November 4, 2002
POLICY ARGUMENTS IN CANADIAN SAME-SEX MARRIAGE CASES
By: Susan Price-Livingston, Associate Attorney
You asked for a summary of the policy arguments made for and against legal recognition of same-sex marriages in two recent Canadian court cases (Egale Canada Inc. v. Attorney General, 2001 BCSC 1365 and Halpern v. Canada, No. 684/00 (Ontario Superior Court of Justice (Divisional Court)).
The Canadian Charter of Rights and Freedoms (Canada's partial equivalent to our constitution) guarantees equal treatment of all people under law subject only to reasonable legal limits that can be demonstrably justified in a free and democratic society (Charter sections 15(1) and 1). In essence, a law that discriminates against a particular group of people based on their personal characteristics can withstand a challenge under the charter only when the government can show that the law serves a legitimate purpose and that its "salutary effects" outweigh its "deleterious effects. "
In 2002, two Canadian provincial courts reached opposite conclusions when asked whether a common law rule that defines marriage as "the lawful and voluntary union of one man and one woman to the exclusion of all others" violates the charter. The judge in the British Columbia case found that although the common law definition discriminates against people in same-sex unions, the charter was not violated because "the core distinction between same-sex and opposite-sex relationships is so material in the Canadian context that no means exist by which to
equate same-sex relationships to marriage while at the same time preserving the fundamental importance of marriage to the community (Egale, para. 211). "
An Ontario panel of judges, on the other hand, concluded that "the existing common law rule is inconsistent with constitutional values in modern Canadian society, and offends the equality rights of gays and lesbians under Section (15)(1) the Charter (Halpern, para. 2(d)). " Appeals are pending in both cases.
The parties made similar policy arguments in both of these cases. We summarize what appear to be the primary arguments below.
Table 1: Policy Arguments
Attorney General of Canada
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.