Bradley Miller

Same-sex ‘marriage’ ten years on: lessons from Canada

Bradley Miller
By Bradley Miller

November 14, 2012 (thePublicDiscourse) - 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.

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. This article reprinted with permission from thePublicDiscourse.com.


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Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." Shutterstock
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‘Sick and twisted’: Down’s advocates, pro-life leaders slam Richard Dawkins’ abortion remarks

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By Dustin Siggins

Advocates on behalf of individuals with Down syndrome, as well as pro-life leaders, are slamming famed atheist Richard Dawkins’ statements made on Twitter earlier today that parents have a moral responsibility to abort babies diagnosed in utero with Down’s.

During a shocking Twitter rant, Dawkins responded to questioners saying that it was "civilised" to abort Down Syndrome babies, and that it would be "immoral" to choose not to abort babies diagnosed with the condition.

He said that his goal is to "reduce suffering wherever you can," indicating that unborn children cannot suffer, and that unborn children don't "have human feelings."

In addition to being scientifically challenged - unborn children can feel both pain and emotions - Dawkins' comments drew criticism for his callousness towards children with disabilities.  

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus"

"It's sick and twisted for anyone to advocate for the killing of children with disabilities," Live Action President Lila Rose told LifeSiteNews. "Dawkins's ignorant comments serve only to further stigmatize people with Down syndrome.

"While many people with Down syndrome, their families, and advocacy groups are fighting discrimination on a daily basis, Dawkins calls for their murder before they are even born," she said. "Those with Down syndrome are human beings, with innate human dignity, and they, along with the whole human family, deserve our respect and protection."

Carol Boys, chief executive of the Down's Syndrome Association, told MailOnline that, contrary to Dawkins’ assertion, "People with Down’s syndrome can and do live full and rewarding lives, they also make a valuable contribution to our society."

A spokesperson for the UK disabilities charity Scope lamented that during the "difficult and confusing time" when parents find out they are expecting a child with disabilities, they often experience "negative attitudes."

"What parents really need at this time is sensitive and thorough advice and information," the spokesperson said.

Charlotte Lozier Institute president Chuck Donovan agreed with Rose’s assessment. "Advocates of abortion for those 'weaker' than others, or of less physical or intellectual dexterity, should remember that each of us is 'lesser' in some or most respects," he said.

According to Donovan, "we deliver a death sentence on all of humanity by such cruel logic."

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus" he said.

One family who has a child with Down syndrome said Dawkins was far from the mark when he suggested that aborting babies with Down syndrome is a good way to eliminate suffering.

Jan Lucas, whose son Kevin has Down syndrome, said that far from suffering, Kevin has brought enormous joy to the family, and "is so loving. He just has a million hugs."

She described how Kevin was asked to be an honorary deacon at the church they attend in New Jersey, "because he is so encouraging to everyone. At church, he asks people how their families are, says he'll pray for them, and follows up to let them know that he has been praying for them."

It's not just strangers for whom Kevin prays. "My husband and I were separated for a time, and Kevin kept asking people to pray for his dad," said Jan. "They didn't believe that Kevin's prayers would be answered. Kevin didn't lose hope, and asking people, and our marriage now is better than ever before. We attribute it to Kevin's prayers, and how he drew on the prayers of everyone."

"I don't know what we'd do without him," said Jan.

Speaking with LifeSiteNews, Kevin said that his favorite things to do are "spending time with my family, and keeping God in prayer." He said that he "always knows God," which helps him to "always keep praying for my friends."

"I love my church," said Kevin.

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey , 99% of respondents with Down syndrome described themselves as "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child.

Despite this, it is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 

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President George Bush takes the ice bucket challenge in a video released this week.
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What’s wrong with the viral ‘ice bucket challenge’? A lot, say pro-life leaders

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By Dustin Siggins

Pro-life leaders in the U.S. are warning about ethical problems with the viral "Ice Bucket Challenge" that has raised over $15 million for research into Lou Gehrig’s Disease since late July, making its way to the top of American politics, and the entertainment and business worlds in the process.

In recent days, former president George W. Bush, New Jersey Governor Chris Christie, Facebook founder Mark Zuckerberg, TV hosts Oprah Winfrey and Jimmy Fallon, and Microsoft founder Bill Gates have all had ice-cold water dumped on their heads in support of the effort.

They have been joined by many thousands of everyday Americans eager to do their part to raise funds to find a cure for the fatal neurodegenerative disease.

However, pro-life leaders from Patheos blogger Father Michael Duffy to the American Life League (ALL) are all pointing out that the ALS Association, which is behind the wildly popular fundraising effort, funds and otherwise supports embryonic stem cell research.

Instead, they are urging that pro-life people who want to participate in the ice bucket challenge send their donations to other charities that don't have similar ethical issues.

Embryonic stem cell research requires the destruction of an unborn child. This is unlike adult and umbilical cord stem cell research, which are considered ethical.

A spokesperson from the ALS Association admitted to American Life League in an e-mail that while the organization "primarily funds adult stem cell research," they are "funding one study using embryonic stem cells (ESC)..."

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"It is noble to combat a deadly disease," Live Action president Lila Rose said in a statement provided to LifeSiteNews, but added that "it's such a shame that the ALS Association...chooses to support research that thrives from experimenting on and killing tiny, innocent human beings."

"Embryonic stem cell research, which requires the destruction of pre-born people, is inherently unethical and a violation of fundamental human rights, and even materialists must admit that promises of its benefits have failed to deliver," continued Rose. "There is no good reason to condone this practice; in fact, all it does is taint the ALS Association, whom I'd otherwise be happy to support."

In the email to American Life League, ALS Assocation Spokesperson Carrie Munk defended the organization, saying that the embryonic stem cell research is being funded by an outside donor, and "the stem cell line was established many years ago."

She added that "under very strict guidelines, The Association may fund embryonic stem cell research in the future," and that currently "donors may stipulate that their funds not be invested in this study or any stem cell project."

At least one Catholic archdiocese has spoken up about the problematic relationship between ALS Assocation and unethical research.

"We appreciate the compassion that has caused so many people to engage in the ice bucket challenge," said a spokesperson for the Archdiocese of Cincinnati. "But it's a well established moral principle that a good end is not enough. The means to that ends must be morally licit."

Both Fr. Duffy and the archdiocese have recommended money be sent to the John Paul II Medical Research Institute in Iowa City, Iowa. It is an organization that exclusively researches with adult stem cells. 

One D.C.-area Catholic, Robert Vega, wrote on Facebook that "in light of the absolute dignity of human life and necessity to defend it...I have taken down my Ice Bucket video, untagged myself from my nomination video, and encourage anyone to whom I may have spread the Challenge to do the same."

Embryonic stem cell research, which was a major controversy throughout the presidency of George W. Bush, has quietly, although decidedly, become less popular after many of the exalted promises of its proponents failed to materialize. As LifeSiteNews reported, in 2012 California and Maryland funded a fraction of the embryonic stem cell research projects that they did in 2007. Likewise, Maryland funded nearly twice as many stem cell research projects in 2012 as it had in the prior year -- but only one of the grants was done for an embryonic research project.

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Catholic couple fined $13,000 for refusing to host same-sex ‘wedding’ at their farm

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Robert and Cynthia Gifford

The New York State Division of Human Rights (DHR) has ruled that the Roman Catholic owners of an Albany-area farm violated the civil rights of a lesbian couple when they declined to host the couple’s same-sex “marriage” ceremony in 2012.

Robert and Cynthia Gifford, who own and operate Liberty Ridge Farm in Schaghticoke, were ordered by DHR Judge Migdalia Pares and Commissioner Helen Diane Foster to pay $10,000 in fines to the state and an additional $3,000 in damages to the lesbian couple, Jennie McCarthy and Melissa Erwin for “mental pain and suffering.” 

Additionally, the Giffords must provide sensitivity training to their staff, and prominently display a poster highlighting state anti-discrimination laws.

The Giffords’ attorney, Jim Trainor, told LifeSiteNews that the two-year-legal drama and resulting fines all stemmed from a single brief phone call in 2012 that caught his clients off guard.

“The entire interaction between the Complainants and the Giffords transpired during a two to three minute telephone conversation which, unknown to Mrs. Gifford, was being tape recorded,” Trainor said.

“After communicating the fact that they chose not to hold same-sex marriage ceremonies at the farm because to do so would violate the Giffords’ sincerely held beliefs (that God intended marriage to be between a man a woman only), Mrs. Gifford invited the couple to visit the farm to discuss handling their wedding reception, which the couple refused.” 

The Giffords draw a line, Trainor explained, between a ceremony that solemnizes a homosexual relationship and a reception that celebrates the union after the fact.  To participate in the former, they argue, would be a violation of their own religious beliefs, especially because marriage ceremonies on the farm typically take place in and around the couple’s home, where they live full-time and are raising their two children. 

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But the Giffords are willing to serve gay couples in other ways – for example, they allowed another lesbian couple to throw a birthday party for their adopted child on the farm.

Trainor said he believes the decision by DHR goes too far in that it seeks to regulate what the Giffords can or cannot do in their own private home, even though state law only requires “places of public accommodation” to adhere to anti-discrimination laws.

“They consider the farm their home,” Trainor said. “They live there, they work there, they raise their kids there.”

Trainor also said that the Judge and Commissioner should have taken into account the Supreme Court’s recent Hobby Lobby ruling, which came down weeks before the DHR notified the Giffords of their decision.

“We're disappointed that neither the Administrative Law Judge nor the Commissioner considered the Gifford's Constitutional (1st Amendment) rights, including the right not to be compelled to participate in a ‘marriage’ ceremony which violates their own religious beliefs,” Trainor said. 

Trainor said he and the Giffords are evaluating their options for further legal action.

The Giffords could simply ask the DHR to reconsider their decision, but Trainor said he doubts that approach would be successful. In order to formally appeal the ruling the couple would have to go to the New York State Supreme Court. 

But there is another option: The Giffords could file a fresh lawsuit in either state or federal court challenging the constitutionality of the DHR ruling.

While religious liberty has been a hot topic in federal court lately, Trainor said New York’s state constitution “actually offers a lot” of protection when it comes to religious freedom. “Many people view it as more expansive than the U.S. Constitution in terms of religious freedoms.”

However, Trainor emphasized that the Giffords have not yet decided which avenue, if any, they are planning to take in terms of pursuing further legal action.

In the meantime, the Giffords will continue hosting wedding ceremonies and receptions at the farm, Trainor said. However, they are considering hiring a dedicated employee to handle the ceremonies in order to avoid having to directly participate in any future same-sex “weddings.”

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