THE MIGRATION OF SAME-SEX
MARRIAGE FROM CANADA TO
THE UNITED STATES: AN
INCREMENTAL APPROACH
I. INTRODUCTION
In the past several years, same-sex marriage has been a widely
publicized and hotly contested issue worldwide. This important civil
rights issue remains at the forefront of the gay rights movement and its
struggle for equality. While the legal issues appear to be settled in
Canada, the debate and legal battles are far from over in the United
States. Here, there is currently no national consensus on the recognition
of same-sex marriages or even domestic partnerships and civil unions. 1
After decades of work fighting for the legal equality of homosexuals in
many areas of the law, Canada legalized same-sex marriage in 2005. 2
Now that three years have passed, I address the possibility that the
legalization of same-sex marriage could migrate down from our
northern neighbor. I suggest that the United States should follow
Canada and adopt an incremental approach, 3 which will ensure samesex couples are afforded protection under federal law.
This comment argues that in the United States an incremental
approach will be effective in ensuring that same-sex couples are granted
equal access to marriage laws. Part II will discuss the current status of
same-sex marriage in Canada, where it was legalized at the provincial
1. See MarriageEquality.org, Current Status, http://www.marriageequality.org/index.p
hp?page=current-status (last visited Oct. 10, 2008) According to Marriage Equality USA,
Massachusetts is the only state that allow same-sex marriage. Id. Six states offer civil
unions and domestic partnerships. Id. Twenty-six states have state constitutional bans on
same-sex marriage. Id.; In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (establishing samesex marriage in California).
2. Equal Marriage for Same-Sex Couples, http://www.samesexmarriage.ca/evolution/
timeline.htm (last visited September 9, 2008).
3. As discussed later in this article, an incremental approach entails gaining legal
equality for homosexual in other areas of the law such as sexual orientation discrimination
in the public and private sectors before fighting for same-sex marriage.
200
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and federal levels. 4 Background cases are presented as well as the Civil
Marriage Act, which legalized same-sex marriage in 2005. 5 Part III will
discuss same-sex marriage in the United States, which has varying
degrees of recognition for same-sex couples at the state level 6 and no
recognition at the federal level. 7 Relevant court cases are briefly
presented to provide a history of the litigation. Part IV will explore the
migration of same-sex marriage and more specifically, examine why
same-sex marriage has not migrated from Canada to the United States.
Part V will explain the incremental approach taken in Canada to legalize
same-sex marriage while emphasizing that marriage litigation was the
final step taken by gay rights groups. Lastly, I argue that in taking an
incremental approach to same-sex marriage, the United States should
use Canadian legislation as an example of how successful this strategy
can be in gaining full legal equality for same-sex couples in the United
Sates.
II. SAME-SEX MARRIAGE IN CANADA
A. Background Cases
The traditional definition of marriage as between a man and a
woman was rooted in the Canadian common law because the federal
government had never exercised its power to define marriage. 8 In 2002
and 2003, trial courts in three provinces (Ontario, British Columbia, and
Quebec) held that the opposite-sex definition of marriage was
unconstitutional, which they had the authority to do because marriage
was not statutorily defined. 9 In each of the cases, the trial courts stated
the unconstitutionality ruling would be suspended for two years, giving
the government time to comply with the rulings and provide same-sex
4. SameSexMarriage.ca, Equal Marriage for Same-Sex Couples, http://www.samesex
marriage.ca/evolution/timeline.htm (last visited September 9, 2008).
5. See infra Part II.
6. Current Status, supra note 1.
7. The Defense of Marriage Act of 1996 (DOMA) does not allow the federal
government to recognize any marriage other than one between a man and a woman. 1
U.S.C. § 7 (2006). DOMA also declares states are not obligated to recognize a same-sex
union formed in another state. 28 U.S.C. § 1738(c) (2006).
8. Peter W. Hogg, Canada: the Constitution and Same-Sex Marriage, 4 INT’L J.
CONST. L. 712, 715 (2006) (discussing the legislative authority over marriage).
9. See Brenda Cossman, Migrating Marriages and Comparative Constitutionalism, in
THE MIGRATION OF CONSTITUTIONAL IDEAS 209, 211 n.4, (Sujit Choudhry ed., 2006)
(summarizing the major cases and their holdings). See, e.g. Halpern v. Toronto (City),
[2002] 225 D.L.R.4th 529 (Can.), EGALE Can. Inc. v. Canada [2003] 225 D.L.R.4th 472
(Can.), Hendricks v. Quebec, [2002] R.J.Q. 2506 (Can.), respectively.
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marriages. 10 In Halpern, however, the couples appealed the two-year
suspension portion of the ruling in an attempt to make the decision
immediately effective and they won. 11 The day of the ruling, Ontario
became the first province in Canada to recognize same-sex marriage
when workers at Toronto City Hall began to issue marriage licenses to
same-sex couples. 12
B. The Civil Marriage Act
After the above three cases held the common law definition of
marriage was unconstitutional, the federal government proposed the
Civil Marriage Act. 13 This act would replace the words “one man and
one woman” with the more neutral language of “two persons.” 14 In
2003, the government directed a reference to the Supreme Court
requesting an advisory opinion about Parliament’s legislative authority
to change the definition of marriage to include same-sex couples. 15 The
Court found Parliament was vested with such authority and held that the
Civil Marriage Act was constitutional. 16 While the advisory opinion did
not guarantee the bill’s passage, 17 it settled the constitutionality of the
law and the Act cannot be litigated. 18
1. Enactment
After the Supreme Court issued its advisory opinion, Bill C-38, the
Civil Marriage Act, was introduced to amend the definition of marriage
to state, “marriage, for civil purposes, is the lawful union of two persons
to the exclusion of all others.” 19 Bill C-38 was passed by the House of
Commons on June 28, 2005 and by the Senate on July 19, 2005. 20 The
next day, the Bill received Royal Assent and it became law. 21 The law
10. Id.
11. Halpern, 225 D.L.R. 4th at 529.
12. Cossman, supra note 9, at 211–12.
13. Canada Federal Statutes, Civil Marriage Act, S.C. 2005, c. 33 (West 2008).
14. Hogg, supra note 8, at 715–16 (discussing the provincial court decisions and the
Reference to the Supreme Court of Canada).
15. Id. at 712–13 (discussing the Canadian Supreme Court’s advisory opinion
regarding the constitutionality of the Civil Marriage Act).
16. Id. at 712 (citing Re Same-Sex Marriage, [2004] 3 S.C.R. 698 (Can.)).
17. See Legislative Summaries, Bill C-38 The Civil Marriage Act (Sept. 14, 2005),
available at http://www.parl.gc.ca/common/bills_ls.asp?Parl=38&Ses=1&ls=c38.
18. Re Same-Sex Marriage, 3 S.C.R. at 698.
19. Hogg, supra note 8, at 712 (discussing the wording of the Civil Marriage Act).
20. MARY C. HURLEY, LEGISLATIVE HISTORY OF BILL C-38 (2005), http://www.parl.gc.
ca/common/bills_ls.asp?Parl=38&Ses=1&ls=c38#descriptiontxt.
21. Id.
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granted same-sex couples the right to marry, while also emphasizing the
need for the equal treatment of homosexuals under the Canadian
Charter of Rights and Freedoms. 22
2. National Opinions
Not surprisingly, just after the bill passed, political and religious
groups opposed to same-sex marriage spoke out against the new law.
The Canada Family Action Coalition went so far as to say, “Canada is
politically sick and democratically dysfunctional.” 23 While a few
outspoken political groups remain opposed to same-sex marriage, public
polls conducted a year after the enactment show about fifty-five percent
of Canadians believed the government should not tamper with the Civil
Marriage Act. 24
Support for same-sex marriage increased after passage of the Civil
Marriage Act. In 2005, just prior to passage of the Civil Marriage Act,
fifty-two percent of those polled by Environics Research for the
Canadian Broadcasting Centre disagreed with changing the definition of
marriage to allow same-sex couples to wed and only forty-four percent
of respondents agreed with the act. 25 After the passage of the Civil
Marriage Act, public opinion polls showed growing support in Canada
for same-sex marriage. According to Marriage Equality USA’s website,
a 2006 poll taken by Environics Research “showed fifty-nine percent of
Canadians are in favor of marriages for same-sex couples (one of the
highest approval ratings ever) and even more significant was that the
percent opposed to these marriages had dropped to thirty-three
percent.” 26 The growing support of same-sex marriage demonstrates
the shift in thinking that can occur. In a September 2007 article, one of
22. Civil Marriage Act, S.C. 2005, c. 33 (Can.).
23. SYLVAIN LAROCQUE, GAY MARRIAGE: THE STORY OF A CANADIAN SOCIAL
REVOLUTION 276 (Louisa Blair, et al. trans., 2006); FamilyAction.org, About,
http://www.familyaction.org/about.htm (last visited Aug. 31, 2008) (“The Canada Family
Action Coalition (CFAC) was founded in early 1997 with a vision to see Judeo-Christian
moral principles restored in Canada. CFAC is a grassroots citizen’s action organization that
provides strategies, networking, training and tools to enable ordinary Canadians to influence
their government”).
24. LAROCQUE, supra note 23, at 277.
25. CBCNews.ca, Canadians deeply split on same-sex marriage, poll suggests, April
10, 2005, http://www.cbc.ca/canada/story/2005/04/10/gay-marriage-050410.html; Marriage
Equality.org, About MEUSA, http://www.marriageequality.org/index.php?page=theorganization (last visited Oct. 10, 2008). Marriage Equality USA’s “sole purpose and focus
is to end discrimination in civil marriage so that same-sex couples can enjoy the same legal
and societal status as opposite-sex.” Id.
26. MarriageEquality.org, Polls and Studies http://www.marriageequality.org/index.ph
p?page=polls-and-studies (last visited Oct. 10, 2008).
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Canada’s first legally married gay men was quoted as saying, “[i]t’s
really a debate that hopefully has run its course . . . . We’re just part of
the boring middle class now.” 27 After decades of working toward social
equality for homosexuals, this statement highlights the achievements in
Canada that gay rights groups in the United States someday hope to
accomplish.
III. SAME-SEX MARRIAGE IN THE UNITED STATES
A. Laws
In the United States, a minority of states recognize same-sex
marriages, civil unions, or domestic partnerships. 28 For example,
Vermont offers civil unions to same-sex couples who are excluded from
state marriage laws. 29 Similarly, in Oregon, homosexuals can enter into
domestic partnerships and enjoy nearly all of the benefits and
obligations afforded heterosexual married couples within the state. 30
Massachusetts became the first state to recognize same-sex marriage
when, in 2003, the Supreme Judicial Court of Massachusetts held it was
unconstitutional to deny marriage licenses to same-sex couples. 31 More
recently, on May 15, 2008, the California Supreme Court ruled that
defining marriage as between a man and a woman violated the
California Constitution and became the second state to offer same-sex
marriage. 32 While some states have taken affirmative steps to provide
27. Gregory Bonnell, Canadian Same-sex Unions Growing at Five Times the Rate of
Heterosexual Ones: Census, MARRIAGE EQUALITY USA, Sept. 12, 2007, http://www.marriag
eequality.org/meusa/facts.shtml.
28. See NATIONAL CONFERENCE OF STATE LEGISLATURES, SAME SEX MARRIAGE, CIVIL
UNIONS AND DOMESTIC PARTNERSHIPS (2008), http://www.ncsl.org/programs/cyf/samesex.
htm. Only California and Massachusetts issue marriage licenses to same-sex couples, four
states offer civil unions, two states offer domestic partnerships, three states and the District
of Columbia offer some legal rights to unmarried couples and Rhode Island recognizes
same-sex marriage performed outside the state. Id. The National Conference of State
Legislatures “is a bipartisan organization that serves the legislators and staffs of the nation’s
50 states, its commonwealths and territories. NCSL provides research, technical assistance
and opportunities for policymakers to exchange ideas on the most pressing state issues.” Id.
at About NCSL, http://www.ncsl.org/public/ncsl/nav_aboutNCSL.htm (last visited Oct. 10,
2008).
29. See VT. STAT. ANN. tit. 15, §§ 1201-1207 (1999).
30. OR. REV. STAT. ANN. § 107.005 (West 2008) (stating, “‛domestic partnership’
means a civil contract entered into in person between two individuals of the same sex who
are at least 18 years of age, who are otherwise capable and at least one of whom is a resident
of Oregon”).
31. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
32. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
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same-sex couples with legal protections, federal legislation bars any
recognition beyond the state level. 33
The Defense of Marriage Act prohibits federal recognition of state
domestic partnerships, civil unions, and same-sex marriages. 34 The
Defense of Marriage Act of 1996 (“DOMA”) defines marriage as
between a man and a woman. 35 This federal legislation also declares
that states are not required to recognize any same-sex marriage or union
formed in another state. 36 DOMA essentially denies same-sex couples
any federal recognition of their state-granted unions. 37 While state
domestic partnership and civil union laws do offer important numerous
state law protections for same-sex couples, 38 DOMA denies these
couples access to the 1,138 federal laws that protect and bind
heterosexual married couples. 39
Many states have passed constitutional amendments that define
marriage as between a man and a woman. 40 These amendments limit
the ability of state courts to rule on the constitutionality of opposite-sex
definitions of marriage. 41 One example of the ban is a measure that
appeared on the Virginia ballot in November 2006 to amend the state
constitution to ban same-sex marriage. 42 After passage, the state
33. See The Defense of Marriage Act of 1996 codified at 1 U.S.C. § 7 (2006).
34. Id.
35. Id.
36. 28 U.S.C. § 1738(c) (2006).
37. Id.
38. See, e.g., CAL. PROB. CODE § 4716(a) (West 2004) (giving a domestic partner the
authority to make medical decisions if their partner lacks the capacity to do so); CAL. INS.
CODE § 381.5(a) (West 2005) (giving access to equal insurance benefits given to domestic
partners of insured’s); CAL. REV. & TAX CODE § 62(p) (West 2008) (allowing property tax
benefits provided to transfers between domestic partners); CAL. REV. & TAX CODE §
18521(d) (West 2008) (stating that state tax returns of domestic partners are treated similar
to that of spouses); and CAL. CODE OF CIV. PRO. §377.60 (West 2008) (allowing for the right
to sue for wrongful death of a domestic partner).
39. DAVINA KOTULSKI, WHY YOU SHOULD GIVE A DAMN ABOUT GAY MARRIAGE 15
(Advocate Books 2004).
40. CBSNews.com, 11 States Ban Same Sex-Marriage, http://www.cbsnews.com/
stories/2004/09/30/politics/main646662.shtml (last visited Sept. 24, 2008).
41. See Current Status, supra note 1. “Constitutional amendments banning marriage
equality mean that state courts cannot rule marriage discrimination unconstitutional because
the right to discriminate has been written into constitutional law.” Id. “These bans cannot
be undone by vote of the people in favor of marriage equality or a policy change by the
legislature.” Id. “Only the U.S. Supreme Court could strike down these bans.” Id.
42. Chris L. Jenkins, Ban on Same-Sex Unions Added to Va. Constitution, THE
WASHINGTON POST, Nov. 8, 2006, at A46, available at http://www.washingtonpost.com/wpdyn/content/article/2006/11/07/AR2006110701648.html.
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constitution and the state’s Domestic Relations Codes were modified to
keep marriage an exclusively heterosexual institution in Virginia. 43
B. Litigation
Same-sex marriage has been litigated in state courts for nearly
forty years. In 1971, the first lawsuit filed in the United States that
addressed a same-sex couple’s right to marry was the Minnesota case of
Baker v. Nelson. 44 In Baker, Richard John Baker and James Michael
McConnell applied for a marriage license with the clerk of Hennepin
County District Court but the men were denied because they were of the
same sex. 45 The petitioners claimed that denial of the right to marry
violated their equal protection rights guaranteed by the Fourteenth
Amendment. 46 However, the state court held the marriage statute
constitutional on the ground that “[t]he equal protection clause of the
Fourteenth Amendment, like the due process clause, is not offended by
the state’s classification of persons authorized to marry” and such
classification does not result in discrimination. 47 Most discussion of the
early same-sex marriage cases begins with Baehr v. Lewin, 48 a 1993
Hawaii case in which a same-sex couple challenged the traditional
opposite-sex definition of marriage. 49 Although the case was never
fully litigated because voters passed a state DOMA law before Hawaii’s
Supreme Court could issue a final ruling, 50 Baehr is often credited with
bringing the issue to the public’s attention and moving the marriage
debate to the top of the agenda of the gay rights movement. 51
A more recent case, Goodridge v. Department of Public Health, is
the 2003 Massachusetts Supreme Court decision granting same-sex
couples the right to marry. 52 This landmark ruling made Massachusetts
the first state to recognize same-sex marriage after the court held the
43. See VA. CONST. art. 1, § 15-A (2008) (stating, “[t]hat only a union between one
man and one woman may be a marriage valid in or recognized by this Commonwealth and
its political subdivisions”); See also VA. CODE ANN. § 20-45.2 (stating that, “[a] marriage
between persons of the same sex is prohibited . . . [a]ny marriage entered into by persons of
the same sex in another state or jurisdiction shall be void in all respects in Virginia and any
contractual rights created by such marriage shall be void and unenforceable”).
44. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
45. Id.
46. Id. at 186.
47. Id. at 187 (noting that such a classification is neither “irrational” nor “invidious”).
48. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
49. Id.
50. KOTULSKI, supra note 39, at 124.
51. Id.
52. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
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state could not deny same-sex couples the right to marry because it had
no rational basis for doing so. 53 The Department of Public Health
argued same-sex marriage should be prohibited to provide a “favorable
setting for procreation;” to ensure the optimal setting for child rearing,
which the department defined as “a two-parent family with one parent
of each sex;” and to preserve scarce State and private financial
resources. 54 However, the court held that under the state constitution,
Massachusetts could not “deny the protections, benefits, and obligations
conferred by civil marriage to two individuals of the same sex who wish
to marry.” 55
In emphasizing the need for equal treatment of
homosexuals, the court further stated, “[t]he Massachusetts Constitution
affirms the dignity and equality of all individuals. It forbids the creation
of second-class citizens.” 56 Another case is In re Marriage Cases in
which the California Supreme Court stated:
[w]e therefore conclude that in view of the substance and
significance of the fundamental constitutional right to form a
family relationship, the California Constitution properly must be
interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as
to opposite-sex couples.” 57
This case arose from the 2004 actions of San Francisco city
officials who granted more than 4,000 marriage licenses to same-sex
couples in a one-month period. 58 Randy Thomasson, the founder and
director of Campaign for California Families, a non-profit family values
organization opposed to same-sex marriage, immediately filed a lawsuit
to stop the city. 59 These cases were consolidated with those filed by
same-sex couples who claimed a violation of their constitutional rights
for being denied access to marriage. 60 After the Court found that
defining marriage as between a man and a woman was constitutionally
invalid, officials statewide began to issue marriage licenses to same-sex
couples. 61 With so many states offering different options (or none at
53. Id. at 961.
54. Id.
55. Id. at 948.
56. Id.
57. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).).
58. Bob Egelko, Court halts gay vows, S.F. CHRON., March 12, 2004, A1, available at
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/03/12/MNGHI5JDDU1.DTL.
59. Id.
60. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 686 (Cal. Ct. App. 2006).
61. Ted Rowlands & Carey Bodenheimer, Wedding Bells Chime For California SameSex Couples, CNN, June 16, 2008, http://www.cnn.com/2008/US/06/16/samesex.marriage/
index.html.
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all) to same-sex couples wishing to legally sanction their relationships,
same-sex marriage will be litigated until a Supreme Court ruling or
federal legislation legalizes same-sex marriage throughout the country
and ends this type of discrimination against homosexuals.
IV. MIGRATION OF SAME-SEX MARRIAGE
A. Brenda Cossman’s Migration Model
In Migrating Marriages and Comparative Constitutionalism,
Brenda Cossman discusses the concept of Canadian marriage migration
and its impact on the United States. 62 Her main thesis is that
comparative constitutionalists should consider cultural studies and the
migration of cultural ideas and norms. 63 She writes, “[t]he migration of
same sex marriages and its cultural representations are changing the
cultural landscape within which constitutional challenges will occur and
constitutional doctrine will develop.” 64 In reference to the migration of
same-sex marriage in particular, she notes that “[t]he migration of
Canadian same-sex marriages into U.S. law will continue, as gay
activists continue to encourage Americans to marry in Canada and
struggle to bring these marriages home.” 65 She emphasizes that
marrying in Canada and then attempting to have those unions
recognized by United States jurisdictions may be a foot in the
courthouse door for same-sex couples seeking marriage equality. 66
While legal recognition may be a slow battle, Cossman
acknowledges that “even in the face of official non-recognition, the
legitimacy of Canadian same-sex marriages will continue to seep into
U.S. law.” 67 As same-sex marriage becomes more of the norm of other
countries and gains more social recognition in everyday culture, the
reasons for denying homosexuals access to this institution in the United
States will become less cogent. For the American same-sex couple who
is legally wed in Canada and then denied recognition once home, the
court battle centers on getting their jurisdiction to recognize their union
as legal rather than asking the court to legalize same-sex marriage
altogether. Thus, attention is drawn away from asking the jurisdiction
to specifically grant marriage licenses to same-sex couples and
62.
63.
64.
65.
66.
67.
See Cossman, supra note 9.
Id. at 211.
Id. at 210–11.
Id. at 225.
Id. at 222–24.
Id.
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emphasis is placed on recognizing the validity of the relationship.
Opponents will no longer be able to argue that homosexuals are asking
the United States to legalize same-sex marriage or change the traditional
definition of marriage. In a sense, the battle becomes easier for
homosexuals who just want recognition of their union as would any
other couple who married outside of the United States.
B. Deflection
While the migration of same-sex marriage would be beneficial to
homosexuals, deflection from the United States back to Canada makes
migration hard, or even impossible, and thus results in what Cossman
terms “negative migration.” 68 She notes that Canadian same-sex
marriage jurisprudence is more likely to occur as a negative or antimodel—that is, as an example of a path better not taken. 69 The
legalization of same-sex marriage becomes a negative model when the
idea is deflected back into Canada by putting up shields in the United
States to prevent migration. Such “shields” include state DOMA laws
and state constitutional bans on same-sex marriage. 70 These shields
block the migration of constitutional ideas and make it harder for
American judges to use international law in court decisions. For
example, in a state where marriage is statutorily defined as between a
man and a woman, judges will defer to the laws and constitution of their
state rather than to decisions of international courts. 71
As part of the deflection of constitutional ideas, there appears to be
a resistance to allowing international case law and social trends to
influence this country’s court decisions. 72 When Justice Kennedy
mentioned decisions from the European Court of Human Rights in his
2003 majority opinion in Lawrence v. Texas, 73 there was considerable
backlash, especially from Justice Scalia. 74 The court in Lawrence was
overruling its earlier decision of Bowers v. Hardwick, which had upheld
a state statute banning sodomy. 75 In discussing criticisms of the Bowers
decision, Justice Kennedy wrote,
68.
69.
70.
71.
72.
73.
74.
Cossman, supra note 9, at 210.
Id. at 220.
Id. at 222.
Id.
Id. at 214–217.
Lawrence v. Texas, 539 U.S. 558, 560 (2003).
SUJIT CHOUDHRY, MIGRATION AS A NEW METAPHOR ON COMPARATIVE
CONSTITUTIONAL LAW, THE MIGRATION OF CONSTITUTIONAL IDEAS 2, 3 (Sujit Choudhry ed.,
Cambridge University Press 2006).
75. Bowers v. Hardwick, 478 U.S. 186 (1986).
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And, to the extent Bowers relied on values shared with a wider
civilization, the case’s reasoning and holding have been rejected
by the European Court of Human Rights, and that other nations
have taken action consistent with an affirmation of the protected
right of homosexual adults to engage in intimate, consensual
conduct. 76
Justice Scalia found Justice Kennedy’s use of European court
decisions to be nothing more than dicta on the basis that foreign views
are not relevant to the interpretation of the United States Constitution. 77
In his dissenting opinion in Lawrence, Justice Scalia wrote, “The
Court’s discussion of these foreign views . . . is therefore meaningless
dicta. Dangerous dicta, however, since ‘this Court . . . should not
impose foreign moods, fads, or fashions on Americans.’” 78 Amidst this
debate over the use of foreign jurisprudence in American court
decisions, the one thing even Justice Scalia cannot deny is the close
proximity to his Canadian neighbors. This proximity could allow samesex marriage to culturally migrate south of the Canadian border.
While courts may not be able to cite Canadian law directly,
lawyers in the gay rights movement can learn lessons from the strategy
used in Canada to further the interests of homosexuals in the United
States. With the deflection of constitutional ideas at the border, legal
strategies should be migrated and adopted into United States litigation
to effect change incrementally. Incremental change is an effective
approach that proved successful in Canada. If changes are first made to
laws that affect the homosexual as an individual, it will then be easier to
change the laws applicable to homosexual couples because more rights
will have been obtained for each partner individually.
V. INCREMENTAL APPROACH IN CANADA
A. Marriage was the Final Step
Prior to the passage of the Civil Marriage Act in 2005, same-sex
couples could enter into common-law marriages, civil unions, or other
forms of legally recognized relationships in all but one province
(Alberta) and two territories (Nunavut and Northwest Territories). 79 By
76. Lawrence, 539 U.S. at 560.
77. CHOUDHRY, supra note 74, at 2.
78. See Lawrence, 539 U.S. at 598 (Scalia, A., dissenting) (citing Foster v. Florida, 537
U.S. 990, (2002) (Thomas, J., concurring)).
79. Religioustolerance.org, Homosexual (Same-Sex) Marriages in Canada,
http://www.religioustolerance.org/hom_marb16.htm (last visited Oct. 8, 2008).
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2005, gay rights advocates had spent decades winning rights for
homosexuals in other areas of the law. In 1977, Quebec became the
first jurisdiction in the world to prohibit discrimination based on sexual
orientation in the public and private sectors. 80 Throughout the 198090s, gay rights groups focused on passing sexual orientation antidiscrimination laws within the framework of the Human Rights Acts of
provinces and territories. 81 By the mid 1990s, Alberta was the only
province that had not specifically added sexual orientation to its Human
Rights Act. 82 In the 1995 case of Egan v. Canada, the Supreme Court
interpreted Section 15 of the Canadian Charter of Rights and Freedoms
as including sexual orientation as a prohibited basis of discrimination
because “[s]exual orientation is a deeply personal characteristic that is
either unchangeable or changeable only at unacceptable personal costs
and so falls within the ambit of s. 15 protection.” 83 Section 15 reads,
“Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical
disability.” 84 In 1998, the Supreme Court held in Vriend v. Alberta that
Section 15 of the Canadian Charter required that the Alberta Human
Rights Act be read as if the words “sexual orientation” were included as
a prohibited basis for discrimination. 85 To remedy Alberta’s exclusion
of sexual orientation from its anti-discrimination laws, the court applied
the Charter of Rights and Freedoms because “[i]t necessarily places
limits on the provinces’ power to define membership as they see fit.” 86
Even after the court found sexual orientation discrimination illegal,
gay rights advocates decided it was not yet time to litigate the same-sex
marriage issue. Cynthia Petersen, one of the lawyers in Egan, stated
that after the decision, gay rights groups such as Equality for Gays and
Lesbians Everywhere (“EGALE”) concluded that they needed other
victories and more legal precedents before taking the marriage issue to
80. Rhonda Lauret Parkinson & Jay Makarenko, Same-Sex Marriage in Canada,
MAPLELEAFWEB, Jan. 1, 2007, http://www.mapleleafweb.com/features/same-sex-marriagecanada.
81. Id.
82. Id.
83. Egan v. Canada, [1995] 2 S.C.R. 513, 514 (Can).
84. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch.
11 (U.K.), § 15.
85. Vriend v. Alberta, [1998] 1 S.C.R. 493 (Can).
86. Donna Greschner, The Right to Belong: The Promise of Vriend, 9 NAT’L J. CONST.
L. 417, 418 (1998).
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court, even if they had to wait another decade for the right to marry. 87
According to Peterson, “it could have been dangerous to ask the courts
to sanction the right to marriage before establishing the rights of samesex couples.” 88 In noting the effectiveness of the incremental approach,
Sylvian Larocque argues that by gaining individual rights first, such as
workplace rights, and then getting the obligations of common-law
relationships, such as alimony, applied to same-sex couples, “[t]he way
had been cleared to bring up the marriage question.” 89
B. Effect of Legalization
The legalization of same-sex marriage in Canada is an example of
what has happened to a country after taking this important step in social
equality. It has been three years since the Civil Marriage Act became
law, and same-sex marriage is flourishing. A 2007 article reported that
same-sex unions grew at five times the rate of opposite-sex unions as
reported in the 2006 census. 90 This rate shows there was a pent up
demand for same-sex marriage, and many couples entered into marriage
once it became available. The 2006 census data is the first available
after the passage of the Civil Marriage Act, which would explain such a
high growth rate of same-sex marriage. Although more recent data is
lacking, there is no reason to believe same-sex marriage rates will
continue to grow at such a high rate again. It is possible that the growth
rate was merely a result of the Act’s passage and as time passes samesex marriages will eventually level off to mirror growth rates for
heterosexual marriages. 91
VI. ADOPTING AN INCREMENTAL APPROACH IN THE UNITED STATES
Gay rights groups in America need to realize that, as frustrating as
it may be to gain incremental access to the benefits and protections of
87. LAROCQUE, supra note 23, at 229–30. See generally Egale.ca, Home Page,
http://www.egale.ca, (last visited April 28, 2008) (stating, “Egale Canada advances equality
and justice for lesbian, gay, bisexual and trans-identified people, and their families, across
Canada.”).
88. LAROCQUE, supra note 23, at 23.
89. Id. at 21–23.
90. See Bonnell, supra note 27 (stating, “some 45,300 couples, both common law and
married, reported as same-sex in the 2006 census, up from 34,200 Those numbers represent
a 33 per cent surge since 2001, while heterosexual couples grew by just six per cent in the
same time period”).
91. 2006 CENSUS INFORMATION ON SAME-SEX, COMMON-LAW, AND MARRIED COUPLES
(2007), www12.statcan.ca/english/census06/reference/same_sex_common_law.cfm (stating
that, “[t]he 2006 Census collected, for the first time, information on same-sex married
couples).
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the law, it is an approach which proved effective in Canada because
advocates understood there were certain obstacles which needed to be
overcome before same-sex marriage was legalized. An incremental
strategy could entail lobbying state legislatures to first change sexual
orientation discrimination laws before it changes other areas of the law
such as tax and adoption. Such changes are more under the radar than
legalizing same-sex marriage and promote change in popular norms as
laws promote the acceptance and integration of homosexual persons.
Homosexuals can first fight for equal recognition and protection under
the law and then push for equal recognition of their relationships.
In Canada, the individual right of homosexuals to be free from
sexual orientation discrimination was an important hurdle to later
gaining the recognition for legal rights of couples in same-sex unions.
Decades of work fighting for other rights eventually led to same-sex
marriage litigation. However, the pivotal case M. v. H. was not about
legalizing same-sex marriage, but rather about recognizing the legal
rights and obligations of same-sex couples who formed common-law
marriages. 92 It was after that case that legislatures in several provinces
began to update family codes and marriage laws to reflect the growing
change in social norms. 93 The final step came when the Civil Marriage
Act was introduced first to the Supreme Court and then passed by the
federal legislature. 94 By then, though, the court and federal government
were just recognizing a right that legislatures and courts had recognized
throughout the country. 95
In the United States, once state laws are in place to protect
homosexuals from discrimination, it will be easier to push for state civil
unions. Instead of litigating immediately for full marriage, a strategy of
first fighting for state civil unions could lead to federal recognition of
same-sex unions. This could be the final step in gaining marriage
equality. There is reason to believe the United States could mirror the
process for how same-sex marriage was legalized in Canada. In
Canada, there was support in the provinces before there was federal
recognition. 96 Here, some states have taken affirmative steps to
recognize same-sex unions 97 and, while only two states offer same-sex
marriage, 98 the fact that some states offer domestic partnerships and
92.
93.
94.
95.
96.
97.
98.
M. (M.) v. H. (J.), [2005] 247 D.L.R. 4th 361 (Can.).
LAROCQUE, supra note 23, at 21-22.
Id. at 299.
Id.
See e.g., LAROCQUE, supra note 23.
See Current Status, supra note 1.
Id.
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civil unions shows a willingness to recognize that same-sex couples are
in need of the same legal protections afforded heterosexual couples.
State civil unions are an imperative step toward same-sex couples
gaining access to federal laws.
While pushing for federal civil unions and not litigating for full
marriage is often discussed in the scholarly literature as creating
second-class status or making same-sex unions separate from
heterosexual marriage and therefore inherently unequal, 99 the United
States may need to take small steps before it can grant full equality.
With the existence of DOMA and state constitutional bans on the
recognition of same-sex marriage, gaining federal recognition of civil
unions may be the foot in the door that homosexuals need to gain true
equality. The most important aspect that state level same-sex
marriages, civil unions, and domestic partnerships lack is access to the
1,138 federal laws that do not currently apply to same-sex couples. 100
For example, same-sex couples cannot file joint federal income taxes,
do not always have hospital visitation rights, and they sometimes lack
adoption rights and death benefits, to name a few. 101 In granting federal
civil unions to homosexuals, but not the title of “marriage,” there would
be less religious and political opposition because the traditional
definition of marriage would remain unchanged. In taking this
approach, proponents of same-sex marriage may see the same
incremental public approval of same-sex marriage that Canada saw after
the passage of the Civil Marriage Act.
VII. CONCLUSION
As same-sex marriage becomes more socially and legally accepted
in Canada and other countries, the hope is that the idea will seep into the
consciousness of the American people, thus, making it harder for courts
to deny the existence of same-sex couples and their right to join the
ranks of their married heterosexual counterparts. While Cossman is
correct in her point that cultural and social norms will continue to
influence legal changes, and that same-sex marriage is capable of
migrating socially and through litigation, a more effective constitutional
approach may be to push for more state laws banning sexual orientation
99. EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICA, EQUALITY, AND GAY
PEOPLE’S RIGHT TO MARRY 131 (New York: Simon & Schuster, 2004).
100. KOTULSKI, supra note 39, at 15.
101. For an overview of the federal laws that same-sex couples do not have the same
access to as heterosexual married persons, see id. at 15–17; see also WOLFSON, supra note
99, at 194–197.
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discrimination. After this, advocating for state civil unions and then
federal recognition of civil unions are crucial steps toward same-sex
marriage. While not marriage, federal civil unions would mean samesex couples can no longer be denied the 1,138 rights they are deprived
of today. 102 Regardless of what same-sex relationships are called or
how they are perceived, same-sex couples deserve equality and for now,
at a minimum, equality needs to mean access to the federal benefits and
obligations afforded heterosexual married couples. While it would be
ideal for courts or the federal government to recognize same-sex
marriage today, the incremental approach used in Canada is the most
effective strategy for gaining social equality for same-sex couples in the
United States.
Amanda Alquist ∗
102. KOTULSKI, supra note 39, at 15.
∗B.A. California Polytechnic State University San Luis Obispo, J.D. Candidate,
University of La Verne College of Law, 2009. Amanda Alquist, “The Honeymoon is Over,
Maybe for Good: The Same-Sex Marriage Issue Before the California Supreme Court,” 11
CHAP. L. REV. (forthcoming 2008) (on file with author). The author would like to thank
Dean Donna Greschner, University of Victoria Law, British Columbia, for her guidance and
inspiration. The author would also like to thank her family for their endless support during
the writing of this and other pieces on same-sex marriage.