This article was originally published in Maclean's Magazine on July 28, 2003
Feds Unveil Same-sex Marriage Law
NEXT YEAR they will celebrate 30 years of marriage. At least, that's what they call it - although many would deny that this particular couple are married at all. They have lived in the same neighbourhood of big old houses and mature trees near downtown Winnipeg since 1978. One is a recently retired provincial bureaucrat, the other a cabinetmaker. In a way, they are the model of a stable domestic partnership. Except they are two gay men. And even among same-sex couples, Chris Vogel, 56, the former civil servant, and Richard North, 52, the carpenter, stand out as trailblazers. After saying their vows back in 1974, they fought the first legal battle in Canada to have the union of two persons of the same sex recognized by their province as a marriage, only to lose the fight in a Manitoba court.
Last week, the federal justice minister, Martin Cauchon, unveiled a law that aims to put same-sex couples like Vogel and North on an equal footing with married men and women everywhere in Canada. Cauchon's move follows recent court rulings in Ontario and British Columbia that found the traditional definition of marriage - one man and one woman - violates the Charter of Rights and Freedoms protection against discrimination on the basis of sexual orientation. His new definition speaks instead of "the lawful union of two persons to the exclusion of all others."
Vogel recalls that back when he was becoming an activist in the 1970s, even "progressives," who were broadly sympathetic with other goals of the burgeoning gay-rights movement, recoiled at the notion of homosexual marriage. Yet he believed history was on his side. "I was well aware of the reduction, through political activity, of prejudice against Roman Catholics, Jews, racial minorities and women," he said. "One had faith in the essential goodness of humankind." Still, Vogel learned that seeking the right to marry was different from ending other types of discrimination. "It was clear," he said, "that marriage would likely be the last thing that we would achieve."
In fact, marriage does seem to be the last thing that outraged religious and social conservatives would concede to gays. "It's such a deep, emotional, value-laden issue," says Vic Toews, justice critic for the Canadian Alliance, who represents Provencher, a mostly rural Manitoba riding just east of Winnipeg. Toews is spearheading his party's defence against the direction the Ontario and B.C. courts have set and the federal Liberals are now following. A broad coalition of religious conservatives is also fighting to restrict legal use of the word marriage to its familiar husband-and-wife meaning. Their frustration can hardly be overstated. Toews cites the reaction of some Catholics in his riding toward Ottawa's decision to accept gay marriage. "For many Catholics, the way it was described to me, it's the equivalent of government celebrating a Black Mass," he said. "For the government and the courts to be engaging in what is a sacrilege strikes at the heart of their value system."
Words like sacrilege don't get tossed around much in political debate, let alone pungent references to satanic rituals. But the swirl of associations around the word marriage tend to raise the rhetorical stakes. The language of this debate is more charged than a string of previous disputes over gay rights.
Since the late 1960s, homosexuals have benefited, step by step, from legal reforms and changing social attitudes. In 1969, HOMOSEXUALITY, previously punishable by up to 14 years in prison, was decriminalized. ("The state has no place in the bedrooms of the nation," Pierre Trudeau, justice minister when he proposed the reform in 1967, memorably said.) In 1978, prohibitions on homosexual immigration were dropped. The federal government vowed to end anti-gay discrimination in areas of its jurisdiction in 1986, including the Royal Canadian Mounted Police. It wasn't until 1992 that the armed forces declared that gays would no longer be blocked from serving in uniform. More broadly, the Supreme Court of Canada ruled in 1995 that the Charter of Rights and Freedoms should be read to forbid discrimination on the grounds of sexual orientation.
All those breakthroughs, and others, came with controversy. But the uproar over marriage is on another level. For practical purposes, gay couples already enjoy most of marriage's advantages in Canada, such as access to employee spousal benefits. What they want now is access to the intangible qualities that the word still conjures up, even in an era of commonplace divorce. Fidelity. Stability. Love itself. "It is the definition of what is an admirable, desirable, promotable human relationship," Vogel says. But marriage also implies, for many devout Canadians, nothing less than a relationship with God. Even Cauchon, who surely wants to sidestep the debate's religious dimension, did not entirely avoid alluding to it in defending his proposed law. "Extending marriage to same-sex couples does not take away any rights from opposite-sex couples," he insisted, "nor does it erode the significance or sanctity of marriage."
Sanctity is associated in the Canadian Oxford Dictionary with "holiness," "sacredness" and "saintliness." So Cauchon, perhaps unwittingly, touched on exactly what it is about marriage that makes many religious groups object to extending it to same-sex couples. The justice minister took pains to reassure religious groups that their right not to let gays marry in their churches, synagogues and mosques would remain. In fact, the question of religious freedom is one of three aspects of the bill he is asking the Supreme Court to give its opinion on before the law is put before Parliament. Does the Charter protect religious officials from having to perform same-sex marriages contrary to their beliefs? Is defining marriage strictly a federal power, not one shared with the provinces? Is extending marriage to persons of the same sex consistent with the Charter?
Legal experts say it's a good bet the top court will answer Yes on all counts. With that seal of approval, the bill will be put to a free vote in the House of Commons, maybe not until next year. Social conservatives will press Liberal backbenchers to side with Alliance MPs and vote the law down. What that would change, though, is not clear; since provincial courts have already ruled in favour of same-sex marriage, gay weddings would continue, at least in B.C. and Ontario. Another battle shaping up is a familiar federal-provincial clash. Ralph Klein has vowed not to let same-sex marriages happen in his Alberta. But it is not obvious how the premier can make good on that pledge. Ottawa has the constitutional authority to define marriage. Provinces handle the administration. Even if Klein invokes the so-called notwithstanding clause, some constitutional lawyers say he can't nullify that division of authority. Although only a Supreme Court ruling could ultimately settle the dispute, University of Alberta law professor Barbara Billingsley says defining marriage "looks like a matter for the federal government."
Party strategists are now assessing how big an issue gay marriage might be in the next federal election, which could be as early as next spring. Some polls show Canadians about evenly split on the question. Toews claims an advantage for the Alliance, contending that those who oppose same-sex marriages are more likely to make their decision on who to vote for solely on this issue, as opposed to those who support such rights. Some Alliance insiders hope their stance will shore up support in their western strongholds, where Liberals hope to make inroads under Paul Martin, who has voiced muted support for same-sex marriage, and is widely expected to win the party's leadership this fall. Vogel, though, predicts this hot button will have cooled considerably by the next election. "These things get over with quickly once they happen," he says. "They're forgotten immediately." Spoken like a middle-aged married guy who's seen his share of change.
See also MARRIAGE AND DIVORCE.
Maclean's July 28, 2003