Course:Law3020/2014WT1/Group P/Feminist Jurisprudence
Feminist Jurisprudence on Egan
"It may be correct to say that being in a same-sex relationship is not necessarily the defining characteristic of being homosexual. Yet, only homosexual individuals will form a part of a same-sex common law couple. It is the sexual orientation of the individuals involved which leads to the formation of the homosexual couple. The sexual orientation of the individual members cannot be divorced from the homosexual couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female. The words "of the opposite sex" in the definition of "spouse" specifically exclude homosexual couples from claiming a spousal allowance."
Per Cory J, Egan v Canada, para 168
The quote above is from the dissent in Egan v Canada and is greatly reflective of MacKinnon's view that the Majority would be considered to be enveloped in the patriarchy of the legal system and unable to disassociate themselves from the confines of the traditional paradigm of marriage. MacKinnon would best associate with the dissent because of the way that they have challenged the dominate view.
Mackinnon alleges that the dominant legal system grew together with the patriarchy over time. Which is to say that society has been predominantly organized by men since the inception of the legal system. As a result, the system best serves the creators, men. This has created an inherent bias in the legal system, meaning minorities that act out to change the system are portrayed as seeking an exemption or special treatment from the neutral legal system, that is not in fact neutral. The lack of neutrality in the system portrays those seeking equality as insidious. However, MacKinnon would note that this press for equality is not insidious but actually seeks to achieve a balance in rights. This sentiment is mirrored by the dissenting opinion of L'Hereux-Dube J. at para 89, "highly socially vulnerable group, in that they have suffered considerable historical disadvantage, stereotyping, marginalization and stigmatization within Canadian society."
For the Majority, the concept of the man as the main beneficiary in society, a same sex couple of two men should be placed in a superior situation. However, the traditional placement of women devalues their contributions and so if we are to place two men as a couple, one of the men would assume the female role. This is uncomfortable in the patriarchal society because it cloaks the man in a lesser situation, that being the role of a woman. Assuming this role devalues his contribution to society and shifts out of the formal economy.
The ruling that spouse will not include same sex couples was, at the time, highly reflective of the patriarchal society of 1995. However, the dissenting exhibits the incremental shift towards the feminist viewpoint that strongly recognizes and considers the minority groups of Canadian society. Furthermore, the dissent's approach better accounts for the perspective that the gender differences of men and women should not be the defining characteristics of what constitutes a legal relationship anymore.