Toronto
2 min

Common law is just too common

When measuring equality, it matters who you're equal to

If the federal government’s proposed Act To Modernize The Statutes Of Canada In Relation To Benefits And Obligations is a victory, it’s a victory of symbolism over reality.



Bill C-23, introduced by the Liberals on Feb 11, changes dozens of federal laws affecting unmarried people who live together and have sex. Symbolically, it’s all quite dramatic. “Gay couples win history fight,” trumpets the Toronto Star and it’s true: winning a battle is, from a sentimental perspective, a heartening thing.



But what exactly have gay and lesbian people won? Let’s be precise: we will be equal to those paragons of virtue, heterosexual common-law couples. Not to insult our dear straight common-law counterparts, but there are better people in society to be equal to. They are a lazy bunch, indecisive and lacking conviction.



In the way they live their lives, common-law couples differ from married couples in only one way. But it’s a defining one. Common-lawers never publicly declared long-term commitment to one other. Common-law couples decided to move in together, and neither party moved out before a single year was up. Maybe they love each other. Or maybe the entertainment system was too much trouble to move. It’s a nice way to get dental benefits, but it’s not a particularly noble endeavor. Common-law couples are exemplary only in their blasé attitude toward passionate impulses, and their indifference toward the celebratory needs of their friends and families. Gay and lesbian people have been recognized as equal to… people who refuse to recognize.



Common-law marriage is based on the notion that, if you’re getting a lot of milk for free, the cow is yours by default. It denies a world where, to continue with my strained metaphor, people might give each other milk for free – though that is exactly the kind of world many gay and lesbian people live in.



For the sake of symbolic equality, queers have accepted cold-hearted common-law, where relationships are codified and regulated according to a time-table rather than a declaration of intent. In being granted the ability to commit through a year of co-habitation, we are barred the ability to avoid commitments. Or embrace them lustfully.



Faced with relationship panic or relationship doldrums, faced with disinheritance or dismissal, faced with any number of reasons for making a public legally-binding declaration of love, straight common-law couples can get married – if they want.



In this, rightwing critics of Bill C-23 are bang-on. Who’s to decide whether two sexually involved roommates will constitute a couple? The federal regulations will decide. Exes who co-habitate because of the mortgage will be privileged over star-struck lovers. The indifferent over the decisive.



As a gay man who has spent a good part of the last year trying to help his same-sex partner immigrate to Canada, I can vouch that long-term commitment does not reside exclusively within the domain of co-habitation. Cross-border same-sex couples often make huge sacrifices for their relationships that most straight married couples would never dream of; they get zip out of this legislation.



The strange thing about Bill C-23 is that the gay and lesbian couples made most happy by this bill are the same ones who would triumphantly and publicly tie the knot if they could. Now they will be lumped in with straights who never sat down and talked about commitment. And once the symbolism of having our relationships recognized has been stripped away, that’s a luke warm limbo.