ARCHIVED - Submission to the Standing Committee on Justice and Human Rights - Same Sex Marriages

Table of Contents

1. A Right to Equal Treatment
2. Discrimination
3. Dignity
4. Choice
5. No Bona Fide Justification for Barring Same-Sex Marriages
6. Same-Sex Marriage and Freedom of Religion
7. Same-Sex Marriage and Traditional Definitions of Marriage
8. Domestic Partnerships and Other Options
9. Conclusion

Introduction

The Government has asked this Standing Committee to examine whether, "given our constitutional framework and the traditional meaning of marriage, Parliament should take measures to recognize same-sex unions and, if so, what should they be?"

The Canadian Human Rights Commission recognizes that the issue of same-sex marriages is controversial. This question touches the core values and beliefs of Canadians across a broad cultural, political, moral and religious spectrum; and it does so in profound ways. Views on both sides of the debate are strongly-held and run very deep in the history and traditions of Canadian society.

There are two separate points of reference put to this Standing Committee - the traditional meaning of marriage, and the Canadian constitutional framework. Both are important contexts for this Committee to consider and we would like briefly to offer our thoughts on each.

The Western tradition of marriage has always had many facets - contractual, spiritual and social:

"In the Western tradition, all of these perspectives were complementary but also stood in some considerable tension, as they were all linked to competing claims of ultimate authority over the form and function of marriage - claims by the couple, the church, the state, and by nature and God."

Civil unions emerged centuries ago with the separation of church and state. Although the origin of the institution of marriage was largely religious, it evolved to include secular unions and the two traditions became intermeshed. The result is that today both types of marriages receive legal recognition by the state and both are described by the same term. Religious marriages have public dimensions - churches collaborate with the institution of civil marriage and act as agents of the state when performing religious marriage rites. Both types of unions - civil and religious - are largely perceived by society as having the same status, weight and social acceptance.

The question before this Committee, that of same-sex marriages, would see the definition of civil marriages go further than some would wish. Some see a legislative change which validates marriage in the public sphere as also fundamentally affecting marriage in the religious sphere. Other religious institutions - albeit fewer - see good theological and moral reasons for blessing same-sex religious unions.

The challenge for the legislature therefore is to recognize the strongly-held views of these groups and individuals and at the same time to act in accordance with the constitutional imperatives of a secular democracy which has chosen to bind itself by the Charter of Rights and Freedoms. Cultural and religious diversity are defining features of the Canadian mosaic. The overriding task of this Standing Committee in considering the issue of same-sex marriages is to preserve the fundamental Canadian values of respect for human rights and dignity and respect for diversity.

The role of the Canadian Human Rights Commission in this debate is clear. We are not experts on either the theology or history of marriage. But what we are expert on is discrimination. Included in our Act are prohibitions of discrimination on the grounds of sexual orientation and discrimination on the grounds of religious freedom. The Commission’s role before this Committee, and the value we bring to the table, is to analyze same-sex civil marriage through the prism of human rights. Our job is to uphold and reflect the principles and values underlying the Canadian Human Rights Act.

For the Canadian Human Rights Commission, this issue is about equality; about protecting the panoply of human rights.

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A Right to Equal Treatment

Parliament, when it adopted the Canadian Human Rights Act and the Charter, recognized that Canadians believe that all people are entitled to equal treatment under the law. In 1982, Canadian legislators chose to adopt the Charter and to subject the laws they make to judicial scrutiny. In 1995, the Supreme Court decided that discrimination on the basis of sexual orientation was prohibited by the Charter. One year later, the Canadian Human Rights Act was amended to explicitly include sexual orientation as discrimination. This inclusion of sexual orientation in the Act was an express declaration by Parliament that gay and lesbian Canadians are entitled to "an opportunity equal with other individuals to make for themselves the lives they are able and wish to have..."

One of the key questions guiding this Committee’s deliberations is whether failure to allow same-sex couples to marry amounts to discrimination. Although Parliament has said that discrimination against gays and lesbians is prohibited, it has never legislated or held, until now, full public debates on the specific issue of marriage.

The decision by authorities not to issue marriage licences to same-sex couples arises out of a definition of marriage set in 1886 by an English court that marriage is the union of "one man and one woman to the exclusion of all others". But human rights standards and laws have changed significantly since 19th century England and it is time to bring the law on civil marriage up to date, in conformity with Canadian human rights law that expressly prohibits discrimination on the basis of sexual orientation.

Discrimination

Under the Canadian human rights system, when a decision-maker examines a claim of discrimination, he asks a number of questions: are people treated differently because of a prohibited ground of discrimination; is a distinction drawn on the basis of personal characteristics? does it deny dignity? or fail to take into account the fact that the person making the claim is a member of a group which already suffers discrimination in society?

It is clear that a refusal to issue marriage licenses to same-sex couples is based on a prohibited ground of discrimination. This past year the federal Commission received approximately 50 complaints of discrimination on the grounds of sexual orientation. In one of them, the Canadian Human Rights Tribunal shut down a website which contained material of "extreme ill will, detestation, enmity and contempt towards homosexuals." Two other cases alleged discrimination involving denial of marriage leave. The reason I cite these examples is to illustrate to the Committee that gays and lesbians in Canada today continue to face disadvantage and discrimination in general, in spite of the laws already in place to guard against it.

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Dignity

It is also clear that a heterosexuals-only definition of civil marriage by the state affects the dignity of gay and lesbian Canadians. The Supreme Court of Canada has said that marriage is a "basic institution of society" and a "fundamental social institution." Today, while gays and lesbians are legally protected from discrimination in Canada and entitled to most of the same benefits as heterosexuals, there remain barriers. Civil marriage is closed to them.

As the Supreme Court of Canada said in the case of M.v. H., "the exclusion of same-sex couples from the legislation [governing spousal support] promotes the view that ... individuals in same-sex relationships are less worthy of recognition and protection ... such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence." Similarly, the Ontario Divisional Court said, "the restriction against same-sex marriages 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 in turn conveys the ominous message that they are unworthy of marriage."

Choice

Canada is a country where people have the right to choose their religion, with whom they can associate and where they will live. Opposite sex couples can marry. Same-sex couples cannot. The institution of civil marriage is, as the Supreme Court said recently in Walsh, fundamentally one of choice. The Court stressed that many people do not marry precisely because they have chosen to avoid the institution of marriage and the legal consequences that flow from it. If same-sex partners are denied that choice, then they are denied the opportunity to live under the same type of legal regime that is in place for opposite sex couples. They are denied access to the legal rules governing property division upon the dissolution of the relationship or upon the death of a spouse. An opposite sex couple has the choice to either opt in or opt out of those legal rights by getting married or remaining unmarried. Same sex couples are denied that choice.

For those same-sex couples who wish to marry, without equal access to the institution of civil marriage, their ability to celebrate their commitment, provide the kind of stability civil marriage can afford, and live their lives on equal terms is undermined. From the point of view of human rights law, practice and policy, homosexuals are being denied a fundamental personal choice because of their sexual orientation. To the Commission, this is discrimination.

No Bona Fide Justification for Barring Same-Sex Marriages

Canadian Human Rights Act, once a prime facie case of discrimination is established, then the burden of proof shifts to the party seeking to limit the human right in question to prove that it can be justified. To do this, they have to show three things. First, that the discriminatory standard is rationally connected to the service being provided. Second, that the standard was adopted in an honest and good faith belief that it was necessary for the fulfilment of its purpose. Finally, that it was reasonably necessary to accomplish the purpose or goal, including whether alternatives were considered and whether the standard in question was designed to minimize the human rights impact on those adversely affected. Using this lens of the Canadian Human Rights Act, let’s examine some of the arguments which this Committee has heard to justify barring same-sex couples from civil marriage.

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Same-Sex Marriage and Freedom of Religion

During these hearings, Committee members have asked whether there is a potential for conflict between freedom of religion and same-sex civil marriage.

The issue of freedom of religion is one in which the Canadian Human Rights Commission has a certain expertise. Included in the eleven grounds of discrimination prohibited under the Canadian Human Rights Act is discrimination on the grounds of religion. We received almost 50 complaints last year under this ground from individuals who felt that they were being unfairly treated in employment or provision of services because of their religion.

Freedom of religion is a fundamental right in our society. It means that the state cannot impose on religious groups activities or practices which would violate their religious freedom, except where it can be shown by the state to be demonstrably justifiable in a free and democratic state. Religious freedom also means that one group in society cannot impose its religious beliefs on another group with a different view. Only in a theocracy are secular concepts necessarily identical to religious concepts.

For many people, marriage is a religious act and this act will continue to be protected by human rights law. Some religions in fact wish to perform same-sex marriages and a change in the law would allow them to do so. But the state also offers and sanctions civil marriages. As long as the state continues to sanction civil marriages, then, in our view, the anti-discrimination standards set by Parliament itself require that civil marriage be open to all Canadians.

Canada is a secular democracy where traditional religious practices continue to thrive while new relationship choices - like same-sex relationships - are recognized and accepted in many areas of the law. The faith-based categorization in some theocratic states of same-sex relationships as a sin should be contrasted with the more inclusive practices in a secular democracy. Canadians want a secular democracy where choices and human rights are accepted, guaranteed and protected.

Same-Sex Marriage and Traditional Definitions of Marriage

One argument that has been made against same-sex civil marriage is definitional: historically gays and lesbians have been excluded from the institution of marriage, therefore civil marriage should be seen as synonymous with heterosexuality. But, over history, there has been no fixed definition of marriage. At different times and places, people now considered children could be married. Inter-racial couples could not.

The fact that marriage has not included same-sex couples in the past does not explain why that cannot be so now. Historical traditions alone cannot justify discrimination, no more than history or tradition could justify denying property ownership to women or persons of colour from access to political office. Like many concepts of similar background, such as family, spouse and person, civil marriage is also subject to changing definitions in a Canadian democracy subject to the Charter.

Related to arguments about tradition is the argument that marriage is about procreation. If - the argument goes - only men and women can procreate, and marriage is about having children, then civil marriage should be restricted to heterosexuals. But we know that opposite-sex couples can marry even if they cannot or do not intend to have children. If older, sterile or impotent couples cannot be denied the right to marry because of a link between marriage and procreation, neither can same-sex couples.

This Committee has also heard arguments that a change in the legislation would prompt unions of various sorts, including polygamy and others. The reason we see the ban on same-sex civil marriages as discrimination is because discrimination on the grounds of sexual orientation is included in our Act. The Canadian Human Rights Act recognizes discrimination on the grounds of sexual orientation as unlawful because Parliament chose to include it in the legislation. Canadian human rights law has not extended the definition of sexual orientation beyond heterosexuality, homosexuality or bisexuality. Sexual orientation does not include polygamy or other types of unions.

Today, while gays and lesbians are legally protected from discrimination in Canada, and entitled largely to the same benefits as heterosexuals, there remain barriers to the institutions that are the foundation of our society. Denying access for gays and lesbians to the social institution of marriage, even in the context of offering an "alternative" such as registered domestic partnership, is a denial of real equality. State recognition of same-sex unions would be a powerful sign that gays and lesbians have moved from formal equality to real equality and are full and equal members of Canadian society.

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Domestic Partnerships and Other Options

The Discussion Paper proposes three models to address the issue of same-sex marriage. The Discussion paper offers as one option maintaining the status quo by legislating the ban on same-sex civil marriages. The Commission has looked at this option from the perspective of equality and non-discrimination and concluded that, in its opinion, the ban on same-sex civil marriages amounts to discrimination contrary to the Canadian Human Rights Act.

The next option, that of legislating opposite sex marriages but adding a civil registry would provide both same and opposite sex couples with the possibility of entering a relationship that is called something other than "marriage", with rights and obligations equal to civil marriage for the purposes of Canadian law. Under this option, marriage would continue to exist in its present form but separate from the "alternative" partnership. Under Canadian human rights law, "separate but equal" institutions like domestic partnerships are not true equality and the legislature would face much the same human rights challenges under this option as it would under the status quo.

Registration schemes instead of allowing same-sex couples to marry create a second-class category of relationships. Homosexuals would still be excluded from the primary institution for celebrating relationships. Such an option would only underscore the lesser status that is currently given to same-sex couples.

Finally, the third option suggests "leaving marriages to the religions". Religious marriages would not be recognized by the state and civil marriage would be abolished. This option, as the Department of Justice consultation paper points out, has many difficulties associated with it, most of which are beyond the purview and expertise of the CHRC to comment on. It does suggest an option that is consistent with the secular view of the role of the state. In a certain narrow way, it could be argued that this option meets the test of formal equality in that, regardless of sexual orientation, the state’s role in the union of individuals would be the same. The Commission would urge, however, great caution in this reasoning. If, in an attempt to address the question of same-sex civil marriage and the divisions in society around this issue, Parliament decided to re-make the lexicon of marriage, the question remains. Would this be a real way to find a compromise or would it be a clever device motivated by discrimination on the basis of sexual orientation? From the Commission’s perspective, this question would add considerably to the complexity of this option.

Conclusion

The rights, guarantees and benefits that Canada’s Parliament has recognized for gay and lesbian Canadians are celebrated around the world. The inclusion of sexual orientation in the Canadian Human Rights Act was a positive step forward by Parliament, and is now celebrated as a testament to a society that is viewed around the world as tolerant, inclusive and respectful of individual choice and fulfilment

From the Canadian Human Rights Commission’s perspective, the only answer consistent with the equality rights Parliament has already recognized is one which eliminates the distinctions between same sex and heterosexual partners and includes the issuance of civil marriage licences to same-sex couples.