Submission to the House of Commons Committee on Justice and Human Rights

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Submission of the Vanier Institute of the Family

to the House of Commons Committee on Justice & Human Rights in response to "MARRIAGE AND LEGAL RECOGNITION OF SAME-SEX UNIONS: A DISCUSSION PAPER"

by Robert Glossop, Ph.D.
Executive Director of Programs
The Vanier Institute of the Family
February 18, 2003

On behalf of the Vanier Institute of the Family's Board of Directors, we thank you for this opportunity to contribute, in a small way, to the important work that you have been asked by the Minister of Justice to undertake on behalf of Canadians.

In order to do so, we begin by sharing with you copies of a discussion paper recently commissioned and published by the Vanier Institute of the Family on the topic of Same-Sex Couples and Same-Sex-Parent Families that was researched and written by Dr. Anne-Marie Ambert of York University.¹ Dr. Ambert is well-known as one of North America's leading researchers on family trends generally. She has written extensively on marriage, conjugal unions, separation and divorce, and child development. In the paper she has prepared for us, she has undertaken to review what the available empirical research tells us about:

The numbers of gay and lesbian couples;
How homosexual men and women enter into conjugal unions;
How conjugal relationships between lesbians and gays differ from and are similar to the conjugal relationships between heterosexual partners;
The extent and nature of conflict within gay and lesbian unions;
Sexual fidelity within same-sex unions;
How homosexual couples raise children; and finally,
The consequences for children being raised by same-sex couples.

We would suggest to you that our review of the available evidence about same-sex couples and same-sex couples raising children provides a necessary foundation for a reasoned consideration of an important question you have been asked to consider; namely, would same-sex marriage devalue the institution of marriage?

We must emphasize, as Ambert herself does, that research into these questions is embryonic and the few studies that do exist to guide us are often flawed and limited. They are often based on small and/or non-representative populations of respondents. Too often, the studies have failed to control for the influence of important sociological or psychological factors. And, there are few studies that have followed same-sex couples living in long-term relationships. In acknowledging that the research that is available to inform us is often incomplete, inadequate and exploratory, we need to appreciate that this can hardly be held against same-sex couples themselves nor their claims to be treated fairly as citizens. In point of fact, the research remains, to this point in time, inadequate because:

Until recently, same-sex couples have lived their lives in the shadows of our culture, often fearful of rejection, stereotypical categorization, or victimization;

The population of same-sex couples is relatively small and it is difficult to assemble a large and representative sample. This being said, the contention that some would make that the population of gays and lesbians is so small that they do not warrant the attention and consideration they have sought is dangerously misguided in a democratic and just society that measures itself not just by reference to the majority but, equally, by reference to how it respects each and every individual citizen regardless of their heritage, religion, abilities and disabilities, gender, race, or, indeed, sexual orientation. Surely, history has taught us that we cannot distribute justice or fairness on the basis of numbers.

So, let's look quickly at what Dr. Ambert found when she immersed herself in the research literature.

Homosexual men and women represent a quite small minority within the overall population. As previously noted, we make this point not to minimize nor diminish their legitimate claims as citizens. It is, however, from a strictly instrumental point of view, important to acknowledge that the numbers of gays and lesbians representing, according to the most reliable estimates, somewhere between 2%-5% of males and 1% to 3.5% of females are small. As such, the argument that claims to equal recognition and entitlement would impose a significant burden on the public purse is ungrounded.

Thanks to Statistics Canada, we can, for the first time, estimate with considerable confidence the number of gay and lesbian couples living in Canada. According to the 2001 census, there were 34,200 couples which identified themselves as either gay or lesbian. This number represents 0.5% of all couples in Canada. Slightly more than one-half of these couples (55%) were male same-sex couples. Of the approximately, 15,200 female same-sex couples, about 2,280 (or 15%) had children living with them. In comparison, only 3% of male same-sex couples (or 570 couples) were raising children.
If anything, these numbers would tend to underestimate the number of same-sex couples and same-sex couples raising children because not all would necessarily have chosen to respond candidly to the census question. Also, not included in these estimates are those lesbians or gays who are single and are raising children. Nor do we know, at this time, how many lesbians and gays may be non-custodial parents.
All this being said, the Canadian estimates are roughly comparable to those from other similar jurisdictions like the United States and New Zealand and provide a reasonable basis to guide us in this discussion.

When we turn our attention away from simply trying to count the numbers of same-sex couples toward the more important questions about how lesbian and gay couples live their lives, we are (as acknowledged) relying upon a very limited body of knowledge. A review of the literature, as it exists, leads to the following observations:
- There is often a more egalitarian division of labour between gay and lesbian partners than between heterosexual partners;
- Lesbian couples often report greater degrees of satisfaction and more intimacy, autonomy and equality than do married couples as well as higher levels of positive problem solving;
- Despite the fact that both gay and lesbian couples experience less social approval and support for their relationships from their own families and the larger community, the large majority of those lesbian and gay couples who survived the first 7 to 10 years of their relationship (which are the most unstable years for these couples as well as for married and cohabiting couples generally) were still together five years later. The inference here is that lesbian and gay relationships are often stable;
- Ambert's review of the literature concerning fidelity within homosexual and heterosexual couples leads her to the following conclusions: 1) within homosexual unions, men are overwhelmingly non-monogamous and women are largely monogamous; 2) heterosexual couples who cohabit are far less monogamous than married ones. The inference here is that the proportion of gay couples who might choose to commit themselves to marriage which is, first and foremost, a commitment to a permanent and monogamous relationship is much smaller than the total number of gay couples. We would point out here an interesting question yet to be answered by the literature; namely, given that cohabiting couples—homosexual or heterosexual—are less monogamous than married couples and given that, to date, gay and lesbian couples have only been able to cohabit, would they, if married, behave more like married heterosexual couples if their conjugal relationships and commitments were legally sanctioned?
- Conflict and even violence does occur within lesbian and gay relationships and it does so about as often as it does within heterosexual relationships;
- We do not know the exact number of children living with two homosexual parents. According to the 2001 census which provides us with probably conservative estimates, there are at least 3,000 gay and lesbian couples raising children today. For a variety of reasons—some obvious and some less obvious—a far higher proportion of lesbian couples are raising children than are gay couples. Again, the 2001 census indicates that approximately 15% of lesbian couples are raising children as compared to only 3% of gay couples;
- Children growing up with lesbian and gay parents need, as do all children, to be fed and housed, taken to school, to be supervised and, most importantly, to be loved. How gay and lesbian parents share the responsibilities to fulfill these obligations depends often on whether or not the parents have chosen to have children together or, as often happens, are raising a child from a former heterosexual union of one of the partners in circumstances very much like a heterosexual step-parent family;
- Ambert reviewed the available evidence that provides at least preliminary answers to the following three questions: Are children who are raised by same-sex parents likely to be maladjusted? Are they likely to be molested? Are they likely to become homosexuals themselves? Her conclusion is that: "None of these concerns has been supported by the research so far, except perhaps the last one, but only to a very small extent. And, once again, she recommends caution in interpreting the results because: studies have usually been done with small samples; seldom have they assessed children against a wide range of developmental indicators; few have followed children into adulthood; any developmental problems that have been identified might be explained just as well by the divorce or separation of their biological parents as by the sexual orientation of their mother or father. Even so, the weight of the evidence from the studies that have been done leads to the following tentative conclusions:
  - When it comes to parenting, lesbian mothers and heterosexual mothers are similar. What matters more than their sexual orientation or behaviours is their identity and skill as mothers. "Their children show few differences from other children, and whatever differences exist stem largely from the social stigma attached to homosexuality and the consequent rejection of the children by members of the larger community;
  - Children of homosexual partners usually develop heterosexual identities;
  - Gay men are no more likely than heterosexuals to abuse children and the same applies to lesbian women. Homosexuality is not synonymous with pedophilia.

Ambert has reviewed what the science, the social science, tells us at this point in time. But, as we all know, the question you and all Canadians have been asked to address involves not just questions of fact, but also, questions of conscience—con-science, if you will. Canada's communities of faith will grapple with the questions or morality, ethics and religion with which you are wrestling and they will do so guided by the tenets of their faiths. You, as legislators, will have to be guided by your own consciences and by an appreciation of how the roles and responsibilities of family members overlap with the roles and responsibilities of the state. We, therefore, offer to you the following contentions that have come to shape the conscience of the Vanier Institute of the Family.

First, marriage and family—two institutions once thought to be 'joined at the hip'—are, in fact, separate and discrete. Indeed, recent trends in patterns of family formation document decreased rates of marriage, increased rates of cohabitation and common-law unions, increased births to women who are not married but most of whom are living with a partner, relatively stable but relatively high rates of separation and divorce and a correspondingly high proportion of lone-parent families. (For complete and detailed evidence of these trends, we would invite you to review our publication, Profiling Canada's Families II. The diversity in family forms that is now patently evident in the statistical trends we monitor tells us that marriage and family are not, given the choices Canadians have made, one and the same. It may have been, at one time, in our history, fair enough to regard marriage as a proxy indicator of the family obligations taken on and assumed by Canadians. However, as Chief Justice McLaughlin observed before she was the Chief Justice, marriage is no longer the marker or sign of commitment, of promises made and promises to keep. If you think about it, a judge can, at the stroke of a pen, declare a marriage to be null and void. But, that divorce—as we so well know by virtue of the controversies over how, as legislators, you should respond to the access, custody and support claims of post-divorce families—does not eclipse the responsibilities and obligations that were part and parcel of the marriage. Marriage may, for some, be temporary. Families, and the obligations they imply, last for a lifetime.

Families cannot be defined by reference to their structure alone. What matters most is what families DO, what they do to the benefit of their individual members and to the benefit of the larger community and society. Since the early 1970's, the Vanier Institute of the Family has consistently defined families more by reference to what they do than by reference to what they look like. We suggest to you that family is, for purposes of public policy making, best defined as:

...any combination of two or more persons who are bound together over time by ties of mutual consent, birth and/or adoption or placement and who, together, assume responsibilities for variant combinations of some of the following: physical maintenance and care of group members; addition of new members through procreation or adoption; socialization of children; social control of members; production, consumption, distribution of goods and service; and (last but by no means least) affective nurturance—love.²

Families do many things without which neither we as individuals nor our society could survive much less prosper. Families cannot be defined by reference to any one of these functions. Most children, but not all children, are raised by their biological parents; however, some children are raised by adoptive parents, by their grandparents, by women and men who have never been married, by women and men who cannot bear children. And, even so, these children are raised within families by people who provide for them, nurture them and love them. Procreation, then, is not the essential element that defines family. What is more crucial in understanding what a family is is an appreciation of the the commitments that individuals make to live their lives with and for others regardless of how those others are joined to one another. And, what we know from the overview of research above is that there are gay and lesbian couples who have chosen to commit themselves to each other and to their children just as sincerely as heterosexual couples. They are, therefore, families deserving of our respect, recognition and support.

This being said, it is important to emphasize that marriage is an institution that gives public acknowledgement to a sexual, economic, social and emotional partnership between two individuals who freely assume obligations toward one another. Marriage is, in fact, more a matter of obligations and responsibilities than it is a matter of rights. What we do, as a community, when we sanction the marriage of two of our members is acknowledge the promises they make to each other. Marriage is not a matter of individual rights. Instead, marriage represents an intentional commitment, for better or worse, till death do us part, to be faithful to another. Although it would seem that these promises may be more and more difficult to keep than ever before—for both heterosexual and homosexual couples—marriage is, at its inception, a commitment to mutual fulfillment, fidelity and commitment over time. Although these same commitments may find expression by those who cohabit without the benefit of marriage, there remains, as Ambert puts it, "substantial differences between the culture of marriage and that of cohabitation." The demands of cohabitation which remains the only option available to gay and lesbian couples are less than those of marriage. And, the expectations that we, as a society, hold for those who marry are greater than what we expect of cohabitants. It is easier to enter into a common-law relationship and it is easier to leave one. And, sure enough, we know that common-law relationships are less stable and secure than marriages. If the institution of marriage finds itself in jeopardy today, it is more likely by virtue of our high rates of divorce and separation, the naivete with which many enter into marriage and a culture of expressive individualism within which few are willing to subordinate their individual interests to the needs of others.

In conclusion, then, the central preoccupation of the Vanier Instittue of the Family is our nation's families and their well-being. Gay and lesbian couples—those with and without children—are, from our point of view, deserving of our respect and support as families when they commit themselves over time to one another in relationships of mutual support and affection. As argued above, marriage and family are separate and discrete institutions and increasingly so in Canada today. What matters most to us at the Vanier Institute of the Family is how well we provide the tangible supports that families—that all families—need in order to carry out the essential work they do on our behalf. In the end, family matters cannot be reduced to questions of law, not even the law of matrimony. Family is not, in essence, grounded in the institution of marriage. It is, instead, grounded in the commitments and promises that shape the lives and relationships of Canadians, day in and day out.

Has the Vanier Institute decided to endorse the claims of gays and lesbians to enter into marriage? We have not. The Vanier Institute is a national organization whose members and Directors represent a broad cross-section of Canadians. We are, as such, respectful of the differing views and perspectives that now threaten to divide and polarize Canadians with opposing views around this difficult question. What we do hold in common is our recognition of the many examples of mutually committed, stable and faithful relationships that are not sanctioned by either the Church or the state. We cannot, therefore, argue that marriage is the only way to confer legitimacy upon the promises that bind people together in their families.

As such, we cannot answer directly the questions you have been asked to answer. We do, however, suggest that as you choose among the three possible approaches identified in the Department of Justice Discussion Paper, the following conclusions from our work merit your consideration:

Minimally, same-sex couples, cohabitants and perhaps others should be provided with an opportunity to register their partnerships as a way of declaring their mutual responsibilities and obligations and protecting their individual interests.

The available evidence about same-sex couples and same-sex couples raising children warrants our society's acknowledgement that gay and lesbian citizens can and do, like heterosexual couples, form lasting commitments within families that satisfy the needs of their members and contribute to the larger community.

Family is not essentially defined by reference to the procreative potential of heterosexual partnerships.

Marriage remains an important institution in the hearts and minds of most Canadians and it is an institution predicated on mutual fulfillment, fidelity and commitment over time. As such, marriage is not a right but rather one way by which we, as a society, acknowledge these commitments and promises.

Therefore, if, in your wisdom, you propose to change the law in order to give same-sex couples the legal opportunity to marry, you would do so in order to acknowledge the overlapping interests and responsibilities of families and the state.

Endnotes:

¹ Ambert, Anne-Marie (2003)."Same-Sex Couples and Same-Sex Parent Families : Relationships, Parenting, and Issues of Marriage." Ottawa: Vanier Institute of the Family.
2 Vanier Institute of the Family (2000). Profiling Canada's Families II. Ottawa: VIF, p. v.