Advocacy News -
Not Simply Divine - SSM: Not just a Canadian
May 7, 2005
SSM: Not just a Canadian Aberration
Part two of Not Simply Divine
R. Douglas Elliott, B.A., J.D.
did not arrive at such a momentous change in isolation. The gay liberation
movement that began with the Stonewall riots in New
York City in 1969 had always demanded an end to
discrimination based on sexual orientation in marriage. Legal actions
were brought in the 1970’s in the USA
but they were not successful.
in the early 1970’s, the movement for marriage for same-sex couples had
its first success. The state Lutheran church, however, objected to the
notion of marriage for same-sex couples as such, and so the concept of
registered partnerships akin to marriage was invented. This innovation
has now become a common feature throughout Europe.
However, it is important to appreciate that since most Europeans, unlike
most North Americans, must be married at City Hall in order to be legally
married, registration at City Hall does have many of the cultural and
legal features of marriage.
creation of these separate and unequal regimes has improved the lot of
same-sex couples in many countries. Their use has spread beyond Europe,
and they may now be found in North and South America,
as well as New Zealand
European Court of Human Rights found in Karner
v. Austria held that discrimination against same-sex couples was a violation of human
A similar finding was made by the United Nations Human Rights Committee
in an Australian case, Young.
union regimes have created three types of problems in Europe.
First, the range of rights and obligations created varies from country
to country. Second, although members of the European community have mobility
rights, a registered partnership in France
may have no legal recognition in England,
whereas a French marriage would be valid in England.
This problem also arises within federal nations, such as the USA
Third, many persons considered that in modern Western democracies, the
continued exclusion of same-sex couples from the fundamental social institution
of marriage was a violation of human rights. The United
Kingdom recently passed a comprehensive
is considering doing so as well, with blistering opposition from the Catholic
union regimes have been created in countries outside of Europe,
although generally not at the national level with the notable exception
of New Zealand.
Most have been created at the regional level, such as in Nova
and some at the municipal level.
was the first government to open up marriage to same-sex couples in April
It was followed by Belgium
in June of 2003. Both nations
have been praised for these measures and thousands of same-sex coupes
have availed themselves of this right. Heterosexual marriage has remained
unaffected by this measure, and no clergy have had their rights compromised
as a result. As noted in the introduction, Spain
seems poised to become the next country to take this step.
has been studying the issue and will certainly follow suit.
Parliament of the Council of Europe has now called on all its member states
to move to recognition of same-sex marriage in order to ensure mobility
and legal recognition of all marriages throughout Europe.
It seems only a matter of time before legal marriage for same-sex couples
becomes a reality across the continent.
has also indicated that it is considering moving in this direction
nations have followed the Canadian example and pursued reform through
the Courts. A marriage challenge has been launched in the South African
courts. Since South Africa’s
Bill of Rights is based on the Canadian model, and Canadian cases are
often cited in South African constitutional cases, it is likely South
Africa will become the first African
nation to embrace legal same-sex marriage. Gay and lesbian equality has
important support in that country from Bishop Desmond Tutu, among others.
The initial ruling by the Supreme Court of Appeal of South
Africa supported the extension of equal
of the more interesting developments has been the use of demands for recognition
of valid Canadian same sex marriages in the domestic courts of other nations.
litigation had been underway to legally recognize Canadian same-sex marriages.
The Australian Prime Minister moved to head off the challenge with a Bill
in Parliament and that country is not likely to see change soon.
the unhappy Australian political precedent, a lesbian couple married in
is currently challenging the Irish law.
While the case is proceeding in the Courts, the question of the legal
status of same sex couples is also being considered by the Irish legislature.
of the most interesting cases is pending in Israel.
A group of couples were married in Toronto
and returned to launch demands for recognition. Israel
has a rich jurisprudence that has recognized the equality rights of gays
and lesbians. It also has a long tradition of generous recognition of
foreign marriages of Israeli citizens who do not want to or cannot conform to the Israel’s
domestic legal marriage rules that confer a monopoly on legal marriage
to the orthodox rabbinate.
other speakers will be discussing the American experience, my comments
on the “land of the free” will be brief. In the USA,
there has been a strong movement for same-sex marriage for some time.
The assistance of great American lawyers like Evan Wolfson and Mary Bonauto
was invaluable to our struggle in Canada.
It was with great satisfaction that we saw our Ontario
decision, Halpern, directly cited in important decisions in the
American courts beginning in 2003.
Lawrence v. Texas, Justice Scalia in a scathing dissent
pointed to the ruling with dismay, writing as follows:
Court today pretends that it possesses a similar freedom of action, so
that we need not fear judicial imposition of homosexual marriage, as has
recently occurred in Canada (in a decision that the Canadian Government
has chosen not to appeal). See Halpern v Toronto, 2003
WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's
Lead, Washington Post, June 12, 2003, p A25.
At the end of its opinion --after having laid waste the foundations
of our rational-basis jurisprudence--the Court says that the present [**2498] case "does not involve whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter." Ante, at 156 L Ed 2d, at 525. Do not believe it. More illuminating than this bald, unreasoned
disclaimer is the progression of thought displayed by an earlier passage
in the Court's opinion, which notes the constitutional protections afforded
to "personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education," and then declares
that "persons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do." Ante, at 156 L
Ed 2d, at 523 (emphasis added).
happily, the Massachusetts
Supreme Judicial Court cited our decision with
approval in the landmark decision that brought legal same-sex marriage
to the USA,
face a problem similar to one that recently confronted the Court of Appeal
the highest court of that Canadian province, when it considered the constitutionality
of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter).
See Halpern v. Toronto (City),
172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one
man [*69] and one woman, to the exclusion of all others." Id. at par. (36),
quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that
the limitation of civil marriage to opposite-sex couples violated the
Charter, the Court of Appeal refined the common-law meaning of marriage.
We concur with this remedy, which is entirely consonant with established
principles of jurisprudence empowering a court to refine a common-law
principle in light of evolving constitutional standards. See Powers v.
Wilkinson, 399 Mass. 650,
661-662, 506 N.E.2d 842 (1987) (reforming common-law rule of construction
of "issue"); Lewis v. Lewis, 370 Mass. 619,
629, 351 N.E.2d 526 (1976) (abolishing common-law rule of certain interspousal
court in Seattle has also cited the Canadian experience in ruling that
same-sex marriage should be permitted in that state. A California Court
has made an initial ruling in favour of same sex marriage. One of the
plaintiffs in that litigation was noted activist Rev. Troy Perry, who
married in my client’s church in Toronto.
Dire predictions were made of social
problems by opponents of same-sex marriage. None of their sometimes hysterical
forecasts have been borne out. No minister or priest has been sued or
subjected to a human rights complaint for refusing to perform a same-sex
marriage. Churches and other faith groups continue to enforce their own
rules for marriage peacefully. There have been no social movements calling
for incestuous marriages, polygamy or marrying animals. Heterosexuals
do not appear to have lost interest in either marriage or procreation.
we have been delighted in the happiness of more families enjoying more
weddings. We have taken pride in the tears of joy of foreign couples who
have been offered the chance to fulfill their dreams in our country. Love
is a beautiful thing.