© 2004 Karen Selick

This is the text of an address given to the Civitas annual conference in April, 2004.  If you wish to reproduce this document,
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Same-Sex Marriage:  A Mere Pimple on the Pocky Face of Family Law


            Let me just explain the title of this talk, which is “Same-Sex Marriage—A Mere Pimple on the Pocky Face of Family Law.”  I’ve spent 19 years as a divorce lawyer.  Over that time, I’ve seen some absolutely outrageous developments in the law—things that conservatives and libertarians should be really, really upset about.  But these changes have just slipped quietly into law with hardly anyone uttering a word against them.  And now, I gather, the majority of the people in this room—at least the conservative contingent, which is probably about 90 percent—are all up in arms about same-sex marriage.  I’ll tell you quite frankly—I don’t understand you folks.
            The big deal for social conservatives seems to be the notion that the state—the government—is going to sanction same-sex marriage.  You all know, of course, that gays and lesbians have been living together for years, and some of them have been going through various types of “commitment ceremonies” through their various gay churches, and some of them have even been referring to these ceremonies, among themselves, as “marriages”.  I don’t think anyone in this room is suggesting that this sort of thing should be outlawed.  If some group wants to use language inaccurately, who gives a hoot?  What are we going to do, put them in jail?  That would be silly.  I know, a lot of gays are apparently planning to put a lot of Christians in jail for what they say under Bill C-250, but two wrongs don’t make a right.
            What really seems to bug social conservatives is the prospect that now gay people are going to receive the stamp of approval of the state.  They’re going to be just like you, with the aura of respectability that goes along with being officially married.  This is what seems to stick in your craw.
            So I have to ask you—why do you permit the state to have such a grip on your psyches?  Why do you grant it such deference?   Why do you think that being married by the state should even matter at all?  Why should having a piece of paper issued by some bureaucrat make you different than you were before?   Or why should it make you any different, or any better, than you would be if you went through exactly the same ceremony, with the march down the aisle, the vows, the exchange of rings, the whole bit—without having bothered to get the piece of paper in advance? 
            Surely what’s important when you get married is that you are making a commitment to another person, in the presence of witnesses.  If you fail to live up to your commitment, then your reputation among your friends and family may suffer, and you may have to make reparations to your spouse for breach of contract.  But why should the existence or non-existence of a marriage licence issued by the state matter?
            On a historical note, I can tell you that the marriage licence is a relatively recent invention, at least as compared with the history of marriage itself.  In 1753, the English parliament passed something called the Marriage Act, or Lord Hardwicke’s Act, which required that all marriages be registered.  Before that, there were a variety of ways in which marriages were recognized, but mandatory registration with the state wasn’t one of them.
            Now, I will concede that there may be one valid reason for people to care whether or not the state sanctions marriages.  It has to do with the fact that the state, in the past, granted certain privileges to married people that it did not grant to unmarried people.  Some of those privileges imposed costs on the rest of the community.  For instance, there’s the Canada Pension Plan.  It provides survivor’s benefits to the survivors of deceased contributors.  At one time, the Plan distinguished between legally married people and everyone else.  Only widows or widowers who had been legally married qualified for survivor’s benefits.  But quite a few years ago, that was broadened to include common-law spouses.  And in July, 2000 it was broadened again to include same-sex partners who have cohabited in a conjugal relationship for at least a year. 
            Now, those of us who pay taxes have a valid reason to be annoyed every time the CPP gets expanded.  It means more money will be stolen from us to pay for those benefits.  But the horse is already out of the barn.  The surviving partners of homosexual relationships have qualified for almost four years now for those benefits.  Allowing gays to marry isn’t going to make much difference.  The only additional group who will qualify for survivor’s benefits if gay marriage is allowed are the gay couples who enter into marriage before they have cohabited together for a full year, if one partner dies before the year is up.  There won’t be many people in this situation.  Most of the gays who will want to get married will already have lived together for more than a year so they will already have qualified to receive survivor’s benefits.  The additional burden on taxpayers will be very insignificant.
            There is one other circumstance I can think of where the granting of marital status to gays and lesbians may impose some involuntary burden on others.  This is in the area of private benefit packages provided by employers—things such as dental plans.  There may be employers who would prefer not to cover homosexual partners, and that should be their choice.  Granting marital status to homosexuals may make it impossible to structure such benefit plans to exclude homosexual couples, because most plans generally include legally married spouses.  But without having researched the law in every province, I suspect that as in the case of CPP, this is already a fait accompli anyhow.  I believe that under the so-called “human rights” laws of each province, most of the insurance company plans are already including same-sex couples who have lived together for more than a year because otherwise they’d be vulnerable to a human rights complaint.  So again, granting marital status to such couples would extend the coverage obligation only in a few rare cases where the gay couple chooses to marry before their year of cohabitation would have made them qualify for the benefits anyhow. 

            But more importantly, if the basis of our opposition to gay marriage is the quite valid objection that it will result in the coercive imposition of a larger burden on third parties, then what we should really be objecting to is the coercive imposition of those burdens in the first place.  Go right to the root of the problem.  Abolish the Canada Pension Plan.   It’s been an abomination from the start.   And let’s repeal those so-called “human rights” laws which are a scandalous violation of individual property rights, freedom of contract and freedom of speech.  You’ve got to get down to the fundamentals of the problem.  Objecting to same-sex marriage is merely scratching the surface.
            In fact, my position is that the state should have no participation whatsoever in the domestic arrangements that people select.  If I had my way, I would abolish the Marriage Acts (federal and provincial), the Divorce Act (which is federal), and all of the provincial Family Law Acts.  They’re an insult to the intelligence of every adult in the country.  If you want to get married, negotiate your terms with your beloved, make a deal, write it down and then live with the consequences    
            Incidentally, I just want to point something out.  You still read in the newspapers sometimes these statements from gay couples saying that they want to be able to marry so that they can have the same rights as heterosexual married couples to inherit each other’s estates, raise kids together and so on.  This is all baloney.  I can’t think of a single aspect of the marital relationship that cannot be duplicated by contract if the individuals are so inclined.  They can write wills.  They can write powers of attorney.  They can do joint adoptions of each other’s children.  They can write up cohabitation agreements dealing with issues of property division and support. As far as the relationship between gay couples and third parties such as employers is concerned, the so-called “human rights” laws have already ensured that there can be no discrimination.  So this whole issue is nothing but a power struggle.  Gay couples already have all the substantive rights they claim they are seeking.  They are merely struggling to force the rest of the world to say “uncle”.  And social conservatives—you guys take the bait every single time.  I think gays get more satisfaction out of knowing they are bugging you than they get out of actually being able to marry.
            But on with the rest of my thesis.  If you really want something to be upset about, I’d like to give you a few examples from the real world of family law.
            One of the worst problems is that family law keeps changing, and no consideration is ever given to the people who bought into it at an earlier stage under different rules.  For instance, next door in Ontario, we went through two dramatic revampings of the family property rules in the space of about 8 years.  When I was in law school, the law was called the Deserted Wives and Children’s Maintenance Act.  Then in 1978, we got the Family Law Reform Act, which distinguished between “family assets” such as houses, cars and furniture, which had to be divided upon divorce and “non-family assets” such as businesses and stock portfolios, which didn’t.  Then in 1986 (only 8 years later), we got the Family Law Act, which essentially said that everything had to be split up upon divorce with a few totally bizarre exceptions which I’ll refer to again in a few minutes. 
            Anyone who married between 1978 and 1985 thought his business assets would be protected in case of divorce.  But if the marriage lasted through until 1986, he was out of luck.  The government didn’t grandfather him, they didn’t give him a chance to opt out or renegotiate, it just said “You are now governed by this new regime” and that was that.  So a lot of people who might never have entered into marriages if they had known what the economic risks were going to be, or would at least have drawn up prenuptial agreements, got seriously misled by the government.
            This sort of thing is still going on.  In fact, another example of it occurred along the route to the gay marriage controversy.  You may recall a case a few years ago called M v. H.  That was a case of two lesbians who had lived together for a number of years, then split up.  One of them sued the other for support, even though at that time, same-sex partners did not fall within the purview of the Family Law Act.  She was granted support on the grounds that it was unconstitutional for the Family Law Act to discriminate by denying the “benefits” of the Act to persons who differed only in their sexual orientation.  But all of a sudden, a whole bunch of gays and lesbians were trapped—they hadn’t bargained for the possibility when they began their relationships that they might have to pay spousal support down the road, because that wasn’t the law then.  But there was nothing they could do about it once the court, and later the legislature, changed the law.  If they had already been together for the three years necessary to qualify as common-law spouses, they were stuck. 
            I know a great many gays and lesbians were quite unhappy about this development, because I heard from them after I wrote a few articles on it.   The defendant H even phoned me up and said, “I’m mad as H about this…”
            I remember hearing once that one of the reasons there was so much opposition to inserting a property rights guarantee into Canada’s constitution back when it was being drafted in about 1980 is that the family law lobbyists were afraid it would throw a monkey wrench into their plans to promote property equalization upon divorce.  And indeed I think it would have.  Ontario’s Family Law Act of 1986, and the similar legislation that followed in other provinces, was one of the biggest property grabs since the invention of communism.  The main difference is that the property doesn’t go to the government, but it goes to the group the government wanted to favour, namely the poorer of two spouses, which is usually the wife. 
            In fact, if you step back and look at family law here in Canada, it is simply Marxism writ small.  What are the main factors governing spousal support?  They’re the need of one spouse and the ability to pay of the other spouse.  Gee, that sounds familiar.  What’s the famous slogan of the Communist Manifesto?  From each according to his ability, to each according to his need. 
            Let me close by giving you an example of just one of the many idiotic results that happen under Ontario’s Family Law Act.  Suppose a businessman has twin sons.  On their 25th birthday, he decides that he’s going to give them shares in his company.  Each son gets shares worth $10,000.  One son happens to be married at the time he receives his shares.  The other son gets married a month later.  Twenty years go by and the company has prospered.  The shares owned by each son are now worth $10,000,000 instead of $10,000.  By unfortunate coincidences, both of the sons’ marriages suddenly fall apart—who knows, maybe the wives both turn out to be lesbians and they run off together.  Whatever.  The sons have to divvy up their assets with their wives.  The son who was already married when dad gifted the shares to him gets to exclude those shares completely from the divisible assets, because they were a gift received during the marriage.  His wife gets zero out of that ten million dollars.  The son who was not yet married when dad gifted the shares to him has to treat those shares as pre-marriage property.  This means that he gets to deduct the value they had at the date of marriage—a mere $10,000—from the value that has to be divided with the wife.  So he has to pay his wife $4,995,000. 
            Does this make any sense?  None whatsoever.  But I see examples of these anomalous results every single day in my law practice. 
            If you want something to be mad about in the field of matrimonial law, believe me—there’s plenty.  In my view, the issue of same-sex marriage is not worth all the excitement it’s generating. 



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January 22, 2005