Beyond Conjugality
More vital values

Better questions

And some much better answers

Getting beyond conjugality -- to true equality,
autonomy, & freedom to shape our lives
& loves to our own beliefs


Law Commission of Canada

On the LCC's homepage, click on Close Personal Adult Relationships.
Links there lead to:

  • Background papers
  • Info on the consultative project that led to Beyond Conjugality
  • A Comments Board offering a range of ideas sent to the LCC from across Canada
  • The full text of Beyond Conjugality

It's a big report, covering all the legal bases. But the gist is in its Executive Summary (and here).

You can order free copies of the report from the LCC via their site.

"Canadians enjoy a wide variety of close personal relationships that are important to them. Many marry or live with conjugal partners. Others have emotional and economically important relationships outside of marriage and conjugality. They may share a home with parents, grandparents or a caregiver. Sometimes it may be sisters. Other times, best friends.

"Making choices in one's personal relationships is among the most cherished of values in Canadian society. ... The state cannot create healthy relationships; it can only seek to foster the conditions in which close personal relationships that are reasonably equal, mutually committed, respectful and safe can flourish. ...

"This requires a fundamental rethinking of the way in which governments regulate relationships."

From Introductions in Beyond Conjugality

The Law Commission of Canada is, as its website says (there's a link to it above): "an independent federal law reform agency that advises Parliament on how to improve and modernize Canada's laws."

More than two years ago they began extensive study on the state's role in, as they put it, "recognizing and supporting close personal relationships between adults." That phrase left out a key issue that their investigations did not: the state's regulation of the intimate lives of grown-ups. Without kids.

Not that kids don't count: the Commission did look separately at relationships involving children. But here they left them out. On purpose: pondering kids puts us automatically in the frame of "parenthood," "family," and "marriage." The LCC stepped outside that frame to look at legislation (much of it "family law") that impinges on the intimate lives of people not responsible for raising children.

Among those people are of course many lesbians, gay men, and everyone else who lives beyond the bounds of what poet Adrienne Rich called "compulsory heterosexuality."

The Law Commission did not ask: "Gay marriage: Yes or No?" They urged instead that legislators ask more pertinent questions when pondering laws that may affect the personal lives of grown-ups. Just four:

  • Is a law's intent legitimate state business?

  • If so, are close personal relationships relevant to that intent?

  • If so, can people be free to define those relationships for themselves?

  • If not, can the state define "the relevant range of relationships"?

That "relevant range" goes well beyond marriage. The LCC also suggested the state apply certain "fundamental values" to those questions -- values they clearly applied in pondering their recommendations:

  • Equality between relationships: the state should "not accord one form of relationship more benefits or legal support than others."

  • Equality within relationships: "to overcome unequal distributions of income, wealth, and power ... or the lack of state support for persons with disabilities."

  • Autonomy: requiring the state "to put in place the conditions in which people can freely choose their relationships."

  • Personal security: to enhance "the ability of individuals to make healthy choices about entering or remaining in relationships."

  • Personal privacy: avoiding "rules that require intrusive examinations into, or forced disclosure of, the intimate details of personal adult relationships, unless the relationship involves violence or exploitation." (Like "spouse in the house" rules imposed on common-law couples, usually to declare one a "dependent spouse" ineligible for public social assistance.)

  • Freedom of conscience and religion: the state should "not take sides in religious matters." And the rite of marriage, the Law Commission says, is fundamentally a religious matter.

The Commission released its report on these issues in January 2002. It was sweeping, comprehensive, even radical, true to the values they had brought forward to guide them. Its title says it all: Beyond Conjugality.

As Pierre Trudeau said in 1967: "There is no place for the state in the bedrooms of the nation." The LCC not only agreed, but said that should mean all our bedrooms, whoever we are and whatever we do -- or do not do -- when in them. Whether or not people are having sex is none of the government's business. "Conjugality" should have no place in law.

Neither, they said, is it the state's place to say that one brand of meaningful connection is better than any other. Instead, governments should recognize the relationships that people define and name for themselves: husband and wife; lovers; caregivers; committed friends; relatives; people unrelated by blood or adoption -- all, by choice, could be recognized as partners in law.

Their access to benefits would be based on individual need, not relationship status. They would not have to live together. They would not have to be a "conjugal" couple: sex, or its absence, would be irrelevant. So would sexual orientation.

And the LCC went beyond. There is no place for the state, they said, in the definition of "marriage." It is a religious rite -- historically connected with the union of two souls as one; with conjugality and procreation (even though marriage makes none of that mandatory) -- and the state has no place in the sanctified shrines of the nation either.

In short: The state should not try to redefine "marriage" to include same-sex couples. It should stop trying to define it at all -- leaving the rite of holy matrimony where it was born: with churches, temples, mosques and other religious institutions.

Marriage has since become a civil institution as well -- as a way of linking legal regulation with religion, each reinforcing the other's means of social control. But it likely did not begin anywhere as a civil rite entirely secular. Canada is a secular society, not a theocracy. Laws on adult relationships, the LCC said, must "pursue objectives that can be defended in secular rather than religious terms."

The state would get out of the marriage business, truly out of all the nation's bedrooms. And religion -- though its institutions could still proclaim voluntary congregants "married" in any form their faith deems fit -- would be out of the nation's law books.

The state, too, would be clearly out of religion. The Commission proposed a partnership registration system that basically says: Tell us you're in a committed relationship and we'll respect it. Tell us what mutual obligations you have agreed to and we'll tell you what rights go with them.

But -- even if those obligations and rights match what's been called "marriage"; even if you call yourselves "married" (as you likely will: you can call your relationship whatever you want) -- only spiritual authorities can declare you formally joined in holy wedlock. And the state cannot force them to do that. If you do get married register too; the government will record and respect your union.

The LCC did say: "Parliament and provincial/territorial legislatures should move toward removing from their laws the restrictions on marriages between persons of the same sex." That was the last of their 33 recommendations -- as if saying: If there have to be laws on marriage, let them include same-sex couples.

But the other 32 -- covering laws on taxation, immigration, court testimony, bankruptcy and beyond -- led to writing "marriage" out of law altogether.

Tory privatizers

Both sides in the Gay Marriage Debate are -- wittingly or not -- allies in Tory efforts to "reduce the burden on the public purse."

By sticking "spouses" with social support costs -- especially poor people involuntarily coupled in common law, one deemed "dependent" on the other -- the state saves money. That "bonus" has been cited by most judges ruling in favour of "same sex spousal rights."

A local gay Conservative, running to represent Toronto's most gay riding, once even tried to sell the line to Mike (The Knife) Harris.

Tory "Common Sense" -- in the name of Gay Equality.

And at that -- both "sides" in the Great Gay Marriage Mess got their backs up. "They're asking the state to devalue the sacred rite of marriage!" the Religious Right moaned; their co-combattants (the Gay Right, we might say) whined: The state has to say that we're married! Mere registration is second-class citizenship! It's 'Separate but equal'! It's apartheid!

Neither side has much to say on the values that guided the Law Commission. They can't, really: each insists on marriage -- as a sacred institution at risk; or as a mark of status and social acceptance -- and marriage is not famous for fostering autonomy, equality, or personal privacy. Those values get traded away, in return for supposed "security."

Or get stolen by the state in common-law "marriages" made not by choice, but by force.

Gay marriage mavens may thrill to the LCC's first value: equality between relationships. But they're content to see some relationships remain more equal than others: couples having sex (or thought to be getting it on even if they're not) would get government respect; the realities of other meaningful human connections would not.

The contending teams have quite similar takes on the last of the LCC's values: freedom of conscience and religion -- the separation of church and state. The Religious Right is known to make no bones about their fondness for theocracy.

And the Gay Right likewise has no qualms at begging the state to impose their moral values on everyone -- regardless of any beliefs they hold dear. Whatever your particular Good Book says (and I can quote you the Bible tit-for-tat on that!), you're just gonna have to get over it and get with the program. Our program -- backed by federal fiat.

Both sides, whether they bellow Yes or No, have found Gay Marriage a perfect perch for smarm and sanctimony. Each side gets to play that most delicious role in a culture ripe with high resentment and grim complaint: Oppressed victim. Each claims the other violates its "dignity." Each says the other wants the state to impose its own values on everyone.

Stop! You're both right! Which is why we must see both are wrong.

"Gay marriage" is cast as a litmus test of liberal goodwill. In fact it's a battle between conservative forces for the power -- backed by state power -- to tell all of us how we should live. Even how we should think. It's a power play masked (as so many are) by platitude and sanctimony. Too few of us, so far, have seen through the smarmy disguise.

Many who say "I don't really care, marriage is not for me" have been guilted (or bored) into knee-jerk assurance: "But of course I believe in equality. It's only fair that if gay people want to get married they should be allowed to. I can live with that."

Really? It could mean you end up "married" -- whether you want to be or not. And not just you, but any of us. Are you willing to live with that?

Try testing gay marriage mavens on their respect for the rights of anyone but themselves. Ask if they'd back efforts to end involuntary common-law marriage. Ask if they would go to court (and they love going to court) to support welfare mothers fighting for their dignity -- defying petty, invasive, and truly oppressive "spouse in the house" rules.

Ask if they'd back a Charter challenge to the Income Tax Act, by people deemed merely half a "household income" unit, demanding equality with citizens whose dignity as autonomous individuals is respected by the state.

Ask what they'd think of a Pentecostal youth group trying to get space in a public community centre (say, Toronto's 519) -- to discuss the sanctity of holy matrimony.

Numbed by clarion calls to Equality, blinded by the Rite, some may not have pondered the wider impact of "rights" they bravely claim. Some, having pondered, may be open to answers that speak not just to formal equality, but to fundamental human justice.

Justice is not served by saying Yes to Gay Marriage. Nor by saying No. The feds are trying to figure out what to say, hinting they see just three options. One is to say Yes. Contrary to another tired line we hear too often these days, that is hardly "inevitable." Gay people demanding marriage are not the only voters politicians have to placate.

The second is to say No. Politicians always look for an easy out, and on this issue that's it: Do nothing. Leave laws the way they are -- including the one that says "marriage" means "one man and one woman." If courts say those laws are discriminatory, Parliament can say: So what? The Charter of Rights allows "reasonable limits" on rights; we're just being reasonable. (And, they'd likely say, realisitic. If they're forced to that we're really screwed -- all of us, and on way more than marriage.)

The third is to say: Hold on. We have to look at this issue in new ways. The justice minister has floated that third option as a trial balloon, filled with ideas clearly lifted from Beyond Conjugality (if not citing its title, maybe too scary). On July 27, 2002 the National Post tried to pop that balloon with a banner headline atop page 1: "OTTAWA MAY SCRAP MARRIAGE LAWS -- Would cede fight to religious authorities to avoid gay dispute."

After that: silence. The feds were likely scared off. Even the Law Commission said in its report that, while the approach they promoted has "many principled advantages ... it is not likely an option that would appear very attractive to a majority of Canadians." At least not yet. Seems we're not ready for justice.

Let's tell the feds that not a few Canadians are more than ready, finding that third option more than attractive. (As more might if they had a chance to hear about it.) Let's urge them, as the Law Commission has, to stay neutral in a conservative catfight to control the definition of convention; to say whose lives are legitimate. And whose not.

Let's tell them this is not a "gay dispute" they might hope to "avoid." It is a chance to move Canada into the future. And, for us, it's a rare opportunity to prod them toward a future where all of us, no matter how we live or what we believe, are more free.

Postscript: On November 8, 2002, the Department of Justice released a discussion paper titled "Marriage and Legal Recognition of Same-sex Unions." It's disapppointing if not surprising, offering options much more limited than what the Law Commission of Canada proposed in Beyond Conjugality -- staying well within the frame, as its title suggests, of relationship recognition as a "gay issue."

A piece pondering those options is linked to below.



Locked in  conjugality
The Justice Department wants us to discuss
"Marriage and Legal Recognition of Same-sex Unions"
-- not the full range of our relationships

A look at that "discussion paper," with a link to its full text online.

The Law Commission of Canada
1100 - 473 Albert Street
Ottawa, Ontario K1A 0H8
(613) 946-8980

Find out about the Commission's work (on many fronts); see the thought that went into Beyond Conjugality; read the report online, or order copies -- via their website or by phone.



What you  can do
Get informed / Get talking / Get heard



For more on:
The Charter of Rights (& its escape clauses on equality); & "second-class citizenship,"
go on to Fighting Words, beginning with:

Platitude:  attitude
The words we use shape how we think. Even what we are free to think.
Smarm meets the Bullshit Detector

Or go back to:
Ideas  in play  (List of contents)
touting  (Introduction)
Gay marriage? Wrong question  (Lead page)

My home page

This page:
September 2002 / Last revised: December 1, 2002
Rick Bébout © 2002 /