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.