Legal Equality: A public justice response to discrimination against gays and lesbians is an exploration of how Christians, as a people called to justice, mercy, and faithfulness, can respond to the difficult issue of discrimination against gays and lesbians. Drawing extensively on the principles and founding documents of Citizens for Public Justice, “Legal Equality” maps out a public justice approach that respects the values and beliefs as well as the rights and responsibilities of all members of society. We encourage you to use this document as a guide for your own thought and reflection or to get discussion going in your church, school or other community gathering.

What are the legal equality rights of same-gender-couples? What role must the government play in protecting and enforcing those rights? Is it the government’s responsibility to protect gays and lesbians from discrimination? If so, on what basis?

The issue of legal equality rights for homosexuals is a thorny one. The growing debate over the issue during the past few years and months has been, at best, challenging and helpful. At worst, however, it has proved harmful and deeply divisive. We have seen community groups torn apart by controversy around the issue. Political parties, too, are deeply divided about how to deal with it. But nowhere has the rift been more apparent than in the churches. The issue of equality rights crosses all ecclesiastical lines, dividing clergy and laity alike. Even the old distinctions between evangelical and mainline churches get blurred when this issue is addressed. Pitched battles are waged within church communities over the issue, and the list of casualties grows steadily.

Clearly, there is an urgent need for a healing presence in communities that have been fractured and polarized by the debate. For gays and lesbians in the church and outside of it, the status quo is simply no longer viable in fact, it probably never was. As we become increasingly aware of the presence of gay and lesbian people in our communities, churches and society at large, we must find new ways of acknowledging their presence in our public structures, policies, and attitudes.

In the pages that follow, the C.J.L. Foundation explores the public policy side of the gay rights debate. What do the principles of public justice have to offer a pluralistic society caught in the rocky political terrain of conflicting beliefs and life-perspectives? What injustices are currently faced by friends, neighbour s, family members, and colleagues who are homosexual, and how should these be addressed? What role should religious beliefs about homosexuality play in the pursuit of public justice for gays and lesbians?

Of course, we do not pretend to offer solutions to moral or theological dilemmas or to argue about personal or communal beliefs. Rather, we seek to establish what role such beliefs ought to have in the realm of public policy. As an organization committed to public justice for all, the C.J.L. Foundation attempts here to provide a healing public policy approach that does justice to the plurality of deeply held beliefs in our society while fully recognizing, affirming and protecting the civil and social rights of all members of Canadian society.

“Legal Equality” offers an innovative public policy proposal to overcome some of the current dilemmas regarding the legal equality rights and responsibilities of same- gender couples.

Public Justice in a Pluralistic Society

“Justice, reflecting the Word of God, demands that governments must recognize and deal justly with the diversity of beliefs, convictions, cultures and lifestyles that actually exist in its jurisdiction. Government may not be an agent for enforcing adherence to particular religious beliefs, whether Christian or otherwise. It must protect the ability of different groups, especially minorities, to live in conformity with their own convictions. It must allow for the expression of diversity of such convictions in churches and other confessional bodies, in economics, politics, education, cultural and personal life.” (IV, D)

Responsibilities and Rights

Of course, government alone is not responsible for the exercise of justice: each of us in our various capacities is called by God to work for justice and healing in our broken world. In order to carry out our responsibilities we require and are given certain rights. CPJ’s Charter of Social Rights and Responsibilities explains:

“All of us are responsible to God and our neighbour s for the lives we lead. We are called to care for our neighbour s, not to pass by any in need and to build up one another in each area of our lives. We are called to exercise our responsibility in many ways, and in particular forms in the different aspects of our lives personal, communal, corporate, institutional, and so forth. Our families, schools, churches, unions, corporations and governments should work towards a society in which the needy are cared for and enabled to exercise such responsibilities…” (A, 4)

“In order to exercise our responsibilities we require rights. God gives us rights, our own areas of freedom and decision, which must be recognized. These rights entitle us to protection from interference and domination so that we can live freely and happily. They are the foundations for us to exercise our responsibility; they give us room and resources so that we can support one another. We are called to exercise these rights to work for a responsible society and a responsible human community.” (A, 4)

We understand these rights to fit within three categories: political, civil, and social. “Political rights safeguard the ability of citizens to take part in and be responsible for the political direction of the country. Civil rights protect freedoms, such as freedom of speech, religion, association, and so forth, from interference and control by the state or by other bodies in society. Social rights ensure access to such essentials as adequate food, housing, employment, income, health care, and education.” (A, 4)

The government’s responsibility, rather, is to step in when the conduct of a member (or members) of society negatively affects the fundamental freedoms and legal equality rights of another member (or members) and their relationships. For example, we need to have legal sanctions against practices that are abusive of other individuals, groups or the environment practices that affect our public life together. Criminal laws and environmental protection legislation, therefore, are important contributions to public justice because they protect society against infringements upon the legal rights and responsibilities of all citizens.

When Rights Come into Conflict

What happens when an individual’s rights and freedoms are opposed to those of a particular community?

Difficult questions arise, of course, when an individual s social rights and freedoms come into conflict with a community s deeply held religious or other beliefs. After all, individuals are not the only ones with rights: communities (religious, political, or otherwise), too, have rights, including the right to set standards of membership based on their respective visions of life. The recognition of this right is necessary to enable communities to protect their own integrity.
So what happens when an individual s rights and freedoms are opposed to those of a particular community? Whose rights and freedoms are to be given primacy?

While no blanket statement or general rule could do justice to this difficult question, it is safe to assume that the interrelationship between the core task, function or mandate of a community and the individual right in question is of central importance in determining a just outcome. Few would expect that political parties such as the NDP or Reform should be forced to hire researchers who are ideologically opposed to the parties. Likewise, many would expect that the Catholic school system should be able to restrict their teacher hiring to those who share Catholic-based educational views. But what about a gay janitor in a Catholic hospital? Or a divorced secretary in a religious high school whose support community is opposed to divorce?

There are no easy answers to such questions. However, we should not allow the difficulty of these issues to deter us from taking healing steps where possible. The difficult questions call for our constructive engagement with neighbours and community groups in striving for mutually respectful ways to justice and equity.

Surprising Parallels

What do gay rights activists and religious school supporters have in common? More than you might expect.

While on the surface the issues being fought for might seem poles apart, both centre on the same thing: the fundamental freedoms and equality rights of citizens and institutions whose views and ways of life differ from the ideological or cultural mainstream.

The educational equality issue involves the constitutional rights of faith communities which demand the same public recognition and government funding of their independent and alternative schools currently being given to secular public schools and Catholic separate schools. The gay rights issue focuses largely on the public rights of same-gender couples who want legislation that entitles them to the same financial and social benefits (such as pension, health, tax and other benefits) and responsibilities as heterosexual couples.

Both groups base their public policy goals on the same provisions of the Canadian Charter of Rights and Freedoms section 15. This section guarantees the equal protection and equal benefit of the law, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Unfortunately, minority groups sometimes vigorously disagree with one another. For example, the Canadian Civil Liberties Association and others committed to limitless individual freedom and choice constantly oppose efforts by Christian and Jewish parents to obtain the government s financial support of their communal right to provide their children with the education of their religious choice. And there are some Christians who believe that Canada has been, is, or should be a Christian country, and insist that all children, without any regard for their parent’s different faiths or values, must participate in mandatory “Christian” instruction programs in the public schools.

What is often lacking in people s interpretations of the Charter is political respect for the public rights and freedoms of those who practice principles and lifestyles that differ from their own. Any majority-rule approach forces dissenting minorities to assimilate with the will of the majority, sometimes with severe consequences. (Think of the injustices done to Aboriginal peoples, many women and people of color.) We must never forget that we live in a democratic, pluralistic society where other people s faith convictions and human rights are equally entitled to legal protection and public expression, also in educational and social institutions. Canada is, among other good things, a unique community of diverse faith and value communities, communities which should enjoy equal rights and responsibilities in the public square.

Legislative recognition of a person’s or a group’s civil liberties does not necessarily imply endorsement of a certain philosophy of education, morality or lifestyle. Public acknowledgement of diverse faiths and values is doing public justice to societal realities realities that must not be ignored by citizens and governments concerned about the public rights and responsibilities of all people.

Recognizing Relationships

One of the most contentious and problematic issues in the gay rights debate is the question of “gay marriages” and the definition of the family. While the amendment of the Canadian Human Rights Act earlier in 1996 certainly inspired lively debate in Ottawa and around the country, it is the question of official recognition of homosexual relationships that provokes the loudest controversy among Christians and other Canadians.

Why should the government recognize homosexual relationships? To properly answer this question, we must first ask why and how the government currently recognizes heterosexual marriages and common-law relationships.

The government has traditionally viewed committed, long-term, trothful relationships that involve, among other things, living together and sharing financial and other resources, as a socio-economic benefit to society. It has therefore extended to heterosexual marriages (the most common such union) certain benefits in order to support these relationships.

But heterosexual marriages are not the only relationships that are committed, long-term, and trothful. Think of unmarried siblings who live together all their lives, or loving lesbian or gay life-partners: these relationships are often characterized by a profound sense of mutual commitment, or troth. The basic principles of public justice clearly demand that all these relationships including those between gay and lesbian partners are entitled to equal legal treatment, including the financial and social benefits normally available to heterosexual couples.

With a view to correcting the current inequities, Citizens for Public Justice has urged the federal government, in co-operation with other levels of government, to determine which pension, health, tax, and other benefits are currently available heterosexual married and common-law couples, families, homosexual couples and others. Once this has been established, CPJ suggests, the government should conduct public hearings to determine which rights and benefits should be available to various types of unions that are committed, long-term and trothful, including both heterosexual and homosexual partnerships.

Some people argue such that recognition of gay and lesbian relationships will lead to the erosion of the traditional family and the further decline of the ethic of commitment in our society. They are concerned that terms like “spouse,” “marriage,” and “family” will lose their value if they are put on equal legal footing with other types of relationships. Even many of those who support human rights protection for gays and lesbians fear that the traditional definition of and public respect for the family could potentially be diminished by this measure.

God invites us to engage in the service of justice. This is our personal and communal responsibility. To exercise it, God gives us the courage to let justice flow, to be God s human channel of shalom, and to let God s gracious Spirit direct our way of life, inspire our human relationships and shape the societal structures in which we live and work.
Jesus [reminds us] not to neglect “the more important matters of the law–justice, mercy and faithfulness.” (Matthew 23.23), because “peacemakers who sow in a spirit of peace raise a harvest of righteousness.” (James 3.18) Or, as the NEB translates it, “True justice is the harvest reaped by peacemakers from seeds sown in a spirit of peace.”

[From Let Justice Flow: Taking healing steps in a wounded world, by Gerald Vandezande, pp.4-5]

Registered Domestic Partnerships

Given these concerns, CPJ has proposed that a new legal category of relationship be established alongside marriage, which could be called “Registered Domestic Partnerships.” This new category would be open to heterosexual and homosexual couples alike, and, for public policy purposes, would be legally equivalent to marriage.

Under this proposal, any relationship, whether gay or straight, relatives, perhaps even friends, would be entitled to the same pension, health, tax and other benefits as married couples, provided they enter into a public declaration of mutual commitment. This would meet the test of fairness, doing justice to the variety of situations in which two people live together long-term in a relationship of mutual dependence and care.

Specifically, CPJ is advocating the following public policy alternatives:

  1. The question of adoption

Citizens for Public Justice is still examining the implications of the public policy approach explained above for the issue of adoption of children by same-gender couples. At this point, however, CPJ does recognize that a distinction must be made between the legal right to apply to adopt a child and any notion of an automatic entitlement to adopt a child. All people (regardless of sexual orientation or marital status) already have the legal right to apply to adopt. However, no person has an automatic entitlement to adopt. It is, therefore, essential that government, together with children said services and other agencies concerned with adoption processes, continue to use clear child-placement policies with comprehensive criteria that focus first on the children s rights, interests and needs, secondly on the right of the birth parent(s) to indicate the character of the adoptive home, and thirdly on the adoptive parents rights, interests and needs. Such policies already exist and should be maintained and perhaps strengthened.

  1. Registered domestic partnerships

The establishment of an additional legal category of registered domestic partnerships might be an equitable legislative way of ensuring that all Canadians are equally entitled to the just protection of their civil rights and freedoms and to the same pension and other social benefits now available to married couples. We could use terms such as partner benefits. This category would be open to heterosexual and homosexual couples alike.

  1. Public declarations of mutual commitment

Committed relationships that seek entitlement to public policy benefits need public declaration. Heterosexual marriage requires public declaration of troth before witnesses. Domestic partnerships should similarly be entered into through some form of Public Declaration of Mutual Commitment.

  1. Equal rights

The legal rights and responsibilities of homosexual (or heterosexual) persons who officially enter into a registered domestic partnership, and who would be known as partners, should be the same as the legal rights and responsibilities of heterosexual persons who officially enter into a marriage, who are known as spouses (husband and wife).

  1. Marriage

In respect for the traditions of Canadian society, the established terms marriage and spouse should be reserved for heterosexual relationships. These terms should not be broadened to include any other types of relationships.

  1. Legal clarity

To facilitate these expanded social policies, federal and provincial laws and policies would have to include clear definitions as to (1) who are entitled to register their marriage or domestic partnership; (2) what their respective legal rights and responsibilities are; and (3) how our courts, governments, community agencies and the public at large should publicly respect these citizens and their formal relationships.

Political vs. Theological

Recognizing the distinctions

The belief that homosexuality is immoral as a sexual practice is not sufficient to produce the conclusion that government should ban homosexuality, even if a majority of citizens wants it banned. Likewise, the belief that homosexuality is morally legitimate is not sufficient to produce the conclusion that government should break down every barrier in society that stands in the way of homosexual practice. The missing link in both arguments is the intermediate distinction (differentiation) of the public, civil domain, on the one hand, from institutions and communities such as families, churches, schools, and friendships on the other…

The political/legal arena is one in which government’s … jurisdiction obligates it to protect every citizen fairly and equitably under its laws. This is not the jurisdiction of parents over children, of church law over ecclesiastical communicants, of teachers and administrators over students, or of marriage partners or friends over one another. Just laws in the political/legal arena should treat all citizens fairly, and this entails doing justice to the spheres of nongovernmental life in which those citizens exercise diverse responsibilities. Therefore, just as…government ought not to rule by civil law on theological matters as if it had the jurisdictional competence of a church, and…ought not to rule by civil law on all curricular affairs of education as if it had the jurisdictional competence of a school, so…government ought not to rule on sexual relationships as if it had the jurisdictional competence of partners in a marriage or of friends in a relationship. Rather, government should rule with the authority proper to its jurisdictional competence as a civil government.

[From Recharging the American Experiment: Principled Pluralism for Genuine Civic Community, by James W. Skillen (Grand Rapids, MI: Baker Books, 1994), pp. 76-77.]

Justice for all

CPJ has consistently advocated that public justice for all persons and communities should be practiced within a framework of Canadian law and public policy that equitably protects all and discriminates against none. All Canadians are entitled to legal equality and fair public treatment, to equal protection and equal benefit of the law, without discrimination based on irrelevant criteria. It is only just that equal protection and equal benefit be extended to all Canadians.

This extension of legal rights, however, must include the public recognition of different social relationships which would be accompanied by appropriate legal definitions outlining both the rights and the responsibilities (the benefits and the burdens) of the spouses and partners involved in a “marriage” or a “registered domestic partnership.”

The Human Rights Act

In the spring of 1996, the federal government moved to outlaw discrimination against gays and lesbians by amending federal human rights legislation. Bill C-33, An Act to Amend the Canadian Human Rights Act, added sexual orientation to the list of grounds on which federal agencies and federally-regulated employers (such as banks) are prohibited to discriminate in the areas of employment and the provision of goods and services. The Act also prohibits discrimination on the basis of race, national or ethnic origin, color, religion, sex, or disability.

By adding sexual orientation to the Canadian Human Rights Act, the federal government was bringing itself in line with recent court decisions and catching up with most of the provinces. Seven provinces and the Yukon Territory had already made discrimination against gays and lesbians illegal.

In a statement to the House of Commons Standing Committee on Human Rights in May 1996, CPJ supported the human rights act amendment, reasoning that principled, non-discriminatory pluralism involves the public recognition that different people and communities have different beliefs and views. Consequently, all people should have the legal right and freedom to live in different ways, no matter how deeply we may agree or disagree on religious or ideological grounds with the different values or lifestyles of our neighbours… “All Canadians, including minorities, are entitled to legal equality, including structural opportunity, and to fair public treatment; to equal protection and equal benefit of the law, without discrimination based on irrelevant criteria…”

At the same time, CPJ urged the government to continue to protect the right of employers in certain cases to “discriminate” on the basis of a bona fide occupational requirement. For example, CPJ argued, political and religious organizations should continue to have the legal right to set standards of employment and membership based on their respective commitments and visions of life, to protect their own identity and integrity. (See also Pluralism and public justice, p. 3.)

For Further Reading:

Citizens for Public Justice, A Public Justice Approach to Legal Equality Rights for Gay and Lesbian Neighbours (public policy position paper). Toronto: CPJ, 1996. $5.00*

Citizens for Public Justice, Equality Rights Briefing Kit (includes copies of CPJ s position paper, articles, government submissions and a press release, as well as press clippings about CPJ s position). Toronto: CPJ, 1996. $10.00*

Gerald Vandezande, Let Justice Flow! Taking Healing Steps in a Wounded World. Toronto: C.J.L. Foundation, 1995. $4.00*

* Available from CPJ. To order, call 1-800-667-8046, or email CPJ at cpj@cpj.ca
James W. Skillen, Recharging the American Experiment: Principled Pluralism for Genuine Civic Community. Grand Rapids, MI: Baker Books, 1994.

Political Discernment Exercise

This exercise in political discernment can be done on your own or in a group.
Pre-exercise reading: this document
Time required for exercise: 2 hours.

You have been asked to advise the federal Minister of Justice regarding including “sexual orientation” in the Canadian Human Rights Act and possible legislation that would recognize the legal right of homosexual couples to equal benefits under collective agreements and other federal legislation.

  1. Which general public justice criteria would you apply as you give public justice policy advice to the Minister?
  2. What does love for our homosexual neighbour require when dealing with public policy issues? Which specific public justice criteria would you apply:
    a. governing the recognition of the relationships of heterosexual and homosexual couples?
    b. governing the extension and regulation of spousal benefits, rights, and responsibilities to homosexual couples?
  3. It is clearly not right to discriminate (in law and public policy) against a neighbour on the basis of an irrelevant criterion. Is sexual orientation a relevant or irrelevant criterion in the issue of spousal benefits? What are the relevant criteria for the determination of entitlement to spousal benefits? Mutual commitment? Length of time together? Sexual relationship? Official registration? Theological position?
  4. Many people, including Christians, Christian churches and other faith- and value- communities, oppose the legal protection for homosexuals under the Canadian Human Rights Act and/or their claims for spousal benefits. What would be your public justice concerns in response to these claims and counter-claims?
  5. What course of legislative and political action would you recommend to the Minister regarding the legal protection of homosexuals and/or the provision of spousal benefits?
  6. What kind of educational and political action initiatives do you think ought to be undertaken? What could be done formally? What could be done informally?