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June 22, 2022
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Renovating Marriage: The Requirements of Mutual Respect

Justice Minister Martin Cauchon has been passionate in rejecting civil unions as an alternative to same-sex marriage, on the grounds that separate is not equal and is a breach of human rights. The Prime Minister says he is persuaded by that view. Advocates of same-sex marriage argue such a union is “secondary…a separate room (from marriage)…nice quarters (but) it isn't the room everyone else gets” and that is discrimination. But is that correct?

Like language, metaphors are not neutral. They affect how we both perceive and analyze a situation, and give us access to otherwise unavailable insights. The metaphor of marriage as a building is apt. Institutions are important metaphysical societal structures constructed through human culture. In the case of marriage, the ‘establishing culture' is found across all societies and spans millennia. Same-sex marriage challenges that institutional building. Staying with the metaphor of a building, that challenge can be viewed in two radically different ways

Advocates of same-sex marriage see same-sex and opposite-sex unions as fundamentally the same and those advocating separate institutions for marriage and civil unions as barring the door to marriage with a specific goal of locking out same-sex couples. That's correctly viewed as discrimination.

In contrast, advocates of a two equal institutions approach see same-sex and opposite-sex unions as fundamentally different. Precisely because of that difference, separate institutions can be equal. These people's primary goal is not to exclude same-sex couples from marriage. It is, rather, to preserve important and unique functions of marriage, especially at the societal level in relation to procreation and children and in symbolizing genetic links between the generations. Same-sex marriage would necessarily change those functions.

Consequently, advocates of a two equal institutions approach, can see same-sex marriage advocates as property developers who want either to tear down the historic building of marriage or to keep just its façade and to eliminate what is, for them, the primary substance and functions of marriage.

Tearing down our heritage is never a neutral act and often results in irreplaceable loss. We must, therefore, always be able to justify change to a heritage - here marriage. Justification depends on the options available and the reasons for our choice among them.

Three options are open: To tear down (with or without keeping the façade) and build a new and different institution. To refuse all renovations. Or to make modifications that preserve the old, because it is still needed, and accommodate the new - a ‘two different but equal institutions' approach.

Same-sex marriage advocates support the first option. Some conservative people the second. And many Canadians – probably the majority – the third.

But is the third approach, as same-sex marriage advocates claim, discriminatory in its essence? If so, it is unacceptable. To decide requires looking at, first, the context in which separate but equal institutions are proposed, second, whether there is a relevant difference between them, and, third, the reasons for adopting that approach.

Rejection of a ‘separate but equal' approach on the grounds that it is necessarily discrimination, is usually referenced to a 1954 judgment of the US Supreme Court without any mention of the context in which that judgment was handed down. The court concluded that” in the field of public education, ‘separate but equal' has no place. Separate educational facilities [on the basis of race] are inherently unequal”. But that is not necessarily true of establishing separate institutions in other areas on other grounds.

In particular, it is not necessarily true of institutions for the public recognition of committed adult relationships, when, as is true for marriage and civil unions, they encompass different realities and carry different symbolism. Indeed, it is not even true of all separate educational institutions. Separate schools for girls and boys - that is on the basis of sex not race as in the Supreme Court case - can be equal and are not seen as discriminatory by most people, although sex, like race, is normally a prohibited ground of discrimination. That is because reasons can determine whether a given act is discrimination.

Let's take another example, allocating shared hospital rooms. Allocating shared rooms on the basis of race would be discrimination, but doing so on the basis of sex is not. Indeed, failure to do the latter can be a breach of a person's human rights and dignity. The family of an old lady who died in a room shared with a young man is still traumatized by their mother's deep distress at finding herself in this situation. In short, the same act can be discrimination or not, depending on the reasons for undertaking it. Although normally we regard separating men and women as discrimination, in the old lady's case failure to do so was a failure of respect.

Should we equate homosexuality to race or to sex in the above examples in deciding on a one or two institutions approach to same-sex unions? The central issue in that decision, as those examples show, is: What is required in terms of respect? Some reasons for undertaking an act mean it manifests respect, other reasons for the same act, that it shows disrespect.

To reject same-sex marriage in the public square in order to affirm moral or other objections to homosexuals is a failure of respect and would be discrimination. To reject it because marriage could no longer embody the inherently procreative relationship between a man and a woman and, thereby, institutionalize and symbolize the functions of marriage related to procreation and children is not discrimination. Many - one hopes the vast majority - of opponents of same-sex marriage do not disrespect homosexuals or their relationships. Yet the same-sex marriage case is based almost entirely on equating being against it with necessarily being against homosexuals, disrespecting them and thereby breaching their human rights. That connection needs to be challenged.

And respect is not a one-sided issue. Same-sex marriage raises fundamental issues of mutual respect, although this seems not to be recognized by its advocates. What is required to respect homosexual people and their committed partnerships, and to respect people for whom marriage institutionalizes and symbolizes the inherently procreative relationship between a man and a woman? The only “least invasive-of-both-streams-of-respect” response is to legally recognize same-sex partnerships and keep marriage as the union of a man and a woman. But, same-sex marriage advocates reject that option outright.

Their adamant stance can cause one to wonder. Same-sex marriage will necessarily eliminate marriage as an institution symbolizing heterosexuality, which is a goal of its advocates because they see it as preferencing heterosexuality. At the same time, they are very reassuring that admitting same-sex couples to marriage cannot harm it and certainly not destroy it. But despite these reassurances, might the fundamental change in the nature of marriage same-sex marriage would entail, amount to a demolition rather than, as they claim, a renovation, especially when the building is already fragile? Sometimes, when undertaking renovations, developers find that all the walls come tumbling down.

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