That admission, and the precedent it would
create, is contrary to the thrust of our moral and legal history, as well as to
the moral beliefs of the vast majority of the citizenry of Colorado and the
“…I am convinced that Amendment 2 is philosophically and historically
well founded and that it should not be overturned by the court.”
33. Rabbi Novak’s enthusiastic support for Amendment 2 suggests to me that
he would oppose many of the Canadian laws that currently protect gays
and lesbians. Given the fact that leading Jewish organizations like the
Canadian Jewish Congress have supported our struggle for equality, I
would be surprised if he speaks for most Jewish Canadians, as he asserts.
34. As Dr. Gay notes in para. 5 of his affidavit, traditional Christian teaching has
condemned divorce and adultery, although there is no prohibition on, or penal
sanction associated with either under Canadian law to my knowledge.
35. With respect to para. 11, the term “kulturkampf” is particularly inappropriate to be
used in this context, although Justice Scalia used it in his dissent in Romer. It is
my understanding that historically this phrase was first used to describe efforts by
the early German state in the 19th century to curtail the rights of Christians,
especially Catholics. It is clear that during the struggle for gay and lesbian rights
there has been an ongoing effort by conservative Christians and their allies to
limit or take away our rights. We have made no effort to take away anyone’s
36. Although we deeply disagree with fundamentalist religious teachings, we do not
object to their right to hold them and to express them. If the Court grants us relief,
our opponents should be entitled to continue to impose restrictions within their
own churches, synagogues and mosques. They should not be permitted, as they
effectively are in the current regime, to extend their religious requirements into
our church, with the blessing of the state.
37. Since deposing my initial affidavit in these proceedings, it has come to my
attention that I mistakenly omitted the documents I attempted to file with the
Registrar on behalf of Kevin Bourassa and Joe Varnell and Elaine and Anne
Vautour following their wedding ceremony at MCCT on January 14, 2001. I
attach these documents to this my affidavit, marked as Exhibit “C”.
SWORN before me in the )
City of Toronto, in the )
Province of Ontario, )
This 30th day of )
August, 2001. ) _________________________________
REV. DR. BRENT HAWKES
A Commissioner, etc.