Long discredited, "separate but equal" is rearing its head in the same-sex-marriage debate, in the form of a proposal to restrict gays and lesbians to civil unions. Under this scheme, same-sex couples would have the option of entering into a domestic partnership in which they would bear the obligations and receive the benefits of "married" couples, but could not be "married." Some opponents of the government's same-sex-marriage legislation propose civil unions for gays and lesbians as an alternative.
Yet, at bottom, the flaw in the "separate but equal" marriage proposal is the same as that identified by the U.S. Supreme Court in the Brown case. Denying gays and lesbians the right to marry (while permitting them to enter into relationships that bear all the legal attributes of marriage) can only be based on the discriminatory assumption that gays and lesbians are unworthy to participate in the legal and social institution of marriage.
One argument that has sometimes been raised in favour of distinguishing opposite-sex from same-sex relationships relates to the potential of opposite-sex couples to procreate. But the potential to procreate is not a precondition for opposite-sex marriage. (Moreover, same-sex couples may now have children through medically assisted procreation and adoption.) In short, contemporary marriage is no longer defined through procreation. Rather, it is an exclusive, intimate, lasting relationship of two persons who agree to live together and support each other. The ability to enter into these kinds of lasting, intimate relationships is clearly unconnected to the sexual orientation of the partners. It is for this reason that courts in seven provinces and one territory have found that the traditional opposite-sex definition of marriage contravenes the Charter equality rights of same-sex couples.
There is a more practical difficulty with the civil-union proposal. In its decision in the same-sex reference in December, the Supreme Court of Canada ruled that Parliament's jurisdiction is limited to defining marriage. It does not encompass proposals to create civil unions, which are within provincial jurisdiction. Thus, Prime Minister Paul Martin could not implement a civil-union proposal even if he wanted to.
Indeed, even the provinces could not implement civil unions on their own. Courts in seven provinces have already ruled that the traditional opposite-sex definition of marriage -- which was originally established by a 19th-century British court -- is unconstitutional and that the right to "marry," therefore, has already been extended to include same-sex couples in those provinces. This means that Parliament would have to overrule those decisions using the Charter's notwithstanding clause before the provinces could do anything meaningful on the civil-union front. (Otherwise, any provincial civil-union proposal would be redundant in that it would co-exist with the right to marry already enjoyed by same-sex couples.)
If Parliament did take the unprecedented step of invoking the notwithstanding clause to restore the traditional opposite-sex definition of marriage, which even Opposition Leader Stephen Harper doesn't seem to support, the provinces could then legislate a patchwork of civil unions. I say a patchwork, because does anyone believe that the provinces would enact a uniform regime of civil unions for gays and lesbians?
By Parliament or by court order, same-sex marriage in Canada is here. Separate is not equal. As several courts have already recognized, the right to equality under the Charter of Rights and Freedoms requires that all Canadian adults who want to enter the institution of marriage be permitted to do so.
Patrick J. Monahan is dean of Osgoode Hall Law School at York University.