Guarding gay and lesbian rights (The Toronto Star)

Guarding gay and lesbian rights

Guarding gay and lesbian rights The Toronto Star

The Toronto Star

An Ontario court made history this week by granting a lesbian couple what may be the first same-sex divorce in the world. What also makes this case notable is that it had to be brought at all.

Gays and lesbians have had to turn repeatedly to the courts to eke out equality rights because politicians have not had the courage to address them. But after they won the right to marry last summer in Ontario, the right to part ways should not, logically, have been far behind.

The logical thing did not happen here. The provincial appeal court that struck down the heterosexual definition of "spouse" in the marriage law did not do the same for the Divorce Act. Federal Justice Minister Irwin Cotler, who conceded this summer that the divorce law was unconstitutional, took no steps to amend it.

That left same-sex couples who had thought better of their decision to walk down the aisle in an absurd legal limbo: they could get married but not divorced. Challenging the law in court was their only option.

"It's very consistent with gay and lesbian equality claims in this country that the courts do all the heavy lifting," Martha McCarthy, a lawyer who represented one of the divorcing women, noted this week.

The case law bears her out. Since 1995, when the Supreme Court of Canada decided the Charter of Rights prohibits discrimination on the basis of sexual orientation, gays and lesbians have won adoption, spousal support and marriage rights through the courts, not legislatures.

The reasons are clearly political. Canadians are deeply divided on gay and lesbian rights. Homophobia is one of the last acceptable prejudices. Even liberal-minded politicians are wary of publicly backing such rights for fear it will hurt them in the next election. It is easier for legislators to let the courts strike down laws that violate the Charter of Rights than to take a politically damaging stand.

This is particularly true of extending to same-sex couples the right to marry, a tradition that carries centuries of cultural, moral and religious meaning — and the right to divorce.

To be fair, the federal government found itself in a dilemma. Courts in Ontario, British Columbia, Quebec and the Yukon have allowed gays and lesbians to marry. Ottawa is still waiting for the Supreme Court of Canada to weigh in this fall on proposed same-sex marriage legislation that the government drafted after provincial courts forced its hand. To some, allowing gays and lesbians to divorce would have prematurely legitimized same-sex marriage through the back door.

Canadian politicians also have had few models to follow. Few places in the world allow gays and lesbians to marry, let alone divorce.

But forcing a same-sex couple to ask a court to strike down a law the government has already agreed is unconstitutional shows just how unwilling many politicians are to fight for their gay and lesbian constituents. Like many previous cases on gay and lesbian rights, it also placed onerous costs and unnecessary emotional strain on the couple and is an affront to their human dignity.

The courts have courageously and correctly extended to gays and lesbians basic human rights that heterosexuals take for granted. But their decisions are often blunt tools that address the issue at hand and leave to politicians the task of fine-tuning other legislation that may be affected. The reluctance of politicians to tackle these issues has left a patchwork of inconsistent court rulings across the country, an untenable situation that undermines the very notion of a human right — that it applies to all people.

That's why same-sex couples can marry in Toronto but not in Calgary. That's also why it is still uncertain if unhappy same-sex couples who wed outside Ontario will be granted divorces unless they jump through the same legal hoops in their own provinces.

Those who oppose expanding same-sex rights will argue these variations are the price we pay for "judicial activism." Yet courts have properly dragged Canadian society out of the dark ages in the past. The British Privy Council — at the time, Canada's court of last resort — and not Parliament declared in 1929 that women were "persons," a ruling few would now dispute.

Equality by court ruling is still equality. But legislators must take greater responsibility for the rights and well-being of all their constituents, no matter who they are. Just like other Canadians, gays and lesbians hold jobs, own property, raise children, get old, love and are loved. Their rights are a matter of fundamental human dignity and politicians must do better.

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Ann Perry is a member of the Star's editorial board.