Poor old H.  She’s the forgotten woman of the gay rights movement.  She lived with her lesbian partner M for 10 years before they split up.  Then M sued her for support under Ontario’s Family Law Act and won.  The judge re-wrote a portion of the law to define same-sex couples as spouses.   Last week, the Court of Appeal confirmed the decision.

The gay community was elated by these decisions.  I can’t understand why.  Have they forgotten that there are two sides to this case—two lesbians, not just one, whose rights have been determined? While they exalt over M’s obtaining the so-called advantages of the Family Law Act, why do they show no concern over H suddenly being saddled with the burdens and obligations that the same law imposes?  After all, H is a member of the homosexual community too.  What has she done to make all her confreres turn against her in this dispute?

The court held that same-sex partners were disadvantaged in being excluded from the Family Law Act.  I don’t see it that way.  I see them as having had an advantage.  Unlike heterosexuals, they were free to bargain on terms of absolute equality to determine how their financial resources would be allocated between the members of their household.  There was no statute hanging over their heads imposing a regime they did not desire.

If M and H had wanted an arrangement in which they would be mutually obligated to provide financial support after separation, they could have written up a contract. They could have explicitly incorporated the principles of the Family Law Act and its related case precedents into their agreement to ensure that they would be treated no differently from heterosexual couples.

In cases involving male-female partners, feminist legal theorists justify wives’ support and property claims on the grounds of righting some alleged historical wrong.  Women have been oppressed by men for centuries, they say.  Men owe them.  In M. v. H., the plaintiff doesn’t even have this piece of fiction to fall back on.  She’s not a member of a group that was oppressed by the group her lover belongs to. They both belong to the same group: gay women.  Neither could possibly be considered historically disadvantaged relative to the other.

 Somewhere over the past 15 years, the cases on equality rights under Section 15 of the Charter went off track.  On the face of it, the notion that everyone should be equal before the law, and should have a “right to the equal protection and equal benefit of the law”, regardless of physical attributes or beliefs, seems perfectly just and proper.  But this presupposes that the law itself will do nothing more than protect individuals’ rights.  When the law starts enacting privileges for some at the expense of others and calling them rights, it’s time to step back and reconsider what we’ve been doing.

The error in the M. v. H. case lies in believing that the Family Law Act is a statute that grants  or enforces individuals’ rights.  It doesn’t--it violates them.  It forces some people to hand over money, against their will, to other people.

Imposing the Family Law Act on couples is not like enforcing a contract.  If there ever was a deal between M and H, that deal must have involved some reciprocity.  “You earn the income, dear, and I’ll cook your meals, clean your house, and do your laundry.”  After the couple separates, however, and one of them applies for support under the Act, the reciprocity disappears.  The court may order H to continue paying money to M, but it will never order M to continue cooking, cleaning and laundering for H.   Where is the justice in letting one side out of a bargain while forcing the other side to carry on?

Gays who support the M. v. H. decision demonstrate a shocking desire to give up their own freedom.  But worse than that, they demonstrate a desire to deprive others of their freedom—retroactively, to boot.  Thanks to this decision, every gay couple in Ontario who has cohabited for more than three years will suddenly be caught in a trap that didn’t exist when they made the decision to live together.  They will not be able to contract out unless both agree.  If one partner balks, the other will be trapped.  Splitting up won’t help—it will only trigger the very support claim that one of them would have liked to avoid.

It’s too bad nobody thought of bringing a constitutional challenge against the Family Law Act from the other direction before M sued H.  A far more interesting case would have been for some male who was ordered to pay support to his female common-law partner to object on the grounds that the law discriminated against him on the basis of his sexual preference. “I am disadvantaged by being straight,” he could have argued.  “If I had been gay, and my partner had been male, I would not now be burdened with this support order. “  I wonder—would the gay community have supported such a man who wanted nothing more than to be treated equally with them?