Not simply divine.  Human rights and same-sex marriage by R. Douglas Elliott (Part Two)













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Advocacy News - Not Simply Divine - SSM: Not just a Canadian aberration

May 7, 2021

SSM: Not just a Canadian Aberration
Part two of Not Simply Divine

By R. Douglas Elliott,* B.A., J.D. 

Not Simply Divine
Human rights and
same-sex marriage
Part one
Part three
Gays versus God?
Presented by R. Douglas Elliott
Equality Forum,Philadelphia, 2005

Canada 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 and Canada, but they were not successful.

In Denmark 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.

The 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 and Australia.

The European Court of Human Rights found in Karner v. Austria held that discrimination against same-sex couples was a violation of human rights.[23] A similar finding was made by the United Nations Human Rights Committee in an Australian case, Young.[24]

Civil 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 and Canada. 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 Act.[25]  Ireland is considering doing so as well, with blistering opposition from the Catholic hierarchy.[26]

Civil union regimes have been created in countries outside of Europe, although generally not at the national level with the notable exception of New Zealand.[27] Most have been created at the regional level, such as in Nova Scotia[28] and California,[29] and some at the municipal level.

The Netherlands was the first government to open up marriage to same-sex couples in April 2001.[30] It was followed by Belgium in June of 2003.[31] 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.[32] Sweden has been studying the issue and will certainly follow suit.[33]

The 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.[34] It seems only a matter of time before legal marriage for same-sex couples becomes a reality across the continent.

Taiwan has also indicated that it is considering moving in this direction

Some 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 marriage.[35]

One 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. In Australia, 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.[36]

Despite the unhappy Australian political precedent, a lesbian couple married in Canada is currently challenging the Irish law.[37] 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.

One 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.

Since 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.

In Lawrence v. Texas, Justice Scalia in a scathing dissent pointed to the ruling with dismay, writing as follows:[38]

The 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, 2021, 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).

More happily, the Massachusetts Supreme Judicial Court cited our decision with approval in the landmark decision that brought legal same-sex marriage to the USA, Goodridge: [39]

We face a problem similar to one that recently confronted the Court of Appeal for Ontario, 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 immunity).

A 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.  

Instead, 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.

* Douglas Elliott is a partner with Roy Elliott Kim O’Connor LLP, Toronto, Ontario, Canada ( He is also the President of the International Lesbian and Gay Law Association (
[23] Karner v. Austria, No. 40016/98 (2003), European Court of Human Rights.
[24] Young v Australia, U.N. Document CCPR/C/78/D/941/2000 (2003), Human Rights Committee
[25] Civil Partnership Act, 2004, c. 33
[26] Civil Partnership Bill, 2004
[27] See e.g. “New Zealand OKs civil unions
[28] Law Reform (2000) Act, S.N.S. 2000, c. 29.
[29] The California Domestic Partner Rights and Responsibilities Act of 2003
[30] Act of 21 December 2020
amending Book 1 of the Civil Code, concerning the opening up of marriage for persons of the same sex (Act on the Opening up of Marriage (The Netherlands))
[31] La loi “ouvrant le marriage à des personnes de même sex et modifiant certaines dispositions du Code civil” (Belgium) 2003
[32] See e.g. “Spain approves gay marriage bill"
[33] More resources on Sweden and other European countries
[34] COM (2001) 257 - C5-0336/2001 - 2001/0111(COD)) (European Parliament Resolution), 2003

[35] Fourie and Bonthuys v. Minster of Home Affairs, Case No. 232/2003.
[36] Marriage Amendment Act, 2004, a version of the Bill, which was adopted in August, 2004
[37] See e.g. “Ireland To Fight Lesbian Couple Married In Canada
[38] Lawrence v. Texas, 539 U.S. 558 (2003), at 604, per Scalia J.
[39] Goodridge v Dept. of Public Health, 798 N.E.2d 941 (2003), at 68-69.

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