Separate, but equal

It's up to heterosexuals to take up the cudgels now

With every victory comes a new battle. At least, that’s what it seems like. Lesbian and gay spouses are now separate – but equal.

On the evening of Oct 27, the Ontario government rammed through the second and third readings of Bill 5 in just two-and-a-half hours. It extends rights and responsibilities to same-sex couples.

The Tories were obviously told to be quiet. Only one Progressive Conservative – the attorney-general, forced to introduce the legislation – spoke.

And they did it in such a way as to not get blamed for it by their traditional constituency. The bill is named An Act To Amend Certain Statutes Because Of The Supreme Court Of Canada Decision In M V H.

Some are surprised that same-sex couples have not been granted the same rights as married couples. But marriage was never on the table. M versus H was a constitutional challenge to a law that treated same-sex couples differently than unmarried straight couples. And six months ago, the Supreme Court Of Canada said that there was no good reason to treat same-sex couples differently.

In the aftermath, many were concerned that Ontario would do as little as humanly possible to bring its legislation in line with the ruling. They worried that the government would only amend the single provision in the Family Law Act that the court had struck down.

And then, gay and lesbian couples would be back to court, challenging every single discriminatory section, case by case, definition by definition, at no small expense.

To its credit, Ontario changed all 67 laws that distinguished between these couples. There is nothing “separate” about the rights and responsibilities that have been extended.

It’s reminiscent of Bill 167 – the failed law introduced by the New Democratic Party government in 1994 to extend the definition of “spouse” to include same-sex couples. Marriage wasn’t on the table then, either. Despite the homophobic rhetoric that spewed from the four corners of the province, the bill was only about treating same-sex couples the same as unmarried straight couples.

So, what is the squawking about “separate but equal”? To save face with its own family values constituency, the Harris government decided not to call same-sex couples “spouses,” but instead to call them “partners.” Some gay men and lesbian consider this a profound insult. They want, above all, to be spouses.

It makes no difference whatsoever in law. For all intents and purposes, they are spouses. They have all the rights, and mostly, all the responsibilities that opposite-sex common law couples now have.

And I, for one, have never seen any magic in the word “spouse.” Most of the folks I know refer to their loved ones as “my partner,” not “my spouse,” anyways.


In fact, given the history of controversy within the gay and lesbian community about whether we should even be going after spousal rights – “partner” isn’t a bad compromise.

The rightwing has always been hysterical about defending the traditional definition of marriage from the onslaught of folks like us. The truth is, we’ve won. But, if it makes them feel better, let them have “spouse.”

Within a few years, almost everyone – including those rightwing politicians, who will have found other evil bandwagons to jump on – will have forgotten that there is even a distinction. For better or worse, same-sex couples will come to be referred to as spouses. With any luck, opposite-sex couples will come to be referred to as partners.

Gay and lesbian couples who have been seeking legal recognition of their relationships have won this battle, hands down.

Marriage, however, is for another day. Not everyone in the gay and lesbian community wants it. But that doesn’t usually stop anybody. There are constitutional challenges currently underway, arguing that the opposite-sex definition of marriage violates the Canadian Charter Of Rights And Freedoms. And no doubt, there are new skirmishes imagined, to challenge the remaining distinctions between married and unmarried couples.

Here’s an idea. We are now in the same boat as straight unmarried couples. Why not let them fight the rest of the battles for us? Why not let them challenge the remaining distinctions in the law? Why not let a member of an opposite-sex couple challenge the exclusion of unmarried couples from property division on relationship breakdown?

And while they are at it, let them challenge the remaining distinctions in the law of succession (unless you’re legally married, your partner won’t automatically inherit your goods at your death). Straights can do it without raising the spectre of homosexuals destroying the last vestiges of traditional marriage. And we can just ride on their coat-tails.

Of course, I’m not saying this because we should avoid having the rightwing annoyed with us. We can save our time and energy on this one because heterosexuals are already doing it. And because of Bill 5, anything that they win, we will win.

There are other things that we should be worried about. Consider the actual title of this law. In a clever piece of marketing, Mike Harris told the public that he did not want to pass it. As Liberal MPP George Smitherman, among others, has observed, the Tories may as well have called it “the devil made me do it act.”

In introducing the bill, Attorney-General James Flaherty said: “This legislation is clearly not part of our agenda.

“The only reason we are introducing this bill is because of the Supreme Court Of Canada decision. We would not introduce the legislation otherwise.”

The debate around M versus H, and now around Bill 5, is being used to attack the legitimacy of the courts. It has become an important new weapon in the hands of the rightwing – from the Reform Party and the National Post, to REAL Women and writer David Frum – in a concerted attack on what they’re calling “judicial activism.”

In their view, the courts have become legislatures – making, rather than interpreting, the law. And their message is simple: judges should stop. They should stop interpreting the Charter Of Rights And Freedoms, they should stop interpreting equality rights. And above all, they should stop protecting the rights of minorities – of gay men and lesbians, First Nations, disabled people – all minorities.

Their ideas are gaining mainstream respectability.

In the aftermath of Bill 5, the Harris government is cashing in on the debate, by questioning “judicial activism” in a letter to Ottawa. “I think there are many people who acknowledge that there is presently a situation where the lines between legislators and the judiciary are becoming muddied,” Intergovernmental Affairs Minister Norm Sterling complained to the feds.

This is an exceedingly disturbing trend.

We may have won this battle in the struggle for legal recognition. But the rightwing is not down for the count. They are coming back with an attack on the very democratic institutions that have protected our equality rights. This is what we should be worried about.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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