Equal Marriage in the United States

In what will undoubtedly be viewed as a landmark decision, on June 26, 2015 the Supreme Court of the United States effectively ruled in Obergefell v. Hodges that same-sex marriage is legal throughout the US. For the interest of the reader, this article explains a little about the background and significance of Obergefell and details some of Canada’s own history with respect to the implementation of equal marriage laws.

The ruling in Obergefell places the US among the growing list of countries where same-sex marriages have full and equal protection and recognition under the law. Obergefell was preceded by a number of decisions at the State level which effectively granted same-sex couples equal rights and recognition within that State.

Obergefell involved plaintiffs from various backgrounds who had very urgent and profound reasons for asking for their marriages to be granted equal treatment under the law including three couples highlighted by the Court. Justice Kennedy chose to highlight several of the parties who had each demonstrated the commitment, love and dedication towards living a fulfilling life enjoyed by many same-sex couples and the harsh consequences same-sex couples could face when their marriage was not recognized by their home state.

The named petitioner, Mr. Obergefell, had been in love with and committed to his partner, Mr. Arthur, for over two decades. In 2011, Mr. Arthur was diagnosed with ALS. Knowing that Mr. Arthur’s illness would soon render him incapacitated and eventually take his life, Mr. Obergefell and Mr. Arthur committed to marry each other in Maryland where same-sex marriages were recognized. Three months after they were wed, Mr. Arthur passed away. Mr. Obergefell resided in Ohio which did not recognize same-sex marriage and, as a result, Mr. Obergefell was unable to be listed as the surviving spouse on Mr. Arthur’s death certificate. Justice Kennedy, for the majority of the Court, described Mr. Obergefell’s exclusion from the death certification as being forced to remain a statute-imposed stranger from his partner even in death.

Ms. DeBoer and Ms. Rowse were co-plaintiffs who performed a commitment ceremony to honour their relationship in 2007. In the ensuing years, they fostered and adopted multiple children, some with very special medical needs. Their home state, Michigan, did not allow two same-sex people to be adoptive parents of the same child; however, paradoxically, one of the partners was permitted to adopt. In effect, the couple was forced into a constant state of uncertainty in the event of a medical emergency of their children or if adoptive parent passed away or was incapacitated since only one of the partners was legally recognized as a parent of their children.

Mr. DeKoe was an army reservist who was given orders to deploy to Afghanistan. Before deploying for his tour of duty, Mr. DeKoe and his partner, Mr. Kostura, got married in New York. Unfortunately, upon Mr. DeKoe’s return from deployment, he and Mr. Kostura settled down in Tennessee where their marriage was given no legal effect by the state. Despite having risked his life in the service of his country, Mr. DeKoe was not able to have his marriage be given legal effect raising, among others, concerns about how his military benefits may have been dealt with in the event of his passing.

Justice Kennedy recognized that marriage had a long history of constitutional protection which was, in turn, protected by the Courts. Justice Kennedy wrote that decisions concerning contraception, family relationships, procreation, childrearing and marriage are among the most intimate decisions an individual could make. Among other reasons, Justice Kennedy found that previous case law had held that:

  • a right to personal choice regarding marriage was inherent in the concept of individual autonomy;
  • a right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;
  • the right to marry safeguards children and families and, thusly, draws meaning from related rights of childrearing, procreation and education; and
  • marriage is a keystone of the US’ social order.

The majority decision in Obergefell was grounded upon the 14th Amendment to the US Constitution which prohibits any State from, among other things, denying any citizen within the State’s jurisdiction equal protection under the laws. Justice Kennedy described marriage as “rising from the most basic human needs” and as “essential to our [humanity’s] most profound hopes and aspirations”. Denying same-sex couples equality in marriage was to “…impose stigma and injury of the kind prohibited by [the US’] basic charter.”

While the effect of Obergefell was to immediately give same-sex marriages equal recognition under the law in each state, the dissenting opinions and immediate reaction from opponents of same-sex marriage indicates that there remains substantial political opposition to same-sex marriage in the US. It remains to be seen whether the decision in Obergefell, will mark a shift by the general population towards a greater acceptance of the notion that both heterosexual and homosexual couples are entitled to marriage equality.

While a Canadian reader may view Obergefell with a view that perhaps our southern neighbours are behind the times, we must recall that Canadian views and laws concerning same-sex couples were only relatively recently shifted in favour of equality. The national legalization of same-sex marriage celebrates its 10 year anniversary in July, 2015.

Until legislative amendments brought into force in 1969 were adopted, homosexuality remained a criminal act in Canada. Even once homosexuality was decriminalized, homosexual relationships were not afforded equal protection under the law and it wasn’t until much later that the Courts began to recognize that same-sex couples were entitled to equal marriage rights.

Like the US, legalization and recognition of same-sex marriages in Canada was incremental. On June 10, 2003 Ontario was the first province to legalize same-sex marriages on the basis of s. 15(1) of the Charter in Halpern v. Canada (Attorney General). Halpern in effect made Ontario the third jurisdiction in the world to grant such rights to its same-sex couples. BC’s Court of Appeal followed shortly after on July 8, 2003 when the Court lifted a stay on an earlier decision it made in Barbeau v. British Columbia (AG) which also granted equal rights to same-sex couples on the basis of s. 15 of the Charter.

Following Halpern and Barbeau, provincial and territorial courts across Canada began to consistently recognize same-sex marriages and reaffirm that same-sex couples were entitled to equal rights and protection under the Charter. The issue of whether the federal government could give national recognition to same-sex marriage rights in Canada was determined through a reference to the Supreme Court which affirmed the federal government’s jurisdiction to redefine marriage to include same-sex couples. With the blessing of the Supreme Court, the federal government tabled and passed the Civil Marriage Act on July 20, 2005. In its preamble, the Civil Marriage Act, among other things, recognized that allowing same-sex marriages reflected the values of tolerance, respect and equality expressed in the Charter.

Although the newly-elected Conservative government did attempt to re-open the same-sex marriage debate upon its taking power in 2006, the motion was defeated and Canada has since largely come to embrace same-sex marriage as part of its cultural identity.

Obergefell and the Civil Marriage Act are illustrative of how substantial shifts in the law may follow a series of more subtle shifts in the public zeitgeist and legal landscape of a country. Precedent requires the Courts to acknowledge and honour previous decisions other Courts have made ; however, this obligation is balanced by the Courts’ recognition that the law must be permitted to incrementally shift to align itself with the changing values of the public and to to ensure equal protection to all citizens. On occasion, such as with Obergefell, a Court can find itself positioned to take a great leap forward and recognize a plea for equality that long fell on deaf ears. Pioneering decisions like Obergefell inevitably lead to tensions and hearted political and personal debates which call upon citizens to reflect on what rights and privileges they enjoy and to examine whether their neighbours are afforded those same rights and privileges.

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