Marriage, Homophobia, and Substantive Equality

1 April 2005
April 1, 2005

Marriage, Homophobia, and Substantive Equality
Mariage, homophobie et égalité véritable
The unanimous decision of the Supreme Court of Canada in Reference re Same-Sex Marriage came as no surprise to anybody – or at least to those familiar with the Court’s obligations in interpreting and applying Charter rights and freedoms, and the relative ease that it has in assessing formal equality […] La décision unanime de la Cour suprême du Canada dans le Renvoi relatif au mariage entre personnes du même sexe n’a surpris personne – ou, du moins, aucune personne familière avec les obligations de la Cour d’interpréter et d’appliquer la Charte des droits […]

The unanimous decision of the Supreme Court of Canada in Reference re Same-Sex Marriage came as no surprise to anybody – or at least to those familiar with the Court’s obligations in interpreting and applying Charter rights and freedoms, and the relative ease that it has in assessing formal equality claims between similarly situated groups. In a decision that was in keeping with what 18 other judges had already ruled in seven provinces and one territory, the Supreme Court affirmed that extending civil marriage to same-sex couples was consistent with the equality guarantees of the Charter; and that the Charter’s provisions for religious freedom protected religious officials against having to perform marriages that were not in keeping with their religious doctrine.

Considering that Court’s succinct answers to questions of both equality rights and religious freedoms, one would be hard-pressed to decry the ruling, unless, of course, one felt, as the Vatican has put it, that the recognition of such rights amounts to “the approval or legalization of evil,” that gay and lesbian unions are not worthy of the legal recognition enjoyed by heterosexual couples, or that the rights of minorities should be subjected to the will of a majority that has a long history of finding the former abhorrent. But the very point of the Charter and other human rights legislation, as we well know, is to protect despised groups against such systemic discrimination, exclusion and degradation in the first place.

The fact that, across the border, the overwhelming majority of states began scrambling to introduce constitutional amendments to restrict marriage to heterosexual couples, exactly at the moment that the Supreme Court of Hawaii ruled it unconstitutional to exclude gay and lesbian unions, is rather telling of the pervasive fears that equality guarantees might mean the guarantee of equality to despised sexual minorities, as it is about what many people know and expect constitutional rights to mean for courts and citizens. It is also rather revealing of the extent to which it takes the drastic and historically regressive step of explicitly incorporating discriminatory provisions back into constitutions to circumvent the possibility that courts might affirm the equality rights of gays and lesbians who wish to marry.

Despite all that has been said to suggest the contrary, the issue before the Supreme Court of Canada was quite basic: it was not whether or not ‘marriage’ — as a socially, economically, and politically favoured form of recognizing adult relationships — is an institution or religious tradition worth preserving or defending, but that, to the extent that it is legally administered by the state, whether it can exclude the sexual minorities that are already recognized as being protected by constitutional equality guarantees. As a clear-cut question of formal equality, it steers clear of the substantive equality claims that the Court is for more reluctant to endorse: it does not challenge fundamental social and legal norms, nor does it seek the redistribution of economic resources and benefits to other relationships of care and dependency that deviate from this model.

In the wake of the marriage reference, we have witnessed a proliferation of right-wing media campaigns decrying “activist judges” for their alleged lack of deference to the elected officials, accusing the Court of usurping the role of parliament, and ignoring the ‘will of the people.’ This recent outburst of expressed homophobia, dressed in the rhetoric of questions about appropriate deference, is parallel only to that which occurred in 1998 in the wake of Vriend , where the majority of the Supreme Court found that the exclusion of sexual orientation as a protected ground under provincial human rights legislation violated s. 15 of the Charter. Witness Ted Morton’s renewed allegations of a “court party” swayed by the “special interests” of feminist and other equality-seeking groups ; Preston Manning’s recent criticism of the Court’s decision, based on his complaint that judges are, “by vocation” more removed from the public than “democratic politicians” ; and Cardinal Aloysius Ambrozic’s open letter to the Prime Minister, demanding consideration that something as significant as “tampering with marriage” should be left not to judges who are “not elected and ultimately not accountable for their decisions.”

But for all of the outrage against constitutions, courts and queers, empirical outcomes of court-case decisions clearly establish that the Supreme Court is not prone to accepting the arguments of equality-seeking organizations. As different commentators, such as Bruce Ryder, Patrick Monahan and Nadine Blum, have noted, not only is the success rate of s. 15 claims significantly lower than that of all other Charter claims, but the two sex equality claims that have been successful (Benner and Trociuk ) in the past decade, were claims brought by men. Nor is there any evidence that the Court is lacking in deference to Parliament, especially when it comes to questions concerning the allocation and distribution of material resources, such as would challenge the social and economic status quo. The negative decisions in Gosselin, Newfoundland Association of Public Employees, and Auton, all of which address ways in which governments might be called upon to redistribute economic resources such as social assistance, pay equity settlements and health benefits to disadvantaged groups, are a testament to this. Despite the Court’s stated commitment to substantive equality, and to remedying the historical disadvantage of subordinated groups, its practice remains to favour only formal equality claims for recognition, and to leave intact the the government policies that sustain substantive inequalities in the discriminatory provision and allocation of benefits.

Since the simple question of whether to extend civil marriage to a historically disadvantaged and similarly situated group has been met with such public outrage and treated as a re-ordering of the world as we know it, it is disturbing to imagine what responses there would be to the possibility of challenging the privileged status accorded to marriage and to consider recognition and state obligations to diverse relationships of interdependency and care, restructuring institutions and redistributing resources to other relations of interpersonal and economic dependency and interdependency. For those committed to advancing substantive equality, the task remains to move beyond mere recognition and inclusion into existing conjugal models, and to challenge the economic arrangements in and through which the state confers economic benefits only to those members of society who fit this model, to the exclusion of others. We need to aim for more than assimilation into existing institutions and more than solidifying the hierarchies of relations already acknowledged and sustained by the state, to demand consideration of the myriad of financial and material relations of care and dependency, such as those involving the care of persons with disabilities and those with extended illnesses, and generally those who currently lack the access or support reserved for those in conjugal unions. Among other things, substantive equality demands changes to the social and economic conditions that make it so important for gay men and lesbians to seek marriage in the first instance.

Margaret Denike is a law professor at the University of Nipissing and a member of NAWL’s working groups.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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