Legal equality in a pluralistic society

Published May 1, 1998

AS THE GLOBE AND MAIL has rightly observed, a courtroom can be “a bloody awful place to fight out the rights and wrongs of the human heart,” particularly when the legitimacy and legality of certain human relationships are being attacked or defended.

The fundamental issue of protecting gay and lesbian couples in our pluralistic society is a case in point. Recent Supreme Court cases, involving the legal (re-) definition of marriage and the Alberta Government’s Charter obligation to extend equal protection and equal benefit of the law to gays and lesbians, again reminded us that all is not clear on the human rights front.

The public discussion should be broadened. A new legal category of relationship could be established alongside marriage, which could be called “registered domestic partnerships.” This new category would be open to heterosexual and homosexual couples alike and, for public policy purposes, would be legally equivalent to marriage.

Under this proposal any relationship, whether gay or straight, relatives, perhaps even friends would be entitled to the same pension, health, tax and other benefits as “married” couples, provided they enter into a public declaration of mutual commitment. This would meet the test of fairness, doing justice to the variety of situations in which two people live together in a long-term relationship of mutual dependence and care.

The following public-policy alternatives could be considered:

  1. The establishment of an additional legal category of “registered domestic partnerships” might be an equitable legislative way of ensuring that all Canadians are equally entitled to the just protection of their civil rights and freedoms and to the same pension and other social benefits now available to “married” couples. We could use such terms as “partner” benefits. This category would be open to heterosexual and homosexual couples alike.
  2. Committed relationships that seek entitlement to public-policy benefits need public declaration. Heterosexual marriage requires public declaration of troth before witnesses. Domestic partnerships should be similarly entered into through some form of “Public Declaration of Mutual Commitment.”
  3. The legal rights and responsibilities of homosexual (or heterosexual) persons who officially enter into a “registered domestic partnership,” and who would be known as “partners,” should be the same as the legal rights and responsibilities of heterosexual persons who officially enter into a “marriage,” who are known as “spouses” (husband and wife).

In respect for the traditions of Canadian society, the established terms “marriage” and “spouse” should be reserved for heterosexual relationships. These terms should not be broadened to include any other types of relationships.

To facilitate these expanded social policies, federal and provincial laws and regulations would have to include clear definitions as to (1) who are entitled to register their marriage or domestic partnership; (2) what their respective legal rights and responsibilities are; and (3) how our courts, governments, community agencies and the public at large should publicly respect these citizens and their formal relationships.

Public justice for all persons and communities should be practised within a framework of Canadian law and public policy that equitably protects all and discriminates against none. All Canadians are entitled to legal equality and fair public treatment, to equal protection and equal benefit of the law, without discrimination based on irrelevant criteria. It is only just that equal protection and equal benefit be extended to all Canadians.

This extension of legal rights must, however, include the public recognition of different social relationships which would be accompanied by appropriate legal definitions outlining both the rights and the responsibilities (“the benefits and the burdens”) of the spouses and partners involved in a “marriage” or a “registered domestic partnership.”

Let us persuade our governments to act humanely and justly, without courts judging “the rights and wrongs of the human heart.” Equal justice for all requires respecting the nature of different human relationships. Justice is not spelled just-us. Gerald Vandezande is the National Public Affairs Director of Citizens for Public Justice, an independent, national, faith-based organization advocating equal justice for all citizens.


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