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Submission to the Standing Committee on Justice and Human Rights - Same Sex Marriages
April 01, 2003,
Submission to the Standing
Committee on Justice and
Human Rights - Same Sex
Marriages
What role did the Commission play throughout the debate on same sex marriage? How did same sex
marriage come to be protected by the Canadian Human Rights Act? This submission analyzes same-
sex civil marriage through the prism of human rights. More specifically, it looks at the prohibitions of
discrimination on the grounds of sexual orientation and discrimination on the grounds of religious
freedom.
Table of ContentsRight to Equal Treatment
Discrimination
Dignity
Choice
No Bona Fide Justification for Barring Same-Sex Marriages
Same-Sex Marriage and Freedom of Religion
‘Same-Sex Marriage and Traditional Definitions of Marriage
Domestic Partnerships and Other Options
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 Wester tradition of marriage has always had many facets - contractual, spiritual and social:
“In the Wester 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 - churchescollaborate 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.
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 haveOne 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?
Itis clear that a refusal to issue mariage 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
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 ive. 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 inquestion 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.
Back to Top
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 protectedSame-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.
Back to TopDomestic 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 optionConclusion
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.