Egale Position Statement on Equal Marriage for Same-Sex Couples

January 2003

The Federal Minister of Justice has released a discussion paper on marriage. It outlines three options for the Justice and Human Rights Committee to review regarding how to respond to recent court decisions declaring the exclusion of same-sex couples from marriage discriminatory and unconstitutional. The Committee is holding public hearings across Canada in early 2003.

The Department of Justice Discussion Paper on Same-sex Marriage can be found at: canada.justice.gc.ca/en/dept/pub/mar/

Egale calls upon the community, our allies and friends, to get involved in the public hearings and support our right to have the equal choice to marry. By even considering alternatives to equality, the Government is essentially asking us the question:

“Do you want equality, or how would you like your inequality?”

This info sheet sets out Egale’s position on the key policy options under consideration:

(a) Extend marriage to same-sex couples: a simple matter of equality and fairness

Egale supports extending equal marriage rights to same-sex couples.

To us, this is a simple question of equal dignity and respect. It is inevitable that the discrimination inherent in excluding us from marriage will be overturned, and it is only fair and appropriate for government to be on the right side of history.

Under this approach, all Canadians would have equal choices, and no-one would lose pre-existing rights. Any religion would have the choice not to marry same-sex couples, but civil marriage would be equally available to all couples who choose it.

In addition, many same-sex couples raise children, and those children are entitled to the benefit of a family unit that is recognized and respected by the State.

Although not all couples would choose to marry, providing same-sex couples with the equal right to marry respects the principles of equality in the Constitution, would resolve the legal and constitutional conflicts and enables all couples to choose for themselves whether or not they wish to celebrate their relationships through marriage.

(b) 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. We are confident the Courts will continue to reject the status quo as a violation of the Charter of Rights, and we would encourage government not to maintain a discriminatory definition of marriage.

(ii) introduce registered partnerships/civil unions: “marriage lite” = 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. Opposite-sex couples wanting to marry would not be satisfied with anything less—neither will the same-sex couples fighting for the right to marry in court.

Registered partnerships are not an acceptable solution because they confer a second-class status. Our desire for equal marriage recognition is about much more than equivalent rights and obligations under various laws. Marriage is a fundamental social institution and excluding same-sex couples sends a terrible message of exclusion. The courts have compared such an approach to racial segregation, saying “that appalling doctrine must not be resuscitated in Canada four decades after its much heralded death in the United States.”

In any event, 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.

(c) 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.

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.