CANADA
Legal victory for same-sex couples
By Greg
Butterfield
Canada's lesbian/gay/bi/trans community won an enormous,
historic legal victory May 20 when the country's Supreme Court
struck down a section of Ontario's Family Law Act that defined
"spouse" as applying only to heterosexual couples.
By an overwhelming eight-to-one majority in a ruling that
explicitly extended recognition to same-sex relationships, the
court found that definition unconstitutional. It gave Ontario's
government six months to change the law.
The decision could have a big impact. It will certainly
provide a boost to those fighting for same-sex marriage
rights--not only in Canada but also in the United States, where
President Bill Clinton signed the so-called Defense of Marriage
Act in 1996 in a reactionary effort to block those rights.
The Canadian case began in 1992 when a lesbian, publicly
identified only as M, discovered she could not seek alimony
from her former lover. Straight couples in marriages or even in
common-law marriages had that right. Same-sex couples did
not.
M went to court to overturn the anti-gay law. Two lower
courts ruled in her favor before the provincial government
appealed the case to the Supreme Court.
In its May 20 ruling, the high court wrote: "The exclusion
of same-sex partners from the benefits of the Family Law Act
promotes the view that ... individuals in same-sex
relationships generally, are less worthy of recognition and
protection.
"It implies that they are judged to be incapable of forming
intimate relationships of economic interdependence as compared
to opposite-sex couples, without regard for their actual
circumstances."
The Charter of Rights and Freedoms enacted in 1982 should
have guaranteed gay people equal rights and protection under
the law, said lawyer Martha McCarthy, who represented M. But
this is "the first time that gays and lesbians can say that the
Charter's promise of equality for them and their relationships
has been fulfilled." (Reuters, May 20)
The ruling means hundreds of laws throughout
Canada--including laws on marriage, adoption, housing, pensions
and taxes--will have to be rewritten to include same-sex
couples in the definition of spouse.
Activists warn that the extension of these rights is not
guaranteed. The federal government and each province could use
a loophole in the Charter of Rights--the "notwithstanding
clause"--to ignore the court's decision.
The May 21 Toronto Star reported that Ontario Premier Mike
Harris, who is running for re-election, did not plan to
challenge the ruling.
"It's not so much of an `Aha, we won,' but a `Thank you,
finally,'" said Anne, a Toronto mother who lost custody of her
two children because she is a lesbian.
"This decision is entirely consistent with a recent Angus
Reid poll, which shows that more than two-thirds of Canadians
support equal rights and responsibilities for those in same-sex
relationships," said Jan Cheney, spokesperson for Equality for
Gays and Lesbians Everywhere, reports independent journalist
Rex Wocker.
In January, EGALE launched a court challenge to 58 federal
laws over their definitions of "spouse."
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