Same-Sex Marriage Ten Years On: Lessons from Canada

The effects of same-sex civil marriage in Canada–restrictions on free speech rights, parental rights in education, and autonomy rights of religious institutions, along with a weakening of the marriage culture–provide lessons for the United States.

Would recognizing same-sex relationships as marriages be much of a game-changer? What impact, if any, would it have on the public conception of marriage or the state of a nation’s marriage culture?

There has been no shortage of speculation on these questions. But the limited American experience with same-sex marriage to date gives us few concrete answers. So it makes sense to consider the Canadian experience since the first Canadian court established same-sex marriage a decade ago. There are, of course, important cultural and institutional differences between the US and Canada and, as is the case in any polity, much depends upon the actions of local political and cultural actors. That is to say, it is not necessarily safe to assume that Canadian experiences will be replicated here. But they should be considered; the Canadian experience is the best available evidence of the short-term impact of same-sex marriage in a democratic society very much like America.

Anyone interested in assessing the impact of same-sex marriage on public life should investigate the outcomes in three spheres: first, human rights (including impacts on freedom of speech, parental rights in public education, and the autonomy of religious institutions); second, further developments in what sorts of relationships political society will be willing to recognize as a marriage (e.g., polygamy); and third, the social practice of marriage.

The Impact on Human Rights

The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages. But the legal and cultural effect was much broader. What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.

A corollary is that anyone who rejects the new orthodoxy must be acting on the basis of bigotry and animus toward gays and lesbians. Any statement of disagreement with same-sex civil marriage is thus considered a straightforward manifestation of hatred toward a minority sexual group. Any reasoned explanation (for example, those that were offered in legal arguments that same-sex marriage is incompatible with a conception of marriage that responds to the needs of the children of the marriage for stability, fidelity, and permanence–what is sometimes called the conjugal conception of marriage), is dismissed right away as mere pretext.

When one understands opposition to same-sex marriage as a manifestation of sheer bigotry and hatred, it becomes very hard to tolerate continued dissent. Thus it was in Canada that the terms of participation in public life changed very quickly. Civil marriage commissioners were the first to feel the hard edge of the new orthodoxy; several provinces refused to allow commissioners a right of conscience to refuse to preside over same-sex weddings, and demanded their resignations. At the same time, religious organizations, such as the Knights of Columbus, were fined for refusing to rent their facilities for post-wedding celebrations.

The Right to Freedom of Expression

The new orthodoxy’s impact has not been limited to the relatively small number of persons at risk of being coerced into supporting or celebrating a same-sex marriage. The change has widely affected persons–including clergy–who wish to make public arguments about human sexuality.

Much speech that was permitted before same-sex marriage now carries risks. Many of those who have persisted in voicing their dissent have been subjected to investigations by human rights commissions and (in some cases) proceedings before human rights tribunals. Those who are poor, poorly educated, and without institutional affiliation have been particularly easy targets–anti-discrimination laws are not always applied evenly.  Some have been ordered to pay fines, make apologies, and undertake never to speak publicly on such matters again. Targets have included individuals writing letters to the editors of local newspapers, and ministers of small congregations of Christians. A Catholic bishop faced two complaints–both eventually withdrawn–prompted by comments he made in a pastoral letter about marriage.

Reviewing courts have begun to rein in the commissions and tribunals (particularly since some ill-advised proceedings against Mark Steyn and Maclean’s magazine in 2009), and restore a more capacious view of freedom of speech. And in response to the public outcry following the Steyn/Maclean’s affair, the Parliament of Canada recently revoked the Canadian Human Rights Commission’s statutory jurisdiction to pursue “hate speech.”

But the financial cost of fighting the human rights machine remains enormous–Maclean’s spent hundreds of thousands of dollars in legal fees, none of which is recoverable from the commissions, tribunals, or complainants. And these cases can take up to a decade to resolve. An ordinary person with few resources who has drawn the attention of a human rights commission has no hope of appealing to the courts for relief; such a person can only accept the admonition of the commission, pay a (comparatively) small fine, and then observe the directive to remain forever silent. As long as these tools remain at the disposal of the commissions–for whom the new orthodoxy gives no theoretical basis to tolerate dissent–to engage in public discussion about same-sex marriage is to court ruin.

Similar pressure can be–and is–brought to bear on dissenters by professional governing bodies (such as bar associations, teachers’ colleges, and the like) that have statutory power to discipline members for conduct unbecoming of the profession. Expressions of disagreement with the reasonableness of institutionalizing same-sex marriage are understood by these bodies to be acts of illegal discrimination, which are matters for professional censure.

Teachers are particularly at risk for disciplinary action, for even if they only make public statements criticizing same-sex marriage outside the classroom, they are still deemed to create a hostile environment for gay and lesbian students. Other workplaces and voluntary associations have adopted similar policies as a result of their having internalized this new orthodoxy that disagreement with same-sex marriage is illegal discrimination that must not be tolerated.

Parental Rights in Public Education

Institutionalizing same-sex marriage has subtly but pervasively changed parental rights in public education. The debate over how to cast same-sex marriage in the classroom is much like the debate over the place of sex education in schools, and of governmental pretensions to exercise primary authority over children. But sex education has always been a discrete matter, in the sense that by its nature it cannot permeate the entirety of the curriculum. Same-sex marriage is on a different footing.

Since one of the tenets of the new orthodoxy is that same-sex relationships deserve the same respect that we give marriage, its proponents have been remarkably successful in demanding that same-sex marriage be depicted positively in the classroom. Curriculum reforms in jurisdictions such as British Columbia now prevent parents from exercising their long-held veto power over contentious educational practices.

The new curricula are permeated by positive references to same-sex marriage, not just in one discipline but in all. Faced with this strategy of diffusion, the only parental defense is to remove one’s children from the public school system entirely. Courts have been unsympathetic to parental objections: if parents are clinging to outdated bigotries, then children must bear the burden of “cognitive dissonance”–they must absorb conflicting things from home and school while school tries to win out.

The reforms, of course, were not sold to the public as a matter of enforcing the new orthodoxy. Instead, the stated rationale was to prevent bullying; that is, to promote the acceptance of gay and lesbian youth and the children of same-sex households.

It is a laudable goal to encourage acceptance of persons. But whatever can be said for the objective, the means chosen to achieve it is a gross violation of the family. It is nothing less than the deliberate indoctrination of children (over the objections of their parents) into a conception of marriage that is fundamentally hostile to what the parents understand to be in their children’s best interests. It frustrates the ability of parents to lead their children to an understanding of marriage that will be conducive to their flourishing as adults. At a very early age, it teaches children that the underlying rationale of marriage is nothing other than the satisfaction of changeable adult desires for companionship.

Religious Institutions’ Right to Autonomy

At first glance, clergy and houses of worship appeared largely immune from coercion to condone or perform same-sex marriages. Indeed, this was the grand bargain of the same-sex marriage legislation–clergy would retain the right not to perform marriages that would violate their religious beliefs. Houses of worship could not be conscripted against the wishes of religious bodies.

It should have been clear from the outset just how narrow this protection is. It only prevents clergy from being coerced into performing marriage ceremonies. It does not, as we have seen, shield sermons or pastoral letters from the scrutiny of human rights commissions. It leaves congregations vulnerable to legal challenges if they refuse to rent their auxiliary facilities to same-sex couples for their ceremony receptions, or to any other organization that will use the facility to promote a view of sexuality wholly at odds with their own.

Neither does it prevent provincial and municipal governments from withholding benefits to religious congregations because of their marriage doctrine. For example, Bill 13, the same Ontario statute that compels Catholic schools to host “Gay-Straight Alliance” clubs (and to use that particular name), also prohibits public schools from renting their facilities to organizations that will not agree to a code of conduct premised on the new orthodoxy. Given that many small Christian congregations rent school auditoriums to conduct their worship services, it is easy to appreciate their vulnerability.

Changes to the Public Conception of Marriage

It has been argued that if same-sex marriage is institutionalized, new marital categories may be accepted, like polygamy. Once one abandons a conjugal conception of marriage, and replaces it with a conception of marriage that has adult companionship as its focus, there is no principled basis for resisting the extension of marriage licenses to polygamist and polyamorist unions.

In other words, if marriage is about satisfying adult desires for companionship, and if the desires of some adults extend to more novel arrangements, how can we deny them? I will not here evaluate this claim, but simply report how this scenario has played out in Canada.

One prominent polygamist community in British Columbia was greatly emboldened by the creation of same-sex marriage, and publicly proclaimed that there was now no principled basis for the state’s continued criminalization of polygamy. Of all the Canadian courts, only a trial court in British Columbia has addressed whether prohibiting polygamy is constitutional, and provided an advisory opinion to the province’s government. The criminal prohibition of polygamy was upheld, but on a narrow basis that defined polygamy as multiple, concurrent civil marriages. The court did not address the phenomenon of multiple common-law marriages. So, thus far, the dominant forms of polygamy and polyamory practiced in Canada have not gained legal status, but neither have they faced practical impediments.

The lesson is this: a society that institutionalizes same-sex marriage needn’t necessarily institutionalize polygamy. But the example from British Columbia suggests that the only way to do so is to ignore principle. The polygamy case’s reasoning gave no convincing explanation why it would be discriminatory not to extend the marriage franchise to gays and lesbians, but not discriminatory to draw the line at polygamists and polyamorists. In fact, the judgment looks like it rests on animus toward polygamists and polyamorists, which is not a stable juridical foundation.

The Impact on the Practice of Marriage 

As for the practice of marriage, it is too soon to say much. The 2011 census data establish that, first, marriage is in decline in Canada, as it is in much of the West; second, same-sex marriage is a statistically minor phenomenon; and third, there are very few same-sex couples (married or not) with children in the home.

There are approximately 21,000 married same-sex couples in Canada, out of 6.29 million married couples. Same-sex couples (married and unmarried) constitute 0.8% of all couples in Canada; 9.4% of the 64,575 same-sex couples (including common-law and married) have children in the home, and 80% of these are lesbian couples. By contrast, 47.2% of heterosexual couples have children in the home. Canada stopped tracking divorce after 2008, and has never provided data on same-sex divorce.

What we can gather from these data is that same-sex marriage has not, contrary to arguments that it would, powered a resurgent marriage culture in Canada. Nor are there any census data (one way or the other) for empirical arguments tying the institutionalization of same-sex marriage to marriage stability.

Without empirical data on divorce rates (which are not forthcoming in Canada), we are left with conceptual arguments that must be evaluated on their merits. Here, the Canadian experience cannot provide much information. We are left with the question, does the institutionalization of same-sex marriage rest on a conception of marriage that places a premium on stability, as does the conjugal conception? If it does not, then we can reasonably believe same-sex marriage will speed up cultural acceptance of a conception of marriage–the adult companionate model–that has done much social damage over the past fifty years.

This article is reprinted with kind permission from Public Discourse: Ethics, Law, and the Common Goodan online publication of the Witherspoon Institute that seeks to enhance the public understanding of the moral foundations of free societies by making the scholarship of the fellows and affiliated scholars of the Institute available and accessible to a general audience.

By

Bradley W. Miller is an associate professor of law at the University of Western Ontario and a Visiting Fellow in the James Madison Program in American Ideals and Institutions at Princeton University.

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  • Victoria

    This article is 6 months too late for Washington state. Maybe it will be useful for other states contemplating legalization of same sex “marriage.” My observation has been that same sex unions do not tend to be stable, and their example will further undermine the whole concept and practice of all marriages.

  • Ailina

    The institution of marriage in Canada has long been eroded by HETEROsexuals with their insistence on lax no-fault divorce laws and the widentng of marriage-like benefits for common law relationships. Heterosexuals have had the hugest negative impact on the institution of marriage and other legal issues. That is why it has been so easy for same sex marriage to be ushered in, amongst other things such as tolerance for swing clubs, polyamory, etc. The internet heterosexual cheating site for married people, Ashley Madison, is also based in Canada. Does that not speak volumes about post-Christian Western values?

  • Colin

    No Victoria, heterosexual remarriage has already completely undermined the whole concept of marriage. Gay Marriage is not at the top of the “slippery slope” but the bottom. The concept of Gay marriage is only now tenable because heterosexual culture has made marriage meaningless.

    Those fighting for so called traditional marriage will only gain credibility when they start to campaign against the many sins heterosexuals commit against marriage, with remarriage surely being one of the worst. Until then, the fight against gay marriage will be seen by thinking people as being primarily driven by homophobia than a desire to protect the institution of marriage.

  • kkollwitz

    Ailina is right, not to mention the decontenting of sex in marriage via contraception and abortion.

  • kkollwitz

    Yes. Straights need to put their own marital house in order.

  • Peter Nyikos

    On the contrary, same-sex marriage can easily be decoupled from gay rights, just as opposition to it has long been decoupled from homophobia. One need only note that there is nothing about same-sex marriage that compels participants to engage in any sexual relations, ever. They could be heterosexual to the core, yet unable to find anyone of the opposite sex who will marry them, and so decide that they might as well take advantage of the financial, etc. benefits of being married by marrying some good friend of theirs in the same boat.

  • Peter Nyikos

    That is a darn flimsy excuse for the kinds of repression that the article talks about.

  • Peter Nyikos

    Something else, Colin. Claiming marriage is already meaningless is an exercise in either flagrant insincerity or abysmal stupidity. There are countless Catholics like myself who still believe in the sacredness of matrimony, and your remarks are an insult to all of us.

    The Catholic Church has done about all that can reasonably be done against remarriage, and has thereby earned the enmity of many Protestants, as well as many people who call themselves Catholics. I wouldn’t be the least bit surprised to learn that you have attacked the Catholic Church for this very thing elsewhere, and are just working the other side of the street here.

  • Zippity-Do-Daddy

    This statement: “For example, Bill 13, the same Ontario statute that compels Catholic
    schools to host “Gay-Straight Alliance” clubs (and to use that
    particular name),” is a half truth.

    The Bill actually states that:

    Every board shall support pupils who want to establish and lead activities and organizations that promote a safe and inclusive learning environment, the acceptance of and respect for others and the creation of a positive school climate, including,….activities or organizations that promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance or another name.

    and

    Nothing in this section shall be interpreted to require a board to support the establishment of an activity or organization in a school unless there is at least one pupil who wants to establish and lead it.

    —————————-

    As Catholics there is no reason to stoop so low as to tell half truths to make our point!

    Read the full bill here!

    http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=2549

  • Wayne G. Fischer

    But, Zippity-Do-Daddy, if you’ve quoted the Canadian law correctly, the last paragraph in your post does says exactly what Mr. Miller states: If there is at least one pupil who wants to establish and lead an activity or organization, then the board *is* required to support its establishment.

  • Zippity-Do-Daddy

    Actually Wayne it doesn’t. Mr Miller’s article states “For example, Bill 13, the same Ontario statute that compels Catholic schools to host…” and is missing the important clause “is at least one pupil who wants to establish and lead it.” In other words, no Catholic school, or public school, is required to host such a club just because the law says to. Someone must request it first. If no student requests it, there is no club. The school does not have to offer such a club to its students as an ‘available option’. Miler’s article leads one to believe that the opposite is true.

    Furthermore, the law does not require the school to establish the club, but rather states the club be established by the student(s). Subtle difference.

    I am not saying that the passive support of such a group is correct. What I am saying is that we as Catholics must accurately and honestly explain our objections without sensationalism and deceit. This article is inaccurate in that regard.

  • ailina

    The kinds of repression the article talks about are supported by the same hetero majority that support gay marriage in Canada. If there was no hetero support in the first place, gay marriage would not be an issue. However, since the majority of Canadians see nothing wrong with cohabitating/common law relationships, no-fault divorce and children outside of wedlock, then it’s only a small step to accepting other alternative lifestyles as well.

  • Annamarie

    This is not the original point I wanted to make about the whole “Same-sex Marriages” (an oxymoron if I ever heard one!) debacle. However, Peter, with your remarks about Catholics and remarriage, I find I must speak up.

    That all the Catholics you find acceptable have been spared the disasters of life that happen to all the rest of humanity is remarkable, and, I must say, most unreal. If, for example, someone who is a friend or relation of yours who suddenly finds themselves divorced, do you drop them from your friendship or relation and maintain they are no longer Catholic because they have gone through the sort of tragedy that Jesus wants to minister to?

    I found myself in just such a case. Several years ago, after 32 years of what I thought to be a stable, normal Catholic marriage, suddenly and without warning, my husband decided he had had enough of being married and wanted a divorce. I can assure you that I had done nothing to precipitate this by the breaking of any marriage vows. All I had done was to have the great misfortune to have been struck by a chronic illness I will not violate my privacy further to go into here. Suffice it to say that there is nothing at present to make anyone believe it will be going away any time soon, if ever. So here I am, in a state that allows divorce but does nothing for a marriage if one part of the marriage does not wish a divorce, and thus, divorced. Am I to be shunned by my fellow Catholics, who don’t believe I even have any right to call myself Catholic?

    I assure you I am still a Catholic in heart, soul, belief, and affiliation. I love my Church, believe all she believes, and need her ministry to my broken heart for my broken home more than ever, even if sometimes the illness keeps me from the Holy Mass. Cases such as mine, should I ever find someone who actually wanted to spend the rest of their life with someone as unworthy as I, as you expressed it, are to be decided by the Marriage Tribunal, not by cold people in the pews!

    Attitudes such as the one you expressed as the norm for the Catholic Church, are one huge reason there are so many ex-Catholics! I will not be pushed out my Church, that I have worked for (volunteer), that I love with my whole heart. If you want the Church to be able to stand up against a fallen world full of such sins as “same-sex” marriage, you will have to include the hurting members of the Church as well as the ones blessed to be whole, such as you. We don’t have to let them win, and in fact hand the whole field to them in the culture wars.

    Please pray for me, brother, even as I pray for you.

  • eh,

    Catholic schools have already adopted “Rainbow Day’ and other homosexual awareness programs within the schools. It starts from Kindergarten and progresses very thoroughly. on up. There is no opt out. The Catholic schools are trying to walk the fence. I was born and raised Canadian. My sister fights the battle in the Catholic school her kids attend. And quite frankly it is very difficult. Most parents do not get it. My brother has chosen to pull his kids out completely and homeschools. But most of my cousins do not see it as a problem and would rather take the money from the government to pay for their kids ‘Catholic education.’ The Catholic schools are funded by the government.

  • Zippity-Do-Daddy

    If these Catholic schools have adopted said Rainbow Days of their own action, then you have a far far greater issue to contend with and have a battle to fight comprised of Canon Law and adherence to the teaching of the Church. The provincial government did not require them to do so, and if the school was pressured by the government to do so, without a student request, then it is violating its own law.

    Section 300.0.2 (1) proclaims The week beginning on the third Sunday in November in each year is proclaimed as Bullying Awareness and Prevention Week.

    This does NOT say “set up a gay pride event in a catholic school”. If the school uses this section as justification, I’d talk immediately have a talk with the Bishop. Anti-Bullying does not equate to Gay Pride. The Amanda Todd case in BC is ample proof of that!

  • Peter Nyikos

    Annamarie, we are a lot closer in our views than you think. Several very good friends of mine have either divorced or told me their marriage is “over” but still stay together, if only for appearances’ sake. That does not make them any less my friends.

    The Catholic Church does not prohibit divorce; in fact, it advises that couples seeking annulment first get a civil divorce. It is remarriage in the absence of either annulment or the death of the spouse to which it objects.

    Rampant divorce does not change the fact that matrimony itself is a sacred state, and the dissolution of any marriage is cause for sadness, even if a worse evil is prevented thereby.

    I am very sorry to read about the end of your marriage, and will be praying for you, and am glad to read that you are praying for me too.

  • Peter Nyikos

    An apology: I lost track of this article for two weeks and I see I have a number of loose ends to tie up. I hope the people to whom I’m replying see my replies.

  • Peter Nyikos

    Sorry, ailina, I can’t buy the idea that the majority of Canadians support all the repressions that are carried out in the promotion of same-sex marriage. I doubt that most of them are even aware of some of the things the article mentions.

    In fact, even you don’t seem to be aware of them. What you write beginning with “However” is so irrelevant to the repression that I suspect you paid almost no attention to the actual repressive incidents of which the article so full.

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