Joanna Radbord


Why was Canada the first country to celebrate legal marriage between two persons of the same sex? In this paper, I discuss two reasons: first, our functional approach to family law; and second, our substantive equality jurisprudence. By a functional approach to family, I mean that we give significant weight to the needs of persons living within families, rather than preoccupy ourselves with the formalities of whether those persons have marriage certificates. We seek to recognize and support the social, economic and emotional interdependencies that arise in all intimate relationships, married or not, different-sex or same-sex. This functional approach recognizes that family is forged over time, in love and labour, not in contract, and that all families may advance true family values. Within families, we are not liberal individualistic selves, atomistic, self-interested bargainers who are able to negotiate freely and make rational choices. We are tangled in webs of interrelatedness, marked by care, passion, sacrifice and trust. Simple justice requires that the law support the needs of all families, in all their forms.

The second reason Canada is a human rights leader in recognizing and affirming the relationships of same-sex couples is our developed articulation of a substantive approach to equality. Our equality aspirations compel an expansive, functional approach to family that resists definitional boundaries grounded in biology, tradition or religion. Instead, substantive equality challenges existing categories, recognizing that these may reflect and reinforce relations of dominance. To challenge discrimination, it is necessary to recognize the primacy of personal stories, to understand the lived effects of the law from the perspective of those marginalized by it. Our rejection of formalistic notions of equality, at least our intention to do so, is a promising avenue for improving the material conditions of people's lives through the legal system. A functional framework and substantive equality approach together require that family law serve all our families well, meeting their needs with equal dignity and respect. It requires equal marriage for same-sex couples.

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