Thursday, September 23, 2004

Judge is challenging couple-ism in Canada

An editorial published today in the National Post suggests that the next wave of discrimination litigation, and public policy changes, in Canada may be an attack on preferences for sexually intimate couples to the exclusion of platonic relationships by singles.

Here is what the editorial had to say:

In recent years, marriage has undergone a radical transformation: The increasing prevalence of common-law cohabitation has made marriage optional for many couples. At the same time, the establishment of gay marriage has broadened the institution in a manner that previous generations would have found unthinkable. Throughout it all, social critics have warned that this erosion of traditional norms will lead us down a slippery slope toward a wholesale deconstruction of family life. For better or worse, these critics have been proven right.

As reported by the Post yesterday, a Federal Court of Appeal justice has submitted a complaint to the Judicial Compensation and Benefits Commission arguing that she and other single public servants are experiencing discrimination based on their marital status. She points out, correctly, that the government does not grant single employees the same benefits extended to their colleagues who happen to co-habitate with sexual partners.

As easy as it would be to lament this latest assault on the special status of marriage, it is impossible to deny that the judge has a strong case. There is no way around the fact that the government treats marrieds and singles differently, allowing the former group (along with common-law couples) to name their partners as survivors who will receive half their pensions when they die, and to register their partners in health and dental plans. Singles don't have these options.

Of course, the government has the right to discriminate in the furtherance of public policy objectives. But what is the objective behind a policy that favours couples? Encouraging strong families? Extending a humane safety net to economically dependent household members? Protecting children?

Whichever of these theories one embraces, the judge's claim cannot be easily dismissed. A single woman such as herself could, for example, choose to enter into an economic partnership with a friend, or move in with an ailing parent, or adopt a child and share parenting responsibilities with an unmarried sibling. In each case, the social stakes would be similar -- identical, some would say -- to those implicated in the case of a traditional couple.

Indeed, it will be interesting to see how the government defends its policies against the judge's claims -- or if it will have any coherent defence at all: Society is advancing faster than either our laws or the officials charged with enforcing them.

The reason our policies are outdated is obvious. For centuries it was assumed that society's basic building blocks were heterosexual, nuclear households financed by single-wage earners. But this norm has evaporated in recent decades thanks to the social acceptance of divorce, the entry of women into the work force, common-law relationships and gay unions. To the extent our government has kept up with these changes, it has often been through reactive, legal mechanisms -- that is, by responding to lawsuits and charges of discrimination, such as the one now at issue.

The judge's complaint shows the need for a wholesale rethinking of state social policy -- in particular the question of how our government awards financial benefits. While the government has a right to discriminate in the way it doles out perks, such discrimination must at least be justified. If no such justification can be offered, Ottawa must give everyone -- singles and couples alike -- the same set of benefits.