Same-Sex Spouses in Canada
On May 20, leaving its southern neighbor in the dust, Canada took a breathtaking leap forward in lesbian and gay rights. In what one advocate calls a "monumental" decision, Canada's Supreme Court declared 8 to 1 that for the purposes of family law, same-sex partners must be considered "spouses."
That doesn't mean Canadian lesbian and gay couples can now marry. Since 1978 Canada's provincial and federal family laws have recognized two categories for different-sex couples: full marriage, for which you register and exchange vows, and "common-law marriage," imposed on pairs who live together "conjugally" for several years. The decision, which confers common-law status on cohabiting same-sex couples, is the culmination of Canadian activists' decadelong strategy of appealing to Canada's young Constitution and Equality Charter--which guarantees the right to "human dignity"--to win, one after another, "common law" responsibility and benefits for same-sex pairs.
M v. H started out as one of those cases: After M moved out of their ten-year relationship, H changed the locks on their properties, took M's name off their joint business and warned their accountant and clients not to speak to M. Instead of the six months it would have taken to clear things up had H and M been male and female, it took six years in front of thirty judges for M to get the right to a family law judge's oversight. But now Canada's Supreme Court has ruled definitively that same-sex partners must be included under the term "spouse"--so for better or worse, Canadian lesbian and gay couples now have to worry about such things as alimony, child support, shared taxes and separation oversight, while gaining the rights to shared pensions, wrongful-death benefits, immigration, hospital visitation and much more. The decision's wording was so strong that every Canadian provincial government but Alberta--and the Canadian federal government as well--has agreed to open those second-tier spousal rights and responsibilities to same-sex partners.
How did Canada's gay activists bring this about? In part, by avoiding the veil-trailing, hymen-breaking, hysteria-inducing M-word. "We argued throughout the case that this had nothing to do with marriage," says Martha McCarthy, M's Toronto-based counsel. That meant the Canadian court could stay away from a word that turns out to be electrically charged, so dense with religious and historical symbolism that linking it with same-sex couples makes otherwise fair-minded people blanch. In fact, while the Canadian federal government agreed to amend its laws to count same-sex partners as common-law "spouses," it also voted to ban same-sex partners from "marriage"--despite a June 1999 Globe and Mail survey, which found that 53 percent of Canadians are willing to say "I do" to same-sex marriage.
That's what's happening in most of the West: Courts and legislatures are granting piecemeal or de facto or second-tier recognition--and then inching forward toward marriage. After a few years with a second-tier status, the Netherlands may soon be the world's first nation to offer same-sex couples full marriage--even use of the wedding-cake word. The Scandinavian countries have a special status for same-sex couples called "registered partnership," which includes almost every marriage responsibility and benefit, and which most citizens call "gay marriage." South Africa's ruling African National Congress formally endorses same-sex marriage, and its courts are steadily recognizing one right and responsibility after another. Hungary's common-law marriage includes same-sex couples. In early June, the legislature in New South Wales, Australia's most populous state, amended its De Facto Relationships Act to cover same-sex as well as different-sex couples. Finland, the Czech Republic, France, Spain and Germany are all seriously debating something similar. Other Western countries with specific same-sex partnership recognitions include England, Israel, Brazil, New Zealand and two Spanish provinces.
And the United States? Our country has passed laws--both at the federal level and in twenty-nine states--forbidding recognition of same-sex marriage, laws that are being used to threaten even the most toothless domestic-partnership statutes.
So should American lesbian and gay activists be adopting the Canadian strategy--delaying the push for full marriage, instead picking off individual rights and benefits in one suit after another? It might not be possible here; the United States is a much rougher playing field. We have no constitutional protection for "human dignity." Our states have spent this century dismantling--instead of creating--common-law marriage forms, so we have no recent legal history of recognizing families that don't start with wedding bells. And, perhaps most important, ours is the only Western country with a powerful obstructionist, fundamentalist bloc. The United Church of Canada (the country's largest Protestant denomination, which includes the Methodists, Presbyterians and Congregationalists) actually testified in favor of opening spousal recognition to same-sex partners. The Roman Catholic Archbishop of Toronto, Aloysius Cardinal Ambrozic, issued a statement saying that M v. H "cannot be good"--but added that Canada should offer "basic legal protections to individuals involved in non-traditional domestic relationships." Imagine that from John Cardinal O'Connor.
Besides, according to Evan Wolfson, director of the New York City-based Lambda Legal Defense and Education Fund's Marriage Project and co-counsel in the Hawaii marriage case Baehr v. Anderson, the piecemeal strategy has already been tried here. And every time lesbian and gay lawyers tried to win specific recognitions or benefits, judges and right-wing organizations all but spat, as if extending pensions to same-sex partners would sully the sacred territory of marriage. Says Wolfson, "We have not had the luxury of defining the battle." Only when Hawaii's Supreme Court made its surprise 1993 decision in the Hawaii case, then known as Baehr v. Lewin--and forced the country to debate the prospect of same-sex marriage--did the American public finally start telling pollsters it would be only fair to offer lesbian and gay couples such things as inheritance, pensions, hospitalization and so on.
In M v. H, Canada's Supreme Court wrote, "Certainly same-sex couples will often form long, lasting, loving, and intimate relationships." Says McCarthy, "The decision is carefully reasoned. It contains a lot of strong language. There are quite a few very moving passages. Other courts around the world are going to have to take notice."