Egale Submissions to the House of Commons Standing Committee on Justice and Human Rights

Equal Marriage for Same-Sex Couples:
A Simple Matter of Fairness

February 4, 2003

"No one will be able to say I don't have a real family." Robbie Barnett-Kemper, on what equal marriage means to him

“Robbie Barnett-Kemper may be only 9, but he has a way of crystallizing an issue that a score of lawyers will take five days to elaborate for a panel of judges. ‘I think this case means no one will be able to say I don't have a real family,’ Robbie told reporters on the steps of Osgoode Hall, where the Ontario Superior Court began hearing a constitutional challenge yesterday by couples refused the legal right to marry.” The Globe and Mail, November 6, 2001

1. Introduction

Egale asks the Standing Committee on Justice and Human Rights (the “Committee”) to recommend that the federal government pass legislation to remove the opposite-sex restriction on legal marriage, thereby extending the freedom to marry to same-sex couples. No other recommendation provides equality.

In releasing a paper that even considers alternatives to equality, the Department of Justice is effectively asking the question “Do you want equality, or how would you like your inequality?”

Many same-sex couples wish to marry. They want to do so for the same reasons as their opposite-sex counterparts—to publicly proclaim and celebrate their love and commitment, to protect their children, to ensure legal and social recognition and for a whole host of other reasons. These couples would greatly benefit from being able to realize their choice to marry, an intensely personal choice that is widely recognized, at least for heterosexual couples, as a basic human right.

Instead of sending a message that all Canadians are to be treated fairly and equally, regardless of their sexual orientation, the message currently being sent by the government is that it is acceptable to exclude lesbian, gay and bisexual persons from a central social institution and that our relationships are inferior.

In recent years, the federal government, and most provincial and territorial governments, have extended to same-sex couples virtually all of the legal and economic rights and responsibilities of opposite-sex married couples. Yet we remain excluded from the institution itself, a distinction that undermines our human dignity, diminishes our families and discriminates against us in violation of our right to equality guaranteed by the Canadian Charter of Rights and Freedoms (the “Charter”).

The issue before this Committee is not what rights and responsibilities to provide same-sex couples—or any other forms of relationship. Under the Modernization of Benefits and Obligations Act, we already have virtually all the same rights and responsibilities as opposite-sex married couples.

Whether the government should enact registered partnerships is an interesting question to debate, but doing so would not fix the problem of our exclusion from the institution of marriage. So long as we continue to be denied the equal right to marry, civil union is just a way to segregate us and will maintain and reinforce the view that our relationships, our love and our lives are somehow inferior.

Providing same-sex couples with the equal right to marry will not harm religious institutions in any way, since each religion will still have the right to choose whether or not to perform marriages for same-sex couples, a right that is guaranteed by section 2(a) of the Charter. Egale is committed to supporting each religion’s right to choose, and has formally passed a policy to this effect. In addition, those religions that wish to perform marriages for same-sex couples will have the freedom to do so.

Some opponents of equal marriage have suggested that marriage as an institution would be weakened, even tainted, by our presence. Such people are, of course, free to hold whatever views they wish in respect of homosexuality and the treatment of same-sex couples, but official government policy should not be based upon such degrading and offensive notions. No group of Canadians should be systemically excluded from any legal institution, let alone one as central to our society as legal marriage. Legal marriage should respect and embrace the diversity of Canadian people. It must be open to all Canadians, regardless of their sexual orientation.

Some day, same-sex couples in Canada will have the legal right to marry. That is inevitable. As with every major human rights advance, from ending racial segregation to allowing women the right to vote, future generations will look back and wonder how anyone could have opposed such a basic human right.

We ask each Committee member to look carefully at the many reasons for extending equality, at the lack of any rational basis for maintaining the discrimination, and at the role and responsibility you have as Parliamentarians to respect the Constitution and ensure the fair and equal treatment of all Canadians.

We respectfully urge you to ask yourselves: which side of history do you want to be on?

2. About Egale

Egale Canada is a national organization committed to advancing equality and justice for lesbians, gays, bisexuals and transgendered people, and their families, across Canada. Egale has members in every province and territory of the country. Our Board of Directors is comprised of an elected male and female representative from each of six regions of Canada.

Egale is funded almost exclusively by membership contributions from Canadians who support our goals. We have occasionally received project funding, but have never received government sustaining or operational funding.

Egale has appeared before numerous federal Parliamentary committees, other federal committees, and provincial and territorial committees in British Columbia, Manitoba, Prince Edward Island, New Brunswick, Quebec and the Northwest Territories. Egale has also intervened before the Supreme Court of Canada in the cases of Egan v. Canada, Mossop v. Canada, Vriend v. Alberta, M v. H & Ontario, Little Sisters Book and Art Emporium v. Canada Customs, B.C. College of Teachers v. Trinity Western University, and Chamberlain v. Surrey School Board, as well as numerous lower court and tribunal cases.

Egale has also been involved in extensive public education and international activities. Egale participates in annual consultations sponsored by the Department of Foreign Affairs and International Trade, and Egale representatives have attended the United Nations World Conference on Human Rights in Vienna, the United Nations World Conference on Women in Beijing, the International Year of the Family Conference in Montreal, and the United Nations World Conference against Racism in South Africa.

Currently, Egale is active before the courts in British Columbia, Ontario and (as part of a Coalition) in Quebec, addressing the constitutionality of prohibitions on same-sex marriage.

3. Why provide equal marriage for same-sex couples?

(a) It’s about fairness

“When I met Dave, I ran home to tell my roommate: ‘I’ve met the man I am going to marry!’ On July 11, 1996 Dave and I shared our first kiss and have been committed ever since.”   Shane McCloskey “Shane and I want to get married because we love each other, and we see marriage as an opportunity to celebrate and legitimize our relationship. We have been loving, loyal and committed since the day we met. For Shane and me, marriage will represent a recognition of the value of our relationship and the freedom to fulfill our dreams.”   David Shortt

Shane McCloskey and Dave Shortt

There are many reasons to provide same-sex couples with equal marriage rights. First and foremost, it’s only fair. Courts have recognized it, the Canadian Human Rights Commission has recognized it, the Law Commission has recognized it, editorial-writers have recognized it and, according to the poll results, the majority of the Canadian public recognizes it.

Canadians strongly believe in the values of fair play, and treating others with equal dignity and respect. These are the values that underpin our Constitution, and they are the values that should guide government policy-making.

(b) It's about family

“If Robin and I had been able to get married, I believe that it would have been easier for our children because the relationship would have felt more official in their own minds, and they might have been more comfortable talking about it with friends. I also believe that we would have been more readily accepted by my family and by our community.”   Diana Denny

Same-sex couples have and raise children. Allowing these couples to legally marry affords their children the same protections and benefits as children raised by opposite-sex parents.

“[T]he opportunity for their parents to be legally married would benefit the children of lesbian and gay parents by enhancing the moral and social legitimacy of their parents’ relationships and by reducing the stigma and prejudice associated with their parents’ sexual orientation. Such support for same-sex parents and their children would benefit Canadian society by increasing the likelihood that children, regardless of their parents’ sexual orientation, will receive equal, fair and respectful treatment from family, school officials and peers.”   Expert Affidavit of sociologist Dr. Rosemary Barnes

Full legal equality in marriage will provide my grandson and all children with a safer, better world. Our hope is that every child, whether gay or straight, is born and is reared in a family surrounded by love, goes to school, grows up and earns a living and contributes to his or her community. Gay and lesbian people are part of our families and communities. They are our daughters and sons, cousins, siblings, aunts and uncles, grandparents. We are discriminating against our own family members.   Margaret Nosworthy, grandmother

All parents want their children and grandchildren to enjoy happy, fulfilling lives in an accepting society. Any one of us might have current or future children or grandchildren who are gay or lesbian. It's only fair that all of our children and grandchildren have the same choice to marry, regardless of their sexual orientation.

(c) It's about love

"I love this person with all of my heart and soul. I know that I will spend the rest of my life with her regardless of the obstacles we face together and as individuals. Julie is my family in the fullest sense of the word. She is the life of my life and the heart of my heart. I am a better person because she is in my life. I am a better daughter, sister, friend and citizen. I live my life more fully because of her. I care more deeply. I want to tell her and the world of this love. I want to manifest this commitment through marriage."   Dawn Onishenko

Tanya Chambers & Melinda Roy

“It is very hard to put into words all of the reasons I want to marry Melinda. Of course, the number one reason is because I love her. I want to be able to stand before my family, my friends and God and promise to spend my life with her. Straight couples do not need to prove any of these reasons in order to get a marriage license. I have all of these reasons and more. I am committed to Melinda mind, body, and soul but I cannot get a marriage licence. . . Marriage is morally and spiritually important to me. I want our children to be born and raised in a married environment because it would confirm to our family, friends and, ultimately, our children that we are committed and in love.”

(d) It’s about equal recognition

"My five-year-old daughter asked 'Are Dawn and Elizabeth married?' 'Yes,' I lied, 'they're married.' What my daughter really wants to know is this: will Elizabeth and Dawn's relationship endure? Will Dawn be around for the rest of our lives? So I tell her that, yes, they are married, because that's the only language my daughter can understand. This small deception matters to me. I should not have to lie to my children to convey the truth about their aunts."   Tina Reilly

For many Canadians, marriage uniquely conveys the nature and legitimacy of a committed romantic relationship. Gays and lesbians should not be denied this form of expression.

Language does not merely reflect discriminatory social attitudes and practices, but is involved in shaping and perpetuating such attitudes and practices. The exclusion of same-sex relationships from marriage and the invention of a different word to describe our unions represents gays and lesbians, and our relationships in particular, as deviant and abnormal, and as less worthy than heterosexual unions.

"Are you married?" For most people, it's an easy question to answer. Same-sex couples are either forced to deny the validity of our relationships or to explain that "the law won't allow it". Marriage is a part of Canadian life and same-sex couples, in fact all lesbian, gay and bisexual persons, are constantly faced with the fact of our exclusion from it. It's not a pleasant feeling.

Because there is greater social reluctance to recognize the legitimacy of same-sex relationships, the benefit of automatic recognition that marriage confers is particularly important for lesbian and gay couples. When a same-sex partner is injured, the last thing the other partner needs is to have the legitimacy of the relationship questioned by hospital authorities. When a child is hurt on a school trip, and the biological parent is unavailable, the co-parent does not want to have to convince a schoolteacher that the relationship is valid. When a same-sex partner dies, the surviving partner does not need to have the grief of loss compounded by having to prove that he or she is authorized to make the funeral arrangements. In a married relationship, these matters are rarely called into question, and the validity of the relationship can be easily demonstrated if necessary through production of the marriage licence.

Even family members often do not regard a relationship as "real" unless the couple are married. Excluding us from marriage acts as a barrier to understanding and support from our families:

“Marriage provides a framework which underscores for friends and family the value and priority attached to the relationship. For many, including my family, a relationship is not seen as ‘real’ or ‘serious’ unless you are married. Being a gay couple holds no value for a great number of my relatives. They do not see it as meaningful, long-term or committed. This has a great deal to do with the fact that they tend to equate my relationship with David to the casual dating phase of heterosexual romances. Getting married solidifies a relationship in their eyes... / Denying us the right to marry prevents us from being able to fully express and celebrate our love. We will always be seen as second rate and same-sex relationships will continue to be played down and trivialized by those who are intolerant. In effect this just gives them an excuse to continue to discriminate, an excuse that is supported by the law.”   Shane McCloskey

(e) It’s about choice

Canada is a country where individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. The government should respect choices made by individuals and, to the greatest extent possible, avoid subordinating these choices to any one conception of the good life. Our choice to marry should not be denied because we are not heterosexual.

As noted by the Supreme Court of Canada in Miron v. Trudel, a decision concerning unmarried opposite-sex couples, "[t]he decision of whether or not to marry ... can be as fundamental, as momentous, and as personal as a choice regarding, for instance, one’s citizenship or even one’s religion. Although certain rights and obligations flow from each one of these three diverse choices, it does not render any of these choices justice to reduce them to a question of contract. I highly doubt, for instance, that people enter the institution of marriage because it strikes them as offering an attractive package of contractual rights and obligations."

“Who doesn’t dream, when they are young, about meeting the right person, falling in love and getting married? Once I realized I was gay, I thought that dream would be forever denied to me. I never dreamed I could marry a man, because all my life marriage was reserved for heterosexuals. In fact, the legal denial of equal marriage reinforced the beliefs that had been ingrained in me that being gay was something wrong and shameful. I believe I would have come to terms with my homosexuality sooner if marriage were a legal possibility. Gays and lesbians deserve the right to share in that dream.”   Shane McCloskey

Marriage is a basic social and cultural institution and the choice of whether to marry is an intensely personal choice that is widely recognized, at least for heterosexual couples, as a basic human right. Same-sex couples should have the same right to choose as all other Canadians.

(f) It’s about ending discrimination

Same-sex couples, and all gay, lesbian, bisexual and transgendered persons for that matter, suffer under the weight of stigma and prejudice. While much progress has been made in recent years, we are still often subject to verbal and physical assaults, many of us still grow up in isolation and fear and kids who are not heterosexual still face significantly higher suicide rates than their heterosexual counterparts.

These attitudes of prejudice are reinforced—and given State sanction—by discriminatory laws. The message sent by our current exclusion from the institution of marriage is unmistakeable: that same-sex couples are unworthy of equal recognition, that a distinction must be made between same-sex and opposite-sex couples in order to “protect” the institution—in short, that there is something wrong with us and with our relationships.

4. Constitutional Imperatives: It’s the Law

Opposite-sex couples can get married. Same-sex couples cannot. One does not need to be a legal scholar to recognize that that’s not equality, it’s discrimination, and it is prohibited by the Constitution.

Canada is a constitutional democracy whose legislatures have chosen to adopt the Charter, and thereby subject themselves and the laws they make to judicial scrutiny, including on the basis that a law discriminates against a disadvantaged minority group. We have done this because Canadians believe that all people deserve to be free and are entitled to equal treatment under the law. This entitlement flows not from majority approval but from the simple fact that we are all human beings, equally deserving of concern, respect and consideration.

Three courts of first instance have recently handed down decisions on this issue: in Ontario, British Columbia and Quebec. All three found that the exclusion of same-sex couples from marriage constitutes discrimination in violation of section 15 of the Charter (the equality rights section). Both Ontario and Quebec, representing 4 of the 5 judges who heard these cases (Ontario had a three-judge panel) found the exclusion not only offends section 15, but is not reasonably justified and is therefore unconstitutional and must be fixed. The B.C. judge held, in a decision that has been roundly criticized by constitutional scholars, that the federal government does not have the constitutional authority to permit same-sex couples to marry and dismissed the case on that basis. Even the federal government's own lawyers disagree with this reasoning and are arguing on the appeal (due to start on February 10, 2003) that the federal government has the constitutional authority to permit us to marry.

Justice Laforme of the Ontario court wrote:

“The restriction against same-sex marriage is an offence to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This is turn conveys the ominous message that they are unworthy of marriage. For those same-sex couples who do wish to marry, the impugned restriction represents a rejection of their personal aspirations and the denial of their dreams. (p. 118)

Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. ... I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage. (p. 118)

[T]he denial of equal marriage can—and no doubt does—reflect and reinforce existing, inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society. ... Excluding gays and lesbians from marriage disregards the needs, capacities, and circumstances of same-sex spouses and their children. It declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages. (p. 204)”

Justice Lemelin of the Quebec court concurred:

“The Attorney General of Canada hasn’t proved that allowing same-sex couples to marry would affect the rights of heterosexuals or devalue the civil institution [of marriage].... The Court concludes that the definition of marriage creates a discriminatory distinction by excluding same-sex couples. Bearing in mind all the contextual factors, this distinction undermines human dignity and denies the applicants’ equality rights under s.15 of the Charter.”

All three cases are currently under appeal. If the federal government continues to oppose them, they will ultimately be heard by the Supreme Court of Canada.

The Supreme Court of Canada has unanimously held that the Charter guarantee of equality extends to gays and lesbians, and in M v. H & Ontario [1999] 2 S.C.R. 3, at para. 73, eight of the nine judges ruled that this requires the equal recognition of same-sex relationships:

“The exclusion of same-sex partners from the [legislation] promotes the view that ... individuals in same-sex relationships ... are less worthy of recognition and protection.... As the intervener Egale submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.”

It should also be noted that in no case has evidence been advanced to suggest that recognizing same-sex families harms or detracts from heterosexual families in any way whatsoever. As Madam Justice L’Heureux-Dubé of the Supreme Court of Canada recognized in Mossop v. Canada [1993] 1 SCR 554, at 634:

“It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values. ... [I]t is in society’s interest to improve conditions to enable families to function as best they can, free from discrimination.”

The Supreme Court has also suggested that ultimately it is up to Governments and Legislatures to take responsibility for bringing discriminatory legislation into line with the equality guarantees in the Charter. Opening marriage to same-sex couples represents a proactive step in bringing federal laws into conformity with the constitution, and ensuring coherency in the treatment of relationships throughout federal law.

5. Procreation

“I do not accept that the objective of procreation is a basis that can support the restriction against same-sex marriage. Rather, it could reasonably be argued ... that it appears to be a mere pretext used to rationalize discrimination against lesbians and gays.” (Justice Laforme, Ontario Superior Court of Justice, July 12, 2002, p.114)

Clearly, the ability or desire to have children is not a prerequisite to marriage. Opposite-sex couples can get married whether or not they are able to procreate; same-sex couples are prohibited from marrying, whether or not they are raising children.

“Companionate” marriages between elderly heterosexuals past the age of child-bearing are celebrated and affirmed in our society. It is deeply insulting to many infertile and elderly couples to suggest that the ability to procreate is a fundamental prerequisite to marriage.

As Justice Lemelin noted in the Quebec same-sex marriage judgment:

“We don’t deny marriage to elderly women!”

Increasing numbers of lesbians, gays and bisexuals are parenting children, whether from an opposite-sex relationship, through adoption or alternative insemination. Full step-parent and third party adoptions by same-sex couples are now permitted in British Columbia, Manitoba, the Northwest Territories, Nova Scotia, Ontario, Quebec, Saskatchewan and Newfoundland. In addition, Alberta now permits step-parent adoptions by same-sex couples.

A number of Canadian courts have considered whether it is constitutionally permissible to deny same-sex couples equal treatment under adoption law. In each case, the courts recognized that the primary concern in the area of adoption must remain the best interests of the child, but had no difficulty concluding that the best interests of the child are furthered by allowing same-sex couples to be considered as adoptive parents.

In Re K, (1995) 23 O.R. (3d) 679, Nevins J. of the Ontario Court (Provincial Division) reviewed the extensive expert evidence in the case and concluded, at 707-8:

“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”

Similar conclusions were reached in a recent decision of the Supreme Court of Nova Scotia. and by Martin J. of the Alberta Court of Queen’s Bench in Re A (Adoption) (1999) A.B.Q.B. 879, at para. 28:

“It is reasonable and just that children of same sex couples have the same legal rights associated with private adoptions as have children of heterosexual couples. There is also a significant emotional benefit to both the child and the adoptive parent in having legal recognition of their relationship, and that too should be available to a child of a same sex couple.”

Children raised by same-sex couples are entitled to the protection and support offered by marriage at least as much as opposite-sex couples. There can be no rational basis for governments recognizing the relationship between parents and children but not between the parents themselves.

Robin Roberts & Diana Denny with children Josh and Clio (and Loki)

“If Robin and I had been able to get married, I believe that it would have been easier for our children because the relationship would have felt more official in their own minds, and they might have been more comfortable talking about it with friends. I also believe that we would have been more readily accepted by my family and by our community.”   Diana Denny

6. Affirming Religious Freedom

Many people think marriage implies religious marriage. But civil marriage is not religious marriage and allowing same-sex couples to marry will not force religious institutions to perform marriages for same-sex couples. Some religions want to marry same-sex couples. Right now these marriages are not legally recognized.

Egale has officially adopted a policy supporting each religion's freedom to choose whether or not to marry same-sex couples. This policy is consistent with the right to freedom of religion protected by the Charter of Rights and with existing legal protections, such as section 367 of the Quebec Civil Code, which explicitly protects clergy from having to perform marriages that don't conform with the principles of their faith:

"No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs."

It used to be that only religious marriages were legally recognized in Canada and only certain religious marriages. For example, in Ontario only marriages performed by the Church of England were recognized until the mid 1800's, Catholic marriages were not recognized until 1847, and marriages of other religious faiths waited until 1857. It wasn't until 1950 that purely civil ceremonies were permitted in Ontario. Today we recognize the importance of allowing all Canadians to marry, regardless of their religion or non-religion.

Permitting same-sex couples to marry will expand religious freedom and religious equality—those religions that want to marry same-sex couples will be able to do so; those religions that don’t want to marry same-sex couples won’t have to.

7. Other Options set out in the Justice Department Options Paper

As noted in the introduction, any alternative to our equal inclusion in the institution of marriage will simply perpetuate discrimination. For greater clarity, however, we provide a response to each of the other options proposed in the Justice Department Options Paper.

(a) Maintain the status quo: perpetuating discrimination

(i) legislate the “opposite-sex” definition of marriage: adding insult to injury

Egale opposes the opposite-sex definition of marriage, which explicitly discriminates on the ground of sexual orientation, stigmatizes our relationships and denies same-sex couples a choice available to opposite-sex couples. Legislating this option would be a slap in the face to lesbian, gay and bisexual Canadians. It would have little, if any, legal effect.

(ii) introduce registered partnerships/civil unions: second-class status

Civil unions or registered partnerships do nothing to address the harm caused by excluding same-sex couples from marriage. Egale has no objection to civil unions or registered partnerships as a supplement to marriage, but so long as we are denied the equal right to marry, alternative regimes do not fix the discrimination and will not resolve the litigation currently before the courts.

Civil unions or registered partnerships would add little to the existing legislative landscape: the Modernization of Benefits and Obligations Act already gave to same-sex couples virtually all the rights and obligations of marriage under federal law and most provincial laws do the same. In addition, registered partnerships are not recognized internationally in the way that marriage is.

Given the social imprimatur of marriage and the stigma still attached to homosexuality, registered partnerships could only be interpreted as official, government-sponsored, second-class status.

Without equal marriage, a registered partnership would be a “separate but equal” regime, like the segregated schools that used to exist in the United States. The US Supreme Court ruled that the segregation of the schools on the basis of race violated Constitutional equality guarantees, even though the physical facilities and other “tangible” factors may have been equal. The Court held that “[s]eparate educational facilities are inherently unequal” because to separate students “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”   Brown v. Board of Education 347 U.S. 483 (1954)

If the Canadian government legislated registered partnerships, it would be using the same strategy as the segregationist states. That strategy did not work then and it will not work now. As noted by Justice Laforme in the recent Ontario equal marriage decision:

"One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctrine. That appalling doctrine must not be resuscitated in Canada four decades after its much-heralded death in the United States." (page 103)

(b) Remove civil marriage and leave marriage to the religions: everyone loses

Under this option, religious marriages would not be recognized by the State, and civil marriage would be abolished. Canadians who do not wish a religious marriage would have no ability to marry.

Egale finds it difficult to believe that the government would seriously consider this option, since allowing same-sex couples to marry does not negatively affect the rights of heterosexual couples in any way, whereas denying everyone the ability to marry would create public outrage amongst heterosexuals no longer able to marry, many of whom would doubtless blame the lesbian, gay, bisexual and transgendered communities for the loss of their rights.

Abolishing marriage would limit the choices available to same-sex couples and opposite-sex couples alike. Instead of sending a message that same-sex relationships are equally worthy and equally valued, it would send the opposite message—that our relationships would taint the institution of marriage to such an extent that it is better to abolish the institution altogether than to allow us access.

8. Poll Results, Public opinion & Political support

While the legal rights and freedoms of vulnerable minorities should never be subject to a popularity contest, it is interesting to note that a majority of Canadians favour extending marriage to same-sex couples (Leger, 2001; Environics, 2001). In a July 2002 poll commissioned from Pollara by the Liberal Party of Canada, the government pollster noted that support for same-sex marriage is highest amongst young Canadians and is expected to continue to increase.

Michael Marzolini, the chairman of Pollara, offered the following analysis of the data:

“The writing is on the wall for this issue. It will become more popular. It will become more and more acceptable. Government can lead popular opinion or it can follow it and this is an opportunity to lead rather than follow it.

Clearly, the mood is changing. The new generation of Canadians are far more supportive of gay and lesbian marriage than the previous generation. These numbers will increase just as a result of demographics.”   “Same-sex marriage ‘inevitable’, pollster says”, National Post, July 25, 2002

In Egale’s experience, the clear majority of Canadians are firmly committed to the values of equality, fair play and respect. All that is required is for the government or the courts to take the lead and change the law. It should be noted that same-sex marriage has already been publicly supported by prominent Cabinet Ministers, such as the Hon. Sheila Copps, PC, MP, the Hon Allan Rock, PC, MP, the Hon. Bill Graham, PC, MP, and many Liberal caucus-members, as well as by the Bloc Québécois and NDP, by Progressive Conservative leader Joe Clark, PC, MP, by Ontario Conservative leader Ernie Eves and many others. The Quebec government recently repealed its opposite-sex definition of marriage.

Once marriage for same-sex couples is a reality, people will soon realize that the sky has not fallen. In the not-too-distant future Canadians will look back at our inclusion in marriage and wonder what all the fuss was about.

9. International Trends

Only marriage is recognized internationally. While many countries might resist recognizing the marriage of a same-sex couple, marriage is a prerequisite to even considering such recognition.

Canada would not be the first to take this step, and it will not be the last. On April 1, 2001, the Netherlands opened marriage to include same-sex couples, and on January 31, 2003, Belgium did the same. Meanwhile, constitutional challenges are under way in several U.S. states and in South Africa, and countries throughout the world are increasingly recognizing same-sex relationships.

Canada prides itself on being a world leader when it comes to international human rights. The longer we drag our feet domestically, however, the further we fall from our leadership position.

10. Responding to some common questions

Q1. Hasn’t marriage been opposite-sex for thousands of years? How can this be discrimination?

It cannot be assumed that marriage has ‘always’ been heterosexual. In the Ontario same-sex marriage case, Justice Blair reviewed volumes of expert evidence on the structure of marriage across history and cultures, and noted that “there have been exceptions to the [opposite-sex marriage] norm across various cultures and polities, ... including cultures in which modern Western society finds many of its roots.” (Halpern, at para 48, emphasis in original).

More fundamentally, however, the historical exclusion of same-sex couples from marriage cannot be used to justify the continuation of our exclusion on the basis of an appeal to "tradition". Discriminatory treatment and exclusion is no less damaging because it has a long-standing pedigree. As the Hon. Justice Wilson noted in R. v. Turpin [1989] 1 S.C.R. 1296, at 1328:

“The argument that s. 15 [the equality guarantee] is not violated because departures from its principles have been widely condoned in the past and that the consequences of finding a violation would be novel and disturbing is not, in my respectful view, an acceptable approach to the interpretation of Charter provisions.”

Sexism, slavery, racism, persecution of religious minorities—all have existed for thousands of years, all have been perpetuated at one time or another by governments and all are now recognized as discrimination. If appeals to the past could be used to perpetuate the marginalization of disadvantaged groups, there would be no end to injustice.

The institution of marriage has itself evolved over time to accommodate the needs of equality. From a time when women were treated as the property of their husbands, interracial marriages were prohibited, and only dominant religions had the right to marry, marriage has changed to recognize that values of equality enhance, rather than diminish, the institution.

Q2. Isn't marriage fundamentally opposite-sex? Won’t recognizing same-sex couples weaken the institution?

When people say that including us would "fundamentally" change the definition of marriage, what underlies this statement is the belief that the love between a same-sex couple is "fundamentally" different than the love between an opposite-sex couple. This trivializes our relationships by implicitly characterizing them as having only one dimension, the sexual dimension.

Expanding marriage to include us wouldn't change what marriage is all about any more than allowing women to practise medicine changed what being a doctor meant. It merely expands the class of people to whom marriage is open.

Traditional marriage will not be weakened by permitting same-sex couples to marry. People don’t turn away from marriage because others who are eligible to marry do not meet their moral standards. Murderers can marry, rapists can marry, alcoholics can marry and atheists can marry. It seems unlikely that any opposite-sex couple would turn away from marriage just because same-sex couples can marry.

Q3. Hasn’t Parliament already restricted marriage to opposite-sex couples?

Parliament has never enacted a law actually prohibiting same-sex marriage across Canada.

On three occasions, however, the federal government has addressed the question of the opposite-sex definition of marriage:

(a) On June 8, 1999, the House of Commons adopted a Reform Party resolution defining marriage in opposite-sex terms. Because this was simply a resolution, and not a statute, it expressed the House’s opinion of the matter at that time, but the resolution did not receive public debate, did not go before the Senate and does not have the force of law. The topic of the supply day motion was only announced by the Reform Party at the end of the day before the vote, so there was no input from Canadians.

(b) When Parliament enacted omnibus legislation to recognize same-sex relationships in 2001, it included an interpretation clause stating that the Act “does not affect” the opposite-sex definition of marriage. Again, however, this clause is merely a guide to interpretation of the statute, and does not itself prohibit same-sex marriage. The clause was inserted by the Minister of Justice at the close of hearings after all witnesses had already been heard. It represented a political compromise, but received no public input or policy debate. At the time, Egale asked this Committee to be recalled as a witness so that we could address the clause, but the Committee declined on the basis that the clause was interpretative only, and did not affect the definition of marriage.

(c) Parliament also inserted an opposite-sex definition of marriage into the Harmonization Act, a federal statute which applies only in Quebec. Ironically, this legislation was put in place to "harmonize" federal law with Quebec civil law, but since the harmonization legislation was passed, Quebec has repealed its Civil Code restriction of marriage to opposite-sex couples. Thus a law that was meant to harmonize has in fact succeeded only in creating dissonance.

There is therefore no explicit provision in federal law prohibiting same-sex couples from legally marrying in Canada.

More to the point, however, is that all government laws are subject to the Charter of Rights, and Parliament has an obligation to obey the Constitution. It is hardly a defence to an equality claim to argue that the discriminatory provision was intentional and deliberate. In the Vriend v. Alberta case, the Supreme Court of Canada recognized that Alberta had been unequivocal in its intention to deny human rights protection to lesbians, gays and bisexuals, but ruled that this deliberate exclusion only made the discrimination worse, not better.

Q4. Hasn’t the Supreme Court already said marriage is opposite-sex?

No. The judgment often cited to support this contention is the judgment of Mr. Justice LaForest in the Egan case. He wrote this to support his finding that excluding same-sex couples from being considered "spouses" under the Old Age Pension Act was not discrimination contrary to section 15 of the Charter.

What those who rely upon Justice LaForest’s comments often fail to mention is that he was in the minority on this point. Not only was he in the minority in 1995 when this decision was handed down, but two of the three judges who supported him came to a different conclusion in the 1999 M. v. H. decision.

Q5. Is this a good use of government resources? Doesn’t the government have other priorities?

We agree that we would prefer to see government addressing other priorities, rather than consuming time, energy and money fighting to discriminate against us in the courts. Surely government has a better use for millions of dollars of taxpayers’ money than wasting it fighting to maintain discrimination against a group of its own citizens!

Human rights is not a zero sum game, extending equal marriage to same-sex couples will not cost the government a dime, and the issue is not going to go away. The best way to stop the waste of government resources is to do the right thing, act promptly to provide us with equality, and we can all move on with our lives.

11. Summary

Egale asks the Committee to recommend that the federal government pass legislation to remove the opposite-sex restriction on legal marriage, thereby extending the freedom to marry to same-sex couples. No other recommendation provides equality.

Choice. Many same-sex couples wish to marry. They want to do so for the same reasons as their opposite-sex counterparts—to publicly proclaim and celebrate their love and commitment, to protect their children, to ensure social recognition and for a whole host of other reasons. The choice to marry is an intensely personal choice that is widely recognized, at least for heterosexual couples, as a basic human right.

Message. The ominous message currently being sent by the government is that it is acceptable to exclude lesbian, gay and bisexual persons from a central social institution and that our relationships are inferior.

Discrimination. Our exclusion from the institution of marriage undermines our human dignity, diminishes our families and discriminates against us in violation of our Charter right to equality.

Religious Freedom. Providing same-sex couples with the equal right to marry will not harm religious institutions in any way, since each religion will still have the right to choose whether or not to perform marriages for same-sex couples.

No Second Class Status. A federal "civil union" or "registered domestic partnership" would be a separate legal regime designed to avoid the use of the term “marriage” when referring to same-sex couples. Without equal marriage, it would be a “separate but equal” regime, like the segregated schools that used to exist in the U.S. It would be neither equal nor fair. A separate regime is not equality, it’s segregation. If it’s not called marriage, then it isn’t marriage—it’s second class status.

Exclusion. Some opponents of equal marriage have suggested that marriage as an institution would become tainted by our presence. Such people are, of course, free to hold whatever views they wish in respect of homosexuality and the treatment of same-sex couples, but official government policy should not be based upon such degrading and offensive notions. No group of Canadians should be systemically excluded from any legal institution, let alone one as central to our society as legal marriage.

Looking to the Future. Some day, same-sex couples in Canada will have the legal right to marry. Future generations will look back and wonder how anyone could have opposed such a basic human right.

We ask each Committee member to look carefully at the many reasons for extending equality, at the lack of any rational basis for maintaining the discrimination, and at the role and responsibility you have as Parliamentarians to respect the Constitution and ensure the fair and equal treatment of all Canadians.

Barbara McDowall & Gail Donnelly

“I have faith that one day I will have the same opportunity to participate in legal marriage in the same manner as straight persons. I have faith that I will not have to prove that I am an intelligent, compassionate human being with the same wants and needs as everyone else. I have faith that society will stop judging people based on their sexual attraction and start looking at the values that we each cherish and believe. All I wish for is to be treated in the same fashion as my parents, siblings and friends. I am, after all, a human being with the same values and the same capacity to love as anyone.”
Gail Donnelly

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada