4 min

The $1-million marriage fight

Fatigue after exhausting, expensive fight

Credit: (John Crossen)

After Prime Minister Stephen Harper’s half-hearted motion to reopen the file on same-sex marriage failed by a dismal 52-vote margin Dec 7, the head of Canadians for Equal Marriage breathed a deep sigh of relief.

“The issue is settled,” said CEM’s Laurie Arron, echoing Harper’s comments after the vote. “Settled” may be the gay understatement of the year.

Gays and lesbians had been fighting the marriage battle for seven years. We won gay marriage in the courts in 2003 and in Parliament in 2005. And over 12000 gay couples have already tied the knot.

When we undertook the marriage fight, many in our community wondered why. Gays were reticent because our lives and relationships were more fluid than their hetero equivalents, in part because we were unencumbered by the traditional constraints of courtship and marriage. Many queers were proud to be single, in open relationships, in polyamorous relationships, and living in other non-traditional arrangements.

It’s been a strange road to this moment. Seven years ago, gay couples were already well on their way to the same rights and responsibilities as married heteros. After the result of a Supreme Court decision, known as M Vs H, we gained equal rights in the dispensation of a partner’s estates. We were able to cash in on partner employee benefits. We were able to file taxes together.

Many in our community were satisfied with this result. Some of our national leaders even boasted about how, by working for common-law recognition, Canada’s gay movement had avoided the divisive, costly and largely meaningless battle for the right to use the marriage word, a battle that our US cousins were losing.

However, Parliament officially withheld the word “marriage” from same-sex relationships in a 1999 vote, a symbolic gesture of exclusion, even if it had no great legal consequence.

Between federal common-law relationship and provincial civil unions, we lacked only a couple of rights granted by marriage. There was a “legal nit,” as Canadians for Equal Marriage’s Laurie Arron puts it, with The Evidence Act — married people, unlike common-law partners, are not obliged to testify against each other in criminal cases, but even that discrimination was already shrouded in Constitutional uncertainty. As well, common-law relationships require previous cohabitation, so gay couples couldn’t meet on a Friday, get hitched over the weekend, and then have all the legal trappings of marriage.

Gay couples who opted for provincially regulated civil unions faced a couple of hiccups, but they could be solved with two legal documents no newlyweds should be without: a will and a pre-nup.

Most straight people probably saw the issue as settled then. So, if they gave it any attention at all, they must have thought Jun 10, 2003 was a strange day. It was a Tuesday, and the Ontario Court Of Appeal had just re-written Ontario law, stating that marriage was “between two persons” and no longer the exclusive purview of one woman and one man.

Following that decision re-defining marriage as “between two persons,” victories in gay marriage court cases began popping up around the country.

Or so it must have seemed to the casual observer. These were, as we know, the carefully planned results of gay activists’ hard work.

Legal bills, lobbying, ad campaigns: it was an expensive battle. Canadians for Equal Marriage, an offshoot of Egale, alone took in a quarter of a million dollars between August 2003 and the present (although some money was re-directed to Egale).

It’s hard to estimate the total cost of winning equal marriage, says CEM’s Laurie Arron. The cost was split between groups like Egale, CEM, local community lobby groups and the government. (Some of our expenses were covered by the now-dismantled Court Challenges Program. As well, after most of our legal victories, the court ordered the losing side — the provincial governments — to pay a portion of our accumulated legal bills.) Not to mention the volunteer hours chalked during demonstrations, letter-writing campaigns, and lobbying. Given the costs over seven years, it’s difficult to imagine that “marriage” was anything less than a million-dollar word.

We invested heavily in marriage. Before marriage, before relationship recognition, gays and lesbians invested in the fight to amend provincial human rights codes to include sexual orientation as prohibited grounds for discrimination. Many who came out after 1995 simply don’t remember the time before the fight for gay marriage. In other words, for gays and lesbians under 25, gay marriage is pretty much all they’ve ever known of queer activism.

Now the expensive, exhausting gay marriage battle is over, at the cost of huge amounts of economic and political capital. Our fatigue, unfortunately, comes with the worst political timing imaginable.

On the Hill, Libby Davies’ prostitution subcommittee has reported its findings and they’re a big disappointment and leave the door open to police harassment of our bathhouses and our escorts. In other words, it’s a bad time to be tired.

Also, among Harper’s barrage of law and order bills is one that would raise the age of sexual consent from 14 to 16. It awaits hearings at the justice committee, but if they don’t get to it before an election, it becomes a ballot issue.

Of course, safe schools and teenage depression remain major issues for all young members of our population. And with a laundry list of other projects meriting our attention — Canadian Blood Services ban on gay donors, getting “gender identity” into provincial human rights acts, Ottawa’s community centre project — our community must choose its next battles.

And there’s still the phantom of a Defence Of Religions Act. Earlier this year, information was leaked that the Conservatives were preparing legislation that would allow civil marriage councillors to decline to marry gay couples and would protect companies from being obliged to do business with queer rights groups. After the Dec 7 marriage vote, Harper said he has no plans “at this time” to bring it in, but he hasn’t ruled out introducing it eventually — perhaps, for example, he gets a majority in the next election.