Abstract from Canada 150 booklet on Gay Marriage
Image description: Abstract from Canada 150 booklet on Marriage Equality Act

By Jeff Baillargeon

On this day in CDN queer history, the 2005 amendments to the Civil Marriage Act of Paul Martin’s minority government were given Royal Assent, guaranteeing gay and lesbian couples the right to marry across all ten provinces and three territories.  

The province of Ontario was the first to legalize same-sex marriage in June of 2003 when the Court of Appeal ruled that the definition of marriage as the union of a man and woman to the exclusion of all others contained in the Civil Marriage Act violated section 15 of the Charter of Rights and Freedom. The government did not appeal the decision. The government similarly did not appeal the decision, or invoke the notwithstanding clause of the Charter, when British Columbia legalised same-sex marriage one month later, or when Quebec followed suit the following winter. In fact, by the time the federal government amended the legal definition of marriage to read as the “lawful union of two persons to the exclusion of all others,” only two provinces and territories—Alberta, PEI, NWT, and Nunavut—had not legalized same-sex marriage. 

Nevertheless, as the joint statement to the House of Commons by Égale and Canadians for Equal Marriage (CEM) explained, the status of these marriages remained precarious without a federal declaration of their legality. 

While many within our community have celebrated these ‘wins,’ many have also questioned them, though for different reasons than the religious right. In fact, this tension between celebration and pushback surrounding major legal milestones within the queer community shines a light on an important and ongoing debate as to what queerness means for Canadian LGBTQ2S peoples. This critique, however, I should add, is not to undercut the efforts expended to achieve legal equality in Canada by tireless activists, but to probe the ‘language’ we have had to use to gain this ‘equality,’ and the implications that follow. 

For example, the celebrated and dominant narrative of legal equality for queer peoples typically begins in 1969 when then-Prime Minister Pierre Elliot Trudeau and his Liberal government decriminalized homosexuality. Although the former is celebrated for stating that “the state has no place in the bedrooms of the nation,” it is important to note that the ‘bedrooms’ he was referring to only included those of heterosexuals aged 14 and above, and homosexuals aged 21 and over. Anal sex, moreover, remained classified as a “gross indecency” in the Criminal Code until the Conservative government of Brian Mulroney amended the act in 1987. The same amendment also decreased the age of consent for homosexuals to 18, but left intact the age of consent of 14 for heterosexuals. The latter was not increased to 16 until 2008 when Stephen Harper’s minority Conservative government amended the Criminal Code

Today, still, the age of consent for individuals participating in anal sex remains at 18 years of age: the age of maturity, of adulthood. This—despite many legal cases that have ruled against this section of the Criminal Code based on section 15 of the Charter—maintains that youth in their teens cannot be trusted to engage in sex characterised as homosexual, and must be protected, but that youth participating in heterosexual sex, on the other hand, can do so freely and thus do not require the same degree of protection (R. v. F., 2006; R. v. Blake, 2003; R. v. Roth, 2002; Lucas v. Toronto Police Services Board, 2001; R. v. Halm, 1995; R. v. Roy, 1998). Heterosexuality operates here as the norm, and homosexuality as a deviance. This logic also fails to consider the fallacy whereby anal sex is equated with homosexuality and homosexuality with anal sex. In doing so, we ignore the ways in which lesbian individuals were criminalized not through section 159 of the Criminal Code, but rather under the statutes regulating liquor and public meeting spaces. 

Taking these variables into consideration complicates the narrative that celebrates the decriminalization of homosexuality in 1969, and reveals its shortfalls. It is within this context that I proceed to explore the homonormative underpinnings of the 2005 amendments to the Civil Marriage Act as part and parcel of the privatization of queer life that began in 1969. It is not a refutation of marriage, but rather a ‘queering’ of the institution of marriage as it relates to the rights of LGBTQ2S peoples in Canada today. It is about ‘queering’ the kind of subject that has access to this institutional privilege, and the kind of subject one becomes in doing so. 

Miriam Smith defines homonormativity as the privileging of same-sex couples who are “just like straights except for their sexual orientation” in LGBTQ2S rights recognition. These couples are ‘normative’ to the extent that they wish to live monogamous lives, keep their sexuality private, have kids, live in middle-class and ‘safe’ neighbourhoods, and thus own property and pay property taxes. While it is not the point of this piece to argue that there is something fundamentally wrong with homonormativity, it is nevertheless the point of this piece to probe the ways in which the legalization of same-sex marriage reinforces the privatization of queer life that began in 1969, whereby non-normative sexuality is accepted by society to the extent that it follows a normative middle-class lifestyle.

As Michael LaSala argues, there are, after all, real economic and emotional incentives to becoming a homonormative subject. Spouses can benefit from their partner’s coverage and life insurance, they can visit their partner in the hospital, and they can make health decisions for them when they are rendered incapable. Unmarried queer couples, on the other hand, do not have this privilege. Besides, marriage validates the individual in society insofar as the latter sees couples as healthy, normal and mature, and single individuals as ‘suspect.’ Although LaSala writes in an American context in which health care is comparatively precarious, the argument he forwards applies to Canada as well. Not all health care is public or covered by one’s workplace benefits, and until 1999 in M. v. H., homosexual couples were not entitled to spousal benefits under common law. Moreover, unless recognized by common law, queer couples who are not married do not have access to these rights, and thus remain at the mercy of the state. As LaSala’s analysis suggests, the ways in which economic precarity is approached through a family rubric reveals a troubling form of social control whereby individuals are conditioned to seek out marriage for economic and legal security.

A queer critique of same-sex marriage indicates that sexual liberation is also a struggle for economic and legal justice beyond sexual orientation, marital/relationship status, or style. Queer critiques reveal that the language we often use to ask for, and receive, legal equality often binds us to a normative rubric of self-hood that leaves many in our community in a precarious position solely on the basis of their sexual orientation, relationship status and/or style, race, gender expression and class. Anyone should be able to marry, but marrying should not be the sole pathway to economic and legal security because it will inevitably leave many behind.

It is indeed this point of tension between ‘queerness as homonormativity’ and ‘queerness as radical liberation’ that animates the debate within our community as to what queer liberation signifies—a debate that is still ongoing today.

Works Cited:

Michael C. LaSala. “Too Many Eggs in the Wrong Basket: A Queer Critique of the Same-Sex Marriage Movement,” in Social Work, Vol.52, No.2, 2007: 181-183.

Miriam Smith. “Homophobia and Homonationalism: LGBTQ Law Reform in Canada,” in Social & Legal Studies, Vol.29, No.1, 2020: 65-84.

Peter W. Hogg. “Canada: The Constitution and Same-Sex Marriage,” in International Journal of Constitutional Law, Vol.4, No.3, 2006: 712–721.