Summary of Brief to the Justice and Human Rights Committee Review on questions relating to Same-sex Marriage, 2002.
Dr. Gary Kinsman, Sociology Department, Laurentian University.
1). The long history of systematic legal and social discrimination against lesbians, gay men, bisexuals and transgendered people in Canadian history.
The context for discussion of same-sex marriage needs to be set in the long history of systematic social discrimination against lesbians, gay men, bisexuals and transgendered people in Canadian history. In the criminal law same-sex sexual acts were criminalized (and still are in some major ways in notions of “acts of indecency” and the bawdy-house legislation for instance) directing the police against consensual same-sex acts and helping to construct homosexuality as having a criminal character. This has been linked to the construction of notions of homosexuality and lesbianism as “pathological,” “psychopathic,” “deviant,” “sick” etc. in psychiatry, psychology, sociology and in many other disciplines as well as in the mass media and popular culture. Lesbians and gay men were also constructed as “risks” to national security with hundreds losing their jobs in the public service and the military. Support for these practices of discrimination was enforced through official state policy from Confederation until the late 1990s (and still exists in major areas) and only began to change with the emergence of gay and lesbian liberation movements.
It is in this context that there has been a long history of systematic state and social discrimination against lesbian and gay relationships. The exclusion of lesbians and gay men from mainstream definitions of the “family” and “spousal” relationships organized oppression, marginalization, and hardships in the lives of millions of people. It has only been through social and legal struggles that advances have been made on these fronts and the Canadian government has always had to be forced (almost kicking and screaming) to make the changes that are clearly mandated by principles of social justice and the equality rights section in the Charter. The active exclusion of same-sex couples from the right to marriage in a context where marriage gives people’s relationships greater social recognition and social privilege is a continuing practice of discrimination. The privileging of different-sex relationships in terms of the right to marry and the exclusion of same-sex couples from these rights and privileges is a practice of discrimination that must be ended.
2). The social character and history of marriage.
At the same time we must also note the social character and history of marriage. Marriage historically in western cultures had to do with securing the patriarchal rights of individual men over their wives and children and with securing the transfer of private property rights to legitimate offspring. As feminists have pointed out this history of marriage is a history of patriarchal relations. It also has established rights of ownership over wives and children. It is important to remember that it was only in 1983 that a husband could be charged for sexually assaulting his wife. Prior to that he was given legal right of access to his wife’s body at any time since it was assumed that though marriage he now owned her body. Although there have been important changes in family and marriage law as a result of the feminist movement this patriarchal and property focus still informs marriage as a social practice. At the very same time marriage is constructed in state and social policy as the most privileged and important type of relationship in terms of social recognition and privileges. Marriage is granted social privileges that are denied to other types of social relationships. Some types of relationships between people are treated differently than others and this is a social practice of discrimination.
3). Formal Equality.
On the basic grounds of formal equality the active exclusion of same-sex couples from
marriage is a practice of discrimination that must be ended. As long as different-sex couples can get married and this right is denied to same-sex couples discrimination is going on. This also means that structuring some sort of different but secondary form of same-sex relationship recognition that continues to deny the right to marriage to same-sex couples while allowing different-sex couples to marry will also be a practice of discrimination. At the same time the state institutionalization of marriage as a particular type of privileged relationship in comparison to other types of relationships (common-law, lesbian and gay couples, people raising children on their own) is also a practice of social discrimination.
4). Alternatives
As long as only different sex couples can get married and same-sex couples cannot there is a practice of discrimination that must be ended. But at the same time as pointed out above state institutionalized marriage is itself a state practice of discrimination that must be ended. We also have to begin to define relationships beyond the limitations of patriarchal and private property-based notions of marriage. Instead we need to recognize and support individuals and relationships on the basis of principles of social justice: democracy, equality, consent, choice, and the redistribution of wealth to those living in poverty and hardship. Those raising children and supporting other dependents require, and those living in poverty, require special forms of social support. But all individuals and relationships require social support and recognition. It is for these reasons that I suggest the ending of state institutionalization and recognition of marriage. This will end state instititutionalized marriage as a socially discriminatory practice against other forms of social and sexual relationships. If people wish to enter into marriage relationships it would then be a religious or private matter that would have no bearing on how state and social policy would deal with people. All social and sexual relationships built on principles of democracy and mutual consent would then be recognized equally and we could begin to move away from the practices of discrimination against single-parent headed households, same-sex relationships, or other social and support relationships that people organize in their lives. We could then move to establish social policies that could redistribute wealth to those living in poverty, and end racism, heterosexism, sexism and other forms of social discrimination. The exclusion of same-sex couples from the right to marry must be ended but at the same time the state institutionalization of marriage as a privileged social relationship which is also a social practice of discrimination must be ended.
Some References:
Gary Kinsman, The Regulation of Desire: Home and Hetero Sexualities, Montreal: Black Rose, 1996.
Law Commission of Canada, Beyond Conjugality, recognizing and supporting close personal adult relationships, 2001.
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