An edited version of this article first appeared in the June, 1996 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.
You couldn’t ask for a more striking example of courts running off in diametrically opposite directions than in two recent homosexual rights cases. In M. v. H., a lesbian tried to sue her former lover for spousal support. She claimed Ontario’s Family Law Act violated her equality rights under section 15 of the Charter because it excluded same-sex partners from its definition of "spouse." The judge agreed, and rewrote the statute to include gay couples, even though the Ontario legislature had voted, less than two years before, not to make this change.
In Vriend v. Alberta, a gay man was fired from his job at a religious college because of his homosexuality. Again citing section 15 of the Charter, the man asked the court to add homosexuals to the list of groups protected from discrimination under the Individual’s Rights Protection Act. Alberta’s Court of Appeal said no. It refused to amend the law where the legislature had deliberately declined to intervene.
Personally, I couldn’t care less who has sex with whom, so long as it’s done consensually. My views on these two cases have nothing to do with whether I approve or disapprove of homosexuality.
Nor am I one to suggest that the legislature is always right, or that the will of the majority should always govern. On the contrary, I’m as much concerned about the "tyranny of the majority" as I am about the tyranny of a dictator—or a judge.
Having said all that, I want to applaud the Alberta court, not for its promotion of moral purity or majority rule, but for a much subtler part of its message—a part that cries out to be developed further. The Charter of Rights, Justices McClung and O’Leary remind us, was directed at regulating government action, not private activity.
There’s a good reason for this. An individual’s relationship to the state is very different from his relationships to other individuals. The state is a monopoly, with the legal power to use force against its citizens to make them conform to its wishes. Its might is vastly superior to the individual’s; it holds almost all the weapons, literally and figuratively. The individual can’t opt out of the relationship except, perhaps, by leaving the territory—and sometimes not even then. The theoretical justification for the state’s existence is that everyone within its territory will benefit from the order it imposes. The nature of the relationship invests the state with a duty to act with scrupulous impartiality toward its captive, relatively powerless citizens. It cannot pick and choose whom it will benefit and whom it will burden.
Individuals have no such state-like advantages over each other. There is no monopoly. If you don’t like the deal one person offers you, there are millions of others in the country to bargain with. No-one can legally initiate force to impose his will on you.
Section 15 of the Charter gives every individual the right to equal treatment under the law, without discrimination. It’s easy to see how this applies to laws that govern the relationship between the state and the individual: the Criminal Code, for instance. Breach it and the state will punish you, regardless of who you are. But if section 15 is to be applied to laws governing the relationships between individuals, it can be rationally justified only if those laws themselves provide equal treatment for every individual.
The statutes complained of in these two gay rights cases do not treat people equally. Ontario’s Family Law Act (FLA) does not say merely, "The state shall enforce all mutually agreed-upon support obligations between people who cohabit." That is all it could say if it were treating everyone equally. Instead, it forces some people to pay money to other people, regardless of whether they ever agreed (whether by marriage ceremony or by domestic contract) to assume such an obligation.
There is not even a pretense of reciprocity. Leslie may be ordered to continue paying estranged partner Robin money, but Robin will never be ordered to continue cooking, cleaning and doing laundry for Leslie. For people who already fell within the extended definition of spouse when the FLA was enacted (or when it was amended by the court in M. v. H.), and who therefore had no opportunity to escape it, this is clearly not equal treatment. Some people were handed a windfall, while others had a millstone hung around their necks.
Similarly, the Individual’s Rights Protection Act (IRPA) does not treat people equally. It allows some people, namely employees, freedom of contract in employment matters. They can refuse to work for any employer, for any reason. But other people—employers—have their freedom of contract violated, rather than enforced, by the IRPA. The very essence of their employment relationships—namely, the identities of the persons with whom they may contract—can be dictated to them by the Human Rights Commission.
Adding new groups like gays to the list of protected minorities won’t banish arbitrariness from the law until the law itself ceases to interfere arbitrarily in private, voluntary human activity.
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