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Judgments 2003-2004

Attorney General of Canada v Pete Pears, Ben Britten & Ors. [2004] 2 C. of Sh. 1

Matter No.…………2/2003
Hearing Date………4, 6/11/2003
Applicants 1: Lindsay Holmgren & Alison Howell
Respondents 1:Tavish McDonell & Aruna Sathanapally
Applicants 2: Kendall Defoe & Pascal Zamprelli
Respondents 2: Gene Kruger & Tara MacDonald
Applicants 3: David Anderson & Andrew Unger
Respondents 3: Liz Hunter & Jennifer Shea
Applicants 4: Sara Coodin & Marie-Claire Eldridge
Respondents 4: Margaret Rose & Collin Smith
Applicants 5: Frank Pignoli & Jackie Wylde
Respondents 5: Jeff Cuvelier & Abigail Dubiniecki

Justice Manderson

Balancing values

Pete Pears and Ben Britten, along with seven other gay and lesbian couples, applied for civil marriage licenses. As is by now well known, the Court of Appeal for Ontario held that the common law definition of marriage as “the lawful and voluntary union of one man and one woman to the exclusion of all others” infringed the couples’ equality rights under the Canadian Charter of Rights and Freedoms,25 mandated a redefinition of that law as would permit marriage between couples of the same sex, and ordered marriage licenses to be issued to the applicants forthwith. In the case before us, the Attorney General of Canada,26 seeing little hope in appealing the matter in any jurisdiction bound by as circumscribed a constitutional conception as the Charter, has brought the case to the Court of Shakespeare. He argues now that same sex marriage is contrary to the laws of Shakespeare and furthermore, that any such change to the common law would be inconsistent with it.

My Lords, in Heinrich’s Case I insisted that the question of law’s identity is crucial to the issue of interpretation.27 In that case, we were confronted by the nature of individual identity, and the identity of our law. The two were seen to be mutually implicated. On the one hand, the identity – the meaning, coherence, and responsibility – of law matters to itself, as a question of functional good faith. Indeed, the doctrine of precedent to which this court adheres stems precisely out of our need as jurists to understand our actions here against some larger narrative and some greater good. On the other hand, it is apparent that this responsibility is itself bound to respect the identity and the responsibility of the individuals to whom we are ultimately answerable. Only thus does law fulfill its purpose and achieve the legitimacy to which it constantly aspires.

This case presents itself slightly differently, and counsel for the applicants insists we owe social institutions, too, respect for their integrity,28 by which is meant their essential character. There are two initial problems with this proposition. First, it is not at once apparent why we ought to treat an institution like marriage with the same respect that we accord persons. Religious bodies, no less than legal ones, have their own crises of identity and relevance to navigate; but it is not for us to solve these problems for them. Neither is the court connected by bonds of mutual recognition to derivative bodies such as corporations, still less to a social ‘institution’ – indeed, concept might be a better term – like marriage.

Secondly, it is a fallacy to assume that the preservation of identity demands aspic or formaldehyde. We are a court, not a charcuterie or a morgue. Identity is not a narrative of being but a narrative of becoming. Change therefore, of whatever kind, is not the enemy but the very catalyst and lodestar of identity, the means by which we come to know ourselves at the moment of our passing. Many things change in fulfillment of our identities, as individuals or as institutions, and the question is what and why. So were it simply a question of applying the previous jurisprudence of this Court to the issue before us, there would be little problem. The individual identity of respondents ought to be respected in preference to that of an institution as nebulous as ‘marriage’, and the interests of that identity are surely served best by permitting them to fully proclaim their relationships. Indeed, in legitimating the change that is sought by the respondents, we would be honouring the narrative of becoming – the transformative potential unleashed by faith in our true and underlying purposes – of both the persons and the institutions in question.

Not so fast, not so simple. This is a court of Shakespeare and it is abundantly clear that the textual progenitor himself manifested a strong commitment to institutions sacred and secular, the institution of marriage not least among them. Moreover, it is clear – both as a matter of fact and as a matter of self-evident Shakespearean law – that what we are pleased to call our identity is not simply a product of free choice or the autonomous exercise of preferences, but is itself an amalgam of interactions between personality, social constraint, and much else besides. So the existence of institutional constraint as a factor in the formation of the self is not in any way contrary to our prior commitment to identity, but rather its corollary. The question in the case before us is no longer just about identity as such, but about the balance to be struck between individual freedom and social expectation, the liberties that love invites against the stability that marriage offers. So our jurisprudence now asks us to confront the difficult problems which the previous case both elided and made possible, as a good jurisprudence should.

Characterization

The first issue is invariably one of characterization. Amongst the whole corpus of Shakespeare, which texts are we to deem most relevant to an understanding of the case before us? This court already has in place an established taxonomy – Histories, Tragedies, Comedies, Sonnets – within which each play, for example, represents a discrete enactment. These are the conceptions within which we must work to establish order and coherence. There may be other distinctions which we will find of some use as our task expands: early, middle, late; folio, quarto; first Act, last Act, and so forth. It is inappropriate to proceed further in the absence of a specific juridical question. Furthermore, I should add that such a structure is not complete, and this court has already identified plays that have an over-arching significance for us. We look to The Winter’s Tale for guidance on the meaning of ethics, and to The Merchant of Venice because it explores legal methodology and interpretation itself. These plays, at least, are not just about substantive issues which the Court of Shakespeare now seeks to treat juridically: they are about the nature of our jurisprudence itself.

It is, however, already a law of Shakespeare that we look for relevant texts within this schema. Last year, the law of State action and individual responsibility found its natural focus in the Histories. One might say that these texts address the constraints that structure the relationship of persons to governments. This year has seen us confront the law of affect, of love and families and the institutions that surround them, whose natural focus lies in the Comedies. One might say that these texts address the possibilities that enrich the relationship of persons to each other and to society. The Tragedies, for their part, concern death and loss, destiny and obligation. One might say that these texts address the obligations that define our relationships to others and ourselves. Already such a structure implies the potential for new connections and alterations in our legal discourse: not just constitution but crime under the star of History; not just family but contract under the star of Comedy; not just succession but tort under the star of Tragedy. Suffice then to say that the law with which we are asked to deal today is the law of Comedy, and belongs specifically to those that are customarily referred to as “the marriage plays.” The “exacting criteria” of relevance adopted by this Court leads us at once to Twelfth Night, As You Like It, and A Midsummer Night’s Dream, and in particular the mature Shakespearean comedy, The Winter’s Tale.

The nature of desire

Each of these plays ends with multiple marriages, whose celebration is marked by the joy of the whole community and the upholding of the natural order. It is of course in one sense undeniably true that not one of these marriages involves characters of the same sex. The statistics are overwhelming, and have been pressed upon us by the applicants. But the argument is misleading. In the colloquial discourse of the Court, this has come to be known as the ‘Armenian argument’. No Armenians get married in Shakespeare, but this would hardly lead us to conclude that there is an implied prohibition against them. (Although, in passing, it should be noted that throughout Shakespeare, including in As You Like It, “the Turk” appears as the very metonym for unchristian or heathen behavior.29) So the question is, on what grounds are we to deduce that a necessary feature of marriage prevents two gay men from participating in it, but not two Armenians. As Justice Bolonaro insists in his concurring judgment, a statistic is not a rule, though it may be a habit or a regularity.30 Our legal system requires us to apply constant principles to ever-changing facts. In this case, the Court is asked to determine and to apply the principles that sustain Shakespeare’s treatment of marriage: we are not asked to determine and apply the social facts and choices which then pertained. The distinction is crucial to the functioning of this or any jurisprudence.

Law itself is a kind of marriage: “a marriage of true minds” and not of merely superficial features. It binds together a community of principle over great tracts of time, and to do so it must be able to accommodate a changing society. When Shakespeare writes “love is not love that alters when it alteration finds” he does not mean us to think that love—or law—are inflexible. On the contrary, he means to say that the affect behind love—or law—which is to say the principles that animate it, remain constant through all the passage of time, and “bears it out even to the edge of doom.”31

Yet counsel for the respondents have at times forested the point too ardently. While the “living tree” doctrine is now firmly rooted in our legal methodology,32 it cannot be applied uncritically. If it is simply used as a kind of shorthand to justify any good result we want, then we will lose the engagement between constitutive tradition and social policy which characterizes law’s discourse. The suggestion that the same sex marriage sought by the respondents is a new branch of that same tree that grew in Shakespeare’s garden must be defended and not simply asserted. The metaphor provides the basis for a justificatory argument and not res ipsa loquitur.

Above all, we are not dealing here with space travel. It is seriously misleading to contend that same sex marriage was simply ‘out of the question’ in Shakespeare’s time, as if we are to treat it as some kind of technological development which the Elizabethans had not yet stumbled upon. Undoubtedly Phoebe, the moment she discovers that Rosalind is a woman, promptly declares “If sight and shape be true, / Why then my love adieu!”33 But why does this response not indicate that such a relationship was, far from being simply unimaginable, in fact normatively repugnant? Or on the other hand, why does not the word adieu imply a sense of a lost possibility? The impossible is not in any way foregone; it does not incite regret.

In truth, Shakespeare makes no judgment at all about Armenians or space travel – but he is very far from silent on the whole subject of homo-erotic desire. It is in fact one of the singular features of the love on trial in these texts. The Sonnets, of course, are frequently interpreted as invoking in their general outline a strong flavour of homosexuality, and several of them display a striking sexual ambiguity. Sonnet XX, for example, specifically presents same sex attraction in a way that is at once both eroticized and impermissible.

A woman’s face, with Nature’s own hand painted,
Hast thou, the Master Mistress of my passion;
A woman’s gentle heart…
…But since she prick’d thee out for women’s pleasure,
Mine be thy love, and thy love’s use their treasure.34

In the plays under consideration, too, there are quite remarkable expressions of same sex love and desire. The question of sexual licence seems at times powerfully fluid even to modern eyes. The marriage comedies in particular are riddled with themes of cross-dressing and sexual disguise. In As You Like It, wherein Rosalind spends half the play as the boy Ganymede, and in Twelfth Night, in which Viola disguises herself as Cesario, the masks and masques of gender create the instability, the mystery, and the sexual tension that provide the plays with their momentum.

If we account the performance of these texts relevant to their interpretation, then the matter becomes still more giddying. For no women acted in Shakespeare’s plays at all. One might conclude that gender was nothing but a performance. Throughout these comedies, some of the men dress up as women and some of the men who dress up as women dress up as men. Then some of the men dressed up as women dressed up as men fall in love with some of the men ‘prick’d out’ with cod-pieces, and some of the men fall in love with some of the men dressed up as women dressed up as men when they stop dressing up as women; and finally some of these men marry some of these other men. My Lords, every single marriage in these plays is a same sex marriage.

The argument goes both ways, for it is not only the case that Shakespeare treats the question of sexual difference very directly (which might help the argument of the applicants); it is also the case that Shakespeare treats the question of sexual difference with great flexibility (which might help the argument of the respondents). Furthermore, I use the performative argument with caution because, absent an ideology of original intent, this court’s commitment remains to the texts and not any particular realization of them, original or otherwise. Nonetheless, it is appropriate to refer to these traditions inasmuch as they sustain and further illuminate a reading of the text to which we are disposed on other grounds.35 In this case, it is entirely clear that Shakespeare conceives of love and attraction as ritual play, as performance, and as unanchored to sexual difference. Can there be an adoration more sincere than that of Antonio and Sebastian for each other,36 or a commitment more passionate than that which Celia shows to Rosalind, her family forsaking for her sake:

…If she be a traitor
Why so am I: we still have slept together,
Rose at an instant, learn’d, play’d, eat together;
And wheresoe’er we went, like Juno’s swans,
Still we went coupled and inseparable.37

Our jurisprudence clearly finds nothing unnatural or anomalous in the love of men for men or of women for women. This is the essential starting point of our legal analysis. At the same time, it is perhaps most accurate to say that Shakespeare understands desire as a powerful force, ludic and tormented. One is struck by the somewhat chance manner in which love appears to simply befall people throughout these texts.38 Neither will nor justice have much to do with it. The matter receives its reductio ad absurdum in A Midsummer Night’s Dream, where magic potions weave a spell that neither weavers39 nor fairies can resist. And if a queen were to fall in love with an ass – that is only the predicament of love, its irresistible and unreasonable warp and weft, writ large.

The meaning of marriage

Desire transcends the law: it is lawless. This destabilizing and unruly power ultimately imperils the good order of the community. And it is here that Shakespeare’s insistence on the institution of marriage comes to the fore. For our law must sharply distinguish between love and marriage. They are clearly different things. Indeed it is precisely the unpredictable power of desire that allows the two to be resolved within the structure of the plays, allowing desire to be shifted from person to person as the dramatic form demands, moving from unsuitable to suitable objects as required, or suddenly appearing where none before had been intimated. And in this moment of resolution, the triumph of the institution is indeed relentlessly hetero-normative. These are Comedies, and so in each case lawless desire and legal institution are ultimately aligned, the former finding satisfaction in the latter form. If this requires the author to proclaim a new and more socially acceptable configuration of desires, the playwright’s pen will make it so. When Phoebe discovers Rosalind’s sex, she immediately finds another: faith and fancy, as she says, neatly recombine.40

The question for this court, so acutely posed by the comedies before us, is what are we to do when desire cannot be so conveniently redrawn to suit our interests. It is true that the law of Shakespeare suggests that desire is itself constituted by institutional requirements – not to mention, of course, literary ones. Nevertheless, I think the power of desire to act capriciously and obstinately is by far the stronger message. This court has previously emphasized its humility. Were we to order Pete Pears and Ben Britten to go away and fall in love with more socially orthodox candidates, I do not think that they could do so. As judges, we find ourselves as arbiters of these lives but we are not its authors. The jurisprudence of this court draws on Shakespeare. It does not claim to be him.

We imagine our life as a comedy and frequently live it as a tragedy; but law treats it as a melodrama. In comedy, conflict dissipates; in tragedy, it endures; in melodrama, the legal form, we resolve and we do so by choosing sides: winners and losers, heroes and villains. This is the distinctive legal structure, and I do not think that as a court – whether a court of appeal or a court of Shakespeare, or a court of love41 – we can avoid it. My Lords, we are obligated to judge. And in that sense, unlike, perhaps, in the comedies, where all’s well that end’s well, something has to give. The issue is: what and why?

The difficulty that we have in answering that question does not simply arise from the hetero-normative nature of the comedies’ resolution. That, as I have indicated, is a function of our legislator or author’s power to accommodate desire in institutions without compromise, a power that this court does not have open to it. In this jurisdiction, we cannot simply pair people off as we might wish. Rather it arises because Shakespeare sets great store by marriage. This is not a value that can just be set aside in this jurisdiction. There is of course a voluminous secondary literature on this subject as on everything, though of course this court treats such scholarship as emanating from a particularly dubious provenance.42 Like all courts, we prefer to read as little as we can, so that our minds may be unclouded and our judgments appropriately dogmatic. In this at least, I believe we have succeeded beyond our expectations.

Marriage marks not the end of these plays, but their necessary culmination. No reading of the laws of this jurisdiction can fail to take into account the authority afforded to Hymen, God of Marriage, at the end of As You Like It.

Peace, ho! I bar confusion;
’Tis I must make conclusion
Of these most strange events…
Wedding is great Juno’s crown;
O blessed bond of board and bed!
’Tis Hymen peoples every town;
High wedlock then be honoured.43

Clearly then these texts honour marriage as the means by which the confusion that natural and lawless desire wreaks is to be harnessed in the service of the community. In what way does this stabilization transpire?

The production of children is no doubt central to Shakespeare’s understanding of the virtue of marriage. This is the point most strongly stressed by the applicants, who insist that since same sex couples can never naturally create children, they are prevented from partaking of the rites of marriage. Hymen’s hymn insists on the “blessed bond of board and bed” to people every town. So too in Twelfth Night, Viola castigates Olivia as to the importance of leaving the world a copy.44 We find a similar sentiment in several of the early Sonnets: “But if thou live rememb’red not to be, / Die single, and thine image dies with thee.”45 It is true, however, that the Sonnets nevertheless sustain a dialectic of immortality, elsewhere maintaining the reproductive holiness of the word. “So long as men can breathe or eyes can see, / So long lives this [poem], and this gives life to thee.”46 Our jurisprudence values not just copulation but the carbon copy too. Moreover, these arguments ultimately do not suffice. Rooted in expedience, they provide a reason to value marriage as an institution for the production, protection, and upbringing of children; they do not provide us a reason to think that only child-bearing unions can partake of it. Indeed, as expediency changes over time and in the face of changing reproductive technologies, such an argument would eventually allow us to think of marriage as an entirely flexible structure.

We must choose, therefore, between two interpretations of the central role of marriage in the canon. On one, it represents the satisfaction and regulation of desire, and the fulfillment of individual identity which this court has already affirmed that our jurisprudence holds dear. There is plenty in the comedies to affirm such a reading. On the other, it represents the subjugation of desire to community interests and to the upholding of the virtues of acceptance of the established order. Certainly we can point to the many marriages in Shakespeare that appear in some sense forced (I use the term in its aesthetic as well as its literal sense). But just as this court must avoid arguments from expediency, it must avoid arguments from statistics.

It seems to me that the theory of marriage, if I can put it that way, is given its most rigorous articulation in The Winter’s Tale. And there it indicates something deep and difficult. The sense of the power of blood lines and, on the other hand, the threat of bastardry, looms heavily over this seminal text. The lineage of blood, sanctified in marriage, comports a sense of honour and of responsibility that binds the community. The immanent collapse of the kingdom is there directly tied to Leontes’ failure to produce a legitimate heir; to the reckless abandonment of his daughter; and to the injustice visited upon his wife, wrongly accused of infidelity.47 In the play’s final scene, it is his rekindled faith that ultimately restores peace, order and good government. “It is required / you do awake your faith” solemnly instructs Paulina, a figure of fierce integrity throughout.48 Marriage then, is not just about happiness or desire – though there is plenty of that to go around – but about our faith in something greater than ourselves; about our faith in the future. Like law, marriage is about meaning over time and not just in time. Our question is whether the natural blood lines wrought by children are necessary to the fulfillment of that meaning, from one generation to the next.

My Lords, it is clear that children – natural born children – are central to this text. They are the subject of Leontes’ willful desecration of his house – “No I’ll not rear / Another’s issue” he concludes, casting out his daughter and condemning his wife49 - and of the oracle’s curse under which his kingdom labours – “The King shall be without an heir, if that which is lost be not found”50 – and which threatens its collapse – “What dangers, by his Highness’ fail of issue, / May drop upon his kingdom and devour / Incertain lookers on.”51 It is equally clear that legitimate, blood relationships are taken to impart to society an order that cannot be counterfeited. This is particularly clear in the case of Perdita who, raised by a shepherd far from the court of Sicilia, cannot but betray her true and high-born origins:

This is the prettiest low-born lass that ever
Ran on the green-sward; nothing she does or seems
But smacks of something greater than herself,
Too noble for this place.52

And it is the truth in her blood that finally sanctions her marriage to a prince and ends her perdition.

The nature of anxiety

In order to put these elements in context, however, we need to begin with the climactic scenes of King Leontes’ madness. Though governed by his emotions as a person, nevertheless as a king he is a law-giver ruled by evidence. Irrationally suspicious of his wife Hermione, he even sets up a trial in a forlorn attempt to “be clear’d of being tyrannous, since we so openly proceed in justice, which shall have due course.”53 But the precise point of the first Acts is to demonstrate that Leontes, in seeking proof of his wife’s fidelity, cannot but be disappointed. It is not merely that Leontes is blind to that of which everyone else is entirely certain.54 It is not merely that even the clearest words of the oracle do not convince him.55 In Leontes’ state of anxiety and distrust, such proof is, literally and ultimately, unavailable. “You’re liars all” he concludes; “There is no truth at all i’ th’ oracle… This is mere falsehood.”56 Even Leontes’ own newborn child, taken by Paulina incontrovertibly to bear the markings of both her parents,57 is misread by Leontes to bear the hallmarks of a bastard. It is the failure of law to satisfy this obdurate heart, and its inevitable corruption, that we are forced to confront here. In the face of such a failing, all law becomes tyrannical. One cannot place love on trial.

Hermione insists upon the impossibility of ever properly satisfying this skepticism, of ever sating this unquenchable demand, when she is forced by the law to defend herself. Leontes wants objective proof of something subjective – something like love or trust. And she tells him plain that he will never get enough of it.

Since what I am to say must be but that
Which contradicts my accusation, and
The testimony on my part no other
But what comes from myself, it shall scarce boot me
To say ‘Not guilty’. Mine integrity
Being counted falsehood shall, as I express it,
Be so receiv’d.58

Do not look to the law to heal your own conscience, she says. And it is this lesson as to what it is that marriage does that transcends law and cannot be secured by it, that we must, as a court, hold fast to here. It heals what law cannot.

We are dealing then with the beyond of law. On the one hand, desire is essentially lawless in Shakespeare, and stabilized by the bonds of marriage. On the other hand, so too is anxiety and jealousy and distrust. We see in the kingdom of Sicilia that they are equally destabilizing. The core of Leontes’ anxiety, furthermore, lies in just that question of paternity. He is afraid of cuckoldry, and bastard issue, and will not be comforted. Will not because, again, cannot. The certainty for which he seeks is not available. The truth of Perdita’s paternity are to be found written on the body: but not everyone can see it. Leontes sees it too: but only when his heart is ready.59 The Winter’s Tale drives home for us the point that the anxieties that surround paternity, like those that surround love,60 are not automatically resolved by marriage. Marriage, as Leontes shows us directly and explicitly, does not produce natural children: it naturalizes all the children thus produced. Far from being an essentially natural institution, it is a quintessentially cultural one. This necessary ambiguity inheres in all the children ‘of’ a marriage, legitimate or illegitimate, adopted, inherited, or even artificially inseminated. Marriage removes all question of this insecurity from the legal realm—it bars confusion not by rendering it impossible but rather by forbading us from inquiring into it—but it cannot do so from the psychic and the physical realm. It generates heirs and cuckolds willy-nilly.

The structure of the marriage plays strongly supports this understanding, for throughout the texts that which is beyond the reach of law—love and desire (both heterosexual and homoerotic), anxiety and all the emotions—are depicted as belonging to a natural order, or indeed disorder, that our government cannot rescind but must somehow discipline. As the respondents so eloquently argued, in each we see a contrast between the forest and the town: between the lawless, natural realm, and that of cultural control.61 In A Midsummer Night’s Dream, this is the fairy wood; in As You Like It, the forest of Arden(t); in Twelfth Night, a “forest-like confusion of disguises and identities”62 provides the psychic place for this comedic and chaotic freedom. Our characters flee to the forest in order to explore their natures, and the very term ‘natural law’ amounts to a contradiction in terms. They are then finally reconciled to the town. The marriages in these plays provide an emphatic celebration of the triumph of cultural order over and against the buffeting winds of our emotions and our fears.

Good faith before the law

On the one hand, marriage is a cultural not a natural kind in the law of Shakespeare. On the other, the positive law of marriage cannot by itself stabilize the anxieties and desires that eddy through and round it. What can? The answer, particularly in The Winter’s Tale, is this: faith. Faith is the rock that saves us when evidence cannot, when law becomes farce, and when reason runs out. Yet – and here the applicants in this case have completely misunderstood the purport of the play – faith is not given a remotely religious or even sacred character, still less an inflexible institutional form. It is faith or trust in the particular other, an interpersonal commitment that gives without demand, and that trusts without proof and without the law, that marks the solution to the problems of Sicilia. It is the shepherd’s innocent faith in the innocent child that rescues her. The love of Florizel and Perdita are likewise marked by honour and faith.63 Indeed, Florizel claims to be virtuous

… since my desires
Run not before mine honour, nor my lusts
Burn hotter than my faith.64

So too Leontes swears to support Florizel when his father, king of Bohemia, forbades him to marry such a low-born lass, only because “your honour [is] not overthrown by your desires.”65

Admittedly, king Polixenes prohibits their marriage because Perdita is thought to be a shepherd’s child, and only the discovery of her true blood-lines saves the day. But the jurisprudence of this court requires us to judge the words of Shakespeare, all things considered, and not just to treat every character as equal law-givers in our sight. It is the message of the play and not the words of every character that we are here to enforce. As to any legal system, we owe it responsibility and not blind obedience. I cannot but think that the irony of Polixenes’ position, no less than the injustice of his inflexibility, ought govern our reading. Faith and honour mark out Florizel as such a worthy character, and render Polixenes’ judgment less than admirable. This faith refers not to the lad’s commitment to the established order, or to his father’s rules by which he refuses to abide: but to Perdita herself.

[Your dignity] cannot fail but by
The violation of my faith; and then
Let nature crush the sides o’ th’ earth together
And mar the seed within! Lift up thy looks.
From my succession wipe me, father; I
Am heir to my affection.66

Against lawless desire, then, faith is a bulwark and a promise. Against lawless anxiety, too. It is above all with Leontes that our thesis makes its strongest case. His distrust having destroyed his marriage and apparently killed his wife, it is trust that brings her back. For sixteen years he mourns Hermione’s loss and regrets his hot-blooded foolishness; but it is not enough. He still loves Hermione but it is not enough. Love, without something else to temper it, may be entirely foolish as Leontes showed; may be jealous and destructive as we know from the law of Othello. When faced with an apparently lifeless statue in Hermione’s image, only one thing will suffice.

It is requir’d
You do awake your faith. Then all stand still;
Or those that think it is unlawful business
I am about, let them depart.67

Leontes must do what he could not do before. He must believe in someone, beyond the proof, beyond the evidence, beyond contract and rationality. He must surrender his anxieties to them and for them, and trust in something impossible and literally unfounded. Then and only then does Hermione come back to life, step down from the pedestal on which – in one sense or another – she has been placed throughout the play, and find her marriage restored. The oracle had said, of course, that “the king shall be without an heir if that which is lost be not found.”68 But there is something tautologous in this were the heir (Perdita) and the loss the same. In fact, more is meant. Leontes has lost, and must find, his faith.

The business of faith in another, like the business of desire or emotion, is unlawful: it cannot be compelled, or structured, or forced. Paulina says so, as we have seen, and insists upon it, and Leontes confirms it.

If this be magic, let it be an art
Lawful as eating.69

But the unlawfulness of faith is the opposite of these other lawless things. It does not endanger the law; it engenders the law. It is not beyond the reach of law, but before the law—the foundation without which law would not be possible.70 It is lawful as – just like – eating. This faith is not abstract; it is concrete and personal and inter-personal. Without it, we could have no trust and no capacity to communicate with each other. How then could we ever hope to build the basest blocks of civilized society, let alone the glories of law or of literature? It is not the fear of the wrath of some Hobbesian Leviathan that begins us on the path to law.71 It is rather that first, unproveable, unjustifiable, step which has no reason to back it up but hope and trust, that allows us to talk to each other in peace, and to fall asleep at night. This faith stabilizes both desire and anxiety by directing it to the well-being of another, not to me. And then law can begin to do its work.

I cannot help but see here prefigured the ethical work of Emmanuel Levinas, who writes,

Am I my brother’s keeper? These questions have meaning only if one has already supposed that the ego is concerned only with itself, is only a concern for itself. In this hypothesis it indeed remains incomprehensible that the absolute outside of me, the other, would concern me. But in the ‘prehistory’ of the ego posited for itself speaks a responsibility… It is through the condition of being hostage [to another] that there can be in the world pity, compassion, pardon and proximity – even the little there is, even the simple “after you , sir”. The unconditionality of being hostage is not the limit case of solidarity, but the condition for all solidarity.72

And again

It is then not without importance to know if the egalitarian and just State in which man is fulfilled (and which is to be set up, and especially to be maintained) proceeds from a war of all against all, or from the irreducible responsibility of the one for all, and if it can do without friendship and faces73

Certainly there is always a risk in a society that is built not on force but on faith. One might still be betrayed, and it is that risk that Leontes must painfully learn to accept. One might sometimes be tricked. This is, indeed, the importance of the rogue Autolycus to the play. He is not just there for comic relief. He trusts no-one and deceives them all for his own amusement and self-interest.

Ha, ha! What a fool Honesty is! And Trust, his sworn brother, a very simple gentleman! I have sold all my trumpery… They throng who should buy first, as if my trinkets had been hallowed and brought a benediction to the buyer; by which means I saw whose purse was best in picture; and what I saw, to my good use I rememb’red.74

Yet it is not just the case that Autolycus works as a catalyst for good despite himself. It is rather that a society built on trust must take the risk of exploitation, and is worth it. A world in which one assumes that those around us are psychopaths is not a world that I would want to live in: and not a world in which law could begin, let alone could make a difference.

Shakespeare, as always, acknowledges the complexity of reality. We live in a world in which honesty is far from universal. But that is the price we must pay if we are to have a community at all – if the possibility of communication without violence is ever to exist. That is not to say that we do not have rules to deal with ‘the bad man of the law’:75 but it is not the assumption from which we start.

It is extremely important to know if society, as currently constituted, is the result of a limitation of the principle that man is a wolf for man, or if on the contrary it results from a limitation of the principle that man is for man.76

Our responsibility for others, which proceeds from friendship and faces, is not an exchange and is never guaranteed. Sometimes we are mistaken and place our trust erroneously. Some men are lone wolves: auto- meaning self-interested, and lykos- from the Greek for a wolf. Such men are predatory, individualistic, and without faith. But, my lords, it cannot be otherwise. We cannot prove, in advance, which amongst us is Hermione and which is Autolycus, for it is our good faith that each rely upon. We must proceed in the absence of proof.

Indeed, the purity of this faith that lies before the law is found most strongly in the characters of Paulina and Camillo. The resoluteness of the former in defence of Hermione establishes her as the ethical rock of the play. The irresoluteness of the latter in his allegiances establishes him as the “ethical canary” of the play.77 The departure of Camillo from the court of Sicilia in Act I sounds the alarm of Leontes’ moral failure to recognize the faith and honour of his wife; his departure from the court of Bohemia in Act IV sounds the alarm of Polixenes’ moral failure to recognize the faith and honour of Florizel for Perdita. While Paulina, then, is a model of good faith, Camillo responds to the faith of others. We learn from the presence of one what we discern from the departure of the other. The betrothal of the two in the last speech of the play,78 does not reflect the gratuitous hetero-normativity of the plays, as the applicants have suggested. This is not a marriage of fancy or desire, and it has nothing whatsoever to do with the production of children; she is, after all, an “old turtle” on a “withered bough”.79 Rather, their pairing emphasizes above all the role of honour, worth, and honesty in marriage.80 The liaison is necessary to the play because it binds together faith to faith and trust to trust, and therefore confirms the arc traced by the play. If it is an arranged marriage, so to speak, it has been arranged to teach us what marriage really means.

Marriage is important, then, because it recognizes the trust for another flawed and imperfect human being without which we could not have the glimmerings of law. Children hold a paramount place in The Winter’s Tale not because they are necessary to marriage, or proof of love or honour, but rather because they are the blessing that faith bestows. Only in this way can we cease to commodify children and marriage alike, a commodification that the jurisprudence of The Winter’s Tale expressly rejects. If I may borrow a pun that is well worked throughout the play, children are not the issue: faith is the issue and children are the issue of faith.

I have argued, then, that marriage in Shakespeare transcends the law precisely as a cultural or social counterpoint to the natural forces of desire and fear. But marriage represents neither the reification of children nor the glorification of personal happiness nor our obedience to the community. All of these things put marriage as a secondary consequence of our commitment in some primary goal. I believe that in The Winter’s Tale it represents something primary: self sacrifice for another; trust in another. It is not the product of personal happiness, nor the product of community interests. It is the relational form that makes these things possible. It is constitutional. It follows then that our commitment to this constitutional good cannot be bound by a particular constellation of genders, and the lack of same sex marriage in Shakespeare represents a fact about the times, and not a law.

Marriage as the union of desire and faith

As to whether this court is therefore at liberty to expand the relationships encompassed by marriage (not the meaning of marriage, which remains unchanged), I think the answer is tolerably clear. In each of the marriage plays, and of course in The Winter’s Tale, we find a legal system which is destabilized by its rigidity. In As You Like It, we find a usurper in power, and the rightful claimants driven out. The governance of the fairy kingdom no less than the world of men is riven by discord in A Midsummer Night’s Dream, and our lovers are forced to flee the city. Now the literal and metaphorical forests of these comedies allow the exploration of desire and of personal identity. The return to the city in these plays therefore marks a restoration, but by no means a return to the status quo. So in Dream, the injustice of Egeus’ claim to the legal right to “dispose of” Hermia81 loses out to the strength of her love for Lysander, and her father’s insistence on the application of the law – “I beg the law, the law upon his head” – is overborne.82 And in As You Like It, the authoritarian rule of the usurper is overthrown. The forest allows us to explore our natures and our desires, and we do not return from it untouched. We learn from it, and we do well to incorporate it in our government.

This sense of the transformative and empowering potential of desire is central to the structure of the comedies. Our jurisprudence does not leave its characters in the forest: they learn from their adventures, and are then welcomed back home. It is not correct, therefore, to argue that nothing ever has to give in this canon, or that the accommodation of desire and institutional legitimacy is seamless. It is not. Of course, as I have indicated, Shakespeare frequently plays with the desires of his characters. But when those desires prove too deeply rooted in their psychological makeup to be adjusted, then it is the institution that must give way. The comedies do not just represent this change as unavoidable, or as a compromise. Being a comedy and not a tragedy, this consummation devoutly to be wished is characterized as a rebirth not a death, a gain and not a loss.83 The recognition of desire is indeed a metaphor for the necessity of the legal system to learn from its citizens and to embrace change if it is to survive. But it is more: it represents a catalyst, precisely because this desire is beyond law’s reach and therefore irrepressible.

The legal structure of our jurisdiction, however, does not simply give desire free rein. It attempts to stabilize it by binding it to the principles of faith and self-sacrifice that we find central to our concepts of marriage. As we have seen, this is the lawlessness that makes law possible. Without this move – the multiple marriages that end all these plays – there would be no end to the circulation of desire and the exchange of bodies. This is not just socially destabilizing, in both its literal and metaphorical senses. It is also psychologically untenable. Shakespeare presents very clearly the chaotic nature of desire and passion: its excitement but also its limits. And even more crucially, the plays represent attraction, if untethered by a true acknowledgement of our responsibility to others, as corrosive in its egotism. Thus Malvolio in Twelfth Night is mercilessly pilloried for confusing love with his own ambition.84 So too, poor Jacques, alone of all the characters in As You Like It, condemns himself to remain in the forest. His own introversion befits him for the hermitage.85

[I]t is a melancholy of mine own, compounded of many simples, extracted from many objects, and, indeed, the sundry contemplation of my travels; in which my often rumination wraps me in a most humorous sadness.86

Rosalind astutely concludes that Jacques has “sold [his] own lands to see other men’s; then to have seen much and to have nothing is to have rich eyes and poor hands.”87 This captures much of the alienation by which Jacques is cursed. It has left him ill-equipped to relate to others. The curse of melancholy, which it is the comedies’ business to abolish, lies in Jacques’ inability to do more than think about others, and more than feel about himself.

Marriage does not represent, then, the triumph of individual identity – love. Nor does it represent the triumph of social obligation – community. In this sense, our judgment here today must go beyond the simplistic dichotomy with which we began. Rather, marriage is best understood as the form which gives these two forces new meaning in relation to each other. If Heinrich’s Case told us something about how identity gives birth to responsibilities, Pears and Britten tells us something about how responsibility gives birth to identity. In our jurisdiction, marriage is therefore a necessity both for the society which experiences it as dynamic and constitutive; and for the individuals whose erotic attachments are thereby given a social role and a selfless symbolism. It forms the keystone that holds together the arch by which the forces of desire beyond the law, and faith before it, press against each other. So too, while marriage is a cultural institution, it is a form which harnesses our natural desire to our natural faith, giving meaning to the former and power to the latter. To deny to these respondents participation in the social institution of marriage would deprive them of this meaning, and us of their power.

It is not simply that in our jurisdiction, there is nothing unnatural in these unions, although that much is clearly true. It is not only that the change being urged here is in keeping with the meaning of marriage, and love, and desire, in the works of Shakespeare, although that much is also true. More than this, the institutional pressure to which we respond today is itself natural and cultural at the same time. The dichotomy itself, which is the foundation of the applicants’ case, is what ultimately collapses. Polixenes says as much in a passage in The Winter’s Tale that strikingly rebuts the idea of a natural form that cannot change, or natural issue as claiming some kind of privilege.

Yet nature is made better by no mean
But nature makes that mean: so, over that art
Which you say adds to nature, is an art
That nature makes. You see, sweet maid, we marry
A gentler scion to the wildest stock,
And make conceive a bark of baser kind
By bud of nobler race: this is an art
Which does mend nature, change it rather, but
The art itself is nature.
… Then make your garden rich in gillyvors,
And do not call them bastards.88

What, asks Polixenes, is more natural than change? In our jurisdiction, of course, not just any change will suffice: it must be a change which is in keeping with the meaning of these texts, and with its reasons, and principles, and arguments. I am satisfied that that is the case here. In the law of Shakespeare, marriage is not and never was forbidden to same sex couples. Furthermore, such an expanded definition is in keeping with its essential character.

Let me not to the marriage of true minds
Admit impediments. Love is not love
Which alters when it alteration finds,
or bends with the remover to remove.89

My Lords, I find in favour of the respondents, and by a majority decision this Court rules accordingly. May Juno’s swans to be wreathed in Juno’s crown.

25. Halpern v. Attorney General of Canada, 2003 Ont. C.A. LEXIS 271.
26. A fictional character invented for the purposes of this case and these judgments. Any relationship or resemblance between the ‘Attorney General of Canada’ and any Attorney General of Canada living or dead is purely coincidental.
27. In re Attorney General for Canada; ex parte Heinrich [2003] 1 C. of Sh. 1, at 5-6 per Manderson J; (2004) 54 Journal of Legal Education, 1-19.
28. Denise Réaume, “Is Integrity a Virtue?: Dworkin’s Theory of Legal Obligation,” (1989) 39 University of Toronto Law Journal 38.
29. “Why, Tis a boisterous and a cruel style, A style for challengers; why she defies me, Like Turk to Christian”: Rosalind, As You Like It, Act IV, scene iii, 32-34.
30. HLA Hart, Concept of Law (Oxford, 1961); see Bolonaro J., [2004] 2 C. of Sh. 1, unpublished judgment on file with the Court.
31. Sonnet CXVI, 1-3, 12.
32. McCulloch v. Maryland, 4 Wheaton 316 (1819) (U.S., Marshall, C.J.); Heinrich’s Case, supra, per Manderson and Yachnin JJ.
33. As You Like It, Act V, scene iv, 114-5.
34. Sonnet XX, 1-2, 13-14.
35. The interpretative value to be given to elements of performance might therefore be appropriately analogized with the treatment traditionally afforded to second reading speeches and other performative elements of legislative enactments in the common law tradition.
36. See Twelfth Night, Act II, scene I; Act V, scene I, 210-12.
37. As You like It, Act II, scene iii, 68-72.
38. Valerie Traub, Desire and Anxiety: Circulations of Sexuality in Shakespearean Drama, (London: Routledge, 1992).
39. It is surely not a coincidence that Bottom is a weaver by trade.
40. As You Like It, Act V, scene iv, 144.
41. See Peter Goodrich, Law in the Courts of Love (London, 1996).
42. See Lisa Hopkins, The Shakespearean Marriage: Merry Wives and Heavy Husbands (New York 1998), Richard Weisberg, “Then you shall be his surety: Oaths and Mediating Breaches in The Merchant of Venice”, in Poethics and Other Strategies of Law and Literature (New York, 1992), 94.
43. As You Like It, Act V, scene iv, 119-138.
44. Twelfth Night, Act I, scene v, 230-2.
45. Sonnet III, 13-14.
46. Sonnet XIX, 13-14; see also Sonnet XX.
47. The Winter’s Tale.
48. Id., Act V, scene iii, 94-95.
49. Id., Act II, scene iii, 191-2.
50. Id., Act III, scene ii, 132-3.
51. Id., Act V, scene i, 27-9.
52. Id., Act IV, scene iv, 156-9.
53. Id., Act III, scene ii, 4-6.
54. Id., Act I, scene ii, 425-30; Act II, scene I, 140-45, etc.
55. Id., Act III, scene, I, 130-33.
56. Id., Act II, scene, iii, 245; Act III, scene ii, 137-8.
57. Id., Act II, scene iii, 95-102.
58. Id., Act III, scene ii, 20-26.
59. Id., Act V, scene I, 227-8.
60. Othello makes the same point in a different context.
61. See Margaret Rose and Collin Smith, factum for the respondent, on file with the Court.
62. Id., para. 19.
63. The Winter’s Tale, Act III, scene iii; Act IV, scene iv, 30-4.
64. Id., Act IV, scene iv, 30-34.
65. Id., Act V, scene I, 230.
66. Id., Act IV, scene iv, 468-72
67. Id., Act V, scene iii, 93-97.
68. Id., Act III, scene ii, 132-3.
69. Id., Act V, scene iii, 111-12.
70. See Franz Kafka, ‘Before the Law’ in The Trial, trans. Wilma & Edwin Muir (New York, 1956), 303; Jacques Derrida, ‘Before the Law’ supra.
71. Thomas Hobbes, Leviathan (Oxford, 1996 [1651]).
72. Emmanuel Levinas, Otherwise than Being or Beyond Essence, trans. Alphonso Lingis (The Hague, Boston: Martin Nijhoff, 1981), 117.
73. Id., 159-60.
74. The Winter’s Tale, Act IV, scene iv, 587-95.
75. Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.
76. Emmanuel Levinas, Ethique et Infini: Dialogues avec Philippe Nemo (Paris : Fayard, 1982) 74-5 (translation is mine).
77. See Margaret Somerville, The Ethical Canary: Science, society and the human spiri (Toronto, 2000).
78. The Winter’s Tale, Act V, scene iii, 135-45.
79. Id., 132-33.
80. Id., 143-4.
81. A Midsummer Night’s Dream, Act 1, scene i, 42.
82. Id., Act IV, scene I, 52.
83. See Hamlet, Act III, scene I, 63-4.
84. Twelfth Night, Act II, scene v, 32.
85. As You Like It, Act V, scene iv.
86. Id., Act IV, scene i, 14-18.
87. Id., 20-22.
88. The Winter’s Tale, Act IV, scene iv, 88-98.
89. Sonnet CXVI, 1-4.

Justice Yachnin

This application is brought by the Attorney General for Canada on appeal from the judgment of the Court of Appeal for Ontario who, upholding a Divisional Court ruling that the common law definition of marriage infringed the equality rights of same-sex couples under the Canadian Charter of Rights and Freedoms, granted the following remedies to the Respondents in these proceedings:

1) a declaration that the existing common law definition of marriage be invalidated to the extent that it refers to “one man and one woman”;
2) a reformulation of the common law definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”;
3) an order that the declaration set forth in (1) and the reformulation set forth (2) have immediate effect;
4) an order that the Clerk of the City of Toronto issue marriage licenses to the Respondents.

Introduction

I have found the process of thinking through the case of the Attorney General for Canada v. Pete Pears, Ben Britten, & Ors (hereafter the “same-sex marriage” case) extremely arduous. Not the case itself, which, as I will argue, seems not particularly difficult to judge rightly: overall, Shakespeare does not countenance the instrumentalization of marriage for the purpose of advancing the cause of social justice, and he does not set much store by what we would call equality rights. While his powerful representations of the inner lives of individual characters certainly provide something like a seed-bed for the modern democratic ideals enshrined within the Canadian Charter of Rights and Freedoms, his drama also represents the nestedness of a rich and fulfilled inner life within social, natural, and divine structures, structures that are not clay in the hands of individuals or collectivities and not even bendable by the power of the state. In this view, the individual is less sacrosanct than are institutions such as kingship or marriage. Shakespeare is therefore a precursor but by no means the poet of modernity: so far as I am able to tell, he values same-sex relationships highly—in certain contexts he even places them above heterosexual couplings—but I do not believe that he provides any salient principles that should convince this Court to include same-sex love within the institution of marriage.

That much seems straightforward. By my lights, the principal problem has to do with what Shakespeare’s rejection of same-sex marriage might suggest about the destiny of the Court of Shakespeare itself. If Shakespeare can tell us only what we do not want to hear, can repeat only the same old exclusionary, heteronormative line that has long worn out its welcome among a majority of Canadians and Canadian legal practitioners, why then should we want to prolong this farce? As Bolongaro J has it:

The living tree is a model for an honest confrontation with our roots, a confrontation which recognizes the nourishment those roots have provided and may still provide but which is also willing to contemplate the possibility that those roots have withered, the tree is dead and needs to be cut down.1

My sense early on about what Shakespeare had to say to us about same-sex marriage made me fear that he might after all be irretrievably outmoded—his tree might need to be cut down. The integrity of the Court, however, is troubled on the other side of the question too (that is, it’s troubled even if we choose to see Shakespeare as an ally of the Charter, the modern ideal of equality rights, and the cause of same-sex marriage). What will be the fate of the Court if it begins to appear that Shakespeare can always be counted on to emerge as the reliable friend of modern liberal values? Might that not be seen to amount to, or might it not be in fact, a closing off of authentic engagement with the written law itself? On this side of the dilemma that faces the Court, then, the tree is already felled; we just pretend that it is still standing.

The answer to this threat to the integrity of the Court is steadfastness in our conversation with Shakespeare. Even if we don’t like what he has to say to us, it is most important to attend to his view of things. It is not legitimate, and this is a point that my colleagues have made also, to offload what we don’t like onto the “constraints” of Shakespeare’s culture or the limitations of the literary forms that he adopted. His culture, after all, was as multifarious and complex as ours, and it is incredible to think that this extraordinarily inventive artist would have been constrained to make meanings he did not wish to have made by virtue of his choice of genre. It is important to allow his imaginative representations of life—even where they abrade our prejudices—to nurture our understanding of the issues that come before the Court. In what follows, I argue that the law of Shakespeare prohibits same-sex marriage. But I also suggest that the Shakespearean prohibition, if we understand it fully, leads to no dead end but leads rather toward a more pluralistic legal model of long-term personal relationship, one based on Shakespeare’s ideal of the dignity of communities and on the integrity and relative autonomy of what Bolongaro J (commenting on Pignoli and Wylde) calls “normative orders,” which derive their legitimacy from the communities from which they emerge.2 To emphasize the importance of communities and their attendant normative orders within the larger Shakespearean social world is to ally the Court with the kind of modern Canadian thinking that has begun to provide differentiated legal regimes for historically differentiated communities. In a Shakespearean “community of communities,” as I imagine it, the homosexual community becomes the author of its own language of love and substantially (if not procedurally) the legislator of its own forms of personal commitment (always, of course, bearing in mind the prohibition against same-sex marriage).

The Shakespearean Prohibition

The recent argument for same-sex marriage, given memorable expression in the judgment of the Court of Appeal for Ontario (June 10 2003), turns on the idea of the primacy of the rights of the individual over against the traditional “rights” of social institutions (notice how even our expressive poverty vis-à-vis marriage sets us apart from Shakespeare, for whom marriage—whether called Hymen, Juno, or Ceres—is very often a character with an identity and with attendant rights):

Marriage is, without dispute, one of the most significant forms of personal relationships [sic]. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual’s sense of self-worth and dignity.3

We can note that the logic of the judgment, which is implicit in this paragraph, turns on the bipartite relationship between public recognition and legal sanction on the one side and individual self-worth and dignity on the other. Of course, the Ontario ruling also emphasizes the injustices suffered by homosexuals as a group, but the overall argument nevertheless turns on the primacy of the rights of homosexuals as individuals. The public and the individual have eyes only for each other. Marriage is instrumentalized in the justices’ thinking as a long-standing, valued, but basically elastic social form that can and should be altered to advance the cause of the relationship between the individual person and the public. The Law is an institution of enlightened redress that is able to reveal exactly where public recognition of individual dignity has been long overdue and is able to persuade the sun of public legitimation to shine upon those who have been held in the dark for far too long.

Shakespeare’s moral universe is different from that of the Ontario justices; and it is different, I respectfully submit, from that of my fellow Justices Bolongaro, Manderson, and McDonald. Shakespearean characters do not often seek primary recognition from some entity called “society” or “the public”; instead, they turn their hungry gazes toward a variety of legitimating institutions and figures: the Court, the monarch, the community of warriors or lovers, their own fathers or the ghosts of their fathers (and more rarely their mothers), their children, their family or blood-line, the Dead, the English nation, the gods of War or Love or Nature or Marriage, the Christian god. It’s worth noting the drama’s general distrust of characters, such as the “vile politician” Henry Bolingbroke, who actively pursue the good opinion of the commons (as opposed to a character like Hamlet, who is simply loveable to the people on his own account)4. It is also worth noting that characters who seek recognition from the Law are always frustrated (think of Lear accusing a join-stool or Hermione, in The Winter’s Tale, denouncing her husband’s kangaroo court),5 and they are often presented as foolish (like Justice Shallow in The Merry Wives of Windsor).6 The process that confers value on the characters and that recognizes their dignity and worth is more multifarious than modern public legitimation.

Importantly, all the legitimating institutions and figures in Shakespeare are characterized by numinousness and interconnectedness. The figure Hymen who appears on stage, as if by magic, at the end of As You Like It represents marriage as a sacred institution that is able both to “atone” the jumble of earthly relationships and to provide immense personal, familial, and social benefit:

Then is there mirth in heaven,
When earthly things made even
Atone together.
Good Duke, receive thy daughter,
Hymen from heaven brought her,
Yea, brought her hither,
That thou mightst join her hand with his
Whose heart within his bosom is.
. . .
Wedding is great Juno’s crown,
O blessed bond of board and bed!
‘Tis Hymen peoples every town,
High wedlock then be honored.
Honor, high honor, and renown
To Hymen, god of every town!7

This is a moment of magic, spectacle, music, and high celebratory ritual, and we should not think, of course, that it is the playwright’s last word about marriage. Contrary to the arguments of Coodin and Eldridge and Anderson and Unger, which tend to underestimate Shakespeare’s complexity and to overstate the case for the sacredness of wedlock, Shakespearean marriage is not a sacred institution tout court.8 Shakespeare is too keen a social observer for that. We can note that the impeccable and noble Orlando does not fall for Rosalind until after his bid for courtly notice is rejected by Duke Frederick, so that his desire to marry the princess has, to a very slight degree, the quality of a second choice in the overall social economy of legitimation.9 In The Taming of the Shrew, Shakespeare situates marriage even more strongly within an economy, here not one of social capital but rather one resolutely of material goods—of dowries and jointures, of lands and houses, revenues, “plate and gold,” “hangings all of Tyrian tapestry,” “cypress chests,” livestock, etc.10 Shakespeare’s tendency is to redescribe apparently sacred institutions such as kingship and marriage in social and political terms, but the critical redescriptions that he develops are never radical or demystifying.11 He always leaves his options open. Lear’s kingship is shown to be dependent on wealth and military power rather than on divinity, but the suffering of the deposed king has nevertheless transcendent, world-shattering resonance. The economic and social side of marriage is highlighted in plays such as Taming of the Shrew, but marriage retains nonetheless its blessed power to atone earthly things, retains, that is, its capacity to elevate the scrappy Katherine and the mercenary Petruchio into a realm of loving mutuality and married dignity, as has been demonstrated with great regularity in countless performances of the play over the past several hundred years.

In addition to this numinous quality, marriage in Shakespeare is also interconnected with a range of other sources of legitimation—most prominently the realm of the divine, the world of Nature, and the civility and productivity of town life (as Hymen’s song makes clear). Indeed, the interconnectedness itself is a primary reason for the quasi-sacramental impression that each legitimating source is able to convey. Long ago, E. M. W. Tillyard argued that Shakespeare’s universe was orthodoxly and rigidly Christian, with orderly sets of interrelated “correspondences” ranked within a grand hierarchical structure.12 In the Tillyardian view, heterosexual marriage is sacred through and through on account of its place within a universal structure of corresponding gendered relationships—spirit and matter, ruler and state, rider and horse, sun and moon, etc., all of these particular relationships being reflective of the loving rulership that obtains between the Christian God and His creation. Tillyard has been strongly and justly criticized by two generations of materialist scholars, whose work has shown that Shakespeare’s representations of the world and the intellectual culture of the Renaissance in general were far more complex and controversial than Tillyard’s “Elizabethan world picture” allowed.13 On their own side, however, the materialist critics, sternly explaining everything in Shakespeare in the thorough-going secular terms of social and political power, have been altogether blind to the persistence, however attenuated or subject to critique, of Christian ideas such as sacred kingship or sacramental wedlock; and they have been unable to grasp the tendency in Shakespeare to represent the moral universe as a loosely articulated network of legitimating figures and institutions.14

We can discern the consequences of this secularizing emphasis in Justice Manderson’s reading of The Winter’s Tale. According to my learned colleague’s eloquent and forceful argument, that play reveals that marriage is not sacred at all but rather is first of all a matter of having faith in another person. “Faith,” he says “is the rock that saves us when evidence cannot, when law becomes farce, and when reason runs out.” Faith of an entirely this-worldly kind is the whole ground of value: “faith is not given a remotely religious or even sacred character.”15

At the end of The Winter’s Tale, Paulina instructs the on-stage audience:

It is requir’d
You do awake your faith. Then, all stand still.
On; those that think it is unlawful business
I am about, let them depart.16

She is not asking Leontes to arouse his faith in his dead queen or even in what appears to be the statue of the queen. She is insisting that the onlookers adopt a certain spiritual, physical, and mental disposition in advance of the ritual of depetrification. Faithfulness, stillness, and rational belief in the holiness of the ritual are simply appropriate under the circumstances, and they are also an effective way of helping to advance the magic. With a glance at the Church of England’s idea of sacramental “participation” (“The real presence of Christ’s . . . body and blood is not therefore to be sought for in the sacrament, but in the worthy receiver of the sacrament”17), Paulina is saying that Hermione’s re-birth and the re-birth of her marriage depend in part on the faith of the congregated witnesses.18 Her insistence on their faith is moreover of a piece with the faith in the truth of Apollo’s oracle that she and Hermione have enacted over the space of a generation, the religious faith that caused the two women to suspend the royal marriage until the oracle was fulfilled by the finding of Perdita, the lost child. We should note the extraordinary depth of the women’s faith, since, had Perdita not been found, Hermione would have gone into death at the end of her time without ever having been reunited with her repentant, beloved husband.

This account of the women’s faith suggests that the royal marriage, upon which the peace of the kingdom depends, is under Apollo’s authority and that, once the marriage has been violated by Leontes’ faithlessness, it can be restored only by faithful obedience to Apollo and then specifically by the miraculous return of the lost child. It is worth noting that the restoration of Perdita to her family depends in the first instance on the emergence (handled with characteristic Shakespearean playfulness) of her natural, royal breeding, even in the sheepcote where she has been raised. Coodin and Eldridge argue convincingly that individual interpersonal faith cannot be prised apart from religious faith: “The principle of faith is a type of surrender to the structural binding principle inherent in the sanctified higher order, represented in sanctified heterosexual marriage.”19

Since Shakespearean marriage, however much it is subject to social and political critique, remains a numinous source of human value, since characters such as Leontes, Rosalind, Viola, and Orlando turn to marriage for personal fulfilment and public legitimation, and since marriage is situated within a loosely networked moral universe that includes other legitimating institutions and figures, it follows that marriage is bigger than the characters whose lives it serves to enrich and justify. Marriage in Shakespeare is never instrumentalized in order to serve the interests of individual characters; rather, the characters are instrumentalized in order to fulfil of the heterosexual nature of marriage. Olivia is made to marry Sebastian even though he is not the young man that she has fallen in love with because the man she loves is in fact a woman. To a degree, the plays permit characters to marry across lines of rank (Olivia is of higher rank than Sebastian), but homoerotic desire is without exception rechanneled along heterosexual lines. I do not on the strength of this argument insist that Rose and Smith are wrong to suggest that “Shakespeare opens a forum for discussion on the nature of marriage.”20 I think that he remains far more open-minded about marriage, say, than do the Justices of the Court of Appeal for Ontario about the nature of “the public,” which is evidently for them a fully sacred source of legitimacy. I do conclude, however, that the forum that Shakespeare opens finds time and again that, while marriage can be prodded by various kinds of critique, it nevertheless retains its secure place in a moral universe and thereby proves its power to confer value upon those aspirants to committed heterosexual relationships, whose celebrations flood the endings of the comedies with light. In view of this account of Shakespeare’s representation of marriage as naturally heterosexual, as effectively transcendent over the social conditions of marital practices, and as incapable of being made into an instrument for the fulfillment of the claims of either the vagaries of individual desire or the more weighty claims of individual human rights, I find for the Applicants.

Same-Sex Love in the Shakespearean Plurality of Communities

If we take the Sonnets at face-value, we will conclude that Shakespeare was deeply in love with a young nobleman. In Sonnet 20, he explicitly renounces the possibility of the physical consummation of his passion, but at the same time he praises the sublime love that develops between men far above the merely physical love-making that is practiced by men and women within an economy of biological reproduction:   

A woman’s face with Nature’s own hand painted
Hast thou, the master mistress of my passion;
A woman’s gentle heart but not acquainted
With shifting change as is false women’s fashion;
An eye more bright than theirs, less false in rolling,
Gilding the object whereupon it gazeth;
A man in hue all hues is his controlling,
Which steals men’s eyes and women’s souls amazeth.
And for a woman wert thou first created,
Till Nature as she wrought thee fell a-doting,
And by addition me of thee defeated,
By adding one thing to my purpose nothing.

But since she prick’d thee out for women’s pleasure,
Mine be thy love, and thy love’s use their treasure.

The degradation of heterosexual love to an interest-bearing activity among multiple partners in a biological marketplace is striking, especially coming, as Sonnet 20 does, as the third poem after the “procreation” sonnets, where the poet counsels the young man to achieve a natural kind of immortality by marrying and by fathering children. Striking also is the difference between the sonnet and the comedies that we have been considering. The sonnet valorizes same-sex, male-to-male affection as the only kind of relationship capable of fostering authentic love (as opposed to “love’s use”). The comedies shunt same-sex love aside—it is portrayed as essentially juvenile—in their pursuit of heterosexual marriage and the love-making that issues, often with beautiful promise, in the birth of children. We remember Rosalind’s rooted desire to have Orlando’s child, Hymen’s song, Oberon’s blessing on the three bridal beds at the end of Midsummer Night’s Dream, and the poignant entrance of Helena, who was thought to be dead but whose body is quickening with new life (we are invited to feel the baby as she feels it): “Dead though she be, she feels her young one kick.”21

Sonnet 20 changes none of the essential features of the opposition between homosexual and heterosexual love, but it changes fundamentally the way that opposition is valued. As in the comedies, biological sexual difference is decisive. Just like the characters in the comedies who are drawn initially toward same-sex partners, the poet declines absolutely to have any physical relationship with his same-sex beloved once his beloved’s true sex is revealed. Biological sexual difference is a profound matter in the comedies: for all her role-playing and transvestism, Rosalind’s female body exerts an irresistible hold on her. In the poem, biology is just as decisive, but it is trivialized—by adding a last-minute prick to her creation, doting Nature serves her own physical needs and also happens to thwart the poet’s desire.

But not his love. His love for the young man is true and enduring precisely because it is not involved in biological reproduction. This is particularly attractive when we consider that fatherhood promises only a weird and self-destructive kind of immortality (since the child’s youth and beauty can serve as a reminder of his father’s youth and beauty only after those attributes, in the father himself, are lost and buried in his “deep-sunken eyes”)22; Sonnet 20, with its celebration of chaste homosexual love, belongs with those poems (e.g., 15, 18, 19) that promise a more sublime, poetic immortality: “So long as men can breathe or eyes can see, / So long lives this, and this gives life to thee.”23 What is emerging in the first flight of sonnets, then, are two opposed ways of reckoning human love and two opposed ways of assuring personal immortality in the face of sublunary mutability. One is heterosexual, natural, physical, and sexually reproductive—an embracing of the natural processes of breeding, aging, and dying. The other is homosexual, artistic, platonic (for want of a better word), and literarily productive. What emerges in the first twenty sonnets therefore is the articulation of two normative orders, with different ways of thinking and conferring value, different ways of “making love,” and even different languages (note how the dominant values of Sonnet 20 cause “love’s use” and “treasure” to be ironically inflected).

Shakespeare’s high valuation of male-to-male love is a feature in a number of his plays as well.24 In Hamlet, where heterosexual marriage is an unmitigated disaster, the most authentically loving relationship is between Hamlet and Horatio.25 Roman plays such as Julius Caesar and Coriolanus also include emotionally complex and thematically central relationships between men; in Antony and Cleopatra, Enobarbus loves Antony so completely that he dies of a broken heart on account of his betrayal of his General.26 As the respondents have pointed out, the comedies feature forms of female-to-female attachment that are remarkable since they explicitly exclude men (Hippolyta’s Amazon tribe, the younger Helen and Hermia, and Titania and her “vot’ress,” all in Midsummer Night’s Dream; Celia and Rosalind in As You Like It). These female-to-female love relationships (they are also all chaste and sisterly) are, as we have seen, shunted to the side by the rush toward heterosexual marriage, but they (especially Titania’s sense of responsibility to her late votaress27) nevertheless are of a piece with Shakespeare’s valorizing representations of same-sex, male-to-male love.

I suggest that the normative orders of heterosexual and homosexual love and the groupings from which these orders emerge are among the most prominent in Shakespeare’s world of relatively autonomous communities. In Midsummer Night’s Dream, to take a strong example of Shakespeare’s representational practice, there are three distinct groups—the Faeries, the Mechanicals, and the Aristocrats. The groups inhabit the same world, and their paths cross and re-cross, but they do not live by the same values and, although they all speak English, they do not in fact speak the same language.28 Theseus is incapable of understanding the Mechanicals’ motives for performing, which are self-seeking as well as altruistic; Bottom and his company cannot fathom the imaginative capacities of the courtly spectators; and the Faeries tend to view lost and distressful humans as if they were great wooden-headed dummies.29 If Bottom were made to speak in Titania’s language, he could not give adequate expression to his own meanings. Theseus would be lost in Bottom’s home-spun prose, as would the Faeries also. If the poet of Sonnet 20 had only the language of heterosexual love that, as I have argued, is dominant in the comedies, he could not begin to describe the ways in which he loved the “master mistress” of his passion.

In conclusion, while Shakespeare prohibits same-sex marriage, his valorizing portrayal of same-sex love, especially in the Sonnets and in a number of the plays, and his representation of the world as a plurality of communities (each with its own relatively autonomous normative order and its own attendant special language) should encourage this Court to take the part of certain thinkers within the modern gay community who are deeply distrustful of the ongoing judicial initiative to include homosexuals within the fold of marriage.30 In their view, marriage speaks the language of heterosexuality and is fundamentally alien to the historically situated culture and forms of expression and self-description of the gay community. On this account, furthermore, the Charter of Rights and Freedoms emerges, ironically enough, as a well-intentioned juggernaut of cultural uniformity. It remains to the gay community, therefore, to fashion its own model or models (these need not be chaste, of course) of interpersonal commitment and faith.

1. Bolongaro J., unpublished judgment on file with the Court.
2. Frank Pignoli and Jackie Wylde, factum for the applicant, on file with the Court.
3. Halpern v. Attorney General of Canada, 2003 Ont. C. A. LEXIS 271.
4. For Bolingbroke, see Richard II, 1.4.20-36; 1 Henry IV, 1.3.239-56. For Hamlet, see Hamlet, 4.3.4-5. All Shakespeare citations are from The Riverside Shakespeare, textual ed. G. Blakemore Evans (Boston: Houghton Mifflin, 1974).
5. King Lear, 3.6; Winter’s Tale, 3.2.
6. Merry Wives of Windsor, 1.1.
7. As You Like It, 5.4.108-15, 141-46.
8. David Anderson and Andrew Unger, factum for the applicant; Sara Coodin and Marie-Christine Eldridge, factum for the applicant, both on file with the Court.
9. As You Like It, 1.2.149-end.
10. Taming of the Shrew, 2.1.345-98.
11. For Shakespeare and redescription, especially in the terms of the marketplace, see Lars Engle, Shakespearean Pragmatism: Market of his Time (Chicago: University of Chicago Press, 1993).
12. E. M. W. Tillyard, The Elizabethan World Picture (London: Chatto and Windus, 1948).
13. See Jonathan Dollimore, Radical Tragedy: Religion, Ideology, and Power in the Drama of Shakespeare and his Contemporaries (London: Harvester Press, 1984).
14. See Debora Kuller Shuger, Habits of Thought in the English Renaissance: Religion, Politics, and the Dominant Culture (rpt. Toronto, University of Toronto Press, 1997; Jeffrey Knapp, Shakespeare’s Tribe: Church, Nation, and Theater in Renaissance England (Chicago: University of Chicago Press, 2002).
15. Manderson J., unpublished judgment on file with the Court.
16. Winter’s Tale, 5.3.94-7
17. Richard Hooker, Of the Laws of the Ecclesiastical Polity, ed. A. S. McGrade and Brian Vickers (abridged edn., London: Sidgwick and Jackson, 1975), 294.
18. See Anthony B. Dawson, “Performance and Participation,” in Dawson and Paul Yachnin, The Culture of Playgoing in Shakespeare’s England: A Collaborative Debate (Cambridge: Cambridge University Press, 2001), 11-37.
19. Coodin and Eldridge, factum for the applicant, on file with the Court.
20. Margaret Rose and Collin Smith, factum for the respondent, on file with the Court.
21. All’s Well That Ends Well, 5.3.302.
22. Sonnet 2, line 7.
23. Sonnet 15, lines 13-14.
24. For Shakespeare’s distrust of heterosexual, as opposed to homosexual, passion, see Stephen Orgel, Impersonations: The Performance of Gender in Shakespeare’s England (Cambridge: Cambridge University Press, 1996).
25. See Hamlet, 3.2.53-74.
26. Antony and Cleopatra, 4.9.
27. See Midsummer Night’s Dream, 2.1.
28. See Midsummer Night’s Dream, 3.1.125-201.
29. Midsummer Night’s Dream, 5.1.19-24; 3.1; 3.2.
30. See Pignoli and Wylde, factum for the applicants, on file with the Court.

Justice Bristol

My finding in this case follows the judgements of justices Bolongaro and Manderson, and this will allow me to present my view of the issues as a relatively brief summary. I concur fully with Bolongaro’s very thorough and detailed treatment of the conceptual framework for this case and for the broader interpretation of Shakespearean jurisprudence. And I agree with his findings, viz. that this court has jurisdiction over the definition of marriage; that same-sex marriage is not sanctioned by the laws of Shakespeare; that same-sex marriage and the corollary reformulation of the common law definition of marriage is consistent with the fundamental principles which underpin the laws of Shakespeare. I therefore find in favor of the respondents and like my fellow justices Bolongaro and Manderson dismiss this appeal.

The following paragraphs will attempt to elaborate and expand on the previous judgements. My point of departure for this discussion will be the second of Bolongaro’s findings - that same-sex marriage is not sanctioned by the laws of Shakespeare. This certainly means that there is no explicit warrant or precedent for same-sex marriage anywhere in Shakespeare; not a single example of a marriage uniting two persons of the same sex can be found in the plays. Or so it would appear. The notion of “sanction” can mean something like charter or privilege but it can also mean penalty or proscription. To say that same-sex marriage is not sanctioned means that it is not clearly lawful, but there might not really be anything against it other than to say that it hasn’t really come up before, that it is a situation unprecedented in Shakespeare’s works. But although same sex marriage is unprecedented it is not really unforeseen in the plays. We can say that the law of Shakespeare permits and even celebrates marriage to take place between persons of opposite gender. And we can say that the law of Shakespeare does not require marriage that marriage take place between persons of the same sex. However, the broadly permissive affirmation of the marital bond between persons of opposite gender does not constitute an essential or defining property of marriage in this jurisdiction. What seems to count as a “definition of marriage” is the idea of self-determining social agents finding or discovering each other as independent selves and forming a bond of mutual fidelity or “true love.” This is what’s implied in the often cited text “let me not to the marriage of true minds admit impediment” where the notion of “truth” entails both ideas of being truthful or honest and ideas of constancy or commitment. What’s important in this maxim is the implied renunciation of the idea of triangular or Trinitarian marriage, a three-sided bond of bride, groom, and a third party who represents the interest of the broader society, more specifically the interests of an entrenched patriarchal order. In the law of Shakespeare the erotic dyad is constitutive of marriage, not the system of social impediments designed to regulate object choice. Thus, the course of true love never did run smooth. . .

Or if there were a sympathy in choice,
War, death, or sickness did lay siege to it,
Making it momentany as a sound,
Swift as a shadow, short as any dream,
Brief as the lightning in the collied night,
That, in a spleen, unfolds both heaven and earth,
And, ere a man hath power to say ‘Behold!’,
The jaws of darkness do devour it up.
So quick bright things cone to confusion. [MND, 1.1.141-149]

Notwithstanding that “true love” here and elsewhere is often closely aligned with the utter folly of the lovers, it seems clear that agential self-determination is the condition for the possibility of social institutions and not the reverse. Erasmus has expressed a similar view of marriage in his Praise of Folly. The applicants have argued marriage is in a sense defined functionally or instrumentally as the means for maintaining or preserving stable social institutions - what they characterize as the “greater good.” This view of things is certainly current in the plays as a set of normative interpretations of marriage expressed by various characters - Egeus and Old Capulet come to mind - who represent a fixed patriarchal ordering of sexuality and reproduction. But these characters clearly line up with “impediments” and not with “the marriage of true minds.” while this may represent Respondents in this case argue that “transgressive choice of marriage partner is often a powerful means of self-actualisation.” The sense of “transgressive choice” nicely captures the idea of self-determining social agency. Only by acting against the impediments and against the express wishes of patriarchal authority can I know that my choice is genuinely my own. This is the crucial intuition in Northrop Frye’s analysis of the structure of Shakespearean comedy as a movement from pistis [arbitrary law] to gnosis [self-knowledge]. Thus the only way to “maintain the greater good” through the institution of marriage is to sanction what is not sanctioned or to encourage the practice of continual revision.

To suggest that “transgressive choice” has the force of law is, on its face, both paradoxical and preposterous. I would argue that this is precisely what makes it so critically Shakespearean. The claim that there is “no same-sex marriage in Shakespeare” in one way seems obvious; but it is equally obvious that same-sex marriage is everywhere in Shakespeare. What’s both everywhere and nowhere are the underlying sexual anatomies and reproductive capacities of the performing bodies that show us what a marriage is using only the trans-sexual media of outward appearance - voice, gesture, and costume. What we are shown in this way is that marriages are about gender, not about sex; that gender is an organic social variable, not a fixed essence; and that gender has only the most shifting and tenuous relationship to a person’s genital anatomy or their coiffure. As Rosalind says in her epilogue “If I were a women I would kiss as many of you as had beards that pleased me, complexions that like me, and breaths that I defied not.” Gender - or sexual identity - is always and necessarily “in the subjunctive.” And “constancy” in marriage is lived one minute at a time. When Orlando promises Rosalind he will love her “for ever and a day” she replies:

O say a day without the ever. No, no, Orlando; men are April when the woo, December when they wed. Maids are May when they are maids, but the sky changes when they are wives. I will be more jealous of thee than a Barbary cock-pigeon over his hen, more clamorous than a parrot against rain, more new-fangled than an ape, more giddy in my desires than a monkey. I will weep for nothing, like Diana in the fountain, and will do that when you are disposed to be merry. I will laugh like a hyena, and that when thou art inclined to sleep. [AYLI, 4.1.133-142].

Orlando is vowing true love to someone who is not only both man and maid, Ganymede and Rosalind, but a whole Noah’s Ark of other species. This, it seems to me, is Shakespeare’s “definition of marriage.” The “marriage of true minds” or “true love” is itself preposterous and therefore absolutely rigorous in its insistence on the mutual acceptance of the chosen other as they really are and not only as they are supposed to be in accordance with the prescriptive “impediments” of instrumental rationality and the patriarchal imperatives of reproduction.

The applicants in this case have shown that the patriarchal interpretation of marriage as based on the union of heterosexual couples for the purposes of child-bearing and the maintenance of social institutions is one of several possible normative orders manifested in the dramatic structure of Shakespeare’s plays. They have not, however, achieved the much more difficult task of proving that this is the final or definitive normative order determining the meaning of marriage as a social institution or as an ethical commitment between persons. Respondents have the much easier task of showing that patriarchal versions of marriage, though certainly permitted, are not really required. The idea of “transgressive choice” might have been developed more fully to bring out the idea of marriage as an element in the normative orders of “making believe.” This approach would help to clarify the ruminations of Justice Bolongaro in his concluding remarks about the possibility of a “frontal assault on marriage.” If marriage is simply a reified institution affiliated with the hegemony of an entrenched middle class why not consider abolition of the institution as a viable alternative to sanctioning same-sex marriage. “I say we will have no more marriages” is the other way to go. Heterosexual couples as often as not play the games of true love badly, partly because of economic sanctions or constraints linked to reproduction and child-rearing. Same-sex couples might turn out to be better players at the game of true love, because they have no reason to play the game other than the aim of playing it well.

Justice Bolongaro

This application is brought by the Attorney General for Canada on appeal from the judgment of the Court of Appeal of Ontario who, upholding a Divisional Court ruling that the common law definition of marriage infringed the equality rights of same-sex couples under the Canadian Charter of Rights and Freedoms, granted the following remedies to the Respondents in these proceedings:

  1. a declaration that the existing common law definition of marriage be invalidated to the extent that it refers to “one man and one woman”;
  2. a reformulation of the common law definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”;
  3. an order that the declaration set forth in (1) and the reformulation set forth (2) have immediate effect;
  4. an order that the Clerk of the City of Toronto issue marriage licenses to the Respondents.

In my view, the main issues in this Appeal are:

(a) does this court have jurisdiction over the definition of marriage?
(b) is same-sex marriage sanctioned by the laws of Shakespeare?
(c) is same-sex marriage and the corollary reformulation of the common law definition of marriage consistent with the fundamental principles which underpin the laws of Shakespeare?

My findings are:

(a) this court has jurisdiction over the definition of marriage;
(b) same-sex marriage is not sanctioned by the laws of Shakespeare;
(c) same-sex marriage and the corollary reformulation of the common law definition of marriage is consistent with the fundamental principles which underpin the laws of Shakespeare.

Accordingly, I find in favour of the Respondents and dismiss this Appeal.

Reasons for the Decision

In writing these reasons, I have have taken into account that the jurisprudence on the laws of Shakespeare is still young and it may therefore be appropriate to elaborate on the basic principles of interpretation which inform my judgment, as well as on some matters of method. In this way, I hope to provide some guidance to future applicants and to contribute to the development of the jurisprudence.

I. The Conceptual Framework

I understand our task as follows: we are examining the Shakespearean corpus as a source of legal principles that can be used to decide the issues placed before this court. It is perhaps obvious and yet important to remember that the corpus in question is a work of literature which does directly enunciate legal rules. This means that whatever normative order(s) we may find in Shakespeare, it will necessarily be based on an interpretation of the “world” we encounter, an interpretation guided by a particular purpose, namely that of inferring the legal rules which govern this imaginary world. The point I want to make here simply this: a statement (e.g., about homosexuality) or a fact (e.g., there are no same-sex marriages in Shakespeare) cannot in and of itself be determinative of a legal rule. It can only at best be evidence of an underlying normative order which needs to be established by an overall interpretation of the corpus. The laws of Shakespeare must be grounded in fundamental principles which exhibit a normative logic, not on mere empirical reconnoitering of what is said and what is done in the literary texts (though, obviously, what is said and what is done provide the material from which an interpretation is worked out). In terms of method, I want to warn applicants that persuasive arguments in favour or against a proposition must be based on a close, sensitive, principled and encompassing reading of the corpus. On the other hand, it is not persuasive and is in fact damaging to use the rich variety of statements and situations in Shakespeare as a smorgasbord from which to pick out whatever proposition best suits a particular interest.

Once we recognize that the attempt to identify the laws of Shakespeare necessarily involves us in a thorough process of interpretation, other questions arise. One of these seems to be particularly troublesome: how to integrate in our reading of Shakespeare the “double historicity” discussed by Yachnin J. In Re Attorney General for Canada, ex parte Heirich. This is an ineliminable challenge which will continue to confront us. Recognizing the historical dimension of the Shakespearean corpus means that our interpretation must draw on historical knowledge as a resource for developing a richer and more precise understanding of the texts. In my view, this primarily means that we must resist the temptation to make Shakespeare too much like us, and we must rather try to grasp his “difference.” This seems a particularly useful exercise in this context, i.e., when the temptation to make a narrowly instrumental use of Shakespeare can be quite strong. On the other hand, we must also avoid a form of historical reductionism. Shakespeare certainly cannot be equated with and reduced to Elizabethan England (it is both more and less): the historical context must be seen as an interlocutor to which Shakespeare is responding (and I am not necessarily naturalizing the subject here, the exchange can take place between discourses if we so wish to characterize it). I will add that the ability to situate Shakespeare within its times in a rigorous and yet not reductive manner has been conspicuous mostly by its absence in the arguments submitted in these proceedings -- and this judgment will suffer from it.

The second horn of the “historicity” dilemma leads us to reflect on our position and interests. This challenge is also ineliminable and brings us to consider the “living tree” metaphor whose nature and implications were discussed by all the judges in ex parte Heinrich, and most extensively in Manderson J.’s reasons. I would only add this to the discussion. Laws do and must evolve. The legal system must be able to provide continuity while accommodating change. However, there are times when it becomes important to recognize that a rupture has taken place or ought to take place. This is not a matter of simple logic, it is a matter of ethics and politics. I have spoken of the fact that arguments should not make a merely utilitarian use of Shakespeare. What that statement implies is an ethical standard of reading which refuses to turn the other into a mere tool for me. The living tree metaphor proposed by Manderson J., Yachnin J. and Bristol J. partakes of this ethical standard. It obliges us to respect the past and this also means that we must ask ourselves whether we can still recognize ourselves in it without mystification. Naturally, this entails deciding what our commitments really are -- again, a rather salutary exercise in a context like this where it is tempting to mask our commitments behind the authority of a monumental text. In sum, the living tree metaphor should not be used to legitimate either a merely reverential nod to the past (which in fact is being ignored) nor a prostrate worshiping of the past (which more often than not is a ruse to mask commitments we are no longer proud of). The living tree is a model for an honest confrontation with our roots, a confrontation which recognizes the nourishment those roots have provided and may still provide but which is also willing to contemplate the possibility that those roots have withered, the tree is dead and needs to be cut down.

Keeping these basic principles in mind I will proceed to a discussion of the case.

II. This Court Has Jurisdiction over the Definition of Marriage

I understand this tribunal to be a court of plenary and inherent jurisdiction. It follows that issues of jurisdiction really become issues of justiceability. Bluntly put, in my view, this court will take jurisdiction as long as the issue is justiceable. Conversely, the court will decline jurisdiction only if the issue is not justiceable. For example, I would be inclined to hold that the issue of whether god exists according to the laws of Shakespeare is beyond this court’s jurisdiction.

In this case, the issue of marriage is so obviously justiceable that raising the question of jurisdiction seems almost frivolous.

III. Same-Sex Marriage Is not Sanctioned by the Laws of Shakespeare

Let me not to the marriage of true minds
Admit impediment, love is not love
That alter when alteration finds,
Or bends with the remover to remove.
Oh no, it is an ever fixéd mark
That looks on tempests and is never shaken… (Sonnet 116)

The paradigm of marriage proposed by the Shakespearean corpus (and more specifically by the four plays A Midsummer Night’s Dream, As You Like It, Twelfth Night and The Winter’s Tale) has the following characteristics:

  1. it involves the coupling of a man and a woman;
  2. the parties enter the condition of marriage through mutual consent on the basis of a strong feeling of attachment which includes sexual attraction;
  3. the promise of marriage entails a commitment to fidelity which is understood primarily in terms of sexual exclusivity;
  4. the parties are of approximately of equal social status and standing;
  5. the relationship confirms existing social arrangements and institutions, specifically in relation to vested property rights and dynastic interests, which are consolidated not only synchronically (i.e., via the finding of a suitable partner) but also diachronically (i.e., via the production of legitimate heirs).

At the heart of the Applicants’ submissions is the argument that this paradigm exclude same-sex marriage insofar as a homosexual union does not meet requirements (1) and (5).

The first objection to this argument is that the outlined paradigm represents an ethical ideal not a legal norm. For example, while it is clear that item (4) is considered highly desirable within Shakespeare’s world, it is equally clear that it does not represent a legal requirement. Partners from different classes have the legal capacity to marry and that is why so much ideological effort has to be put into showing that they ought not to (the case in point is Perdita and Florizel in The Winter’s Tale).

The question then is which of the items in the outlined paradigm do constitute legal requirements. More specifically for our purposes, do item (1) and/or (5) embody minimal legal requirements for marriage?

Item (5): I will begin with this item insofar as it allows me to deal with the issue of procreation which can be readily dismissed. The fact that couples which have no reasonable prospect of procreating are allowed (indeed invited) to marry conclusively demonstrates that the ability to procreate is not a legal requirement for marriage (Paolina and Camillo in The Winter’s Tale). In addition, while the production of issues from one’s body is clearly valued, the corpus also demonstrates that there are valid familial arrangements that are not based on procreation: Perdita, an exemplary figure, is raised by an adopted widower and his son (note the absence of a female parent) and is none the worse for it. This suggests that the fundamental public interest is in successful childrearing, that is not in procreation per se but in reproduction (i.e., the raising of a generation which will confirm and consolidate the current social arrangements). Understood in this way, reproduction can be successfully carried out by childless couples.

This line of thinking also discloses that marriage in Shakespeare is as much a response or a remedy to procreation as an attempt to promote it (clearly procreation can flourish independently of marriage). The public interest lies in clearly identifying legitimate issues who will inherit property and titles and can be educated to fulfill the social functions consonant to their status. We encounter here for the first time a concept that will be useful in further discussion: marriage functions as a shield against the potentially disruptive consequences of heterosexual desire. These observation raise the issue of whether a couple who is determined not to participate in reproduction should be entitled to marry. I find this to be a false question insofar as the very desire to enter into marriage or even merely the acceptance to marry (e.g., Antonio and Mariane in Measure for Measure) necessarily involve a commitment to social reproduction (whether directly in terms of childrearing or indirectly by example, etc.). Accordingly the reproduction requirement contained in item (5) is met by the very act of desiring to enter the married state. The issue then becomes whether within Shakespeare’s world same-sex couples can desire to enter the married state. This is a very interesting question which I will address in due course. For the moment, it is sufficient to find that the theory of human desire proposed by the corpus does not logically exclude the emergence of such desire.

Item (5), however, is not merely about reproduction vis-à-vis the next generation. It also defines marriage as a vehicle for the stabilization of the relationship between the partners within the existing social system. This system is clearly patriarchal and involves the subordination of the wife/female to the husband/male. This pattern of subordination cannot be “reproduced” within a same-sex couple (one of the same-sex partners may well be dominant but it is the fundamental link between dominance and sexual difference that cannot be reproduced). Accordingly, allowing same-sex marriage would destroy the patriarchal social order rather than consolidate it, as marriage is supposed to do. The objection to this argument is that while a patriarchal framework is clearly evident in Shakespeare’s world, the corpus (the comedies in particular) take singular delight in demonstrating the moral equality not to say superiority of women over man, as well as the fluidity of gender roles (which we will examine in more details in the next section). In short, Shakespeare’s world seems ripe for a thorough reconsideration of its patriarchal underpinning (here is a place where the difference between the text and its historical context becomes clear). In Shakespeare, marriage is certainly about the reproduction of social relations (synchronically and diachronically, as I have put it), but Shakespeare’s commitment to patriarchy is weak and does not provide sufficient grounds for rejecting same-sex marriage (i.e., accommodations seem possible).

In conclusion, I find that, contrary to the Appellants’ submission, same sex couples can meet the requirements set out in item (5).

Item (1): In Shakespeare, all the couples which are married or desire to be married are composed of a man and a woman. This is a fact and the question is whether this fact is a mere statistical regularity or the concrete manifestation of a law. A fact discloses a law when it can be proved that there are compelling reasons to promote the state of affairs that the fact describes and to exclude possible alternatives. Typically this kind of argument takes the form of establishing principles from which a certain outcome and only that outcome is deduced. In our case the law would be that all couples which wish to enter the condition of marriage must be a composed of a man and a woman who wish to live together in a heterosexual relationship. The core of this law must be a theory of sexual difference that emphasizes the importance of the biological fact and develops an argument that this difference is fundamental to marriage. On the other hand, any theory which de-emphasizes the importance of sexual difference will tend to weaken the argument that marriage must necessarily join two people of different sex.

There is ample evidence in the corpus, for the proposition that there is a difference between man and masculine, and female and feminine, or in contemporary terms between sex and gender. Women characters disguised as men perform masculinity so successfully as to seduce female characters. This “diegetic” performance of gender is further complicated by the fact that it takes place within a extra-diegetic performance where male actors play both male and female characters who in turn can be disguised as men or women. This multiplication of performances clearly detaches gender from sex. This detachment or denaturalization of gender is also evidenced by the liberal distribution of feminine and masculine qualities to members of either sexes. Viola performance of masculinity in Twelfth Night may be very good but it is significantly aided by the fact that her brother’s looks and manners are very similar to hers. Indeed, the name Sebastian (the Christian martyr who refused the advances of his centurion) and the homosocial relationship with Antonio further contribute to “feminizing” the character. What Olivia falls in love with is a set of attributes which are associated with gender differentiation but not anchored in sexual difference. Olivia, who possesses some of the attributes of masculinity (e.g., power and status), falls in love with a “feminine” man (Viola/ Sebastian) rather than with the “masculine” man Orsino who ultimately discovers his love for a feminine woman (Viola).

The uncoupling of sex and gender weakens but is not fatal to the argument that sexual difference is a prerequisite to marriage. The Appellants have pointed out that when confusion about gender is introduced through disguises, the character who knows the truth never falls in love with another character of the same sex and when the “real” sex of all the characters is revealed the quality of the attachment instantly and magically changes (Olivia will love Viola as a sister and marry Sebastian). Indeed, the seamless resolutions of all the entanglements of love and desire in the comedies is made possible precisely by the unquestioned and utterly unproblematic operation of the heterosexual norm: we can play around and have fun with gender precisely because in the end it is not gender that matters but sex, not the attributes but the biological marker of the holder of the attributes (a woman may desire feminine attributes in her partner but can marry only a man who exhibits those characteristics and vice versa). In sum, the rule of sex is absolute and guarantees that in the end the heterosexual law of marriage will win out. This argument makes it possible to understand better the link between desire and marriage, to which I will now turn.

In the corpus, desire is presented as remarkably indiscriminate. The best example is A Midsummer Night’s Dream, in which the use of love potions provides a thin disguise for the plasticity of desire. Desire has a tendency to transgress social norms and this it is precisely what brings about the confusions and entanglements in the plot. Desire can also clearly be homosexual (Oberon’s competes with Titania for the beautiful boy in A Midsummer Night’s Dream, and then -- widening our horizon a little -- there is the young man of the Sonnets). Marriage is not the “natural” culmination of desire but rather is presented as the royal way to control, stabilize, and channel toward socially productive ends an otherwise mobile and disruptive desire. But then why only heterosexual desire rather also homosexual desire? Is heterosexual desire more in need of a remedy than homosexual desire? The interest in stabilizing emotional relations, ensuring a commitment to the social order and creating an environment where social reproduction can take place applies to both types of desire. There seems to be no principle justifying the requirement of heterosexuality.

It is open to the Applicants at this point is to argue that the denaturalization of gender and the plasticity of desire presented in the corpus do not constitute a denial of sexual difference. Feminine men are still men and masculine women are still women. The goal of marriage is the fusion not only of masculine and feminine attributes but also of male and female experience. Only through this synthesis can marriage truly fulfill its vocation: to create through the dialectical overcoming of difference a higher mode of being, a richer life for each partner and ultimately for the community. From this perspective, the difficulty with same-sex marriage is that homosexual couples cannot accomplish that synthesis which marriage seeks to promote and celebrate. The objection to this line of argument is that it is metaphysical and idealistic. I would need better evidence as to what the the corpus identifies as specifically female and male experiences. I would also need to be persuaded that only couples which can be reasonably expected to accomplish such a synthesis should be allowed to marry. It seems to me that this way of reformulating item (1) at best provides an ideal not a legal requirement.

And yet, in the end we are thrown back on the fact that within the corpus there is not even an inkling that same-sex marriage is something that can be seriously considered. While homosocial behaviour is common, and homosexual desire is clearly suggested, the possibility of two people of the same sex marrying seems unthinkable. Heterosexuality in marriage operates as a kind of a priori in the Shakespearean world. This creates an interesting situation. No cogent principled argument has been brought before this court that would justify a heterosexual norm and yet a sensitive exploration of the text ultimately must concede that the requirement of heterosexuality exists as an unquestioned postulate which defines a specific historical reality. Let me put it this way, in Shakespeare’s world a same-sex marriage makes about as much or as little sense as the notion of crossing fish with tomatoes to make the latter more resistant to frost. It is simply inconceivable to take it seriously. This is not because homosexual desire is inconceivable but because the social conditions within which the question of whether homosexual desire may need/want to be sanctioned by marriage has not yet arisen. In sum, this is one of the way in which Shakespeare is “different” from us and it behooves us, for the reasons canvassed in the first part of this judgment, to recognize this difference.

And yet... there is a final avenue of argument that may help the Respondents. We have noted at the very beginning that the Shakespearean corpus is fiction, i.e., a discourse that does not talk about the world in a directly referential manner but rather alludes to the world through indirect and very complex symbolic structures. The Respondents can therefore argue that the requirement for sexual difference has a symbolic function rather than a referential function within Shakespearean marriage. Having a man and a woman marry conveys in a striking and immediately recognizable way the message that marriage is about achieving a higher synthesis through the reconciliation of difference. A woman and a man marrying are a poetic narrative which gives concrete expression to the concept, but it is the concept that is normative not the narrative. The flaw in this argument is that for the concept to appear as autonomous of and not exhausted by the narrative, we need some evidence that alternative narratives are in fact available. The occasion for at least hinting at such alternatives presents itself repeatedly in the plays, and yet no other marriage story is provided. The Respondents’ argument points to a logical possibility which remains beyond the horizon of the corpus.

For all these reasons, I find that the laws of Shakespeare do not sanction same-sex marriage and here I use the term “sanction” in both its positive and negative sense. Same-sex marriage is neither approved nor disapproved by the laws of Shakespeare. It is a logical but unreal possibility beyond the ambit of the normative order we are considering.

III. Same-sex marriage and the corollary reformulation of the common law definition of marriage is consistent with the fundamental principles which underpin the laws of Shakespeare

The fact that the laws of Shakespeare do not directly provide an answer to the question before this court does not lead to a legal vacuum. Rather it forces to us confront the fact that we live today in a very different world form Shakespeare’s and that, not surprisingly, we face questions that could not be anticipated as such five centuries ago. Here is were we confront our historicity. Our challenge therefore is to examine whether the principles underlying the laws of Shakespeare can help us formulate an answer which is necessarily an extension of the laws of Shakespeare. So far our discussion has focused on the roots of the tree, now we can examine its branches and look for the leaf that we need. In a less metaphorical vein, the question is whether the laws of Shakespeare can grow to help us meet the changed social and historical situation which demands us to determine whether the definition of marriage should be extended to include same-sex couples.

This task is by now relatively straightforward. The discussion of the corpus has led to the conclusion that heterosexual dimension of marriage is an unexamined postulate which, as such, is unassailable within the fictional world. However, once we move from the fictional world to the normative order underpinning it, we have found that the fundamental principles and values which govern the institution of marriage do not logically exclude same-sex couples. Marriage emerges from this analysis as a vehicle for the harnessing of desire (in its emotional as well as sexual aspects) to socially productive ends (i.e., essentially, the consolidation of the social order). In marriage, the demands of the individual are reconciled to the needs of the community. The vicissitudes of the couples allow a healthy dialectic to develop which changes both the individual (who learns to channel desire in a responsible, i.e., socially acceptable manner) and the community (which becomes cognizant of and therefore able to change needlessly oppressive conventions). As one of the Applicants noted, desire is transgressive, but the point of the transgression is to be the opportunity to reconstitute order, an ethically superior order. This principled model of marriage can clearly accommodate today’s same-sex couples.

Indeed, as one of the Responded suggested, the extension of the definition of marriage to same-sex couples achieves precisely that reconciliation of individual aspirations and social needs which is at the heart of this institution. Such a reconciliation is particularly urgent in the case of same-sex marriage. The homosexual community has long suffered from exclusion and discrimination either on the basis of unprincipled prejudice or of particular religious belief, neither of which can have place in our legal system.

The objection that same-sex marriage is a contentious issue which divides our community rather than bringing it together misses the point. All the issues that come before a court are necessarily contentious and our function is to declare the law not by reference to opinion polls but on the basis of a careful examination of our legal texts and traditions which allow us to articulate the vision of a world we can all be proud of.

As to the floodgate argument (always a lame one!), I fail to see how extending the definition of marriage to same-sex couples in any way opens the way to the legalization of incest, pedophilia, bestiality, etc. Each of these practices raises different legal issues which are in no way analogous to those raised by same-sex relationships. What this decision does is to say that the definition of marriage is not beyond time and human history. It is a principled response to a particular historical situation. This is how it should be. Our legal system cannot be based on dogma and fear, it must be based on a principled and clearly articulated vision of the kind of world we want to live in. Such vision must always be open to criticism and modification or it slides into totalitarianism … and we all know where that path leads.

These are long reasons and I should probably end them soon. But I cannot bring myself to discharge them without commenting on a radical argument made by one of the Applicants. In essence, the submission was:

(a) normative orders derive their legitimacy from the community from which they emerge (I will refer to this group as the “source community”) and which they govern;
(b) the corpus discloses a plurality of autonomous normative orders each of which speaks to the need of a particular community;
(c) the transfer of the rules that obtain within one of these normative orders and its community to another normative order and another community (I will refer to this group as the “target community”) must be met with suspicion as an attempt to homologize the target community -- this is particularly dangerous situation when the source community has a dominant position in the social system within which it and the target community coexist;
(d) the parties wishing to bring about this transfer have the onus of proving that the rule imported from the normative order of the source community will in fact be able to meet the needs of the target community.

On the basis of these principles the Applicant argued that:

(e) marriage is an institution that expresses a heterosexual normative order developed by and for the heterosexual community;
(f) the extension of the definition of marriage to same-sex couples is in effect an attempt to transfer the rules developed to meet the needs and values of the heterosexual community to a different community, namely, the homosexual community;
(g) the court should approve this transfer only on the basis of clear evidence that it meets the specific needs and values of the homosexual community and will not have the effect of imposing hardship on that community by forcing it to conform to heterosexual standards;
(h) the Respondents have not discharged their onus of proof in this regard.

This argument was not fully developed before the court and therefore I will base no finding on it. However, it is an extremely interesting line of reasoning whose appeal lies in the fact that, if successful, it would allow this court to adopt a more pluralistic and therefore flexible approach to the laws of Shakespeare. For future reference, I will add that to accept this argument depends I would need to be persuaded of the following:

(i) this court should embrace legal pluralism as its fundamental conceptual framework (there is evidence in the extant jurisprudence that the court will lend a sympathetic ear to this argument but the issue is much too important not to be squarely addressed);
(ii) the Shakespearean corpus lends itself to a pluralistic legal interpretation;
(iii) the homosexual community (or any other community invoked) should in fact be regarded as a “community” for the pertinent purposes;
(iv) marriage is an irretrievably heterosexual institution and cannot evolve to meet the needs of the homosexual community (stated as a general rule: the law or institution in question is irretrievably compromised with the “source community” and cannot evolve to meet the needs of the target community).

This line of argument is also interesting because it exposes a telling blindspot in all the arguments brought before us and, therefore, in this judgment. It is a sign of our conservative and conformist times that no Applicant saw the potential of a frontal attack on marriage. There is room to argue that over the last two centuries the institution of marriage has been hijacked and irremediably perverted by a class (originally the bourgeoisie and, later, its much diminished scion, the middle class) whose values and aspirations are ethically abhorrent and fundamentally at odds with the principles and laws of Shakespearean marriage. In essence, the argument would be that marriage no longer meets the needs of any human community. From this perspective, the Applicants could have submitted that the laws of Shakespeare do not in any way justify widening the scope of operation of the corrupted institution of marriage. This reasoning would then have opened the question -- which could not be decided on the facts of this case -- of whether this court should cease to enforce the laws of marriage altogether and rather seek to establish a new legal framework to address committed human relationships and reproductive issues.

In conclusion, I would like to thank my colleagues on the bench, as well as all the Applicants and Respondents, whose insights and professionalism have made this a highly stimulating and enjoyable experience.

Justice MacDonald

Concurring judgement

No writ of state
Those who enraptured by mimetic text
Would prefix law’s compass to symbolize
Ought once to hearken as a mother vexed
Indwells the unsaid in her infant’s cries.
Interpretation frames the arguments
Upon whose truth canonic phrases draw,
As if alone our courts and parliaments
Could be the agents of the common law.
No writ of state, no gaze contemptuous,
Can make a novel love less loving seem,
Or claim to normalize the virtuous.
Exceptions prove the rule that rules redeem.

Such paradoxes lovers have sustained
Against the prince their dignity maintained.