Tolentino, Raviel D.

3rd Year-Juris Doctor

Legality of Same-Sex Marriage in Canada and the United States

Same-sex marriage has been one of the long-standing debatable issues between liberalists
and conservatives, which overwhelmingly transcended to the legal parameters with respect to the
equal rights of people belonging to the homosexual community. According to the article of Council
on Foreign Relations entitled Same Sex-Marriage: Global Comparisons1, there are twenty-seven
(27) countries, including Canada and the United States, which have legalized civil union between
same-sex couples.

In 2005, the Canadian Parliament enacted the Civil Marriage Act, which guaranteed “that
every individual is equal before and under the law and has the right to equal protection and equal
benefit of the law without discrimination”2 and “recognized that the right to equality without
discrimination requires that couples of the same sex and couples of the opposite sex have equal
access to marriage for civil purposes”.3 Conversely, it was indeed a tedious progression towards
attainment of the aforesaid social triumph even after the declaration of unconstitutionality of
Section 159 of the Criminal Code of Canada4 – an act which decriminalized sodomy.5
Simultaneous controversies persisted, which eventually resulted to suits, by reason of
discrimination relating to employment, pension, insurance, and other similar concerns.6
Nevertheless, the aforesaid series of legal battles involving same-sex couples can be considered as
great stimulants of their presently enjoyed rights. In the case of Egan v. Canada7, a gay couple
asserted the validity of Old Age Security Act8 for being discriminatory as to one’s sexual
orientation for the said law excluded same-sex couples to be the beneficiary of their partner’s old

1
Felter, C., & Renwick, D. (2019, October 18). Same-Sex Marriage: Global Comparisons. Retrieved from Council
on Foreign Relations: https://www.cfr.org/backgrounder/same-sex-marriage-global-comparisons. Accessed on 17
October 2019
2 st
1 preambulatory clause, Civil Marriage Act, 2005 S.C., ch. 33
3 nd
2 preambulatory clause, Id.
4
The Criminal Law Amendment Act, 1968-1969, S.C. 1968-69, ch. 38, s. 7
5
Canada moves to repeal 'discriminatory' gay sodomy law. (2016, November 16). Retrieved from The Straits
Times: https://www.straitstimes.com/world/americas/canada-moves-to-repeal-discriminatory-gay-sodomy-law.
Retrieved 17 October 2019
6
Glass, C., & Kubasek, N. (2009). The Evolution of Same-Sex Marriage in Canada:Lessons the U.S. Can Learn
from Their Northern Regarding Same-Sex Marriage Rights. Michigan Journal of Gender and Law, 15(1), 163.
Retrieved October 17, 2019, from https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1077&context=mjgl
7
Egan v. Canada, 2 S.C.R. 513 ([1995)
8
Old Age Security Act, R.S.C., 1985, c. O-9, ss. 2, 19(1).

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Tolentino, Raviel D.
3rd Year-Juris Doctor
Pamantasan ng Lungsod ng Maynila

age security payments. Although the Supreme Court of Canada upheld the validity of the assailed
law, it nonetheless confirmed that sexual orientation may be treated as an analogous ground for
discrimination under section 15 of the Canadian Charter of Rights and Freedoms.9 Thus in M. v.
H10, the obligation to provide spousal support was extended to same-sex couples and an immense
impact on their cohabitations was emphasized11. The leading case which finally recognized the
rights of same-sex couples to marry was Harplen v. Canada12. In a synopsis published by the
Ontario Court of Appeal on Same Sex Marriage Rights,13 it emphasized the wisdom of the court
that:

A law that prohibits same-sex couples from marrying does not accord with the needs,
capacities and circumstances of same-sex couples. Same-sex couples are capable of forming long,
lasting, loving and intimate relationships. Denying same-sex couples the right to marry perpetuates
the contrary view, namely, that same-sex couples are not capable of forming loving and lasting
relationships, and thus same-sex relationships are not worthy of the same respect and recognition as
opposite-sex relationships. Moreover, same-sex couples can choose to have children through adoption,
surrogacy and donor insemination. Importantly, procreation and child-rearing are not the only
purposes of marriage, or the only reason why couples choose to marry.

Triumphantly, the definition of marriage was thereafter amended through the Civil
Marriage Act following the audacious ruling of the Court in Harplen v. Canada, thereby granting
same-sex couples the right to and benefit of marriage.

On the other note, the United States likewise took the bold step to liberate itself from the
conventional perspective as regards marriage. In 2015, through the landmark case of Obergefell v.
Hodges14, same-sex marriage became legal all throughout America. In the said case, John Arthur
and Jim Obergefell, a gay couple, married each other in Maryland, where civil union between them
is legal. However, Obergefell was forbidden to put his name as the surviving spouse in Arthur’s
death certificate. The Supreme Court, in its 5-4 decision, declared the unconstitutionality of the

9
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982, ch. 11 (U.K.), § 15(1).
10
M. v. H., 2 S.C.R. 3 (1999)
11
Mohs, A. (2010). Choice v. Equality : The Legal Recognition of Ummarried Cohabitation in Canada. Vancouver.
12
Halpern v. Canada, 65 O.R.3d 161 (2003)
13
Ontario Justice Education Network. (2005). Landmark Case: The Same Sex Marriage Case – Halpern et al. v.
Attorney General of Canada et al. Retrieved October 18, 2019, from OJEN: http://ojen.ca/en/resource/landmark-
case-the-same-sex-marriage-case-halpern-et-al-v-attorney-general-of-canada-et-al
14
Obergefell v. Hodge 135 S. Ct. 2584 (2015).

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Tolentino, Raviel D.
3rd Year-Juris Doctor
Pamantasan ng Lungsod ng Maynila

State prohibition on same-sex marriages for being in violation of the due process and equal
protection provisions of the Fourteenth Amendment15. This momentous victory of the LGBTQ+
community has finally echoed the crusade of efforts to attain equal access to marriage of same-sex
couples since the 1970s.

One of the important events in the liberalization at hand was the application of a gay couple
for a marriage license in Minnesota in 1970. Although their application was denied, it nonetheless
brought to the attention and consideration of the Court the issue of marriage equality for the first
time.16 In 1973, Maryland became the first state to allow same-sex marriage which was eagerly
followed by other states.

Unfortunately, the President Bill Clinton, in 1996, signed in to a law the U.S Congress
enactment of Defense of Marriage Act (DOMA)17. DOMA defined as “legal union between one
man and one woman as husband and wife.”18 The Court eventually ruled on the unconstitutionality
of Section 3 of DOMA in the case of United States v. Windsor19 stating that “DOMA undermines
both the public and private significance of state-sanctioned same-sex marriages; for it tells those
couples, and all the world, that their otherwise valid marriages are unworthy of federal
recognition.”

Considering all the foregoing, although the legality of same-sex marriage is not yet
affirmed and accepted by a number of countries, the unflinching determination to attain access of
all people to right to marry which Canada and the United States have emanated has certainly made
a great impact to other States to walk towards the same essential legal progress. Consequently, it
is significant to note that the recognition of rights of same-sex couples may as result to a better
and harmonious societal relationship beneficial to all people in the community.

15
Weber, T. (n.d.). Critical Analysis of Obergefell v. Hodges. Retrieved October 18, 2019, from Family Research
Council: https://www.frc.org/criticalanalysis-obergefellhodges
16
Law, T. (2019, October 8). 9 Landmark Supreme Court Cases That Shaped LGBTQ Rights in America. Retrieved
October 18, 2019, from Time: https://time.com/5694518/lgbtq-supreme-court-cases/
17
Defense of Civil Marriage Act, 110 Stat. 2419 (1996)
18
1 U.S.C. § 7, Id.
19
United States v. Windsor, U.S., 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).