Tuesday, March 29, 2005

Why the State Should not be in the Marriage Corruption Business:

Many people strenuously believe that heterosexual marriage is best for children and that it is simply wrong (and selfish) to deliberately start out to deny a child a mother and a father. Support for traditional heterosexual marriage is strong in Canada. Unfortunately, the same cannot be said for either the Courts or Parliament. This means that those who support a traditional definition of marriage need to be realistic about what is likely in Canada now that the Courts and Parliament are against them: they must resist the temptation to simply focus on what they wish were the case rather than what is actually the situation in Canada (it is different in other places due to a variety of factors).

Use of a Constitutional override (Section 33), while possible in theory, is not going to happen politically under the present Liberal government (with its minority supporters). Constitutional amendment, again possible in theory, is not likely. The numbers required (six provinces making up two thirds of Canada's population) are just not there.

This means that something else must be done. Who is arguing for that? Note this well: Spelling out a workable alternative is not the same thing as saying this is the "best" thing for Canada but, rather, this is the "best thing in the circumstances" which is a very different matter

Language Around “Civil Unions”

A Good Conservative Argument as to Why the State Should Get out of Marriage

Some time ago, the Centre became, as far as we know, the first group in Canada to argue publicly that getting the State out of Marriage was the best alternative to protect marriage in the long run. Several newspapers and a few discerning folks here and there, picked up this argument but, apart from that, it fell more or less stillborn, to earth.

Perhaps, however, it shall have another life? If so, a few points need to be made.

As with any discussion of new concepts a certain amount of terminological inexactitude was, perhaps, inevitable at the outset. That being so, it is certainly not desirable for it to continue.

This blog (or short article) is designed to clear up a few things that time and reflection have shown need clarification.

1) The risk of improperly distinguishing between the “civil” and the “religious.”
2) Why “Care Relationships”, “Registered Relationships” or “Reciprocal Beneficiaries” are a more accurate category than “Civil Unions.”
3) Why These Registered Relationships are not “Just the Same Thing as Marriage.”

1. An Improper Distinction Between “Civil” and “Religious”

It is frequently argued that perhaps marriage as a category should or could be left to the religions with the State only involved in “civil marriage.” This is usually accompanied by the claim that state marriages are necessary for those who do not want religious marriages. It is then said that “same-sex inclusive” civil marriages would only be “civil” and would not attempt to force “religions” to act against their beliefs. Religions could “have religious marriage” and the State would do its “civil (and gay inclusive) marriages.”

This is an argument that evolves from the religious ideology of “secularism” and should be resisted by all those who have a more accurate and fair sense of society. Only a religiously inclusive idea of the “secular” is now the law in Canada after the Supreme Court of Canada decision of Chamberlain v. Surrey School Board (December 2002).

You folks who speak as if the world were divided between a so-called “secular” realm and a realm of religion, have to think again.

This setting up of the options as between “civil” and “religious” poses a serious threat to the structure of society because it places a sharp wedge between religion and the state in a place that is inappropriate (some divisions are, of course, appropriate for the proper protection of religious communities and the State). Marriage is not rightly divisible between “religion” and “civil” and the “civil” is not the place to give a trump right to atheist and agnostic ideas. There is no reason, if atheists and agnostics wish to “marry,” that they cannot do so through civic associations (the Canadian Humanist Association for example, or Rotary or, for that matter, 4-H). They do not need the State to provide facilities any more than say, a Catholic ought to claim that the State should provide a Catholic model of marriage.

Atheism and Agnosticism are, after all, belief systems (and worldviews) just as much as religions are.

However, to attempt to “solve” the vexed question of differing conceptions of marriage by giving governmental priority to a “same-sex inclusive civil marriage” is hardly “content neutral” and gives a trump to one side of the public debates.

To give governmental priority to a model that large numbers of a country’s citizens do not accept is hardly the way to resolve the dispute. It would seem to set the stage for a long succession of further litigations and political bickering. “Civil marriage” that is same-sex inclusive alongside “religious marriages” that may or may not be, is not a “neutral” approach to marriage and society.

The clearest and most principled (and creative) way for a government to indicate that it favours no particular position is to leave marriage recognition to religious and civil associations that may wish to perform marriages (including same-sex marriages of a religious or non-religious sort) and leave the question of benefits and dissolution to turn on a genuinely neutral form of civil registration that does not focus on sexual relationships at all.

2. Civil Unions or Registered Relationship Models:

The key thing with these models is that they avoid (or can avoid) marital language (“spouse”, “conjugal” etc.). They can be a means by which a society conveys benefits to those who wish to register publicly that they are in financially dependant relationships. Such a model was first established in the Scandinavian countries (after much discussion with religions by the way).
In the United States (Hawaii and Vermont) both “Reciprocal Beneficiary” and “Civil Union” models have been used when it has become clear that these were a politically necessary alternative to “same-sex marriage.” The above section points out why we reject “civil unions” language.

If such models of dependency recognition are not geared to sexualized markers (that ape marriage - - i.e. require sexual intercourse or “intimacy” or that suggest a “conjugal” requirement) then they raise different concerns than those that are based on sexual conduct recognition.

If a State decides it wishes to give benefits to “any two persons” who are dependent and ought to be able to inherit, live off the other’s pension, end the relationship with financial responsibilities defined etc. then it should, arguably, be free to do so. The point is that there is no reason such a regime need depend upon a “sexualized marker” in terms of human sexual intimacy.

The argument could go like this: “why is the fact that an elderly aunt looks after her niece without having sex with her, something that the State should conclude ought to deprive her of benefits whereas someone who has simply has sex with another person gets the benefits?” We are not talking about “marriage” here after all as far as the State registration is concerned.

The fact is that those who wish to dissolve the traditional marriage concept of male and female marriages are using the question of “benefits entitlement” as a gradualist way of getting civil recognition for their sexual conduct. Hence the importance of a “non-sexualized marker” and a proper understanding of what is “civil” and what is not.

3. Is all this Just “Marriage by Another Name?”

Some people argue that all such alternative regimes are “marriage by another name.” To people who argue this way, it might be pointed out that the Courts and politicians have, in many cases, forced this result so there is a real danger in collapsing the ideal that one might wish for i.e. heterosexual-only marriage, into an unreal world where the courts have not said – as ours have--that such an outcome is constitutionally impermissible.

People ought to ask the question whether, in a world in which same-sex marriage is mandated if the State is in the marriage business, it is wise to leave the State in that business.

It might well be essential socially and even politically to create such a category of non-sexualized relationship recognition and it may be acceptable morally for such a category to exist provided that it not legitimize same-sex conduct as acceptable much less a constitutional norm. If the State has no place in the bedrooms of the nation, we might well ask “what are the Courts doing there?”

Of course “gay couples” will access such categories but wake up (!) the courts have already driven this in their decisions to date. Most critics are ignorant of what the courts have done - - or argue as if they are ignorant of legal decisions.

Homosexual marriage claims are all about “social recognition” and we have written elsewhere about how this claim logically precludes same-sex activists from claiming, as they do, that they only seek “civil” marriage. Nonsense. If they demand recognition at the point of a gavel, they must eventually, even if they do not do so now, demand it from all of society, including the majority of those who marry in religious ceremonies.

Before the Supreme Court of Canada in about 1994, EGALE, the most successful gay-rights activist group in Canada claimed that the Egan case was only about benefits, not about marriage and that “there was no reason to assume that same-sex couples want marriage at all.”

That was then, this was now. But we ought to be more than a little sceptical of the current claim that what is sought is simply “civil marriage” and not “religious marriage.” Once they have claimed the “civil” they must claim the “religious” for it is religions that give more recognition to marriage than any Civil Registry office ever has.

Should the State rearrange its affairs so as to give benefits to “any two persons” who wish to show up at the Registry office for Registration (not marriage) it would be giving “registration benefits” and nothing more. It would not inquire (for the State has, we were told, “no place in the bedrooms of the Nation”) as to whether two people are having sexual relations together. They are simply “registrants” not “man and wife” in the traditional (or untraditional sense of that).

Consider as well that merely “shacking up” would no longer have State recognition as “marriage” either. Those who marry before religious leaders or civic associations (for atheists and agnostics would no longer have access to State marriages) would then register for State benefits the same way “any two persons” would register. Ascribed or “de facto” pseudo marriages would cease to get any benefits if things are done correctly.

The difference, however, would be that those who are married are married within the meaning of that category. Over time the State could keep data on how “marriages” fare in relation to other categories and what difference religious marriages show in relation to the atheist and agnostic marriages (should this data be actually kept and not suppressed).

Imagine how useful and powerful such an arrangement could be over time?! Is it “against marriage” to get the State out it? Hardly. It might be the saving of marriage from the corruptions of the State.

That is why I, and a growing number of other people, am beginning to support removing marriage from the State.

Iain T. Benson©