SAME SEX MARRIAGE RIGHTS

1. SAME SEX MARRIAGE RIGHTS David Peters SOC 5810 – Fall, 2012

2. Same Sex Marriage Rights

3. Same Sex Relationships in History • Greece- tradition of pederasty • Athens • Sparta 2. Rome • Hadrian & Antinous • Nero • Elagabalus • Calligula and the Equine • Sioux and Cheyenne Indians (berdaches or “Two Spirits”) documented in 150 tribes

4. Goodridgevs. Department of Public Health per Chief Judge Margaret Marshall “Marriage is an important social institution…[that]… -Enhances the welfare of the community… -bestows enormous private and social advantages… -grants valuable property rights”

5. [Marriage]…”is an association that promotes a way of life, not causes; a harmony in living, not political faiths, a bilateral loyalty, not commercial or social projects.” Quoting Griswold vs. Connecticut

6. Judicial Review • Strict Scrutiny- suspect class or fundamental right • Intermediate Scrutiny- Gender • Rational Basis- everything else, default position. Decreasing standard of review means it is HARDER to overturn statute

7. Rational Basis Test “statute must have a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.” Rationally related to a legitimate state interest.

8. Strict Scrutiny Test If a statute implicates a fundamental right or uses a suspect classification: “Close relationship to a compelling state interest narrowly tailored and using the least restrictive means to achieve the state purpose”

9. Which one should the court use? Which is the harder standard to prove? Does it matter if the court picks strict scrutiny if it decides the statute cannot survive rational basis scrutiny?

10. Held: There is no rational relationship to the goals of the government in banning the issuance of marriage licenses to same sex partners.

12. What is the government rationalization for the ban? Marriage is: • About procreation • Raising children • Good for society

13. How does limiting the institution to “opposite sex partners” further the stated goals? • Procreation--?? • Raising children--?? • Good for orderly society--??

14. Canadian Constitutional Case Egan v. Canada By: Chris Stephens

15. Background/Facts When John Nesbit turned 65, he applied for spousal allowance with the department of National Health and Welfare (NHW). Old Age Security(OAS) is a type of government funding that is given to spouses, age 60-65 who’s income falls bellow a fixed amount. Nesbit was denied due to Section 2 of the OAS which excluded homosexuals within the definition of spouses.

16. Issue Is Section 2 of the Old Age Security Act Which defines spouses only to include heterosexual couples, discriminatory, and therefore unconstitutional and in violation of John Nesbit’s rights prescribed in Section 15(1) of the Canadian Charter of Rights and Freedoms?

17. Rule Canadian Charter of Rights and Freedoms (CCRF) Section 1 states: The CCRF guarantees the rights and freedoms set out in the subject only to such reasonable limits prescribed by Law as can be demonstrably justified in a free democratic society. Section 15(1) states: Every individual is equal before and under the Law and has the right to equal protection and equal benefits of the Law without discrimination and, in particular, without discrimination based on race, national /ethnic origin, religion, sex, age, mental or physical disability. Old Age Security Act: Section 2 States: ‘Spouses’ – defined as “ a person of the opposite sex who is living with that person, for more then a year and have publicly represented themselves as husband and wife.

18. Procedural Posture Federal Court Trial Division – case was dismissed because Nesbit was not a women. The Federal Court of Appeal – upheld the decision saying that government entitlement was expressed in terms of spousal status. The Supreme Court of Canada – OAS definition of spouse offends Section 15(1), but is justified under Section 1.

19. Analysis S.15(1) – REVIEW TO SEE IF RIGHTS WERE INFRINGED Relevance Approach – Is the distinction relevant to the intention of the Law? If so then it cannot be considered discrimination. Distinction, Disadvantaged and Group Approach – Does the Law draw a distinction, based on the personal characteristics, between the claimant and others? If yes then considered discrimination when a) distinction listed in Section 15(1) or analogous, b) distinction imposes disadvantage. Subjective – Objective Approach – In order to determine if discrimination is present one must consider the subjective view of the effected group.

20. Analysis S.1 – IS THE LAW REASONABLY JUSTIFIED? Justified Flexibility in extending social benefits Cost (approximately 12-37 million per year, although represents only 2% increase) Not Justified Aim of OAS was to alleviate poverty in elderly households Charter has no value if the government is able uphold legislation that selectively allocates resources.

21. Conclusion 4-1-4 4 Justices (Chief Justice Lamer, Justice La Forest, Gontnier and Major) concluded that legislation was not discriminatory because the distinction was relevant to the objective of the legislation. Chief Justice Lamer 4 Justices( Cory, Lacobucchi, McLachlin and L’Heureux-Dubé) concluded that the right to equality was infringed and that the infringement could not be justified. Justice Sophinka concluded that legislation was discriminatory but it was justified given the novelty of recognizing same sex unions and that government should be given an incremental process when extending social benefits. L’Heureux-Dubé 5/9 upheld legislation as constitutional Justice Sophinka

22. Social Significance • Sexual orientation considered analogous to the list is Section 15(1). • Government had to revise social welfare programs to include all citizens. • The definition of discrimination was broadened to include subjective opinions. • Led to Civil Marriage Act (2005) • Led to subsequent same-sex benefits within Immigration, Military and Canadian Pension Plan (CPP). • Equality of all people is a main concern in Canada.

23. The End THANK YOU