The enactment of an RDP alone, without eliminating the restriction against same-sex marriage, would not satisfy the demands of the equality provisions of the Charter. The problem is a lack of access to a fundamental legal and social institution. RDP doesn’t give same-sex couples that access and doesn’t remedy the fact that maintaining marriage as exclusively heterosexual is discrimination.
Given the social imprimatur of marriage and the stigma still attached to homosexuality, registered partnerships could only be interpreted as government-sponsored subordination of same-sex couples and, by extension, all lesbian, gay, bisexual and transgendered persons. A partnership registry would send the inescapable message that the government sees us as second-class citizens.
It would provide no legal rights and responsibilities that same-sex couples don’t already have and would not be recognized internationally, or even across Canada, in the way that marriage is.
Q. Can the Federal Government properly implement RDPs (registered domestic partnerships)?
No. Unlike marriage, the federal government has no special jurisdiction over RDP, so it cannot provide rights and responsibilities that are under provincial jurisdiction. All provincial laws dealing with relationship benefits would need to be amended. And only the provinces can amend provincial laws. So any federal RDP scheme could only deal with federal matters, like taxation and immigration. This means that properly implementing an RDP regime would require the co-operation of all provinces and territories.
Q. What have the courts said about RDPs?
Madame Justice Prowse, writing for the B.C. Court of Appeal, said:
“ the redefinition of marriage to include same-sex couples. is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships, including the parallel institution of RDP’s, falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples “almost equal,” or to leave it to governments to choose amongst less-than-equal solutions.”
Justice Laforme wrote in the Ontario Superior Court decision:
any “alternative status” that nonetheless provides for the same financial benefits as marriage in and of itself amounts to segregation. This case is about access to a deeply meaningful institution – it is about equal participation in the activity, expression, security, and integrity of marriage. Any “alternative” to marriage, in my opinion simply offers the insult of formal equivalency without the Charter promise of substantive equality.
Similar comments were made by Justice Lemelin in the Quebec marriage case.
The separate but equal doctrine was rejected in 1954 by the US Supreme Court in the famous Brown v. Board of Education case. It ruled that the segregation of schools on the basis of race violated Constitutional equality guarantees, even though the physical facilities and other “tangible” factors may have been equal. The Court held that “[s]eparate educational facilities are inherently unequal” because to separate students “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
Before the Brown v. Board of Education case, schools for people of colour were severely underfunded compared to white schools. As the case moved its way through the courts, funding was increased in order to argue that there was no tangible difference between black schools and white schools. If the Canadian government legislated RDPs, it would be using the same strategy as the segregationist states. That strategy did not work then and it will not work now.
Q. Isn’t equal marriage too controversial?
No. Most Canadians support providing same-sex couples with equal marriage, and no-one’s rights will be negatively impacted in any way. In any event, equality should not be subject to a popularity contest. Throughout history, unpopular minorities have been singled out for discrimination. The government has said it’s time to end discrimination within the legal institution of marriage. They should not give up on that the first time they encounter resistance. Once equal marriage for same-sex couples becomes a reality across the country, people will see that neither marriage nor religious freedom was negatively impacted, and it will soon become accepted. There is no need to shy away from true equality.
Given the fundamentalist religious nature of much of the opposition to equal marriage, the most fervent opponents are unlikely to lessen their resistance over time. All that will happen is the period of social adjustment and any corresponding discord will be unnecessarily prolonged.
Delaying access to marriage to implement a short-term “solution” that solves nothing and pleases nobody just doesn’t make any sense.
As noted by Justice Iacobucci, writing for the majority in the 1998 Vriend decision:
groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words. (para 122)
Q. What will Canadians think if RDP is recommended?
Canadians will understand that the only reason to deny use of the term “marriage” is to symbolically differentiate same-sex couples. Anyone can see this is unfair.
It will be administratively duplicative and will therefore cost Canadian taxpayers money. Given recent history, Canadians will be understandably gun-shy about another federal registry.
RDP will be seen for what it is – a wishy-washy attempt to avoid doing what most people know is right. It will be seen as a lack of leadership.
EQUAL MARRIAGE: YOU KNOW IT’S THE RIGHT THING TO DO