Marriage and Legal Recognition of Same-sex Unions

A Discussion Paper

November 2002

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What questions need to be decided in Canada?

The current public debate and recent court challenges to the constitutionality of the opposite-sex requirement for marriage have lent new focus to the question «What is the role of the state in defining the legal requirements for marriage?» As part of this important debate, the people of Canada will be asked to reflect on several fundamental, philosophical questions about the importance of marriage in our society, about how the state can best support marriage, and about the meaning and importance of equality in our society:

• Does marriage have a continuing role in our modern society and, if so, should this be reflected in our laws?
• If marriage has a continuing role in our society and in our laws (beyond its significance for the couple), how can Parliament best act to support marriage?
• If marriage does not have a broader continuing societal role, should governments stop regulating relationships and leave the question of marriage to individuals and their religious institutions? If this happened, what would be the result for individuals on the breakdown of a relationship? Should Parliament continue to have a role in protecting a vulnerable partner and any children, or should there be no legal consequences for those who enter into or leave relationships? If governments do have a continuing role in regulating legal consequences for relationships, how can Parliament best accomplish it?
• Do committed conjugal relationships other than marriage have a role in our modern society? If so, is that role different from the one played by marriage? If so, what is the difference? How should other committed conjugal relationships be treated in our laws?
• Now that federal laws and laws in most provinces and territories grant almost all of the same benefits and obligations of marriage to unmarried couples and their children, is there still a need for governments to regulate marriage as distinct from other conjugal relationships, or should the state regulate all such relationships under the same statute?
• If we want society and the law to support and respect both marriage and other committed conjugal relationships equally, how can this best be achieved? Does equality mean that social institutions, like marriage, are open to same-sex committed conjugal partners?

How we answer these questions will help narrow down the range of choices as we examine the following possible approaches.

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