Canada, Europe and the United States
By Ralf Michaels
In 1999 the Supreme Court of Canada
held that same-sex couples must be granted essentially
the same rights as married couples. On June
10 of this year the Court of Appeal of Ontario held
that gays have a right to get married. The constitutional
basis for the decision lay in the principles of human
dignity and anti-discrimination. The federal government
decided not to appeal this and similar cases, but
instead to institute legislation toward the same effect.
Questions arise about the impact these developments
might have on the gay community in the United States.
Canada is not the first country to recognize same-sex
marriages. In 2001 the Netherlands opened civil marriage
to gay couples and allowed them to adopt children
as well. Belgium followed suit on June 1st of
this year, although it did not go as far as the Netherlands:
gay couples have no adoption rights in Belgium. Most
other European countries only allow for some kind
of registered partnership with some degree of protection,
following the lead of Denmark where such partnerships
were introduced in 1989. By now most legal systems
in Europe provide some kind of status, even in Catholic
countries like Spain. Some states of the United States
have followed. In 1995 the Hawaiian legislature,
following a court decision, gave couples a significant
number of the same rights that married couples enjoy.
In 1998 the Alaskan Supreme Court held similarly.
California, the District of Columbia and, most famously,
Vermont, provide registries for same-sex partnerships
and grant them certain rights.
The Canadian decision stands out for two reasons:
First, Canada is a direct neighbor to the United States,
easily accessible for Americans, and is usually considered
to be on the same wavelength. Second, marriage for
gay couples goes far beyond mere "registered
partnerships" as available in the named states
of the U.S. The possible impact on the United States
is twofold: First, gay American couples may want to
get married in Canada. Second, the decision may give
impulse to similar developments in the United States.
However, both effects are far less than clear.
First comes the question whether American couples
can go to Canada to get married. Canada does not have
a residency requirement for marriage. Indeed, Ontario
has already started to give out marriage licenses
to Americans. Yet this may not remain the full answer.
For recognition purposes, Canadian law so far has
looked to the partners' domicile to determine their
capacity to get married. If sexual orientation is
considered an issue for capacity (as the Court of
Appeal of Ontario explicitly says in its decision),
there is a real possibility that Canadian officials
will eventually refuse to marry Americans who come
into the country only to get married. Most legislative
models in the world restrict access in order to avoid
marriage tourism (and the possible implications for
international relations). The Dutch legislation, for
example, opens marriage to foreign couples only if
one partner is Dutch or at least a resident in the
Netherlands. Belgium will only marry foreigners that
come from jurisdictions that allow for same-sex partnerships.
The Court of Appeal of Ontario did not need to address
the question, because its case involved Canadian couples.
The legislature probably will address the question,
and it may not be receptive to the interests of American
Even if American same-sex couples can get married
in Canada, their marriage may not be recognized back
home in the United States. Such recognition is, at
present, highly unlikely in most states. Even a partnership
entered into in Vermont will not be recognized in
most other states of the Union: thirty states have
passed statutes prohibiting such recognition. Moreover,
Congress passed, in 1996, the Defense of Marriage
Act (DOMA),  which explicitly frees states
from the duty to recognize same sex partnerships entered
into in other states. The constitutionality of these
state statutes has been questioned, although courts
so far have applied them to same-sex partners seeking
a divorce. Yet even if the Full Faith and Credit clause
of the U.S. Constitution requires states to recognize
same sex-partnerships, this applies only between states
of the United States. States have much more freedom
in deciding whether to recognize the laws, judgments
and administrative decisions of other nations, and
have always used this freedom in areas with strong
political or moral elements. Thus, no state is required
to recognize a same-sex marriage entered into in Canada,
and even if one state recognizes it, other states
might not be obliged to recognize this first state's
decision. While same-sex marriages between two Canadians
might be recognized by some states, recognition of
marriages between same-sex partners domiciled in the
United States is highly unlikely. This is because
the law applicable to capacity to marry is usually
that of the partners' domicile, which, for American
domiciliaries, does not allow them to get married.
Same-sex American couples validly married in
Ontario will thus still be considered unmarried in
most of the United States. Even Vermont is far from
certain to recognize such marriages, given how carefully
the legislature avoided the term "marriage" for same-sex
couples in the Vermont legislation.
Notwithstanding these facts, gay couples who get married
in Canada and then seek recognition in the United
States, or who seek the right to get married in the
U.S., will have to convince either the courts or the
legislators if they want to achieve married status
in the U.S. A case essentially similar to the one
in Ontario, asking for same sex partners' right to
get married, is pending before the courts of Massachusetts.
But will the court follow the Canadian example? The
new U.S. Supreme Court decision in Lawrence and
Garner v. Texas,
 striking down the Texas ban on gay sex as
unconstitutional, may be a first step toward gay rights.
But the way from decriminalization of gay relations
to their formal recognition as institutionalized marriage
is long. And comparative constitutional law has so
far had relatively little impact on Constitutional
decisions in the U.S, despite the Supreme Court majority's
reference in the Lawrence case to some decisions
of the European Court of Human Rights. Justice Scalia,
dissenting in the Lawrence case, certainly
voiced a widely held opinion when he said that "where
there is not first a settled consensus among our own
people, the views of other nations, however enlightened
the Justices of this Court may think them to be, cannot
be imposed upon Americans through the Constitution."
It seems unlikely that the Canadian example will have
any direct impact in the United States.
About the Author:
Ralf Michaels is an Associate Professor at the Duke
University School of Law, specializing in comparative
law and international conflict of laws.
 Full text available on the Supreme Court's web
site, at <http://www.supremecourtus.gov/opinions/02slipopinion.html>
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