As I was thinking about the application of the liberty interest protected by s. 7 of the Canadian Charter of Rights and Freedoms to the family/marriage context, which I have written about here and here, a question occurred to me: why wasn’t it invoked to argue for the unconstitutionality of denying same-sex couple the opportunity to marry? The question is, of course, academic, since same-sex marriage has now been the law of the land for many years. But I am, after all, a wannabe academic, and find it quite interesting.
Probably the most significant judicial decision on the subject was Halpern v. Canada (Attorney General), 65 OR (3d) 161 (Ontario C.A.); it held that the restriction of marriage to opposite-sex couples was a breach of the equality guarantee of s. 15(1) of the Charter, while rejecting a church’s claim that it was a violation of its freedom of religion. But the s. 7 liberty guarantee was not even raised before the Court. The same was true in Hendricks c. Québec (Procureur général),  R.J.Q. 2506, a decision of the Superior Court of Québec.
Yet the Supreme Court’s jurisprudence recognizes (and already recognized by the time these cases were decided) that “‘liberty’ is engaged where state compulsions or prohibitions affect important and fundamental life choices,” as Justice Bastarache put it, writing for the majority in Blencoe v. British Columbia (Human Rights Commission), 200o SCC 44,  2 S.C.R. 307, at par. 49. It seems to me that the choice of a spouse is quite obviously a “fundamental life choice,” or, to take up language from Justice Laforest’s concurring opinion in Godbout v. Longueuil (City),  3 S.C.R. 844, at par. 66, a matter “fundamentally or inherently personal such that, by [its] very nature, [it] implicate[s] basic choices going to the core of what it means to enjoy individual dignity and independence.” And it also seems to me that it would not have been difficult to argue that denying homosexuals this fundamental life choice is arbitrary and therefore not in accordance with principles of fundamental justice ― not more difficult, in any case, than the very similar argument that was made in the context of the equality analysis.
Why, then, did the applicants in Halpern and Hendricks not invoke s. 7? Why, indeed, is the public discourse about same-sex marriage only concerned, so far as I can tell, with equality and not liberty ― why do we talk about marriage equality and not marriage liberty?
I can think of one way to argue that marriage isn’t about liberty at all. It would involve saying that marriage is not something that people do, but merely a package of benefits that they get. In that case, it makes little sense that denying access to it is a breach of a person’s liberty, though if the reason for the denial is discriminatory, it is a breach of equality rights. (Similarly, it would have made no sense for the appellants in Egan v. Canada,  2 S.C.R. 513, the case in which the Supreme Court first recognized that sexual orientation is a prohibited ground of discrimination under s. 15(1) of the Charter, to argue that the denial to one of them of a spousal allowance because they were in a same-sex rather than opposite-sex relationship was a breach of their liberty.) But I am pretty sure that neither the advocates nor the opponents of same-sex marriage think about it as a mere package of benefits granted by the state. They see it as something more, something people engage in and not only receive. If so, then restricting it is a breach of people’s liberty.
The only other explanation for the absence of liberty from the same-sex marriage discourse I have come up with is political. Same-sex marriage has been, for the most part, a cause of the “progressive” side of the political spectrum. Its advocates tend to be people who just are more concerned with equality than with liberty ― not just in the matter of marriage, but in most, if not all, of their political views. Equality-based arguments have more appeal to them than those based on liberty. Perhaps. But I doubt that that is all there is to this curious matter, and would be disappointed it were. What am I missing?
All that is not to say that the equality arguments in favour of same-sex marriage are mistaken or unimportant. Discrimination is at the heart of the denial to same-sex couples of the opportunities that their opposite-sex counterparts have always enjoyed. And so far litigation is concerned, there might be no point in invoking an additional argument if one is sure to prevail on another one (though recall that in Halpern, the applicants asserted a religious freedom claim, which in my view was much less plausible than the one based on liberty, and which indeed went nowhere). Still, I find the absence of liberty from the discourse about marriage perplexing, and the same-sex marriage litigation will remain something of a lost opportunity for courts to develop this branch of our constitutional jurisprudence.