The feds stay stuck

Locked in conjugality

The Justice Department wants us to discuss
"Marriage and Legal Recognition of Same-sex Unions"
-- not the full range of our relationships


Marriage and Legal Recognition of Same-sex Unions

Full text of the Justice Department discussion paper. For details on its options, go to Possible approaches

With the media, mainstream and otherwise, so firmly locked in the frame of "Gay Marriage: Yes or No?" it was no surprise to find, on November 8, 2002, politicians and bureaucrats locked there too.

The title of the Law Commission of Canada's Beyond Conjugality had said it all, offering fresh ways to ponder the state's role in the intimate lives of all adult Canadians. So does the title applied by the Justice Department to its discussion paper. Their sole concern is the tired and "thorny" question of "gay marriage" -- and how to get it off their backs.

They see just three options. Two we have heard endlessly, from the two "sides" in the Great Gay Marriage Debate: Say Yes; or say No. The third is that trial balloon floated a while ago, met by a top-of-page-1 headline on the July 27 edition of the National Post: "OTTAWA MAY SCRAP MARRIAGE LAWS -- Would cede fight to religious authorities to avoid gay dispute." Scary stuff. For the next three months the feds fell silent.

On November 4 The Globe and Mail ran news on page A4 headlined: "Gay-marriage options to be explored," a bid to "solve the problem of gays being excluded from unions recognized by society." Four days later the Star told us on page A18: "Gay marriage to get hearing," reporting that the "federal government has become more open-minded on the issue of same- sex marriage." If not on more fundamental issues.

Offering their limited options for "discussion," federal officials offer little in the way of values that might guide us. Or them. We do not find here the clear questions that the Law Commission of Canada said legislators should ask in pondering laws on relationships, nor the principles they said such laws should respect.

Justice refers to Beyond Conjugality just twice in its paper: as having "briefly discussed the issue of marriage," and in a footnote telling us:

The Law Commission's report focused mostly on people in non-conjugal relationships.... But further study would be needed before Parliament can decide whether it is appropriate to treat non-conjugal relationships in the same way as spouses or common-law partners in all federal laws, and so these suggestions are beyond the scope of this paper.

In fact that report took a careful look at people in a range of relationships both conjugal and not, if without dependent children. But hey: Who noticed? Certainly not the media, shaping "public discussion" in willful ignorance of that report's radical ideas -- leaving the Justice Department free to ignore them as well.

We do not find in its paper any concern for personal privacy, autonomy, or security. We find no more than obligatory regard for freedom of religion or conscience or the true separation of church and state. We hear nothing of equality within relationships "to overcome unequal distributions of income, wealth, and power" or "the lack of state support for persons with disabilities."

Of equality among the vast range of mutually supportive personal connections, we hear concern only for equality between same-sex and opposite-sex conjugal coupledom -- a goal forced on governments by the courts.

The vital principles applied by Justice in its offer of "discussion" are not those of justice, but pure political pragmatism. Which options will pass constitutional muster? Which might best, as the Star put it, "avoid a messy wrangle in Parliament, where the Liberal party is divided on this issue"? Which will win support in (much cited) opinion polls -- and at the real polls -- by pissing off the fewest voters?

The question posed by the Justice Department is not (as it was in Beyond Conjugality): What role should the state play in the intimate lives of grown-ups with no children? It is (I quote, if with emphases of my own): "What is the role of the state in defining the legal requirements for marriage?" And: "If we want society and the law to support and respect both marriage and other committed conjugal relationships equally, how can this best be achieved?" Their options, as first stated:

  Marriage could remain an opposite-sex institution, either by:
legislating the opposite-sex requirement for marriage; or by

restating the opposite-sex meaning of marriage in the preamble of a new piece of legislation that would create an equivalent to marriage for federal purposes (either civil union or domestic partnership) for other conjugal relationships; or

Marriage could be changed to also include same-sex couples by:
legislating to give same-sex couples the legal capacity to marry; or
With the cooperation of the provinces and territories, Parliament could leave marriage to the religions by:
removing all federal references to marriage, and replacing them by a neutral registration system for all conjugal relationships, leaving marriage exclusively to individuals and their religious institutions.

Gay marriage mavens will likely demand that second option, letting same-sex couples into the House of Matrimony as it now stands. The Religious Right will like the first -- or the first part of it anyway, keeping gay couples out.

But, as Justice says, "it would likely be challenged under the Charter as discriminatory." Its sole defence would be Section 33, allowing laws "notwithstanding the Charter." The federal Parliament has, so far, never invoked it. If they did, they would have to review their decision every five years -- putting the issue back on their plates again and again. Option 1 includes a potential sop, elaborated later in the paper (with the emphasis here also my own):

If Parliament wished to address some of the equality concerns, it could enact a new federal statute creating a new registry that would be deemed equivalent to marriage for the purposes of federal law and programs. This new civil union or domestic partnership registry could either be open only to same-sex couples (in the way that marriage would be open only to opposite-sex couples), or it could be open to both same-sex couples and to opposite-sex couples who choose not to marry.

If marriage remains defined in law -- especially if the state automatically recognizes religious marriages -- this would be a form of second-class citizenship. Or worse: same-sex second- class citizenship. Gay marriage mavens often lay that charge against registration systems already set up in Nova Scotia, Manitoba, and Quebec.

In fact (if a fact mostly ignored by mavens and media alike) those systems are not limited to same-sex couples. The politics of victimization requires not just its endless reiteration, but its occasional invention; this proposal would make presumed bias blatantly real in law.

The only way the state can ensure first-class citizenship for people in all the relationships it grants legal status would be to make registration -- open to anyone, including couples religiously married -- the only way partnerships could be recognized in law.

That's where the third option above leads. A November 14 news report in Xtra! (by its most avidly pro-marriage reporter, conjoined by Vermont civil union) noted that this final option

"is the most complicated and most likely to upset both the right, who want religious straight weddings tied to government recognition, and the gay marriage advocates, who say that such a strategy is just another way of avoiding recognition of same-sex couples."

In fact, it is the least complicated. Any change in laws regulating relationships requires "the cooperation of the provinces and territories": laws defining marriage and divorce are federal; their application is left (as is criminal law, also federal) up to them. Existing marriages and their break-ups would still be subject to existing laws; the provinces and territories would need new laws dealing with newly registered relationships. Federal law would no longer say who can or cannot get "married." It would offer a single way, open all people (well, so far just the "conjugally" coupled) seeking respect for their relationships in law.

As for the Religious Right and the Gay Right being "upset" -- well, they would at least be equally pissed off. Not that equality is guaranteed to shut them up. Conservative forces may still go on fighting to control the meaning of a single word: "marriage."

The Justice Department calls its proposed alternatives "civil union," or "registered domestic partnership," ostensibly "neutral." But "domestic" suggests they're still locked in the "marriage" frame, presuming cohabitation, conjugality, and procreation -- even though none of them is a requirement for relationships called "marriage."

Their paper includes a section headed "Religious and civil marriage," noting that "the legal requirements for a valid marriage are not the same as the religious requirements." That clearly suggests the state can define "marriage" independent of religion, even that "civil union" could be called "civil marriage."

That's what most people likely will call it. If the state does, officially, we will have achieved full and formal equality in words -- but we'll never hear the end of "debates" on the meaning of the word "marriage." We may not even if the state says that registration in law is not what it once called "marriage." As the discussion paper says:

This new registry would be difficult to challenge before the courts, because all couples would be treated the same way. However, it would likely concern those who believe that marriage should be legally recognized and may make them feel that their beliefs have been marginalized.

Whatever the common usage, the government would be wise to leave the word "marriage" -- and its presumptions -- to religion. Those who would call that "second-class citizenship" should ponder whether citizenship should depend on a rite deeply rooted in religion.

Still locked
in common-law

Justice opts out

"There is some debate about whether it is appropriate to grant the same benefits and impose the same obligations on common-law partners as on married couples. ...

"If two individuals have chosen not to marry, some think that choices should be respected and they should not be required by law to have the same obligations between each other.... The provinces and territories take different approaches to this issue."

The Justice discussion paper does not suggest what approach the feds should take. They now impose federal tax and pension law on people cohabiting for more than one year. Some provinces offer benefits after one, three, or five years. In Ontario, social benefits can be cut off after just three months.

But, as the Justice Department makes clear, that's not their department.

Officials at Justice had cast a cautious eye (as pragmatists ever do) over their collective shoulder, asking: "What are others doing?" Their glance fell first on that oft-cited gay Mecca, the Netherlands. It is the only country in the world that allows same-sex marriage -- in a system only for same-sex (and presumably second-class) couples.

Denmark and Vermont offer civil union open to couples same-sex or not. It does not include adoption rights. Partnership registration, required for legal recognition in France even for couples religiously married, is open to any two unrelated individuals, "conjugal" or not. Belgium and Hawaii also offer legal recognition beyond conjugality. In Hawaii that option is closed to common-law opposite-sex couples -- "so that there can be no officially recognized alternative to marriage."

In Canada, three provinces offer civil union or partnership registration to both same-sex and opposite-sex couples. Quebec law "makes it clear that civil unions are not marriages." Nova Scotia's set-up excludes some marriage rights, including adoption. Manitoba allows people to register voluntarily as common-law couples; cohabitants who don't are declared coupled in law after living together for whatever time any relevant law specifies.

Conservative Alberta -- having used the notwithstanding clause to outlaw gay marriage -- is considering a civil registry open even to non-conjugal couples, without regard not only to sexual orientation but to sexual relations at all. It seems they saw relationship recognition as more than "a gay issue." Even if to avoid "gay issues."

"Most countries," the Justice Department tells us, "have decided to retain marriage as an opposite-sex institution, and none has decided to leave marriage exclusively to religion and stop recognizing it in law." Not just "secular" government but God too still has business in the bedrooms of the world.

Canada's politicians, few but the bravest ever daring bold moves, will likely toe the line. The discussion paper's "Message from the Minister," Martin Cauchon, gives us his view of the "public debate on marriage":

Some feel strongly that governments should continue to support marriage as an opposite-sex institution, since married couples and their children are the principal social unit on which our society is based. Others believe that, for reasons of equality, governments should treat all conjugal relationships -- opposite-sex and same-sex -- identically. Still others believe that in a modern society, governments should cease to recognize any one form of relationship over another and that marriage should be removed from the law and left to individuals and their religious institutions.

Having cast three contending forces -- his three "options" tailored to what, in a nutshell, they "feel" and "believe" -- he then tells us which he'll listen to:

The question we are discussing is complex. Every viewpoint on how to reconcile the traditional meaning of marriage and the recognition of committed gay and lesbian relationships within our constitutional framework and equality guarantees deserves to be heard.

In short: "The question" remains "the gay question." The same question endlessly "debated" by conservative forces -- Gay Right and Anti-gay Right -- playing both good-hearted liberals and a nervous Liberal government for suckers. Views on meaningful personal relationships insufficiently "committed" or irreconcilable with "the traditional meaning of marriage" do not, apparently, deserve to be heard.

Cauchon, the Star reported, "has said there is no preferred option." But those inevitable "sources close to Cauchon have stated he favours a civil union option." Whether he means the same-sex second-class citizenship suggested in Option 1B or the full secular citizenship opened up by Option 3, those sources did not clarify. But it's not hard to guess.

We rarely expect politicians and bureaucrats to be visionaries, even as Canada has seen a few visionary leaders (and not a few "radical mandarins"). We expect them to be pragmatists. The visionaries among us -- seeing this as a question of justice beyond sexual orientation; seeing the worth of human connections beyond conjugality -- are left appealing to their pragmatic interests.

So let's tell them: We are not interested in "options" tailored to a few social conservatives spouting the same tired platitudes -- whether in defence or attempted invasion of a dying institution. The "traditional meaning of marriage" eludes the grasp of half who seek it, often fails their children, and does not fit the way millions of us actually live.

Or hope to live. We hope for a just society, the state and religion truly out of our bedrooms (unless we invite some divinity in). Canada is a secular, diverse, and officially multicultural state; as the Law Commission said in Beyond Conjugality, its governments are expected to "pursue objectives that can be defended in secular rather than religious terms."

Getting the state out of "marriage" -- and God out of our lawbooks -- is a step toward true justice. Your other options, however satisfying to the forces of Yes or No, are not.

We vastly outnumber those cranky conservatives, avid as they may be. We can be avid too: for freedom to make lives of our own invention. And we vote.



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November 2002 / Last revised: December 13, 2002
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