Marriage Act In Canada
After a series of court rulings and political mobilization by LGBTQ activists to change the views of the public and opinion makers, Ottawa finally in 2005 passed Bill C-38, the Civil Marriage Act, which changed the federal definition of marriage from being limited to opposite sex couples to any two people regardless of gender, legalizing same-sex marriages. This change came to be due to many reasons such as certain important landmark cases which set precedents or even due to the public becoming more accepting of homosexuality as time progressed and activists and importance figures publicly accepting that they are gay which helps change a lot of Canadian culture and society. The two institutionalism I have decided to use to explain the change in public policy regarding the Marriage Act are historical institutionalism and sociological institutionalism.
According to the historical institutionalism, policies can be changed but can be very hard to change. According to historical institutionalism, institutions are path dependent and so once you have started doing something a certain way, or if a certain public policy is implemented, it becomes very hard to change your way or the institution 1later on. Essentially, once you start doing something a certain way it is much harder to change the way you do it in the future, especially after a long time has passed. On the other hand, according to sociological institutionalism, rules, norms, and structures are structurally constructed and they use the normative approach to study political institutions.
The line between institutions and culture is somewhat blurred. New policies are created according to the social culture and to enhance social legitimacy of organizations. This institutionalism revolves around cultural norms. Breaking a cultural norm created problems and will get backlashed. Certain things become appropriate or inappropriate over a time. This leaves a lot of room for change for institutions to change with the changing cultural normAs mentioned above, when looking at historical institutionalism, it is very difficult to change a public policy after a lot of time has passed but it is definitely not impossible. When looking at how the change to the Marriage Act came to be using historical institutionalism, we have to look at how wrong homosexuality was considered in the past. In 1965, homosexuals were charged under the criminal act and so therefore regulated by the federal government. In 1965, the Supreme Court of Canada labelled Everett Klippert a “dangerous sexual offender” after he was thrown in jail for “gross indecency” after he admitted to being gay (Klippert v. The Queen, 1967 SCR 822). In 1967 he was sent to jail indefinitely as psychologists claimed he was unlikely to change.
In December 1969. Pierre Trudeau, who was the Justice Minister at that time, made amendments to the Criminal code to decriminalize homosexuality in Canada. Now men could like, Klippert would not be sent to jail for homosexuality. Trudeau emphasized the importance of individual freedom claimed that there’s “no place for the state in the bedrooms of the nation” (Rau, 2015). He clarified that the state would only be involved if this becomes public or a minor is related (Rau, 2015). In 1969, Bill C-150 came into force, the Criminal Law Amendment Act, and homosexuality was finally decriminalized in Canada and in mid 1971, Klippert was finally released. This was one big step towards policy change and legalization of same-sex marriages in Canada. In 1977, Quebec was the first province to include sexual orientation in its Human Rights Code and pass a gay civil rights law. This made it illegal to discriminate against gays and by 2001 all provinces in Canada, except Alberta, Prince Edward Island and the Northwest Territories, also took this big step forward. People were starting to accept homosexuality. This was another big step to normalize homosexuality in Canada. Another big case which helped towards getting homosexuals equal rights in Canada was Egan v. Canada. This was a landmark case which established that under Section 15 of the Canadian Charter of Rights and Freedoms, one cannot be discriminated against due to their sexual orientation. But in the SCC, the majority held that the Old Age security Act did not violate Section 15 of the Charter because same-sex couples were excluded from the definition of spouse (Egan v. Canada, 1995 SCR 513). The definition of marriage was still the same even if homosexuality was decriminalized.
According to the historical institutionalism, it is difficult to change public policy after a lot of time has passed and this was why it was difficult to include and recognize equal rights for same-sex couples in every situation. But slowly the Supreme Court was setting precedents that would lead to more change. In the case of Halpern et al v. Attorney General of Canada et al. in 2003, same-sex couples filed for a civil marriage license which was denied and then it later on went to the Divisional Court which held that the legal definition of marriage was infringing on the equality rights of same-sex couples and was discriminatory (Reference re Same-Sex Marriage, 2004 SCC 79). General Attorney of Canada appealed to the Court of Appeal which the couples cross-appealed. Egan v. Canada, 1995 already established that discrimination due to sexual orientation was prohibited under Section 15 of the Canadian Charter or Rights and Freedoms but there was still reluctance as same-sex marriage had never been allowed. It was difficult to just accept the possibility of this regardless of homosexuality become decriminalized. In the end, the Ontario Court of Appeal ruled in favor of Halpern ordering Toronto City Hall to issue marriage licenses to same-sex couples. This was a huge step forward and though it was not for all of Canada, this was one Province, and many would soon follow. Soon by 2005, many Provinces joined Ontario and then finally the public policy was changed to make it truly equal. Sociological institutionalism is much different from historical institutionalism. As mentioned above, according to this institutionalism public policy depends on the cultural norms. When looking at the changes to the marriage Act through the lens of sociological institutionalism, we can consider the rise in the LGBTQ activists to change public view on homosexuality.
As Pierre Trudeau decriminalized homosexuality in 1967, it became easier for people hiding their sexuality to come out. But just because it was decriminalized does not mean it was really accepted in society. In fact, homosexuals were clearly discriminated against everywhere. It was decriminalized because they saw no harm in homosexuality as it was not harming anyone as long as it was between two consenting adults. It was no longer seen as a mental illness and the society was moving away from that thought so it made sense for it to be decriminalized. But society was not as accepting as it was today. The definition of marriage remained the same which was marriage just between a man and women. But slowly there were major strides towards social acceptance and which led to many formal equalities as well. There were a few Gay liberation movements The first Gay march in Canada first took place in Ottawa in 1971 to end all state discrimination against gays and lesbians (Rau, 2015). This raised more awareness and so more people came out to accept their sexuality. They knew there were others with the same preferences and it is always easier to stand with a large group than alone. These marches have gotten success in everything from health care to the right to adopt and equality in almost every matter (Rau, 2015). This also led Canada to become the fourth country in the world to legalize same-sex marriages in 2005. But all this couldn’t stop the harassment they were facing especially by police which is also resulted in what is known as Canada’s Stonewall. But these raids that took place in 1981 also started the Gay Pride Day in Toronto, which was later endorsed by Toronto starting 1991, which attract many participants now whether a part of the LGBTQ community or not.
The Gay Pride march and day really changes the norm in society as it started becoming more normalized. People started to accept more as more people started to embrace their sexuality. The key feature of sociological institutionalism is that policies change according societal norms. As the Supreme Court accepted that sexual orientation would also be included under Section 15 of the Canadian Charter of Rights and Freedoms, it started becoming more widely accepted as it made its way into other human rights regulations as well. As people started to understand that everyone deserved equal rights, it became easier for them to get some public acceptance. In early 1988, Svend Robinson, a then MP in British Columbia publicly came out and this was a big step as he was a public official (Rau, 2015). This helped many other elected officials and still continues to help them face any harassment. At that time of course, it was new and difficult but slowly other officials followed his lead. This in a way also could help the normal public. They didn’t have it as hard as this guy of course as they wouldn’t need to publicly announce it and it was inspiration for many.
Many other gay and lesbian politicians started to openly come out. Due to many legal victories in Canada and change in many rights, there was a lot of more people coming out and accepting their sexuality and coming out in the public to show their pride. These changes showed how more accepting the Canadian society and culture was becoming. As society became more accepting there more rulings in favor of same-sex couples. In the case of M v. H where the case was regarding common-law relationships and same-sex couples be given the same rights as opposite sex couples, which granted same-sex couples to be given the same rights in common-law relationships (M v. H, 1999 SCR 3). Acceptance and the new society and culture of Canadian helped the LGBTQ community to gain more rights. Slowly many provinces started to accept same-sex marriages as the Charter guaranteed equal rights for everyone and by 2005 Nunavut, Northern Territories, Alberta and Pew were the only places left that didn’t allow same-sex marriages but later on that year the passing of Bill C-38 make it a federal law and Canada become one of the few countries in the world that allows same-sex marriages. It was not one case that specifically helped, but genuinely the publics slow and steady acceptance which helped Canada become accepting of same-sex couples. Activists played a huge role in fighting for equality rights. Societies normalization of same-sex couples helped the state to change public policy. A lot has changed since the time when homosexuality first become decriminalized. People no longer thought that homosexuality was a mental illness.
As the public’s opinion changed on the subject, the more people fought for equal rights which led to more changes in public policy. Both of the institutionalism that I chose were very different. While historical institutionalism focuses on that the reason it took so long and was so hard to change this public policy was because it is very hard to change policies once they have been set and the longer you wait the harder it becomes to change it. But, on the other sociological institutionalism focuses on societal changes. Norms and societal changes help change policies. As homosexuality became more normalized in society and there was more acceptance, it became part of Canadas culture. Therefore, the policy changed because of the changing norms and the country’s changing beliefs. Through the historical institutionalism lens, it took a lot of time and very hard for this public policy to change because it was such an old policy and there were a lot of cases and SCC rulings that set precedents. The first big step was decriminalizing homosexuality and accepting that took a lot of time because any openly gay man faced a lot of harassment, even from the police. They faced harassment and discrimination in many ways. Then, next big step was getting equal rights which came from the addition of ‘sexual orientation’ under Section 15.
There were many small steps before the actual change in policy. According to this institutionalism, the older the institution that harder it is for it to change. Since homosexuality was always considered wrong, especially morally, it took a lot of time and many steps for it to change because a lot of rules and regulations were implemented against the homosexuals and to reverse all those took a lot of time. Through the sociological institutionalism lens, institutions change according to new norms and societal cultures. For the change in public policy, it was first and foremost necessary for the societies views on this subject to change. This came about slowly as first there was decriminalization of homosexuality. This took a while for people to come in terms with and understand. Activists and certain marches and rallies helped change a lot of minds and people slowly became more accepting and the topic was being normalized. As this became part of Canadas culture and society, the norms were changing and the change in this public policy came quite fast.
