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On October 6, 2014, in a surprise move that showed implicit support for marriage equality, the Supreme Court of the United States declined to hear three appeals from the federal appeals courts dealing with decisions to strike down bans on same-sex marriage. The message sent from the Supreme Court, as a result, is that they will not stand in the way of individuals marrying the person of their choice, no matter their gender.

Same-sex marriage had already been legalized in nineteen U.S. states, as well as the District of Columbia. We can now include Indiana, Oklahoma, Utah, Virginia, and Wisconsin to the list of states where same-sex marriage is legal. Moreover, six other states, including Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina, are likely to follow suit due to the fact that they are under the jurisdiction of the same three appeals courts whose decisions have been upheld. That will still leave 20 states where same sex-marriage has not yet been legalized, but progress has definitely been made.1

Canada, in contrast, was on the leading edge of same-sex marriage rights, becoming the fourth country in the world to legalize same-sex marriage nationwide with the enactment the Civil Marriage Act on July 20, 2005. The preamble to the Act includes the following pivotal statement:

“WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;”

Legal rights afforded to common-law couples had already been extended to same-sex couples in 1999 through the landmark Supreme Court of Canada ruling, M. v. H., which amended the definition of ‘spouse’ in the Ontario Family Law Act to include two ‘persons’. In 2003, the Halpern decision extended the rights to marriage to same sex couples in Ontario. Other court decisions also recognized same-sex marriage in the majority of jurisdictions in Canada by the time the Civil Marriage Act was passed.

While this may not be the final word for the U.S. Supreme Court, and there is still plenty of work to do, the door to same-sex marriage has been opened for a significant proportion of the U.S. population who did not have this option available to them less than a week ago.



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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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