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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 11 April 2015
FROM OUTLAW TO INLAW: BRINGING LESBIAN AND
GAY
RELATIONSHIPS INTO THE FAMILY SYSTEM*
BY SUSAN B. BOYD1
1. INTRODUCTION
In recent years, social groups that have been historically estranged from the legal system have begun to be recognized, or incorporated, or, as Ruthann Robson would say, "domesticated", by law.2 The incremental but uneven recognition over the past decade of same sex relationships by Canadian laws that regulate "family" relations offers an intriguing case study of this trend. This recognition represents a much-needed and long-awaited sea change to the heterosexual norm that has hitherto infused the legal system. Nevertheless, many scholars and activists have critically analyzed the political and strategic implications of incorporation of lesbians and gay men into the legal system of "family". I will briefly review these approaches and then explore the difficulties that most intrigue me: they are those related to the dubious benefits of being included in a family law system with objectives that bolster the privatization of responsibility for economic wellbeing in society. I shall also link these dilemmas to feminist analyses of the role of the family in the capitalist mode of production, using as a catalyst the debate between Nancy Fraser and Judith Butler concerning Fraser's identification of a recognition/redistribution dilemma. I raise these issues in a spirit of support for recognition of lesbian and gay lives, but also from a position of wanting to seek this recognition in the most progressive manner possible, taking into account class, gender, race and other social systems that intersect with sexuality.
Earlier versions of this paper were presented at the Faculty of Law, University of Waikato, May 31, 1999; the Australian Law and Society Association Conference, La Trobe University, Melbourne, Dec. 8, 1998; The Faculty of Law, University of Natal (Pietermaritzburg) South Africa, Oct. 16, 1998; and the Canadian Law and Society Association meetings, Ottawa, June 1, 1998. Some of the analysis formed part of a keynote lecture at an International Conference on Law, Gender and Sexuality at Keele University, England, June 21, 1998 that was published in Social and Legal Studies 8(3) (1999): 369-89. I would like to thank Judy Fudge for drawing my attention to the debates in New Left Review about Nancy Fraser's recognition/redistribution dichotomy; Bill Black, Lisa Phillips, Mehera San Roque, and Claire F L Young for reading early drafts and helping me to focus my analysis; the anonymous referees for the Yearbook; and Karey Brooks, beth long and Nicole Todosichuk for research assistance. This research was supported by a strategic grant under the "Women and Change" theme of the Social Sciences and Humanities Research Council of Canada. Susan B. Boyd holds the Chair in Feminist Legal Studies at the Faculty of Law, University of British Columbia, Vancouver, Canada.
32 Yearbook of New Zealand Jurisprudence Vol 3
Throughout, I use the lesbian spousal support case decided in May 1999 by the Supreme Court of Canada, M v H, as an example. This case arose when a ten-year lesbian relationship terminated, leaving one woman (M) in a vulnerable economic position. She wished therefore to claim financial support from her ex-partner (H). Because the relevant family law statute in Ontario allowed only opposite sex cohabitants and married spouses to make such a claim, M had to bring a constitutional challenge to the definition of "spouse" in the Family Law Act? She did so by arguing that her equality rights guaranteed in section 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter") were infringed by the definition because it discriminated against her on the basis of sexual orientation.` M was successful in the Ontario courts and at the Supreme Court of Canada.? In fact, she was the first lesbian or gay person in the world to be successful in such a challenge to the opposite sex definition of "spouse" at the highest court of her country. The case is thus emblematic of initiatives to recognize same sex relationships in a number of countries, most recently Vermont State and the Netherlands.'
M v H was the first Supreme Court of Canada decision about the expansion of the definition of "spouse" to include same sex partners for the purpose of a family law claim. Previous Supreme Court of Canada cases had dealt with the definition of "spouse" in the context of bereavement leave entitlement in
3 Family Law Act R.S.O. 1990, c. F3.
Section 15(1) of the Charter reads:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. The Charter is entrenched in the Canadian constitution. Sexual orientation has been read in as an analogous protected ground of discrimination in Egan v Canada, [1995] 2 SCR 513 [hereinafter Egan].
a collective agreement (Mossop)7 and entitlement to the Old Age Security spousal allowance (Egan),8 and were unsuccessful efforts by gay men to expand the definition. However, partly as a result of one of these cases (Egan), it is now accepted by the Supreme Court of Canada that sexual orientation is a prohibited ground of discrimination under section 15 of the Charter, which is part of Canada's Constitution.' The Supreme Court decision in M v H meant that provincial and federal governments in Canada had to take this issue seriously and consider extension of the rights and responsibilities accruing to unmarried or married opposite sex cohabitants —and possibly those accruing to married couples — to same sex cohabitants across the country. However, as we shall see at the end of this article, the legislative reforms that the Province of Ontario and the Government of Canada have initiated since the case was decided tend to establish a legal regime of separation or segregation of same sex partners rather than integration, even as they are recognized in law.
2. BRINGING ESTRANGED SEXUALITIES INTO THE FAMILY LAW SYSTEM
Despite occasional efforts by lesbians and gay men to challenge the obvious heterosexism of the legal institution of marriage in the courts, Canada has not recognized same sex marriage.' However, mainly as a result of the sustained momentum of lesbian and gay activists who have made relationship recognition a key focus of their campaigns for both legislative and judicial reforms," there has been an incremental and uneven extension of some Canadian laws applicable to unmarried heterosexual cohabitants to include same sex cohabitants. Typically, but not always, this extension has occurred through expansion of the definition of "spouse" to include same sex cohabitants in various pieces of legislation. Thus, the cases and legislative developments in Canada that recognize same sex relationships do so by analogy to the legal status of unmarried opposite sex cohabitants.12
7 Mossop v Canada, [1993] 1 S.C.R. 554. Note that Mossop was not a Charter of Rights
and Freedoms case, but rather was based on human rights legislation.
Egan, supra note 4.
Ibid. See also Vriend v Alberta, [1998] 1 S.C.R. 493.
See Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (1994) and David M. Rayside, On the Fringe: Gays and Lesbians in Politics (1998).
34 Yearbook of New Zealand Jurisprudence Vol 3
Marriage as a legal institution reserved for opposite sex partners has not yet been challenged by these developments, which effectively run parallel to the legal regulation of marriage per se.13
Married spouses in Canada still have more legally enforceable rights and responsibilities than unmarried spouses, whether opposite sex or same sex. Nevertheless, some conservative anti-gay protesters assume that M v H came close to giving lesbians and gay men the right to marry. Shortly after the Supreme Court's decision, the right wing Reform Party of Canada (now the Canadian Alliance Party) introduced a motion in the House of Commons affirming that marriage is only possible between a man and a woman. The House of Commons affirmed the motion by 216-55, with the help of many of the governing Liberal Members of Parliament, including the Justice Minister Anne McLellan!' This resistance shows that some important social and legal shifts in the normative structures relating to relationship recognition have occurred: unmarried spouses are obtaining more and more rights and responsibilities originally reserved for married and heterosexual spouses.
Clearly, at one level, legal acknowledgements of same sex relationships should be, and are, cause for celebration by those in the lesbian and gay communities who have struggled for recognition of their relationships, as well as by those who challenge the exclusivity of the institution of marriage. The cause for celebration is the symbolic positive recognition of lesbian and gay "sexual specificity" and the attendant revaluing of a despised sexuality, to use Nancy Fraser's words.15 Nonetheless, concerns have been raised about these developments by many authors and activists. These concerns can be broken down into two main categories: those related to assimilation and
(for 2 years) in the provisions on spousal support, child support, and child custody and access. Family Relations Act R.S.B.C. 1996, c. 128, s. 1, amended by Family Relations Amendment Act 1997, S.B.C. 1997, c. 20 [Bill 31, 1997].13
However, the British Columbia Family Relations Act makes a reference to marriage in its new definition of "spouse". "Spouse" now means a person who "lived with another person in a marriage-like relationship for a period of at least 2 years . . . and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender" (section 1).
to critiques of marriage as an oppressive institution, and those about the privatization of economic responsibility. All of these concerns, but particularly the second one, challenge suggestions that cultural/legal recognition is the key means by which to redress lesbian/gay oppression, in that they highlight important connections between lesbian/gay oppression, the sexual division of labour in marriage and the nuclear family, and Othe capitalist mode of production.
Marriage as an Oppressive Institution and Assimilating Discourses
Concerns have been expressed that the inclusion of lesbians and gay men in marriage or marriage-like relationships, such as legally recognized cohabitation, may bolster an institution that has been used to oppress women, Aboriginal peoples, and others, including of course lesbians and gay men themselves.' This issue raises the question of whether by entering a social institution such as marriage, lesbians and gay men will automatically change it and remove its oppressive functions. This result seems unlikely, particularly given the assimilating discourses that will be discussed below and given that many lesbians and gay men are not inclined to challenge from within the role that marriage has played in reinforcing unequal relations in society. Indeed, some major proponents of same sex marriage seek to be admitted to that institution precisely because of some of its oppressive features.
For instance, Andrew Sullivan's well known arguments for same sex marriage include several "conservative" elements such as a vision of marriage as a "civilizing" institution that has the effect of taming the male impulse toward promiscuity and violence and rendering it socially manageable." He has argued that gay marriage would provide "role models for young gay people who, after the exhilaration of coming out, can easily lapse into short-term relationships and insecurity with no tangible goal in sight", and held out (in somewhat of a stereotyping!) lesbian relationships as
36 Yearbook of New Zealand Jurisprudence Vol 3
"virtual textbook cases of monogamous commitment".' In another conservative argument for legal recognition of same sex marriage, Richard Tafel said that marriage is "an evolving institution, which has consistently met the needs of society in each era" and argued that there is "a direct correlation between civilizing men through the institution of marriage and keeping order in society".' A better example of using marriage as an instrument of social control I have not seen! Tafel goes on to argue that "the civilizing effect of marriage should not be denied to anyone willing to take the vows and live by them" and that marriage would bring "long-term stability and prosperity to the lives of millions of gays and lesbians" and "improve their health and deepen their personal fulfillment".
This type of conservative approach, which is geared towards capturing the approval of "middle America" for same sex relationships, raises the possibility that recognition of lesbian/gay relationships in family law may not challenge the economic privilege of men or the sexual division of labour within the privatized family that has for so long been the subject of critique by feminists.20 The continued exploitation of women's unpaid work and the relationship between the family's (i.e. women's) responsibility for the costs of social reproduction constitutes an intrinsic component of the capitalist mode of production, a point that will be explored later in this article. From a feminist and left perspective, failing to challenge at a fundamental level the social institutions of marriage and family, and the roles they play in social inequality, is very problematic.21
As well, many authors and activists are concerned that normalizing lesbian and gay intimate relationships by assimilating them into a normative model of heterosexual coupledom based on the institution of marriage will reinforce distinctions between "good" gays and lesbians, who look as much as possible like the traditional nuclear couple, and "bad" gays and lesbians, whose relationships violate familial norms ("the permanently single, the
21 But see Calhoun in "Family's Outlaws: Rethinking the Connections between Feminism, Lesbianism, and the Family" supra n 16, who argues that this position displaces the specificity of lesbian existence and arguments, in favour of a focus on the concerns of heterosexual women.
polygamous, the sexually non-monogamous, the member of a commune, and so on"22).
A clear example of the process through which "assimilation" occurs was provided in a British Columbia case, Forrest v Price, where a judge who recognized a property claim brought by one gay man against his ex-partner under the constructive trust doctrine, said that the men had "assumed the classic roles and the division of labour characteristic of many traditional heterosexual marriages" and "fulfilled their traditional roles as homemaker and breadwinner". She added: "They impressed all those around them as a couple and discussed "their" homes and projects."23 Many lesbians and gay men resist having to demonstrate such evidence of gendered domesticity in order to claim an equitable share of income or property from an ex-partner. Yet, when I conducted a review of Canadian judgments grappling with what constitutes "cohabitation" or a "conjugal" or "marriage-like" relationship, I found that judges stressed factors such as the importance of sharing the same roof, shared responsibilities, a committed sexual relationship with some permanence, exclusivity of the relationship, mutual support, recognition by the community, friends and families, and financial interdependence. Indeed, in Re K., an Ontario lesbian adoption case that is a triumph over homophobic views of lesbians and parenting, Nevins J. emphasized that the lesbian couples had lived in relationships that had "all the characteristics of a relationship formalized by marriage". He said:
Each of the couples have cohabited together continuously and exclusively for lengthy periods, ranging from six to 13 years; their financial affairs are interconnected; they share household expenses, have joint bank accounts and in some cases, they own property together in joint tenancy; they share the housekeeping burdens to the extent that they are able in light of their respective careers and employments; the individual partners share a committed sexual relationship. Most importantly, they all share equally the joys and burdens of child rearing.24
Judges are usually careful to include a cautionary note that not all of these factors need to be found in order to establish a relationship worthy of legal recognition, and that the extent to which various components need to be taken into account varies with the circumstances of each case. Charron J.A., writing for the majority of the Ontario Court of Appeal in M v H,
22 Ibid at 147.
24 Re
K. supra n 12 at 657.
38 Yearbook of New Zealand Jurisprudence Vol
3
emphasized this point and noted astutely that "some factors may take on a greater or lesser significance than others in the case of same-sex couples. For example, some same-sex cohabitees may not have openly and publicly presented themselves as a couple for fear of reprisal or prejudice, a concern which may not be present to the same degree, if at all, in the case of unmarried heterosexual cohabitees.' Moreover, as at least one group that intervened in M.v. H. at the Supreme Court of Canada (the Women's Legal Education and Action Rund or "LEAF') pointed out, equality law in Canada does not require that equality-seeking groups show that they are similarly situated to those who already have equality before and under the law. There was therefore no need for lesbian litigants to portray their intimate relationships as if they were "just like" those of their heterosexual counterparts.26 The majority justices of the Supreme Court of Canada in M v H endorsed these approaches." It also appears that efforts in Canada to move towards gender neutrality in family law (for example, gender neutral definitions of "spouse" and reciprocal obligations of male and female spouses for financial support) have made it somewhat easier to imagine two women or two men fitting definitions such as a "marriage-like relationship".
However, Epstein J. in the lower court in M v H had noted that H had been more involved in the shared business that M and H had during the 1980s, whereas M "appeared content to devote more of her time to domestic, rather than business, tasks.' Moreover, one of H's arguments in resisting being defined as a "spouse" was that she and M had not taken on gendered roles and had consciously avoided a lifestyle that modeled itself after heterosexual relationships; that they were "best friends" and not spouses.' H's logic was that if she and M had not "assimilated" to the marriage model, then she should not incur "spousal" obligations.
Thus, despite the sensitivity displayed by Charron J.A. and other justices to the differences that may exist between same sex and heterosexual couples, there are serious concerns that the need to meet certain criteria in order to fit within existing legal categories such as "spouse" will "domesticate" the lives of lesbians and gay men; that the extent to which lesbian/gay lives challenge the status quo will be cloaked and the radical edge of this challenge dulled;
25 M V. H. (Ont. C.A.) at 27.
M V H (S.C.C.) supra n 5 at
paras 58-59, per Cory and lacobucci J.J.
28 M v H
(Ont. Gen. Div.) supra n 5 at 545.
that the diversity of lesbian/gay lives will be obscured and that a normative model of intimate relationship will be reinforced and re-created outside the marriage context, even in the context of lesbian or gay relationships.3°
Privatizing Trends
A second key concern about the trend to recognize same sex relationships as "family" that is addressed less frequently in the literature, is the role of marriage, the family, and family law in the privatization of economic responsibilities.31 That is, individuals are expected to rely on family members for economic support, rather than generating a more collective sense of responsibility on the part of the wider community for all individuals in need. This approach is highly problematic for those who do not have family members with the economic capacity to provide support for them even if they might want to (e.g. many families with members who have disabilities, who are living with the HIV virus, etc.). It is also problematic from the point of view that it is mainly women who are expected to assume responsibility for the unpaid labour — the caring labour — involved in supporting dependent family members. To the extent that family law reinforces reliance on ex-spouses with whom one no longer is living for economic support, family law can thus be seen as a mechanism that relieves the social welfare system of responsibility for those who experience economic dependency for a variety of reasons, whether it be illness, lack of participation in the workforce, poor paying jobs, discrimination, and so on. On this analysis, enlarging the scope of the definition of "family" for the purposes of family law can be read as enhancing the privatization role of the family, and making it more difficult for individuals in need to rely on public support.
In fact, the recent Canadian legal challenge to heterosexist laws, the M v H case mentioned above, referred explicitly to the privatizing objective of family law as a key rationale for extending laws to include same sex relationships. The lower courts in M v H distinguished the Supreme Court of Canada decision in Egan v Canada (upholding provisions in the Old Age Security Act that restricted spousal allowances to heterosexual spouses) on the basis that those cases dealt with public funds which were not at issue in M v H. The lower courts emphasized that the objective of the spousal support legislation at issue in M v H was equitable resolution of economic disputes that arise upon the breakdown of intimate relationships between
70 See Ettelbrick, "Since When is Marriage a Path to Liberation?" supra n 16.
40 Yearbook of New Zealand Jurisprudence Vol 3
individuals who have been financially interdependent. It did not, therefore, involve public funds. Furthermore, and most notably in terms of privatization, Charron J.A. wrote that a second underlying purpose was "to alleviate the burden on the public purse by shifting the obligation to provide support for needy persons to those parents and spouses who have the capacity to provide support to these individuals."' The majority of the Supreme Court of Canada affirmed these two objectives as they had been identified by Charron J.A.33 Cory and Iacobucci JJ., writing for the majority, emphasized repeatedly that the definition of "spouse" at issue and the spousal support provisions that it gave access to were "designed to reduce the demands on the public welfare system."' They also emphasized that the Court was not bound by the negative decision in Egan because the cases were based on entirely different statutes with their own unique objectives and legislative context.35
Many authors36 have asked why any individual's economic well-being should be contingent on the wealth of family members, ex-spouses, and so on. The family law system is a flawed one that arguably benefits mainly those whose ex-partners were quite well-off financially.' Scholars have also shown how many individuals fall between the cracks of the social welfare system and the family law system, and that predominantly these individuals are members of historically disadvantaged groups.38 Moreover, trends that bolster privatization of economic responsibility tend to diminish general public support for publicly funded programs, especially among those who are relatively privileged in their ability to rely on familial or other private means of support. In fact, the majority justices of the Supreme Court of Canada endorsed a negative vision of the public welfare system: "The impugned legislation has the deleterious effect of driving a member of a
33 M V H
(S.C.C.) supra n 5 at paras 4, 106.
30 Ibid at para 53. See
also Major J. at para 283, and Bastarache J. at para 356.
35 Ibid
at para 75.
same-sex couple who is in need of maintenance to the welfare system and it thereby imposes additional costs on the general taxpaying public.' It seems to be no coincidence, then, given increasing trends towards privatization, that cases such as Egan have failed when they involved public rather than private money, whereas cases such as M v H have succeeded.'
3. ANALYSIS: HOW FAR WILL CULTURAL/LEGAL RECOGNITION TAKE US?
As we have seen, alongside the celebration of the recognition of lesbian/gay relationships in family related statutes, progressive scholars and activists who wish to destabilize the heterosexual norm have articulated major concerns regarding the trend. What I want to do now is recast the debate somewhat by engaging with the questions raised by political theorist Nancy Fraser in "From Redistribution to Recognition?"." Fraser articulates a heuristic distinction between groups who are subject to both cultural injustice and economic injustice (such as women and people of colour), those who are subject mainly to economic injustice (such as the working class), and those who are subject mainly to cultural injustice (such as lesbians and gays)." As a remedy for their oppression, the first group requires both political economic restructuring and cultural recognition. The last group - and gays and lesbians are the only example that Fraser provides of this group - needs only cultural recognition; any attendant economic injustices will be redressed accordingly. Fraser thus argues thao pass in the Ontario legislature in 1994. It was this failure that gave rise to much subsequent litigation, including M v H.
Equally, however, it is my view that critical analysis of the implications for social transformation of such initiatives must occur simultaneously with legal"struggles for recognition. I am very concerned that lesbian/gay strategies of engagement with state and law not stop at the point of recognition, and that recognition, while clearly necessary, not be seen as sufficient to achins.
" M v H (S.C.C.) supra n 5 at para 115.
43 Ibid at 18-19.
42 Yearbook of New
Zealand Jurisprudence Vol 3
My first thought on reading Fraser's chapter on redistribution/recognition was that it was problematic to single out lesbian oppression as rooted mainly in cultural injustice. My thought process was as follows. Dominant norms of heterosexuality in the legal system and elsewhere have been intrinsically connected to unequal gender relations between women and men, and to the unequal sexual division of labour in both the family and the workplace. In turn, both unequal gender relations and the sexual division of labour are related to the capitalist economic system, which relies on and benefits from the underpaid work of women in this sexual division of labour. Arguably, then, unequal gender relations and the heterosexual norms that support them cannot ultimately be challenged without changes to that capitalist system. I was therefore excited to discover Judith Butler's response to Fraser's schema, in which she developed some of these points. In looking at the debate between Fraser and Butler, I shall focus on Butler's points about "queer politics and the disparagement of the cultural"."
Butler asks how the attempts by the lesbian/gay movement to criticize and transform the ways in which sexuality is socially regulated can possibly be understood as separate from the functioning of political economy. She then refers to the trenchant critique of the heterosexual nuclear model of family made by socialist feminists in the 1970s and 1980s, pointing out that the production and reproduction of life in the family is a crucial component of the mode of production, or how society produces what it needs. These feminists showed not only that the family was part of the mode of production, but also that "the very production of gender had to be understood as part of the 'production of human beings themselves', according to norms that reproduced the heterosexually normative family." Socialist feminists regarded the family not as a natural given, but rather as a specific social arrangement of kin functions that was historically contingent and, therefore potentially transformable. The reproduction of gendered persons - of "men" and "women" - depended on "the social regulation of the family and, indeed, on the reproduction of the heterosexual family as a site for the reproduction of heterosexual persons, fit for entry into the family as social form." Thus, Butler points out, "the regulation of sexuality was systematically tied to the mode of production proper to the functioning of political economy." In other words, (hetero)sexuality and gender are intrinsically connected, and gender is connected to the economic or material sphere, and so it makes no sense to argue, as Fraser does, that oppression of lesbians and gay men is a question of cultural recognition, whereas gender is a question of both cultural recognition and economic redistribution.
" Judith Butler, "Merely Cultural," New Left Review 227 (1998): 33-44
at 38 et seq.
as Ibid at 40.
46 Ibid.
Butler argues that gender and sexuality are part of material life not only because of the ways in which they serve the sexual division of labour, but "also because normative gender serves the reproduction of the normative family". Butler's point here, in contrast to Fraser, is that "struggles to transform the social field of sexuality do not become central to political economy to the extent that they can be directly tied to questions of unpaid and exploited labour, but also because they cannot be understood without an expansion of the 'economic' sphere itself to include both the reproduction of goods as well as the social reproduction of persons." She then questions how it can be that the "queer question" of how normative sexuality is "confounded by the non-normative sexualities it harbours within its own terms - as well as the sexualities that thrive and suffer outside those terms" can be viewed as only a matter of cultural recognition and not a question of the mode of production.
Because, in Butler's view, the production of normative heterosexuality is related to the mode of production, or the economic/material sphere, struggles over the recognition of non-normative sexualities (e.g. in the legal realm) must of necessity be relevant to challenges to the mode of production. Butler gives examples of ways in which lesbians and gays are excluded from legal definitions of family:
For example, in those instances in which lesbians and gays are excluded from state-sanctioned notions of the family (which is, according to both tax and property law, an economic unit); stopped at the border, deemed inadmissible to citizenship; selectively denied the status of freedom of speech and freedom of assembly; are denied the right (as members of the military) to speak his or her desire; or are deauthorized by law to make emergency medical decisions about one's dying lover, to receive the property of one's dead lover, to receive from the hospital the body of one's dead lover — do not these examples mark the 'holy family' once again constraining the routes by which property interests are regulated and distributed?
Butler also cites poverty rates among lesbians as being in relation to the normative heterosexuality of the economy. Presumably, then, she would consider the legal struggles for recognition of lesbian relationships as "spousal" as at least somewhat significant because they confound normative sexuality, which is in turn a part of the mode of production.
47 Ibid.
48 Ibid.
" Ibid at 41.
5° Ibid.
51 Ibid.
44 Yearbook of New Zealand Jurisprudence Vol 3
Despite my initial excitement at discovering Butler's response, I eventually
found myself questioning the implications of her analysis
as well. Although
I
agree that the production of normative heterosexuality is related to the mode of
production, it does not follow that legal recognition
of non-normative
sexualities, such as same sex relationships, of itself will constitute a
fundamental challenge to the capitalist
mode of production. Having offered a
useful reminder and summary of socialist feminist thought on the family, and
having articulated
an appropriately enlarged concept of the mode of production
that includes the production of human beings and thus of gender and the
heterosexually normative family, Butler fails to follow it through to a
consideration of the problematic role of the family in social
relations and
social inequality. Instead she substitutes her tactic of confounding normative
sexuality and appears to assume that
some transformation in social relations
will result. Re-affirming "the family", even by including same sex spouses
within it, will
not stop the ways in which the "holy family" constrains the
routes by which property interests are regulated and distributed.
In the end, I am troubled both by Fraser's separation of recognition and redistribution and by Butler's assumption that cultural struggles will of necessity challenge the political economy simply because they have a relationship to it. Surely the pertinent question is whether any given struggle has a significant impact in a historically, culturally, and geographically specific situation. Neither Butler nor Fraser develops an adequate dialectical analysis of the ways in which discursive challenges (for example to the heteronormativity of family laws) relate to resource distribution in late capitalist societies. I find myself agreeing with Fraser's own response to Butler in Social Text that it is implausible that gay/lesbian struggles, at least for familial recognition, will challenge capitalism in its actually existing historical form. However, I continue to resist both the extent of Fraser's
Sexuality: From Essence to Ethics?" Canadian Journal of Law and Society 9(1) (1994): 15-38 at 26. However, I shall make this assumption for the purposes of argument in this article.
54 Butler, "Merely Cultural" supra note 44 at 41.
separation of sexuality from gender and Butler's implication that confounding the normativity of heterosexuality itself may challenge the material place of the family in capitalist relations of production.
Although both sets of concerns identified earlier in this article (marriage as an oppressive institution and assimilating discourses, and privatization of economic responsibility) are relevant to my resistance, it is the privatization role of the family, no matter whether lesbians and gays are included in it or not, that prevents me from going all the way with Butler's argument. I am concerned that the incorporation of lesbians and gay men within family law may be as much about the domestication of deviant sexualities within a safe and recognizable framework that is useful to capitalism, than about the transformatory confounding of normative sexualities.
Various authors working from a materialist or Marxist feminist framework have looked carefully at the relationship between the mode of production, social reproduction, and the family. They show that the ideology of the heterosexual nuclear family as the base of society remains strong and has a clear material underpinning in that it (and especially women within it) is allocated primary responsibility for the costs of producing and raising children, and caring for dependent family members. It is thus possible that "while the privatized family is not essential to the survival of capitalism, its abolition is not at all likely while capitalism exists." Such a change would require massive investment in the socialization of the costs and labour of the family by each capitalist state; any one state trying to achieve this goal would be at a competitive disadvantage (for example, if it were to increase spending on child care). Moreover, as Jacobs has argued, "the fight for alternative families does not confront the structures of women's economic oppression that have become increasingly significant with the development of public patriarchy, and thus it does not threaten gay men's economic
conflates the material and the economic (at 286). Fraser agrees that cultural struggles are "material" and of equal material importance to economic struggles; but that the "economic" is conceptually separate from the cultural. Fraser argues that it is problematic for political reasons to entirely collapse differences between the two.
46 Yearbook of New Zealand Jurisprudence Vol 3
privilege with respect to women." So the ideology of the heterosexual nuclear family as the base of society prevails and has a clear material underpinning within capitalism despite the fact that various legal systems have begun to recognize lesbian and gay intimate relationships as well as to recognize women's rights, and thereby have created clear cracks in the edifice of heteronormativity and the ideology of the family. As Fraser herself says, these cracks have arisen because contemporary capitalism seems not to require heterosexism and permits "significant numbers of individuals to live through wage labor outside of heterosexual families." This is the contradiction in which we currently live: the heterosexual imperative has diminished along with the rigidity of gender roles, but nevertheless the normative family persists, as do many old and new forms of inequality and oppression that are being reinforced and exploited as globalization occurs.
Ultimately, I think Fraser is right in saying that Butler goes too far in conflating cultural and economic struggle, and that at least at a conceptual level they must remain somewhat separate in order to gain an understanding of how discursive challenges (e.g. to the heterosexual family) relate to resource distribution. However, I disagree with Fraser's suggestion that the oppression of lesbians and gay men can be dealt with mainly through status recognition. This conclusion over-simplifies the sources of oppression that lesbians and gay men experience, and also overlooks the intersectionality of oppressive structures such as racism, class, and heteronormativity. An intersectionality analysis that asks us to attend to the ways in which indices of oppression such as gender, race, class, sexual orientation, and disability affect one another would assist us in seeing more clearly the limits of familial recognition strategies. For example, contrasting the situation of a poor black lesbian in ill health and that of a white gay man with a partner
" Michael P Jacobs, supra n 20 at 173.
60 Fraser,
"Heterosexism, Misrecognition, and Capitalism" supra n 56 at 285.
employed in a business with excellent health benefits helps us to understand the limits of a socio-economic system that is based on privatization. Although not all comparisons are so stark, contrasting these situations clarifies the differential effects of strategies such as recognition of relationships. A redistributive politics is crucial to lesbian and gay liberation.
4. HOW TO THINK ABOUT M V H AND OTHER LESBIAN/GAY STRUGGLES FOR FAMILIAL RECOGNITION
Despite the concerns noted above, I am certainly not arguing against recognition of same sex relationships per se. The symbolic power and the thrill of moments of legal recognition are real and may play an educative role in relation to the attitudes of the general public. Epstein J.'s statements in M v H at the Ontario General Division level, countering irrational discrimination against lesbians and gay men and their relationships, were very powerful and an important challenge to traditional definitions of "family". She eloquently rebutted assumptions that our relationships do not manifest the interdependence found in heterosexual relationships and she showed how the objectives of family law would be enhanced by reading same sex cohabitants into the definition of "spouse". At the Supreme Court of Canada level, the majority justices emphasized that "same-sex couples will often form long, lasting, loving and intimate relationships" and that the "exclusion of same-sex partners from the benefits of s. 29 of the FLA promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection.... Such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence." Moreover, recognition of spousal status will undoubtedly bring beneficial changes to at least some lesbians and gay men at a practical level. For instance, some tax benefits and retirement benefits will likely ensue. However, it must be kept in mind that the benefits of inclusion are often matched by disadvantages.
I felt strongly enough about the importance of the case to work (with others) on the legal argument of the intervenor group LEAF (the Women's Legal
64 M V H (S.C.C.) supra n 5 at paras 58, 73, per Cory and Iacobucci, J.J.
48 Yearbook of New Zealand Jurisprudence Vol 3
Education and Action Fund) in the M v H case at the Supreme Court of Canada level, in which LEAF supported M's position that same sex cohabitants should be included in the definition of "spouse" for the purposes of support law. The vitriolic homophobic reactions to the recognition of same sex relationships must also be taken seriously and resisted. I was outraged when Bill 167 (which would have included same sex couples in most legislative provisions that gave rights to unmarried heterosexual couples) failed to pass in the Ontario legislature in 1994. It was this failure that gave rise to much subsequent litigation, including M v H.
Equally, however, it is my view that critical analysis of the implications for social transformation of such initiatives must occur simultaneously with legal struggles for recognition. I am very concerned that lesbian/gay strategies of engagement with state and law not stop at the point of recognition, and that recognition, while clearly necessary, not be seen as sufficient to achieve social equality. I was disturbed while working with LEAF by the difficulty we had in avoiding assimilationist arguments, although I thought that the final factum that LEAF submitted to the Supreme Court largely succeeded in so doing. Moreover, many of the arguments in M
v H in favour of including lesbian relationships in the Ontario Family Law Act can be read as adopting the problematic dichotomy between recognition and redistribution that Nancy Fraser describes, by focussing on the "cultural" effects of recognition and avoiding the implications for redistribution of economic well-being. M argued in her factum before the Supreme Court of Canada that the Act's failure to include same sex couples "leaves same-sex couples standing outside of the law, both metaphorically and literally." M then made a recognition argument reminiscent of Fraser: "Since the law articulates community standards, lesbian and gay people may
internalize such an exclusion as a denial of worth. This internalization eats away at the place that love starts: self-love and the recognition of oneself as a valuable human being." Both M and LEAF emphasized the importance of recognition of the relationship. It was suggested, at least implicitly, that the oppression of lesbians and gay men can be addressed through recognition of relationships, without acknowledging the complex economic underpinnings of this oppression and the way that the role of family in capitalist societies relates to that oppression.
In addition, both M and LEAF emphasized the private nature of the remedy of re-defining "spouse" to include same sex cohabitants for the purposes of spousal support claims, which would alleviate demands on public funds. LEAF argued that there were three objectives of the legislation: reducing the burden on the public purse; imposing legal duties on spouses to treat one another in an economically fair fashion upon relationship breakdown; and assisting heterosexual women. Strategically, LEAF's argument was partly directed at countering the justification made by the (conservative) Ontario government of its resistance to the inclusion of same sex couples in the definition of "spouse". Its justification was that the Family Law Act was aimed at protecting dependent (heterosexual) women and children, and that this objective was pressing and substantial. The Ontario government had thus made a pseudo-feminist argument referencing the economic inequality of (heterosexual) women in marriage-like relationships. In rebutting the argument of the government against recognition of same sex cohabitants, LEAF tried at the same time not to undermine the importance of the issue of the economic inequality of heterosexual women. The connections between heteronormativity and gender and the family and allocation of the costs of social reproduction were therefore elided. This elision is apparent when one
69 See also LEAF's Factum supra n 26 at paras 17-18.
71 LEAF's Factum supra n 26 at para 22.
50 Yearbook of New Zealand Jurisprudence Vol 3
considers that the LEAF factum raised concerns about the privatizing effects of inclusion with the Family Law Act, but then sidestepped the issue by stating that "in the current era of economic retrenchment by government, these concerns may be somewhat moot".
Those who argued in favour of expansion of the definition of "spouse" in
M
v H thus endorsed family law's purpose as being, at least in part, the
privatization of economic responsibility. In accepting the
argument in M v H
that same sex cohabitants should be defined as "spouses" for the purposes of
making spousal support claims under
Ontario's Family Law Act, the Supreme Court
of Canada relied in part on the fact that this statute deals with obligations
between
individuals who were once intimate partners, as opposed to economic
obligations that state and community might owe to individuals.
In other words,
these are private obligations as opposed to public, and thus more acceptable in
a capitalist society in which privatization
- always a key element - is an
increasing trend. Although in cases such as M
v H heteronormativity is
challenged, the ways that the legal arguments must be formulated mean that
the potentially disruptive lesbian (or gay) subject is
absorbed back into
familiar roles and her disruptive potential is displaced.'
5. CONCLUSION
Overall, when one looks seriously at the objectives of family law, the excitement, and the benefits, of bringing lesbian and gay cohabitants into the system as spouses become less clear. Certainly, the right of an individual to be recognized as a legal parent of a child that she is co-parenting, via adoption, is crucial. Furthermore, for some lesbians or gay men, property settlements or spousal support payments make a difference in living standards. In some cases, if separating couples are unable to reach equitable and fair arrangements regarding property and children, the legal system may provide a normative framework that prevents some injustices as between the parties. However, as mentioned above, arguably the laws on property division and spousal support and social welfare and tax mainly aid those who are quite well-off already and can do real harm to those who have lower incomes.' In the end, the family law system operates in a manner that
73 Factum of the Respondent M supra n 68 at para 49.
encourages privatization of economic responsibilities and demarcation of who is recognized as family and who is not. Neither of these results seems highly desirable in a long term vision of a just society.
Canada has begun the process of making same sex relationships analogous to those of unmarried opposite sex cohabitants, at least if same sex partners conform to a normative model of "spouses": showing a conjugal relationship; joint bank accounts; and so on. As Shelley Gavigan has shown, the legal form of "spouse" has proven itself to be flexible enough to accommodate this change.' Other jurisdictions such as the Netherlands and Vermont State have gone further to recognize a form of same sex marriage.' These developments have been - and should be - applauded for their recognition of same sex relationships. Nevertheless, I remain unconvinced of the potential for such recognition to disrupt heteronormativity sufficiently to result in major change in the lives of all lesbians' and gay men, unless the gay/lesbian communities find a way to extend a simultaneous critique of current familial structures as they relate to economic inequalities. In other words, we must not be so eager for recognition that we settle for too little when it is received, or for provisions that benefit only some lesbians and gay men.' We must lobby strenuously for measures that enhance the redistribution of wealth and well-being that are not contingent on whether we have had a wealthy spouse at some point in our lives or whether we conform to the model of "good" queer people. As Ruthann Robson has suggested, only if recognition of lesbians and gay men as "family" eventually destroys or displaces the centrality of "family" in how society organizes redistribution of economic well-being would such recognition lead to more fundamental social change.9°
There is no question that my perspective on this subject is influenced by a . feminist politic as well as a concern for the rights of lesbians and gay men. Charlotte Bunch pointed out some time ago that lesbianism is not just cultural or a question of civil rights, but rather political: "Lesbian-feminist politics is a political critique of the institution and ideology of heterosexuality as a cornerstone of male supremacy." Bunch went on to say: "It is not okay to be queer under patriarchy - and the last thing we should be
78 Supra n 6.
80 Robson, "Resisting the Family: Repositioning Lesbians in Legal Theory" supra n 2.
52 Yearbook of New Zealand Jurisprudence Vol 3
aiming to do is make it okay."' If being defined as "spouse" makes it okay for some lesbians and gay men to be queer under patriarchy, we must also beware of the possibility that it does not sustain a political critique of heterosexuality and its role in a capitalist/patriarchal society. As Ettelbrick has suggested, those who are closer to the norm or to power - those who are acceptable to the mainstream due to race, gender, economic status - are more likely to see marriage (or, presumably, legal recognition of marriage-like relationships) as a principle of freedom/equality.' We would do well to revisit Carol Smart's now quite old argument about de-centering marriage and devising "a system of rights, duties, or obligations which are not dependent on any form of "coupledom" or marriage or quasi-marriage"" which seems quite radical in comparison to many current arguments that keep it at the centre of our normative universe.'
The limitations of M v H should also be noted. The Supreme Court of Canada was extremely cautious in stating that the decision did not challenge traditional definitions of marriage, as was the federal government in its official response to the decision. The federal bill recently passed by the Canadian House of Commons to extend the application of various federal statutes to same sex couples took two measures to preserve the institution of marriage.' First, its preamble contained language defending marriage as an opposite sex relationship only. Second, a legal distinction was drawn between married "spouses" and "common law partners", who will include both same-sex and opposite sex partners. A similar distinction was drawn in the Ontario statute, Amendments Because of the Supreme Court of Canada Decision in M v H Act, 1999, except that in Ontario same-sex "partners" are even further distinguished from unmarried opposite sex cohabitants by being denied the designation "spouse". M unsuccessfully sought a re-hearing of the appeal on the basis that the amendments did not comply with the Charter or with the decision of the Supreme Court of Canada. She argued
82 Ettelbrick, "Since When is Marriage a Path to Liberation?" supra n 16 at 24.
its Bill C-23, supra n 14.
es S.O. 1999, c.6.
that the separate nomenclature draws an inappropriate distinction on the basis of sexual orientation and was therefore contrary to the Charter's equality provisions. The Province of Alberta too has now defined marriage clearly to specify a marriage between a man and a woman.g" Most recognition initiatives in other jurisdictions similarly preserve marriage as a heterosexual preserve and/or grant more rights and responsibilities to heterosexual partners than to same sex partners.' Although it is difficult for those of us struggling to make change within the legal system to figure out how to abandon the field of family in regulating legal rights and responsibilities, authors such as Robson and Smart suggest that we struggle towards new organizing categories rather than re-affirming the family norm, and discriminatory distinctions within it.
87 Bill 202, supra n 14.
54 Yearbook of New Zealand Jurisprudence Vol 3
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