OLR Research Report


November 4, 2002

 

2002-R-0820

POLICY ARGUMENTS IN CANADIAN SAME-SEX MARRIAGE CASES

 

By: Susan Price-Livingston, Associate Attorney

Attorney General of Canada

Applicant Couples

The institution of marriage is an historical and universal pre-legal concept of an opposite-sex union that was ultimately adopted by law. There are, and always have been, three basic universal norms that constitute marriage: (1) procreation, (2) fidelity, and (3) sacrament. While variables may exist within marriage, the universal norms always remain.

Same-sex marriage lacks the universal or defining feature of marriage according to religious, historical, and anthropological evidence. Apart from anything else, marriage expresses one fundamental and universal need: a setting for reproduction that recognizes the reciprocity between nature (sexual dimorphism) and culture (gender complementarity).

Evidence shows that marriage was, and continues to be, the most stable unit for family formation, as opposed to, for example, common-law unions that dissolve at the rate of 50% or more.

Any reformation of the historical definition of marriage that includes the union of same-sex couples could have the following effects:

    · a profound impact on each of the universal or nearly universal features of marriage, leading to the loss of cultural norm of opposite-sex marriage;

    · the further de-stabilization of marriage privately and publicly by breaking the sense of constancy in its mission - the most durable union through which to bear and raise children; and

    · a negative impact on women where marriage becomes treated as a relationship between two independent adults of equal power without an inherent core recognition that it includes the cost of child bearing and rearing.

Marriage recognition is not required to address the issues the applicants raise; other forms of partnership regimes that grant the required legal recognition can satisfy them.

Marriage is not simply an extra-legal, pre-political institution that exists in some essential form across all times and all cultures. Marriage - rather than being an unchanging, monolithic entity - has been a dramatically changing and variable institution. Historically, not all marriages were between members of the opposite sex.

Restrictions on marriage are rooted in Christian theology, but in this regard, its scriptures have been wrongly interpreted.

The assertion that procreation is the primary purpose of marriage is not supported by the historical record.

If an objective of marriage is to allow for the possibility of procreation and child-rearing,

attainment of the objective does not require a restriction on same-sex marriage.

Marriage has evolved from an arranged institution rooted in obligation, property exchange, and male control. While in earlier times, parents had significant control over their offspring's choice of marriage partner, given the important economic and social consequences that flowed from the marriage arrangement, the long term movement in Canada, as in most western countries, has been to recognize that individual choice is the major basis for marriage.

Marriage is a status with well-recognized social significance that is perceived by many to be the commitment of the highest order of one person to another. Marriage is a public affirmation of love and relationship with the important feature of legal status.

The restriction against same-sex marriage represents a rejection of the personal aspirations of same-sex couples, fails to recognize their "personhood," and denies them the freedom to make a fundamental personal choice.

The unspoken but real purpose for the restriction against same-sex marriage is the discriminatory belief that same-sex couples are not worthy of being married.