Canada Legalizes Same-Gender Marriage

Canada became only the fourth country, after Belgium, the Netherlands, and Spain, to legalize same-gender marriage with its passage of the Civil Marriage Act.

Date June 17, 2003, and July 19, 2005

Also known as: Bill C-38; Civil Marriage Act

Locale Ottawa, Canada

Key Figures

• Kevin Bourassa (b. 1958) and
• Joe Varnell (b. 1969), first gay couple in North America to marry
• Anne Vatour and
• Elaine Vatour first lesbian couple in North America to marry
• Jean Chrétien (1934-1999), Canadian prime minister
• Michael Leshner (b. 1948) and
• Michael Stark Canadian gay couple that played a key role in the Canadian court decision ruling that banning same-gender marriage was unconstitutional

Summary of Event

The battle to win the right for same-gender marriages in Canada formally began in 2001, when a gay couple and a lesbian couple were married in the Metropolitan Community Church of Toronto on January 14. Because the province of Ontario did not recognize same-gender marriages at the time, the couples used an older tradition, the reading of the banns, to formalize their vows. The church read their intent to marry before three regular services prior to the weddings. The couples, Kevin Bourassa and Joe Varnell, and Anne and Elaine Vatour, then asked the governments of Toronto and Ontario to recognize the legality of their unions. The governments refused.

In 2002, the Ontario Superior Court ruled that it was unconstitutional to exclude same-gender couples from marriage, ordering the province to change its laws within twenty-four months to end the discriminatory exclusion. Toronto crown attorney Michael Leshner, who had previously won GLBT rights successes in the Canadian court, and his partner, Michael Stark, applied for a license at that time and were turned down. In the meantime, the government appealed the Superior Court decision. On June 10, 2003, the Ontario Court of Appeals upheld the Superior Court ruling. Ontario retroactively recognized the 2001 weddings, and Leshner and Stark, after the law took effect, became the first couple to marry legally in Canada. (A lesbian couple known by the initials M. M. and J. H. carry the unfortunate distinction of being the first same-gender couple to divorce in Canada, on September 13, 2004.)

Additionally, on June 17, during a parliamentary meeting, the Liberal Party of Canada, led by Prime Minister Jean Chrétien, introduced legislation to legalize same-gender marriage across the country. The conservative Alliance Party called for legislation that would have limited marriage to a union between a man and a woman; however, on September 16, 2003, their motion was defeated. The motion would have required the Canadian parliament to invoke the country’s “notwithstanding” clause, which essentially states that the Canadian government can make legal decisions that go against the Canadian Charter of Rights and Freedoms as long as it admits that its decision goes against that charter.

Only Alberta, Prince Edward Island, Nunavut, and the Northwest Territories had yet to ratify the legislation when, in December, 2004, Canada’s Supreme Court ruled it constitutional to enact a national law recognizing same-gender marriages. In 2005, the Canadian Liberal Party, led by Prime Minister Paul Martin, introduced Bill C-38 (the Civil Marriage Act) with just that intent. The bill passed the House of Commons in June, 2005, the Canadian Senate approved it on July 19, and same-gender marriages became a nationwide reality.

Significance

Canada is only the fourth country to legalize same-gender marriages, following the Netherlands (2001), Belgium (2003), and Spain (2005). Because Canada’s 2003 decision required ratification from each individual province, it filtered across the country for two years before Bill C-38 became national law in 2005. Thus, Canada follows Spain in the chronology of legalizing same-gender marriages, even though Canada’s legislative process was in progress much longer.

Because there is no residency requirement to marry in Canada, same-gender couples from the United States have been marrying across the border since 2003. It remains to be seen which U.S. states will honor same-gender marriages performed in Canada. The experience of Bourassa and Varnell trying to travel to the United States as a couple is an example of the probable obstacles. The two wanted to fill out and submit to U.S. customs the customs form appropriate for a married couple, but their request was denied; so they went home after officials asked them to fill out forms for individuals instead.

Still, the new Canadian law has the potential to impact legal decisions in the United States. As U.S. couples marry in Canada, U.S. businesses and officials are being forced to deal with the implications of legal lesbian and gay unions. U.S. president George W. Bush’s attempt to draft a constitutional amendment banning same-gender marriage was defeated in the U.S. Senate in September of 2004. Massachusetts, in 2004, became the first U.S. state to recognize same-gender marriage. Vermont legalized civil unions for gay and lesbian couples in 2000, and New Jersey did the same in 2004. Also, New Jersey’s Supreme Court ruled on October 25, 2006, that same-gender couples are entitled to the same legal rights as heterosexual couples who are married.

Some Canadian opponents of same-gender marriage have used the same antigay and antilesbian arguments used by Anita Bryant in Dade County, Florida, in 1977. They claim the legalization of same-gender marriages will be followed by legal pedophilia and bestiality. Other antagonists claim to be defending traditional marriages. The Canadian government has explicitly stated no church will be forced to marry same-gender couples against its will, but this only pacified a few critics. The Roman Catholic Church also has launched an attack upon same-gender marriage, urging politicians not to condone it. However, Canadian attitudes appear to be changing in favor of same-gender marriages.

Bibliography

Bourassa, Kevin, and Joe Varnell. “Fifth Anniversary of the First Legal Gay Marriage.” January 12, 2006. http://www.samesexmarriage.ca.

‗‗‗‗‗‗‗. Just Married: Gay Marriage and the Expansion of Human Rights. Madison: University of Wisconsin Press, 2002.

“Canada Lawmakers Approve Gay Marriage Bill.” Advocate.com (June 30, 2005).

Equal Marriage for Same-Sex Couples. http://www.samesexmarriage.ca.

Kimmel, Michael S., and Amy Aronsen, eds. The Gendered Society Reader. New York: Oxford University Press, 2000.

Kotulski, Davina. Why You Should Give a Damn About Gay Marriage. Los Angeles: Alyson, 2004.

Robinson, Bruce A. “Homosexual (Same Sex) Marriages In Canada: Ontario Court Case.” Part 1. Toronto: Ontario Consultants on Religious Tolerance, 1995. http://www.religioustolerance .org/hom‗marb2.htm.

“Same-Sex Marriage: A Selective Bibliography of the Legal Literature.” Law Library, Rutgers School of Law. http://law-library.rutgers.edu/SSM.html.

Stychin, Carl, and Didi Herman, eds. Law and Sexuality: The Global Arena. Minneapolis: University of Minnesota Press, 2001.