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The United Church Factum to Supreme Court on Same-Sex Marriage


By Carman Bradley


The Queen’s University glossary defines a Factum as:

A statement of the facts and law to be referred to which is filed by each party in a legal application, appeal or motion. In British legal practice, a factum is only an outline of the arguments to be raised on appeal, together with citations to a few leading cases on each point. American legal practice relies much more heavily on written argument and the appellate brief may contain the entire argument as counsel may not be given enough time to present an oral argument. Canadian legal practice is often a mixture of the two systems with counsel presenting both a comprehensive oral presentation and written factum. [i]

In their Factum[ii] before the Supreme Court in spring 2004, the UCC said the following (extracts in blue are sequential):

Factum Extract: The United Church is the largest Protestant denomination in Canada, with approximately 650,000 members and 200,000 adherents.   It has been in existence since 1925.  It is a member of the World Council of Churches.  The United Church can therefore be considered a mainstream, established Christian church.

Reliability Note1. The orthodox interveners opposed to the UCC position should have cross-examined the UCC on their claim to be a mainstream, established Christian denomination.  In view of their professed beliefs and their day-to-day operations, the organization is demonstrably apostate; their credibility as a Christian witness is seriously flawed.

Factum Extract: However, unlike some other mainstream, established Christian churches which are interveners in the reference, the United Church both supports same-sex marriage and makes same-sex marriage ceremonies available to its members.

Factum Extract: Although marriage is not a sacrament in the United Church, the United Church does place an extremely high value on the seriousness of the vows made in the presence of God and witnesses.  The United Church supports all life-long relationships of care, justice, mutuality and faithfulness.

Reliability Note 2. Consider the later assertion in the context of these policy decisions: 1962 - sanction divorce and remarriage;[iii]  1965 - condone pre-marital sex;[iv] 1980 - issue sex report approving of marriage infidelity: “it [fidelity] includes openness to secondary relationships of emotional intimacy and potential genital expression but with commitment to the primary marriage;”[v]and, 2000 - Bisexual relationships affirmed as divinely sanctioned.  The UCC has a misleading way of stating what in practice is an “all inclusive” anything goes doctrine.  Everything is subject to the tacit, if not explicit, caveat that one’s truth cannot trump another person’s truth.  The 2005 document, Faith Talk II[vi] states the theological paradox this way: While believing that our faith is grounded in truth, our truth need not deny the truths of others.” Choice Okoro, UCC Program Officer for Human Rights, puts the notion into practice supporting same-sex marriage.  She said:

The United Church unequivocally supports the right of same-sex couples to have access to civil marriage, it also unequivocally supports the right of religious communities to refuse to perform such marriages.  The United Church does not believe that the faith stance of a community which supports same-sex marriage undermines the faith stance of a community that does not.

Thus, the fact that the UCC declares support for “life-long sexual relationships” does not imply, in their worldview, that they cannot also support short-term sexual intimacies.  In this context, the characteristics - care, justice, mutuality and faithfulness, which they assert as evidence of relationships worth supporting, hold little weight in differentiating the good from the bad.  For a majority of homosexuals, these qualities neither preclude bathhouse affairs nor following relationship guidance such as Eric Marcus gives in The Male Couple’s Guide: Finding A Man, Making A Home, Building A Life. His key to maintaining a lasting relationship is to set some boundaries:

(1) Sex with other partners is allowed, but must be kept secret. (2) Sex with other partners is allowed, but must be discussed.  (3) Sex is not permitted with mutual friends.  (4) Only anonymous sexual encounters are permitted.  (5) Sex is permitted only when one partner is out of town.  (6) Sex with other partners is not permitted at home.  (7) Sex with other partners is permitted at home, but not in the couple’s bedroom.  (8) Outside sex is permitted, but only when both partners choose a third to join them.[vii]

The homosexist, liberal, all-inclusive stance of the UCC prevents the denomination from doctrinally alienating the 95 percent of the homosexual community who are not interested in monogamous, life-long, single-spouse marriages.  It would be interesting to have the UCC comment on this website as to whether Marcus’s guidance is sinful or ungodly advice.  The orthodox interveners should have cross-examined the UCC on their interpretation of homosexual marriage; on whether the denomination henceforth declares sexual relations outside of marriage a sin (regardless of orientation); on whether sexual relations with other than the marital spouse is a sin; and whether the common homosexual practice of secondary intimate partners is a sin under all circumstances?  Here again, the likely answers are self-evident, the UCC has no intention of condemning the majority of homosexuals for the moral equivalent of fornication.   The denomination’s credibility as a Christian witness is acutely flawed, ill-suited for testimony on marriage redefinition before the Supreme Court.

Factum Extract: Theologically and liturgically, the United Church understands both opposite-sex and same-sex couples as sharing the same human dignity of being made in the image of God.  There is therefore no theological impediment that would prevent same-sex couples from participating in this union, which is one of the fullest expressions of the covenant between God and humanity.  To the contrary, excluding same-sex couples from this expression of the covenant relationship undermines their human basic dignity.[my underlines]

Factum Extract: As of February 2004 the United Church had reported 120 same-sex marriages in thirteen congregations.  Since July 2003, well over 1000 ceremonies [union blessings] have been performed…

Reliability Note 3.  In these two statements the UCC gave the secular humanistic justice system what they longed for – a way through, over or around religious opposition to marriage redefinition.  Like a “Christian” quisling, the UCC made effective resistance within Christendom meaningless by becoming a breach in the wall of orthodoxy, which had stood for 2,000 years.  Sadly for the denomination, in fulfilling this role of undermining authentic Christian resistance, the UCC stooped to the unprecedented low of parroting terminologies taken exclusively from humanist lexicon – human basic dignity!  Imagine, for 2,000 years Christians, including Apostle Paul, Martin Luther, Calvin, an endless line of Popes, and for a much much longer, the Jews of history have been totally blind to the inalienable, human basic dignity of same-sex marriage.  The unholy collaboration of this church (UCC)  and the agenda of the state (Supreme Court) is further evidenced through the observations of Iain T. Benson, lawyer and Executive Director of the Centre for Cultural Renewal.  In “The Idolatry of Law: When Law is Seen as ‘Like Religion’,” Benson warns Canadians to be aware of a totalitarian “jurocracy,” where judges deem themselves capable of replacing morals, philosophy, or religion and making their own wills the measure of right and wrong.  In a jurocracy an elitist party usurps their proper role in a democracy.  Benson writes:

This new legal movement uses the language of ‘equality’ and ‘dignity’ (the first of which is in the constitution itself) to effect ends that are well beyond the usual judicial role.  In this new juggernaut of forced consensus, what is really at issue is the power of judges to force their own personal moral and theological beliefs upon society.  Under the guise of ‘legal interpretation,’ the ‘new theologians,’ believing law is comprehensive, promulgate the dogmatic rules of the day.[viii][my underline]

The construct of everyone with equal dignity before God as a justification for homosexual marriage access is a peculiar one, especially when asserted by self-professed Christians.  The Bible declares we are all made in His image.  It also declares we are equally ranked as sinners, equally lost from God at birth: “As it is written there is none righteous, no not one” (Romans3: 10).  “For all have sinned, and come short of the glory of God” (Romans 3: 23).  If the intent of the UCC notion of equal dignity was to proclaim homosexual offenders, of no different ranking, no less dignified, their sin no more of an indignity before God than heterosexual offenders, then Amen.  But clearly, it is not.  The UCC does not believe in original sin and the church believes all are saved.  The term “born again” in Christ is absent from UCC lexicon.  To assert the humanist notion that equal dignity justifies marriage access, pro-gay theologians must make a case that sodomy and oral sex among consenting homosexuals, particularly if married and monogamous, holds equal dignity with heterosexual intercourse between spouses.  Such a liberal presupposition is an appalling theological travesty.  Sodomy has been legal since the release of George Klippert, jailed for gross indecency in the 1960s; however, the behavior remains no less of an offence before God.  The fact is, the gay lifestyle is not only behaviorally undignified, but for the overwhelming majority of men, it is perilously dangerous.  The threat of HIV and AIDS within the homosexual community causes very real stress, deep depression and low self-esteem.  The undignified and unavoidable relationship of AIDS to gay sexual behavior was first pointed out by Columbia researchers Martina Morris and Laura Dean in their ground breaking paper on the effects of behavioral change on the spread of HIV.  They said:

Under the optimistic scenario where the average number of new, unsafe sexual partners per year does not increase above one, the virus could affect less than five percent of the gay population by the year 2030. But with an average of two new unsafe partners per year, instead of the reported one, the virus would continue to be transmitted at epidemic levels and infect about 25 percent of younger men and about 60 percent of men who reach their late 40s.[ix]

The orthodox interveners should have cross-examined the UCC on their interpretation of “equal dignity” before God and filed an objection based on the fact that UCC is offering patently unchristian testimony, while claiming to be Christian.   Any unbiased judge, any Christian with eyes to see, would agree with what homosexual, Andrew Holleran, declares to be self-evident:

The attempt of gay men to merge their Catholicism with homosexuality has always seemed to me touching but doomed.  I used to walk past the church on Sixteenth Street in New York where I knew Dignity – an organization for gay Catholics – was meeting, but I never went in.  I felt sorry for the men inside, sympathetic to their attempt, and superior to what seemed to me their naiveté.  Don’t even try, I thought, as I walked past, on the way from the gym to the bath (my new church), you’re just kidding yourselves.  There can be no commerce between, no conflation of, these two things.  Fellatio has nothing to do with Holy Communion.  Better to frankly admit that you have changed gods, and are now worshipping Priapus, not Christ.[x]

Factum Extract:  The exclusion of same-sex couples from civil marriage is based upon and perpetuates stereotypical assumptions about same-sex couples: that their relationships are less permanent, that they are incapable of commitment, and that they cannot form healthy families.  However, same-sex couples do have relationships of permanence, they do make commitments to each other and they do form healthy families.  

Factum Extract:  The societal significance of marriage cannot be overemphasized.  Marriage is a benchmark by which Canadian society names the everyday development of love and intimacy between a couple.  For many people, marriage ritualizes the sanctity of love through the very means by which people convert houses into homes, food into customs of community, and sex into love.

Reliability Note 4.  Marriage (in the Christian worldview) is about monogamy and can never ritualize sodomy and oral sex into sanctified love.  These sexual acts may be the customs of the community but they are an outrage to a Holy God.  Moreover, the 1994 National Health and Social Life Survey (US)[xi]revealed that 75 per cent of heterosexual men and 85 per cent of heterosexual women said they had never cheated in their marriage.  On the other hand, Robert Williams, the first openly gay Episcopal priest to be ordained, declared in Newsweek, “If people want to try, OK.  But the fact is, people are not monogamous.  It is crazy to hold up this ideal… ”[xii]  Mark Steyn makes a severe point in the American Spector: “A grisly plague has not furthered the cause of homosexual monogamy, so why should a permit from a town clerk.”[xiii]  And Gareth Kirby, editor of Xtra West, reports that among Vancouver gays, “only two per cent were in long-term relationships.”[xiv]Marriage redefinition has opened the institution to further assault by the hostile promiscuous majority. 

Some advocates raise the notion that same-sex marriage will increase monogamy and reduce the incidence of sexually transmitted disease.  However, the opposite affect occurs.  As previously stated, Martina Morris and Laura Dean found that two “unsafe” connects a year would sustain the level of HIV in the gay population at 60 per cent.  Sadly, one unsafe contact per year is a level of monogamy with little precedent in gay culture.  Furthermore, Cindy Patton, in Sex & Germs, writes that gay monogamy does not“In the San Francisco study, men in monogamous couples, in primary relationships with some sexual activity outside the relationship…nearly all agreed that they hadn’t implemented desired [safe-sex] changes because they perceived their partner(s) to be unwilling to make that change.”[xv] Frank Browning writes of a 1990 study, “…unattached gay men were significantly less likely to expose themselves to HIV through risky sex than were men in serial monogamous relationships.”[xvi]  increase risk-reduction practice.  She says:

Catherine Wallace, author of Accounting for Fidelity, illustrates the paradox in the UCC human rights claim of “sameness” and “equal dignity” for homosexuals in the following brief vignette.  She relates a story involving her young sons:

‘Does Daddy use condoms?’ I stopped grinding coffee beans and looked across the dark, November-morning kitchen at my eight-year-old son, who had set aside his raisin toast with peanut butter…‘Mark [fifth grade] says - Mark says the teacher says if you don’t use condoms then you could both get sick and die.  So we want to know.  Does he?  Every time?’[xvii]

The orthodox interveners should have cross-examined the UCC on their assertion of homosexual monogamy as cause for marriage access.  And they should have filed an objection to the evidence submitted, on the basis that the UCC is falsely claiming to be Christian, and falsely asserting that their argument complies with Christian theology.

Factum Extract: The United Church does not agree with the AGC [Attorney General of Canada] that the purpose of marriage is procreation; procreation is one aspect and purpose of marriage but not the defining or only purpose.  The other, equally important purposes of marriage include fostering intimacy, companionship and respect, creating and sustaining community, and, in the case of religious marriage, expressing commitment to and communion with God.  No rational connection exists between the exclusion of same-sex couples and any of these purposes, including procreation.  Same-sex couples can and do have and raise children.

Factum Extract: In any event, it is absurd to suggest that allowing same-sex couples to have access to the institution of marriage somehow undermines the institution.

Reliability Note 5.  There is an absurd irrationality and rudeness in the UCC asserting: (1) that it is a Christian denomination; (2) that it believes there is no absolute truth; and (3) that it is ok if members and congregations are against same-sex marriage; and yet declare to the Supreme Court that all who oppose marriage redefinition are ridiculously illogical.  [The issue of why a relatively few orthodox believers [COC and NACC], the so-called “UCC reformers,” persist in remaining within the UCC is intriguing, worthy of separate analysis.  These reformers appear to place greater importance on denominational loyalty than on Christ.  After four decades of continuous abuse within the UCC, they need to respond to these questions: “What heresy would it take to dislodge you from your UCC pew?”  “If not, the denial of the divinity of Jesus Christ; if not homosexual ordination, if not same-sex marriage, what could possibly open your eyes to flee?”  “Do you think that the hundreds of thousands who were burdened, over the decades, to escape the apostasy were falsely called out of the United Church?”

Whether by evolution or by divine intent, all must agree that the human species is male and female.  Like a lock and key, man and woman have matched designs for procreation.  For this reason (the mixing of human gene pools) the state allows marriage between one man and one woman but discriminates against marriage to a close relative, a son, a daughter, a sister, a brother, a father or a mother.  This prohibition is so strong that sex amongst these relations is illegal and defined as incest.  If we now say marriage is no longer about procreation, then the prohibition on the marriage of a brother to a sister appears unjustly discriminatory from in a homosexist worldview and incest becomes a defunct notion.  After disconnecting marriage from its heterosexual procreative moorings, the question becomes: “Why can’t a brother have sex with a brother or a father with a son, if so oriented?”  No offspring are at genetic risk.  Ironically, any reference to the morality of these acts begs the questions: “If it is ok for two men to have sex, why is it wrong for two brothers?”  If they were married would this make a difference? The fact the Supreme Court refrained from ruling traditional marriage unconstitutional is no surprise.  First, if same-sex marriage was truly human rights entitlement based on “sexual orientation,” then bisexuals should be given access.  The UCC makes no attempt to introduce the complications of bisexual marriage to their patently unchristian dissertations.  That the state has yet to entertain the marriage rights of other sexual orientation groups reflects the political nature of the issue and refutes the notion that marriage redefinition is a matter of human dignity.  Second, for perpetuation of the species societies have developed cultural notions of masculine and feminine genders.  Proponents of same-sex marriage assert there is no essential relationship between the body (anatomy and genitalia) and gender.  Accordingly, the two-sex system is no longer to be privileged over the same sex system.  The notion of a purposeful design in male and female (called “heterosexism”) is defunct as a result of redefining marriage.

Frankly, the absurdity lies in calling two men and a child equal to the Biblical family.  Blinded by the spirit of homosexism, the UCC cannot see the irony in - “Dad, who’s my mother?” “I don’t know son. Ask your father.”  Blinded by the spirit of humanism, the UCC cannot see the paradox in asserting that children don’t need a mother or a father, any two of the same sex will do.  The heterosexual family is a purposeful design, from which all other “habitations” are departures.  Gertrude Himmelfarb says of unbiblical adaptations, “This is parentage, and ‘alternative lifestyles.’  The ‘family of choice’ is defined not by lines of blood, marriage, or adoption, but by varieties of relationships and habitations among ‘autonomous,’ ‘consensual’ adults and their offspring.”[xviii] The vision in a post nuclear family era is that the parent can share parenthood and exchange children.  Homosexual relationships - some sexual, some mentoring, some fraternal, some utilitarian - commonly involve more than two individuals.  A typical variant “family” is the gay man with a lover who chooses to have a child with a lesbian who also has a lover.  Mona Greenbaum, of the Lesbian Mothers Association of Quebec, claims that lesbians should have the same access to fertility technology that married heterosexual women have.[xix]  But why should lesbian couples be privileged over gay couples, applying Greenbaum’s logic? Without human cloning, same-sex couples cannot procreate.  Brigitte Boisselier, director of CLONAID, claims there is already demand for cloning among gay couples.[xx]

The heterosexual system of marriage and family is the chief obstacle to an experimental, humanistic and technocratic future.  If traditional marriage endures, the realm of the state and the development and use of the technology can be limited.  George Gilder, in “Men and Marriage” warns, “If the family should widely breakdown, then the world of artificial wombs, clones and child-development centers would become an important reality rather than a laboratory curiosity.” [xxi]

The orthodox interveners should have cross-examined the UCC on their assertion that a same-sex parenting family is normative, indeed, equal to a family with a mother and a father.   The orthodox interveners should have also filed an objection to the evidence submitted, on the basis that the UCC is falsely claiming to be Christian, while asserting that the traditional Christian worldview is irrational and absurd.  

Factum Extract:  The religious freedom of religious communities who object to same-sex marriage is not infringed by the proposed legislation.  They cannot be compelled to offer marriages which violate their beliefs.  The mere fact that civil marriage is available to same-sex couples does not constitute an attack on the religious beliefs of those who are opposed to same-sex marriage, any more than the fact that some people do not observe the Christian Sabbath constitutes an attack on the beliefs of those who do.  More importantly, the United Church does not believe that the faith stance of a community which supports same-sex marriage undermines the faith stance of a community that does.

Reliability Note 6.  There are tacit, if not blatant layers of charade and spiritual naivety in claiming that one faith stance does not affect the other.  One only need look inside the UCC to see the paradox.  The UCC Factum records how the Elmsdale Pastoral Charge applied this theologically double minded maneuver to address a request by two homosexuals to be married:

One congregation decided not to vote.  One congregation, through their Session, decided they were not ready to accept same-sex marriages in the church building, but would be open to further discussion about the Minister performing marriages outside the church building.  The third congregation decided at the Board level not to have a congregational vote, but passed a motion affirming the present marriage policy which is as follows: That the Minister may marry people at her discretion if they have a valid marriage license.

The orthodox interveners should have cross-examined the UCC on their anything-goes theology.  It is evident the UCC just doesn’t care what people think as long as everyone has their individual freedom.  Their premise can only work if the believer concludes God does not care either.  But what is the dissenting minority in a congregational vote to do, bite the bullet and stay, or leave?  The orthodox interveners should have filed an objection to the evidence submitted, on the basis that the UCC is falsely claiming to be Christian, while asserting doctrine fundamentally in line with Gnostic theology.  Kurt Rudolph, professor of History of Religion, explains Tertullian’s view of the Gnosticism, which I assert reflects UCC thinking:

Tertullian long ago, before modern investigation gathered together the numerous groups and movements of the heresy of the period under the general designation ‘gnosis’, had grasped their essential elements. For him Gnosis is a ‘declining syncretism’ such as the natural spirituality of mankind loves, a spiritual and idealistic overestimate of the self which blurs the fixed limits that separate the creature from the deity; and it is at the same time the ‘nihilistic’ hostility against God of reality who has created the world and has revealed himself concretely in the flesh.[xxii]

Christendom needs to recognize the magnitude of the UCC Factum heresy and the impact their religious liberalism has had on the state adopting a homosexist worldview.  Moreover, Canadian believers need to measure the disservice done by the acquiescent role that orthodox interveners played in allowing the United Church, so-called “Christian,” witness to stand.  What God thinks about the whole same-sex marriage judicial process and the UCC assertions is cause for deep reflection.  The following phrase is either the greatest divine revelation of the twentieth century overturning the orthodox worldview or the assertion is greatest act of blasphemy.

There is therefore no theological impediment that would prevent same-sex couples from participating in this union, which is one of the fullest expressions of the covenant between God and humanity.

My God give us eyes to see.


Copyright © 2008 StandForGod.Org


[ii] Factum of the Intervener, The United Church of Canada, Court File No. 29866, filed 11 May 2004.

[iii] The Right Rev. Dr. Peter Short, 38th Moderator, “Chronology of Marriage and Equality Rights in The United Church of Canada,” 8 October 2003,, 10/30/05.

[iv] “Creed of The United Church of Canada,”, 4/20/01.

[v] In God’s Image: Male and Female, United Church of Canada, 1980. 

[vi] FAITH TALK II: A DRAFT STATEMENT OF FAITH FOR DISCUSSION AND RESPONSE, Committee on Theology and Faith, The United Church of Canada, January 2005.

[vii] Eric Marcus, The Male Couple’s Guide: Finding a Man, Making A Home, Building a Life, Third Edition, (New York: Haper Perennial, 1988), pp.43 and 44.

[viii] Iain T. Benson, “The Idolatry of Law: When Law is Seen as “like Religion,” Centre Points 12, Winter 2004/2005,, 10/16/05.

[ix] Study Urges Safe Sex to Prevent Epidemic in Gay Community,, 21/11/2007.

[x] Mark, Jordan, The silence of Sodom (Chicago: University of Chicago Press, 2000), p.248.

[xi] Jonathan Eig, “Sex by the numbers,” Chicago, Chicago, July 1998.

[xii] Joe Dallas, A Strong Delusion: Confronting the ‘Gay Christian’ Movement (Eugene, Oregon: Harvest House, 1996),p.31.

[xiii] Norman Podhoretz, “How the gay-rights movement won,” Commentary, New York, November 1996.

[xiv] REAL Women of Canada, “Homosexual Lobby Group EGALE Hits Turbulance,” REALity, _7.html, 4/23/02.

[xv] Cindy Patton, Sex & Germs ( Montreal:Black Rose Books, 1986), pp.135 and 136.

[xvi] Frank Browning, Culture of Desire (New York: Crown Publishers, 1993), pp.84 and 85.

[xvii] Catherine M. Wallace, Accounting For Fidelity: How Intimacy and Commitment Enrich Our Lives (New York: Knopf Publishers, 1998), p.3.

[xviii] Pamela Paul, The Starter Marriage and the Future of Matrimony (New York: Villard, 2002), p.257.

[xix] “Cloning,” Calgary Herald, 27 November 2001, p.A2.

[xx] Michelle Mac Afee, “Cloning worries 88.9% of Canadians, poll finds” National Post, 20 August 2001, p.A4.

[xxi] George Gilder, Men and Marriage (Gretna, Louisiana: Pelican Publishing Company,1987), p.185.

[xxii] Kurt Rudolph, Gnosis: The Nature and History of Gnosticism, trans. by Robert McLachan Wilson, (Edinburgh: T & T Clark Limited, 1983), p.19.