Same-Sex Marriages in the United States and in Canada

Obergefell v. Hodges, 576 U.S. ___ (2015)

This case is about same-sex marriage and whether denying same-sex partners the right to marry violates the Fourteenth Amendment to the United States Constitution.

The decision of the Supreme Court of the United States will be discussed briefly and compared to Canadian laws on same-sex marriage.

Background

14 same-sex couples and two men whose same-sex partners were deceased filed lawsuits against state officials in their home States, claiming that the marriage laws in their State violated the Fourteenth Amendment by:

  1. denying them the right to marry or
  2. refusing to recognize their same-sex marriages that were lawfully performed out-of-State.

One of the petitioners was James Obergefell of Ohio. He had spent over twenty years with his partner, John Arthur. After Arthur was diagnosed with amyotrophic lateral sclerosis (ALS), Obergefell and Arthur decided to marry in Maryland, where same-sex marriage was legal. Three months later, Arthur died. Ohio law did not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. This imposed a separation on the couple that Obergefell deemed “hurtful for the rest of time.” Obergefell brought the suit in order to be named as the surviving spouse on Arthur’s death certificate.

Two other petitioners were April DeBoer and Jayne Rowse of Michigan. They had celebrated a commitment ceremony in 2007 and went on to adopt three children. In Michigan, only opposite-sex married couples or single individuals were permitted to adopt. Therefore, these children could only have one woman named as his or her legal parent. In the event of an emergency or tragedy, or to enroll the children for school and make health-care decisions on behalf of the child, the non-adoptive parent would have no automatic parental rights or decision-making authority. This couple brought the suit so that they could both be named the legal parents of their children.

All of the parties resided in Michigan, Kentucky, Ohio or Tennessee, States where marriage was defined as ‘a union between one man and one woman.’

Analysis

In a 5-4 decision, the Supreme Court of the United States (SCOTUS) held that the right to marry is a fundamental right guaranteed to same-sex couples by the Constitution. Further, a State is required to recognize a marriage between two people of the same sex if their marriage was lawfully licensed and performed out-of-State.

The Fourteenth Amendment provides a Due Process Clause, which states that no State shall deprive any person of life, liberty, or property, without due process of law. The Fourteenth Amendment also provides an Equal Protection Clause, which states that no State shall deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court held that the right to marry is fundamental to the liberty of the person and, under both the Due Process and Equal Protection Clauses, same sex-couples cannot be deprived of that right.

Speaking for the majority, Justice Anthony Kennedy writes the following:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.”

The decision from the United Supreme Court was released on June 26, 2015.

Almost ten years earlier, on July 20, 2005, the Canadian federal government changed the definition of marriage to permit same-sex couples to marry. From 1866 to 2005, the common law definition of marriage in Canada was “the voluntary union for life of one man and one woman, to the exclusion of all others.” The Civil Marriage Act of 2005 redefined marriage, for civil purposes, as “the lawful union of two persons to the exclusion of all others.”

Similar to the evolution of marriage equality laws in the U.S., changing the definition of marriage in Canada was prompted by numerous legal challenges against the provincial and federal governments. During the 1990s and early 2000s, many same-sex partners petitioned the courts so that they could receive various benefits that, at the time, were only available to legally married spouses. This included the right to spousal support, death benefits, certain benefits under an insurance policy, the right to adopt a child with a same-sex partner, and the right to be named a parent on a child’s birth certificate when born to a same-sex partner. Many of the courts that decided these early cases agreed that distinguishing between same-sex couples and opposite-sex couples was discriminatory and violated the Canadian Charter of Rights and Freedoms and/or human rights legislation.

Now, same-sex marriage is recognized in Canada for all purposes under the law. Further, wedding officiants appointed by a provincial government (non-religious officiants) cannot deny their services to same-sex couples on the basis of sexual orientation. The right to marry provides same-sex couples access to beneficial tax treatments, rights under inheritance laws, property rights, parental rights, and numerous other rights and obligations afforded only to legal spouses.

The decision in Obergefell v. Hodges comes one month after a national referendum in Ireland approved changing Ireland’s Constitution so that civil marriage rights would extend to same-sex couples. Feldstein Family Law Group is pleased that more countries are now recognizing same-sex-marriage and we hope that more countries will follow suit.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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