Same-Sex Marriage: Canada, Europe and the United States

Ralf Michaels
June 27, 2003
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 same-sex couples.
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), [1] 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, [2] 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.