If Canada Can Do It, Why Can’t We?

By Anabel Kapelke

Marriage inequality has had a profound effect on many people in my life, and has consequently resulted in my life being immensely impacted by discriminatory marriage laws. My first encounter with marriage injustice occurred before I was ten. They were the only gay couple I knew, and coincidentally they were the people who first opened my eyes to homosexuality as a social category. Before this, I did not even consider the possibility that a woman did not have to marry a man and vice versa. At the time, of course, I did not really understand the magnitude of the situation.

Tim and Dave lived on a small farm in rural northern Minnesota. My dad met Dave in his office, and the pair became fast friends. Soon the entire family was invited to visit their home. I have fond memories of road-tripping to Tim and Dave’s farm, and even better memories of my time at their house. Spending time at the farm furnished some of my fondest childhood memories. Consequently, even as a child, I started asking myself why American society could not accept them as a couple.

Tim and Dave had been together for years, and finally fed up with America’s prejudice, the happy couple moved to Ontario, where gay marriage was legal, to make their partnership real in the eyes of the law. They had to uproot their lives in the United States for the sole purpose of getting married. Luckily for them, Canada was far more progressive than America, legalizing gay marriage across the entire country just one year later.

America’s progress toward marriage equality began at a later date, and is currently taking longer to make the same developments Canada has already made. Since the 1920s, the idea of homosexual legal union has been an idea on the minds of many Americans. The movement picked up pace in the 1960s and 70s and gained significantly more attention and power in the 1990s. So what were the driving forces behind the acceleration? In Why Marriage?, historian George Chauncey notes that the three most important factors in the level of determination for marriage equality were the progressively expanding acknowledgement and acceptance granted to the LGBT community, the AIDS crisis in the 1980s, and the lesbian baby boom of the 1980s.

Canada’s thirst for gay marriage also heightened in the 1980s, with an increasing level of acceptance. Many couples were living together openly and wanted the same rights be granted to them as to straight couples. Unlike in the United States, some Canadian courts began to grant limited recognition to the couples. Canada also had to cope with the losses of the AIDS epidemic, which contributed to the marriage equality movement as well. The majority of the movement took place in the 1990s. One influential factor was the issue of children. Much like the lesbian baby boom in the United States, gay parents in Canada wanted the same rights afforded to them, including rights revolving around couples adopting. Throughout the 90s, the marital rights granted to couples progressively got better. Cases like Egan vs. Canada and M vs. H display the importance the LGBT community was putting on receiving equal “spousal” benefits. These cases are also representative of the progress being made at that point. Following M vs. H, same-sex couples were granted the same rights as unmarried straight couples based on conjugal cohabitation, or living together for a certain number of years.

After the 90s things progressed quite rapidly for Canada, and also took a turn for the better in the United States. In the early 2000s, many others appealed to the Canadian Charter of Rights and Freedoms after the decision made in M vs. H. The monumental 2003 Ontario Court of Appeal case of Halpern vs. Canada resulted in the recognition that denying homosexuals the right to get married violated the rights provided to them under the Canadian Charter of Rights and Freedoms. Within two years of that decision, on July 20, 2005, gay marriage was declared legal across Canada.

The 21st century held tremendous progress for the United States as well. The year of 2004 held particular triumph for the LGBT community, with Massachusetts and San Francisco handing out marriage licenses to gay couples. Since then 36 states have legalized gay marriage.

Overall the two countries have showed steady progress and similar reasoning behind their determination to make marriage available to everyone. Evolution of rights and acknowledgement, the AIDS epidemic, and the issue of children all seem to be similar catalysts in both Canada’s and America’s mission for marriage equality. The core issue with the United States’ lack of progress in comparison to Canada’s is due to the level at which the laws are operating. In Canada all marriage laws are decided at the federal level, while in America each state has the power to decide the laws on same-sex marriage. Ontario was the first to legalize gay marriage after the Ontario Court of Appeals decision in the Halpern vs. Canada case, however, some provinces like Alberta rejected the new definition of marriage. Not long after the Halpern decision. The Canadian Supreme Court ruled that only the federal government had power over marriage laws consequently resulting in federal legalization of gay marriage. Unfortunately, the federal government is not allowed to place executive power over each state’s decisions. This, however, does not excuse the fact that Canada legalized gay marriage ten years ago, and yet there are still 13 states in the US that have a ban on same-sex marriage. There is still hope for the United States, however, especially in light of the expected Supreme Court decision this summer. The court must determine whether the Constitution grants homosexual couples the right to get married, and if they decide same-sex marriage is legal under the constitution, homosexual couples will be legally able to marry throughout the entirety of the United States.

Although marriage equality has come a long way in America, we are tragically trailing Canada’s progress. Interestingly, the couple that opened my eyes to gay marriage moved to Canada in 2004, the very year that the mayor of San Francisco started issuing legal marriage license for gay and lesbian couples and that Massachusetts first legalized gay marriage. Although this was a momentous break in the fight for marriage equality in the United States, it was just too little too late for two northern Minnesota farmers who still remain in Ontario to this day.