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amid the homo hoopla over new-found access to state-sanctioned marriage, a vital detail has gone unnoticed: someone long considered a villain by the queer community has through the confusion of time managed to redeem himself. It wasn’t surprising to see James MacPherson among the names of the three judges on the Ontario Court of Appeal decision on gay marriage considering that he’s the former dean of the socially conscious Osgoode Hall Law School. As a trial judge, MacPherson ruled in favour of boycott organizers Friends of the Lubicon and against their target, Daishowa, which wanted to log on land claimed by the natives. And we might assume that Madame Justice Eileen Gillese – one of the first women to go to Oxford on a Rhodes scholarship – would have some sense of what it is to have to fight for fair entitlement.
However, seeing the name of one Roy McMurtry as part of the judicial triumvirate was more shocking than two grooms in black leather busting out of a pink wedding cake.
In the early 80s, the largest police operation in Canadian history save for the deployment of the War Measures Act in Quebec resulted in the arrest of more than 300 men at Toronto bathhouses. McMurtry was solicitor general in a Conservative Ontario government whose party had been in power for more than 40 years. Its grip on power was tenuous, though, and conspiracy theorists believed he gave an advance thumbs-up to the raids knowing that beating up on gays would help the party at the polls. The Tories were re-elected the next month.
But it wasn’t only the bath raids that put him atop the queer enemies list. As attorney general (he held two posts at once), he dragged the Body Politic through the courts when the gay paper won at trial on charges of obscenity arising out of the pedophilia apologia Men Loving Boys Loving Men, he allowed an appeal. And there were more charges against the paper for an article on a particular form of sexual intercourse called fisting.
Ironically, while all this was going on, McMurtry was busy working with then federal justice minister Jean Chretien to try to persuade the other provinces to accept Pierre Trudeau’s Charter Of Rights And Freedoms (which does not include sexual orientation – queer rights come via the court’s interpretation of the Charter). That was in 1981, the same year that as Ontario attorney general McMurtry refused to add sexual orientation to the forms of discrimination banned by the Ontario Human Rights Code. “It will never happen while I’m in office,” he defiantly told gay protestors.
But perhaps it would be uncharitable to visit the deeds of the Tory cabinet minister of that time on the chief justice of today. After all, he and his colleagues went further than any other court to fulfill the dreams of frustrated marriage-bound gay couples. Not only did they declare Canadian law unconstitutional, but they also ordered the clerk of the city of Toronto to start issuing licences immediately. Sure enough, there were queer weddings by nightfall.
Of course, the less forgiving will point out that recognition of same-sex marriage was inevitable and that the court could come to no other conclusion. But as chief justice, McMurtry decides who’ll hear cases. Consequently, he could have avoided getting himself mixed up in this latest queer drama. Furthermore, he knew which judicial combo would most likely turn in a unanimous ruling, not a split decision, to force immediate recognition without allowing the feds a grace period to rewrite the laws.
Exiting prime minister Jean Chretien, with whom McMurtry shared many a drink during the constitutional wars and who appointed him Ontario’s top judge, wants a legacy that will stand the test of time. The lame duck PM has announced that the government will not appeal. Could it be that this chief justice in the twilight of his own career, who otherwise would be one of the most reviled footnotes in Canadian gay history, is also thinking of his place in posterity?
Some think it inappropriate to suggest that judges consider anything other than the law in handing down decisions. As Beverley McLachlin, chief justice of the Supreme Court of Canada, insisted last week, judges are not activists but mere disinterested professionals engaged in “high-level intellectual work.” They don’t pluck meanings from the air, she claims, but “shape and nurture the plants so they grow as intended.”
But there’s another theory about how judges function, one that doesn’t see them as unfeeling technocrats searching for clarity and order. It’s called “legal realism” and it got its start among progressive scholars in the U.S. who directed attention not only to the law on the books but also to the biographies, backgrounds and personalities of those sitting on the bench. Like the rest of us, judges want to do the right thing without killing their chances of career advancement. They watch TV, read the papers and share our willingness (as measured by public opinion polls) to accept gays and lesbians as equal citizens.
As renowned U.S. Supreme Court justice Oliver Wendell Holmes said, “The life of the law has not been logic – it has been experience.” McMurtry has had his share with queers, and queers with him. But people change and so does the world, in direct proportion thereto.
