People celebrate outside the U.S. Supreme Court building in Washington on June 26, 2015, after a ruling that state bans on same-sex marriages are unconstitutional.MLADEN ANTONOV/AFP via Getty Images
Sasha Issenberg’s latest book is The Engagement: America’s Quarter-Century Struggle Over Same-Sex Marriage.
In 1995, David Smith and Heather Forster Smith travelled to Honolulu for a vacation. While there, the couple contacted a cousin of Ms. Forster Smith’s, a local doctor named David McEwan, and arranged to meet in Waikiki. Mr. Smith was a once-and-future politician and Ms. Forster Smith a judge in Ontario’s court system, and as they strolled with Dr. McEwan through Kapi’olani Park, the Canadians were particularly curious about the biggest legal and political story in Hawaii.
The state supreme court had in 1993 become the first court on Earth to rule that the fundamental right to marriage could extend to same-sex couples, setting up a trial where three gay and lesbian couples were likely to prevail and win the right to wed. Dr. McEwan, who had treated Hawaii’s earliest AIDS patients, had been an early supporter of the suit, helping to rally community support and raising money to back the litigation. He sent the Smiths back to Ontario with a envelope stuffed with legal briefs from the case, and largely forgot about it for eight years.
In 2003, Dr. McEwan received an unexpected call from Ottawa. It was Mr. Smith, a newly appointed senator close to then-prime minister Jean Chrétien, who was preparing to introduce a bill that would legalize same-sex marriage nationwide. Dr. McEwan had seen a brief news item about an Ontario court that in 2002 ruled for equal marriage rights, but he had not previously recognized the personal connection. Ms. Forster Smith, now sitting on the Ontario Superior Court, had been part of the unanimous majority behind the ruling. With the matter moving from the courts to Parliament, the time had come to return the stack of legal briefs. “Perhaps you impacted her thinking years ago,” Mr. Smith told Dr. McEwan.
Now it was time for a Canadian court to shape American thinking. Judges and lawyers across the United States mined the Ontario Court of Appeal’s Halpern v. Canada ruling decision for language and reasoning they could apply to their own cases. Gay and lesbian couples unable to wed where they lived saw the opportunity to finally do so in Canada. Sympathetic officials in states that had yet to legalize gay unions made moves to recognize the married couples. Conservative activists worried that only by amending the U.S. Constitution could they forestall Canadian weddings being used as a back door onto American recognition.
Silvie Small holds up a section of a rainbow flag around Parliament Hill on June 19, 2005, a month before the royal assent of the Civil Marriage Act.
This week, Canadians noted the anniversary of the Civil Marriage Act receiving royal assent on July 20, 2005, which legalized same-sex marriages in the four provinces and territories that had not done so through their own courts. Not until June 26, 2015, did the United States catch up, with the Supreme Court’s ruling that it was unconstitutional for states to discriminate against gay and lesbian unions.
Those events may have been separated by a decade, almost exactly, but the two countries’ paths were deeply intertwined. Canada’s early lawsuits had been shaped by earlier successes and failures of American activists and lawyers, and the availability of legal unions in Canada played a crucial role in forcing the issue before the U.S. Supreme Court. Marriage equality might have come to the United States without its neighbour’s progress on the issue, but it almost certainly would not have done so when and how it did.
When the Halpern v. Canada case put the matter of marriage before the Ontario Superior Court in 2002, the U.S. experience loomed over their deliberations. “They were sort of a decade ahead of us,” Ms. Forster Smith, then the associate chief justice, recently reflected.
While her court was unanimous that Section 15 of the Canadian Charter of Rights and Freedoms prohibited discrimination against same-sex couples, the three-judge panel was split on the appropriate remedy. In his opinion, one justice, Harry LaForme, warned against repeating what had taken place in Vermont, where in 1999 the state’s supreme court had made a similar constitutional determination and then left it to the state legislature to address. Vermont lawmakers went on to devise the novel institution of “civil unions,” which amounted to the Western hemisphere’s most sweeping legal recognition of gay and lesbian families. Yet, as Justice LaForme reflected, “Any ‘alternative status’ that nonetheless provides for the same financial benefits as marriage in and of itself amounts to segregation.”
In June, 2003, Ontario’s highest court rejected the government’s appeal of its defeat in Halpern, permitting couples to begin marrying immediately. It was further than any of the three American state courts that had considered the matter had been willing to go. Only then did Mr. Chrétien take on the challenge of drafting a marriage law that would apply nationwide. “It was such a political hot potato,” Ms. Forster Smith said. “Ontario likes to think that it’s judicious, careful, traditional, and you don’t usually look at the Canadian courts as leading social change. But there are times when the landscape has a way of feeling an issue’s time has come.”
Michael Leshner and Michael Stark, one of the couples involved in the Halpern v. Canada court challenge, sign their marriage license in Toronto on June 10, 2003, after a wedding presided over by Superior Court judge John Hamilton, right.Frank Gunn/The Canadian Press
Americans took notice. The Southern Baptist Convention, the country’s largest Protestant denomination, approved a resolution that cited the Ontario decision as a reason to “call upon all judges and public officials to resist and oppose the legalization of same-sex unions.”
At the U.S. Supreme Court, where a majority of justices were about to rule that state anti-sodomy laws were unconstitutional, the leading conservative jurist Antonin Scalia added a line to his caustic dissent. The Halpern ruling demonstrated that the same logic that led federal courts to decriminalize gay sex would soon compel it to recognize gay unions, according to Mr. Scalia. “The court today pretends … that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada,” he wrote. “Do not believe it.”
When traditionalists in Washington first sounded the alarm after the 1993 decision in Hawaii, they had persuaded congressional Republicans to draft the Defense of Marriage Act. Signed into law by then-president Bill Clinton, the 1996 bill insulated mainland governments from having to recognize the islands’ same-sex marriages. But the law had not been developed to contend with unions solemnized abroad, and as courts in British Columbia and Quebec followed Ontario, the Defense of Marriage Act suddenly appeared an insufficient defence.
Americans began rushing across the border to marry. Among them was Bill Woods, the Hawaii activist whose December, 1990, public-relations stunt set into motion the entire chain of events that made same-sex marriage a viable political issue in North America. (While a 1996 trial court affirmed that gay and lesbian people should be able to marry, voters amended the state constitution to prevent it before any of them could.)
In August, 2003, Mr. Woods and his partner, Lance Bateman, travelled to Vancouver. They exchanged vows surrounded by friends, even though they knew both Hawaii and the U.S. federal government would not recognize their relationship once they returned home. “We decided long ago, if it’s ever really, truly legal someplace, we’d do it,” Mr. Bateman told the Honolulu Advertiser. ”There is an escape now, and that escape is Canada,” Mr. Woods said. “We can learn from the experience in Canada that the world does not collapse on us when we achieve justice.”
Bill Woods and Lance Bateman pose for photos after their wedding in Vancouver on Aug. 31, 2003.Richard Lam/The Canadian Press
Stories like this around the country sent conservatives into a panic. “Canada is about to legalize homosexual ‘marriages,’ ” wrote Paul Weyrich, an architect of the New Right coalition that had helped to elect both Ronald Reagan and George W. Bush. “And what will happen when homosexual couples rush to Canada ‘married’ and then return to the United States as ‘Mr. and Mr.’ So-and-So? Right now we would have to accept them as a married couple because the United States recognizes Canadian marriages.”
It was a dubious legal analysis, but it motivated Republicans on Capitol Hill to take seriously a proposal to amend the U.S. Constitution to forbid recognition of same-sex marriage. The amendment had been introduced in 2002, but had languished without attention from congressional leadership. By late June, as then-Senate majority leader Bill First endorsed the Federal Marriage Amendment to gin up support for the proposal, the Senate’s influential Republican Policy Committee circulated a research document including local coverage from U.S. newspapers about local couples who planned to marry in Canada. The next month, Mr. Bush offered vague support, as well. “I believe a marriage is between a man and a woman,” he said. “And I think we ought to codify that one way or the other.”
In the United States, what had been treated largely as a matter of state policy suddenly looked once again like a subject for national concern. “You can certainly count on the following: That activists in the United States will attempt to persuade U.S. courts and American judges to apply international norms,” said Robert P. George, a Princeton University legal scholar who had drafted the amendment and later played a role in founding the National Organization for Marriage. “So, I think the greater threat right now is not from Canada, but state supreme courts in liberal jurisdictions.”
That November, Prof. George’s fear was realized. The Massachusetts Supreme Judicial Court ruled that barring gay and lesbian couples from marriage violated the state constitution. The majority opinion repeatedly invoked the Halpern case to support its approach to matters of both constitutional interpretation and implementation. Those who had been involved in the Ontario litigation were shocked at its appearance in the footnotes of a landmark American court opinion. “That was very much a departure from the usual procedure in the United States,” Ms. Forster Smith said. “The U.S. is legendary for citing only their own laws.”
Ontario jurist Harvey Brownstone, Canada's first openly gay judge, offered to personally preside over American visitors' same-sex marriages in the mid-2000s.Philip Cheung/The Globe and Mail
But even once Massachusetts began marrying same-sex couples, the following May, Canada was typically a more appealing destination for residents of the other 49 states who wanted to marry. While Massachusetts law forbid town clerks from issuing marriage licences to out-of-state couples whose couplings would be illegal where they resided, Ontario Court Justice Harvey Brownstone, the first openly gay judge in Canadian history, offered to personally preside over the vows of American visitors. New York activists organized what they called the Civil Marriage Trail, an overnight bus caravan that brought couples to Toronto for ceremonies.
After hundreds of couples had married in Canada, the New York State attorney-general at the time, Eliot Spitzer, issued an opinion declaring that the state would recognize same-sex marriages from other jurisdictions even though New York did not allow gay and lesbian people to marry there. Among the beneficiaries of the new policy were Manhattanites Edith Windsor and Thea Spyer, an elderly couple who married in Toronto in 2007 under the auspices of the Civil Marriage Trail.
Yet even though New York treated them as married, the Defense of Marriage Act required all federal agencies to see them as strangers. When Ms. Spyer died in 2009, Ms. Windsor was hit with a $350,000 estate-tax bill that would never have been levied, as she liked to say, “if Thea was Theo.”
Thea Spyer and Edie Windsor.Neville Elder/The Globe and Mail
Ms. Windsor sued the United States, and in 2013 her case reached the U.S. Supreme Court. That summer, the court ruled by a 5-to-4 majority that the owed taxes amounted to a form of unconstitutional discrimination. The opinion struck down the Defense of Marriage Act and required the federal government treat all married couples equally without regard to sexual orientation.
Within months, other state and federal courts had begun to read the opinion in United States v. Windsor expansively; its reasoning, they found, should make state bans on same-sex marriage unconstitutional, as well. That ensured that it would not be too long before the big question – whether same-sex couples had a right to marry under the U.S. Constitution – would be back in front of the justices.
Unlike in Canada, there is nothing along the lines of the reference-question mechanism in American law. Courts can’t issue advisory opinions; someone has to have been harmed by an existing law to challenge it. If Ms. Windsor and Ms. Spyer had not had the opportunity to marry in Canada, they would have never had a basis to bring this constitutional question before the Supreme Court.
Editor’s note: An earlier version of this essay incorrectly said that Justice Harvey Brownstone waived his standard fee while presiding over wedding ceremonies. In fact, judges don’t charge fees for the performance of a judicial function. This version has been corrected.
People celebrate the U.S. Supreme Court's decision in 2015 outside the Stonewall Tavern in New York's West Village.JEWEL SAMAD/AFP via Getty Images
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