Canadians for Equal Marriage

Resource

Fact Sheet: Why Excluding Same-Sex Couples Violates the Charter

November 1, 2004

The purpose of s. 15 (of the Charter) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.
Supreme Court of Canada, Law case, at paragraph 51

SAYING MARRIAGE “JUST IS” HETEROSEXUAL IS WRONG

Opponents of equal marriage often assert that marriage “just is” the union of one man and one woman. They claim this is a “universal” definition across religions and cultures, that exists separate from and “pre-dates” the law.

This exclusion of classes of people by “definitional boundaries” has been the intellectual foundation of discrimination and oppression in all of the significant social struggles of our time.

Even if marriage had been heterosexual-only “since time immemorial”, the mandate of human rights law is to critically evaluate and challenge long-standing, often commonly accepted, practices.

The term “person” had been historically defined to exclude women. The term “citizen” had been historically defined to exclude slaves. Historical pedigree does not make something right.

The issue is whether the exclusion of a historically disadvantaged group is discriminatory and, if so, whether that discrimination is justified. The Charter aims to protect the traditionally disadvantaged from discrimination, however deeply ingrained, seemingly natural, and longstanding.

IT’S DISCRIMINATION

Excluding same-sex couples from civil marriage is discrimination based on sexual orientation. Under the Charter, if there is a line drawn between gay and lesbian people and heterosexual people, and that separation reasonably violates their human dignity, then discrimination is established and s.15 of the Charter is violated.

Permitting opposite-sex couples to marry and not same-sex couples draws such a line, because it is the sexual orientation of the individuals involved which leads to the formation of the same-sex couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female.

Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
Ontario Court of Appeal, Halpern case, at paragraph 78

Based on the historical disadvantage of lesbian and gay people, their actual needs, capacities and circumstances, and the societal significance of marriage, courts have determined that the exclusion of same-sex couples from marriage reasonably violates their human dignity.

It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy. Supreme Court of Canada, Vriend case, at paragraph 69

WHERE IS THE THREAT?

The strongest opponents of equal marriage say that marriage must remain heterosexual or dire consequences will follow. They argue equal marriage is a threat. They cannot find any harm from equal marriage itself, so they try and shift the focus to something else or talk in general terms about threats to families.

As noted by former Supreme Court Justice L’Heureux-Dubé:

“[I]t is in society’s interest to improve conditions to enable families to function as best they can, free from discrimination. … It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values.” (Mossop case)

The real concern of many opponents of equal marriage is that it will reduce the stigma of homosexuality.

Same-sex couples have been getting married in Canada for well over a year. Thousands have done so. In fact, 85% of Canada’s population now live in jurisdictions where same-sex couples can legally marry.

Equal marriage diminishes no one. Where is the threat?

THERE’S NO REASON TO EXCLUDE SAME-SEX COUPLES

Going back to first principles, why would society want to exclude same-sex couples from civil marriage? The courts carefully examined this question.

They rejected the justification that only opposite-sex unions that can “naturally” procreate, because this ignores the fact that same-sex couples are capable of having children. They also rejected the purpose of promoting the raising of children, as this suggests that same-sex couples are not equally capable of childrearing.

The courts found that the only reason to exclude same-sex couples is to favour one form of relationship over another, to suggest that uniting two persons of the same sex is of lesser importance than uniting two persons of the opposite-sex. This is the essence of discrimination.

Since the courts found no pressing and substantial reason to justify the discriminatory exclusion of same-sex couples, the opposite-sex restriction was “struck down” as unconstitutional.

Limiting the definition of marriage to couples of the opposite sex reinforces the stereotype that gay and lesbian people cannot and do not form loving, lasting, caring, mutually supportive relationships in the same manner as heterosexual couples.

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.