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Go Canada! 

Should American homosexual couples head north to elope?

Thursday, Jun 26 2003
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Photo by Raul Vega

To the uninitiated, the June 10 unanimous decision by the Ontario Court of Appeal to effectively green light same-sex marriages in the Canadian province — and Prime Minister Jean Chrétien’s announcement last week that he would not fight the court’s ruling, and indeed would introduce legislation to further strengthen the move — seems to have come out of nowhere.

Under closer inspection, Canada’s steps toward legal recognition of marriages between homosexual couples have been a long time coming. Besides the provincial court decision in Ontario, courts in both Quebec and British Columbia have already ruled in their respective provinces that denying gay and lesbian couples the right to marry violates their equality under the law. Those decisions gave the federal government in Ottawa until July 2004 to figure out what to do nationally about the issue, but Canada’s Parliament has hardly been dragging its feet. It conducted hearings on gay marriage, and one of the more contentious public-policy concerns, the extension of federal tax and social benefits for same-sex couples, became law way back in 2000.

What strikes American proponents and detractors of gay marriage is the political consensus that equal recognition for committed same-sex relationships in Canada is inevitable. As deputy prime minister John Manley admitted on June 17, “I think on balance people recognize that the decisions of the courts are really pointing in a direction from which it would be difficult — if we wanted to — to turn back.” All three of Chrétien’s probable Liberal Party successors say they won’t appeal the decision, while Canadian legal experts say it is almost certain the Canadian Supreme Court, which is likely to hear a case on gay marriage in about two years, will support the Ontario court’s claim.

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Canada would then become the third country to recognize gay marriage. The first was the Netherlands, in 2001; Belgium followed earlier this year. A number of Scandinavian countries allow same-sex couples to register as domestic partners as well. In the U.S., where most marriage issues are handled by the states, the atmosphere couldn’t be more confusing. Presidential hopeful and former Governor Howard Dean signed Vermont’s civil-unions bill into law in 2000, four years after President Clinton signed the constitutionally dubious Defense of Marriage Act (DOMA), which for the first time in the history of federal law defined the terms “marriage” and “spouse,” and argued that states wouldn’t have to recognize hypothetical same-sex marriages in other states — a violation of the Constitution’s full faith and credit clause. Thanks to DOMA, the federal government also would not recognize same-sex marriage ceremonies performed in other countries. So all those future Canadian marriages between gay and lesbian couples may have no meaning here.

Still, in New Jersey and Indiana, cases challenging the legal definition of marriage as a union between a man and a woman are working their way through the courts. And in March, Massachusetts’ Supreme Judicial Court heard arguments in a case filed by seven same-sex Bay State couples who were denied marriage certificates based on their gender. A ruling is expected as early as July, but a referendum campaign to ban gay marriage in Massachusetts is well under way, with the hopes of putting the issue in front of voters in 2006.

In 2000, California voters passed the Knight Initiative, which bans same-sex marriages in the state, by a sizable margin. Currently 35 other states have similar laws on the books, but that hasn’t stopped some from forming same-sex domestic partnership registries. More than 20,000 California couples are registered domestic partners, which offers them limited rights and benefits. On June 4 the state Assembly passed AB 205, which was introduced by Los Angeles’ Jackie Goldberg. AB 205 would give domestic partners extended rights in areas like child custody, hospital visitation, pension rights and family medical leave. The California Senate is expected to pass a similar bill, but it is unclear if recall-challenged Governor Davis would sign it into law.

Polls show that Americans are warming to the idea of equal benefits for same-sex partners, and are overwhelmingly supportive of things like anti-discrimination laws and striking down anti-sodomy statutes. But the concept of “gay marriage” is still a tough one for many people. It is clear, however, that the public is more open-minded about the idea than ever before. Which scares social conservatives, who are not waiting for public opinion to shift any further. In 2001 a group of conservative Congress members first proposed the Federal Marriage Amendment, which would change the Constitution to bar same-sex marriages. Plenty of politicians and legal scholars, including some right-leaning Republicans, have torpedoed the idea as unnecessary and dangerous. But the events in Canada have no doubt enraged marriage-amendment supporters and may revive support of the amendment. The bigger unanswered question is this: Will Canada’s actions galvanize enough gays and lesbians into building political support for legal same-sex marriages in this country? It could happen here.

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