JB

A truly revolutionary set of changes is occurring right now in Canada, which will have important repercussions in the United States.

The Canadian Federal Government has announced that it will rewrite national laws recognizing same sex marriages. The Canadian government acted in response to two appellate decisions, the most recent in Ontario, Halpern v. Attorney General of Canada, which held that the national law which defined marriage as being only between a man and a woman violated section 15 of the Canadian Charter of rights and freedoms.

Alberta Premier Ralph Klein has threatened to invoke section 33's notwithstanding clause to prevent same-sex marriage in his province. For those of you unfamiliar with Canadian constitutional law, if a court declares that a national or provincial law violates certain sections of the Charter, the government that passed the law may repass it, declaring that it shall be valid notwithstanding the court decision. (It must repass the law every five years thereafter). The problem is that the law in question was a federal law, and it is not clear that a province may invoke section 33 where a Canadian court holds that a national law violates the Charter. Alberta may have laws on solemnization of marriage by clergy that it might seek to protect through section 33, but this should not affect the right of same sex couples to be married in civil ceremonies.

Several things are interesting about the decision from an American perspective:

First, in Canada the rights and benefits of marriage are a matter of federal law, not state law. In the United States many people (including members of the Supreme Court) have argued that issues of marriage and divorce are inherently local subjects and therefore must be left up to state governments. The Canadian example suggests that there is no inherent reason why this has to be the case, other than tradition.

Second, the Ontario court chose a different path than the Supreme Court of Vermont. In Baker v. State, the Vermont Court held that Vermont's marriage laws violated the common benefits clause of the Vermont Constitution, but the did not strike down the state's marriage laws or order that same-sex couples had the right to marry. Instead, the Court remanded the issue to the Vermont legislature asking them to come up with a statute for same sex couples that had effectively the same benefits as marriage. Vermont passed its civil unions law to comply with the court's decision. By contrast, as a result of Halpern, same sex couples may now apply for marriage licenses in Ontario. This speaks volumes about the relative political strength of the courts with respect to this very sensitive issue in Canada and the United States. The Vermont Supreme Court knew that popular referenda in Hawaii and Alaska had essentially cut short any experimentation with same sex marriage by the courts in those states, and it wanted the change in Vermont's marriage laws to have the legislature's imprimatur. In fact the Vermont legislature stopped short of granting marriage rights to same sex couples, and created an equivalent called civil unions. The Ontario court, by contrast, did not hesitate to order immediate relief; at last report, the Canadian government is planning to redraft the law to allow full same sex marriage, not civil unions.

Third, it's important to recognize that Canadian constitutional law has gone much further than U.S. law on the issue of gay rights. In 1995, The Canadian Supreme Court held that sexual orientation was a ground analogous to classifications based on race and sex, which are protected by section 15 of the Charter (roughly equivalent to the American 14th Amendment's Equal Protection Clause). Of course, the U.S. Supreme Court's decision in the Lawrence case, which is expected any day now, may change the legal landscape in the U.S. considerably, but given the nature of American politics, it is doubtful that it will catch up to what is going on in Canada for some time.

Fourth, the legalization of same sex marriage in Canada will eventually have effects on the debate over same sex marriage in the United States. Canadian marriages are generally recognized in the United States as a matter of comity between nations. (The 1996 Defense of Marriage Act does directly not apply to this question; it concerns recognition of marriages between states. Nevertheless other portions of DOMA suggest that as a matter of some aspects of federal law same sex marriages will not be recognized). Athough many states will probably refuse to recognize Canadian same sex marriages as against the state's public policy, a few states may recognize Canadian same sex marriages even if they do not themselves provide for same sex marriages. Perhaps equally important, the Canadian law will put considerable pressure on states either to recognize various spousal benefits for same sex couples or to edge closer and closer to same sex marriage. Even if the legal effects of the Canadian decision in the United States are uncertain, the decision, and Canada's subsequent legislation recognizing same sex marriages will have enormous symbolic impact.