Should Feminists Care About Equal Marriage for Same-Sex Couples?

Equal marriage for same sex couples developed as the wedge social issue in the June 2004 federal election. We witnessed Liberal politicians proudly waving the rainbow flag, a sharp contrast to a year earlier when most of them had trouble saying “lesbian and gay” without first interjecting an “um” or taking in a little breathe of courage. (Cynics might say that the Liberals’ recent reaction is a response to opinion polls which have shown consistent and steady increases in public support for equal marriage. Close to 60% of Canadians are now in favour of equal marriage.) The new Conservatives tried to avoid the issue but this strategy did not float as the socially conservative undercurrents of the party kept surfacing–or, perhaps it can be said that they were pushed out of the closet where they might have preferred to stay, at least during the election.

In all likelihood, equal marriage will still be front and centre on the political agenda when the next federal election occurs, probably within the next year. When the government in power is claiming to support, indeed cherish, constitutional equality rights, we need to ensure that this support is developed and maintained. Other equality issues will “piggy back” on this issue and, for this reason alone, feminists need to care about and support equal marriage.

Many feminists have cogently argued that marriage is not a good institution for women because, among other things, it establishes and sustains women’s dependency on men. Yet I am not aware of any large feminist advocacy group taking the position that marriage should be abolished, probably because they recognized that this position would have little support. With the possible exception of women in Quebec, most heterosexual feminists get married at some point in their lives and, I suspect, most who marry believe that their marriage will not develop into the patriarchal quagmire their academic sisters write about. These women are marrying for the psychological, social, religious or legal benefits of the institution. The decision to marry is, for most people, one of the most profound personal decisions they will ever make.

Lesbians and gay men want the ability to marry not only to obtain the benefits of the marriage but also because exclusion of these relationships sends and reinforces a powerful message that our choices about relationships are not valuable or worthy of support. This message is one that is communicated, sometimes loudly, often insidiously, always painfully, to us everyday. Giving us the choice to marry sends a different message. A quick review of the arguments made by religious opponents of equal marriage reveals their belief that such marriages undermine what they call “traditional marriages.” There is a grain of truth in this argument in that marriages between same-sex couples destabilize patriarchal conceptions of marriage. Along with the pragmatic political reasons described above, these equality-based reasons provide solid ground for feminists to support equal marriage.

Many lesbians and gay men will never marry and some will resent the new social and familial pressure to marry. Feminists need to continue thinking about ways to respect and support diverse forms of inter-dependent relationships, mindful that marriage is but one form of relationship. The complexity of this work, however, does not give us a reason to reject support for equal marriage.

So where are we now and what else needs to be done?

A primary goal is to ensure that the federal government passes legislation permitting equal marriage. Not only is this move of symbolic importance, but it will also ensure that all consequential amendments to federal statutes are made and it will ensure uniformity across the country. Keep lobbying your Member of Parliament on this issue, remembering that the anti-marriage forces are lobbying very heavily.

That having been said, it is unlikely that the current federal government will pass legislation before it falls, given that the shelf life of a minority government is about 18 months and it is unlikely that the Supreme Court of Canada will have made its decision in the Marriage Reference case (which is being argued in October 2004) before then. An alternative strategy that can be pursued is to lobby provincial governments to agree to issue marriage licenses and register marriages between same sex couples or to seek court orders requiring this action.

90% of Canadians live in provinces or territories (B.C., Ontario, Quebec and the Yukon) where equal marriages are now being performed pursuant to court orders. The judge in the Yukon case was very critical of the territorial and federal governments for contesting the case and ordered that they pay all of the litigating couple’s legal costs, so there is a good chance other provincial and territorial challenges will be uncontested by governments. The federal Minister of Justice, Irwin Cotler recently stated that the federal government will no longer oppose these cases and some provincial ministers have taken or are moving towards this position. (Both federal and provincial governments have a role to play in marriage law because the federal government has the power to determine who can marry whereas the provincial governments are responsible for regulating the formalities of marriage like licenses and registration.)

If the change to the common law pronounced in these provinces is put into effect in the remaining jurisdictions, it will be, practically speaking, difficult for the federal government to introduce legislation prohibiting equal marriage. In other words, the lack of Parliamentary consensus will result in maintaining the status quo.

Equal marriage challenges were started in Manitoba and Nova Scotia in late August and, surprisingly, both were completed within less than a month because the Ministers of Justice in both provinces and the federal Minister of Justice agreed to consent to an order requiring the registration of marriages. Challenges in the other provinces and territories (New Brunswick, Alberta, Newfoundland, N.W.T., Nunavut, P.E.I. and Saskatchewan) can now also be expected. So if you live in an “unreformed” jurisdiction, you may want to see if you can facilitate litigation in your province or territory or simply write your provincial or territorial Minister of Justice asking them to start registering equal marriages.

Karen Busby is a professor in the Faculty of Law at the University of Manitoba and is also an EGALE Board Member