Whether the gay and lesbian community wanted it or not, legal marriage for same-sex couples has become a leading issue throughout the United States and in many other parts of the world.|
Even though legal marriage was a reality in only a couple of American states during the 90s-early-mid-2000s, resistance to recognizing out-of-state marriage licenses took an unprecedented amount of legislative time and energy. This became a priority, even as far more pressing bills on the economy, debt, environment, food and product safety, energy, security, poverty, hunger, health care, emergency response, crime, finance reform, and an illegal war languished.
[See our article: State Legislative Reactions to Suits for Same-Sex Marriage]
These anti-gay, anti-marriage equality efforts have been instigated and funded by right-wing, radical, religious organizations who have helped place their adherents in many public offices. Their stated goal is to change America into a Bible-based nation, a theocracy. They have chosen to interpret their Biblical mission as one of purging, rather than of inclusion and love.
Since the 80s, when domestic partner benefits first came into being, the religious extremists have lambasted such benefits as a stepping stone toward same-sex marriage, which they declare as a symptom of a crumbling civilization. They also claim, inexplicably, and without any sort of rational proof, that recognizing same-sex marriages will somehow mock, demean, or destroy their opposite-sex marriages.
As time has gone by, the anti-marriage bans in several states have been less likely to survive legal challenge. Marriages, like other legal contracts, executed in one state are generally recognized in all other states, as required by the “full faith and credit” clause of the U.S. Constitution, and numerous court findings.
Despite this fundamental legal principle, some states refused to recognize interracial marriages from other states until the U.S. Supreme Court ruling, Loving v. Virginia, in 1967. It looked like gay and lesbian couples would be facing a similarly long and costly battle.
The U.S. Supreme Court’s ruling against crucial parts of the “Defense of Marriage Act” (DoMA), has opened the way to ending the two-faced military prohibition of “Don’t Ask Don’t Tell,” and has been a major argument in many court cases, as well as in state legislative bill creation, toward allowing marriage equality.
Because of the influence of the religious extremists, we fully expect to see legal battles regarding recognition of out-of-state marriage licenses in every state — even as great strides in legal recognition of same-sex relationships are made in many state legislatures and courts and in many other countries.
Here, then, are countries and states that have legal marriage, and lesser forms of legal recognition, along with some of their histories and struggles that have paved the way to a greater equality.
Types of Legal Recognition
- The Netherlands
Holland became the 1st country in the modern world to offer legal marriage to same-sex couples on April 1, 2001. It was brought about through legislative action.
[See our article: Netherlands Offers Legal Marriage]
Belgium became the 2nd country to offer legal marriage to same-sex couples on January 30, 2003. It was brought about through legislative action.
[See: Belgium Offers Legal Marriage]
Massachusetts became the 1st U.S. state to offer legal marriage for same-sex couples on May 17, 2004. It came via a court suit.
[Please see: Massachusetts Offers Legal Marriage]
Canada became the 3th national government to offer legal marriage on June 28, 2005. It came about because of high court interpretations of the Canadian Constitution. The Canadian provinces of British Columbia, Manitoba, New Brunswick, Newfoundland (includes Labrador), Nova Scotia, Ontario, Québec, Saskatchewan, and the Yukon Territory all offered legal marriage for same-sex couples before the nationwide Canadian government (under court pressure) voted for it.
[See: Canada Offers Legal Marriage.]
On June 29, 2005, Spain became the 4th national government to offer legal marriage to same-sex couples. This was the result of a campaign promise made by the ruling Socialists’ as part of their aggressive agenda for social reform.
[See: Spain Offers Legal Marriage]
- South Africa
On December 1, 2005, Spain became the 5th national government to offer legal marriage to same-sex couples. It came about due to a Constitutional Court ruling.
[See: South Africa Offers Legal Marriage]
California almost became the 2nd American state to offer legal marriage to same-sex couples on May 15, 2008. The legislature had twice voted for same-sex legal marriage, which was vetoed by the governor. Winning in court, many legal marriages were obtained before Prop 8 and the State Supreme Court ruled against equal treatment.
[Please see: California Offered - then banned - Legal Marriage]
Connecticut became the 3rd American state to offer legal marriage to same-sex couples on October 10, 2008.
[Please see: Connecticut Offers Legal Marriage]
Norway became the 6th government to offer legal marriage to same-sex couples on June 17, 2008. Norway previously had a domestic partner status. Full legal marriage came about by parliamentary vote and royal assent.
[Please see: Norway Offers Legal Marriage]
Sweden became the 7th government to offer legal marriage to same-sex couples on April 1, 2009. Existing registered partnerships will remain in use, or can be converted to legal marriage.
[Please see: Sweden Offers Legal Marriage]
Iowa became the 4th American state to offer legal marriage to same-sex couples on April 3, 2009. It came about via a constitutional law court case.
[Please see: Iowa Offers Legal Marriage]
Vermont became the 5th American state to offer legal marriage to same-sex couples on April 7, 2009. Previously, Vermont offered “Civil Union,” a separate-but-not-equal domestic partner status. The transformation to legal marriage was brought about by legislative vote, which overid the governor’s veto.
[Please see: Vermont Offers Legal Marriage]
Maine became the 6th American state to offer legal marriage to same-sex couples on May 6, 2009.
However, in November 2009, voters repealed Maine’s equal marriage law.
[Please see: Maine Offers Legal Marriage]
- New Hampshire
New Hampshire became the 7th American state to offer legal marriage to same-sex couples on June 3, 2009.
[Please see: New Hampshire Offers Legal Marriage]
- District of Columbia
The District of Columbia became the 8th American area to offer legal marriage to same-sex couples on March 3, 2010.
[Please see: District of Columbia Offers Legal Marriage]
- Mexico City
On December 22, 2009, Mexico City passed the Marriage Equality Act and became the 8th government in the world to offer legal marriage. The law became effective on March 4, 2010.
[Please see: Mexico City Offers Legal Marriage]
Iceland’s parliament amended the marriage law on June 11, 2010 to define marriage as between two individuals, thereby and became the 9th government in the world to offer legal marriage. The law became effective on June 27, 2010.
[Please see: Iceland Offers Legal Marriage]
On July 22, 2010, Argentina became the 10th government in the world, and the first Latin American country to offer same-sex marriage nationally.
[Please see: Argentina Offers Legal Marriage]
- New York
New York became the 8th American state to offer legal marriage to same-sex couples on July 24, 2011.
[Please see: New York Offers Legal Marriage]
Many cities throughout the world in offer a registration for same-sex couples. In most cases, the registrations carry little or no legal weight or benefits.
[Please see our article: Registration for Domestic Partnership]
The following are nations which offer more substantial rights and responsibilities, however, these are not legal marriage and are all a vastly separate and unequal treatment.
- Austria - “Civil Unions” were instituted in Austria on December 10, 2009. The law became active on January 1, 2010.
[See: Austria: Civil Unions]
- Czech Republic - The “Registered Partnership Bill” became law on March 15, 2006, and became effective in July 2006.
[See: Czech Republic: Registered Partnership Bill]
- Denmark - “Registered Partners” for a status and benefits similar to marriage. By July 1995, about 3,000 gay and lesbian couples had registered in Denmark since it first became possible in October 1989.
[See our article: Scandinavia: Registered Partnership]
- Ecuador - It is not clear that there is a registration process. On September 28, 2008, the country’s new constitution granted equal rights for same-sex relationships, however, it also banned adoption and defines marriage as only being between a man and a woman.
- Finland - “Registered Partners” for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
- France - “Civil Solidarity Pact” for some of the tax, welfare, and inheritance rights that married couples enjoy. Registered couples are able to share such things as joint auto insurance, extend their social security coverage to each other, file joint tax returns, and leave each other property in their wills on favorable tax terms.
[See: Civil Solidarity Pact]
- Germany - “Registered Life Partnerships” for a status and benefits similar to marriage.
[See our article: Germany: Life Partnerships]
- Greenland - “Registered Partners” for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
- Iceland - “Registered Partners” for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
- Netherlands - “Registered Partners” for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
- Norway - “Registered Partners” for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
Norway also offers full legal marriage.
[See our article: Norway Offers Legal Marriage]
- Spain had a registry in place, however, in June 2005 opted for full legal marriage.
[See: Spain Offers Legal Marriage]
- Sweden - “Registered Partners” document for a status and benefits similar to marriage.
[See our article: Scandinavia: Registered Partnership]
- Uruguay - “Cohabitation Union Law” for both same- and opposite-sex sex partners who have lived together for 5 years to receive the same benefits and responsibilities as legal marriage. On January 1, 2008, Uruguay became the first Latin American country to allow a legal status for same-sex couples.
- Common-law marriage is only available in certain states in the United States and, until legal marriage became available in the District of Columbia, has never applied to same-sex couples. It allows for some marriage law to apply to opposite-sex couples who have lived together a certain length of time. The exact laws that apply — and the time necessary to trigger common-law status — vary by state.
[Please see our article: Common-Law Marriage States]
[Please see: District of Columbia Offers Legal Marriage]
Courts outside of the U.S. have periodically used their country’s common-law marriage status to allow certain domestic partner benefits apply to same-sex couples, most notably in Canada, and Colombia.
- European Union parliament adopted a resolution, on March 16, 2000, urging the 15 EU nations to grant same-sex couples rights equal to those of opposite-sex couples. The non-binding recommendation was included in a human rights report.
The resolution stated that EU nations should “guarantee one-parent families, unmarried couples and same-sex couples rights equal to those enjoyed by traditional couples and families, particularly as regards tax law, pecuniary rights and social rights.”
It noted that “European citizens continue to suffer discrimination and disadvantages in their personal and professional life as a result of their sexual orientation,” despite specific references in the EU’s basic treaty against such discrimination.
Some EU nations, including Denmark, Belgium, Sweden and the Netherlands, already grant legal recognition to couples regardless of biological sex. Britain has amended its laws to allow homosexuals to follow military careers. Further, Belgium and the Netherlands offer full legal marriage to same-sex couples.
The parliament said it “deplores the fact that some Member States still have a discriminatory age-of-consent provision for homosexual relations in their criminal codes as well as other forms of discrimination, in particular within the army.”
The report also called on the 13 nations currently applying for EU membership to ensure equal rights for homosexuals.
- On January 17, 2003, the European Parliament approved a report asking the 15 member states to give live-in couples, including homosexuals, the same legal rights that marriages enjoy. However, the final vote on amendments to the annual report on rights in the European Union rejected an article urging member states “to permit marriage between persons of the same sex.” The final amended report was approved 277 to 269, with 14 abstentions. The vote isn’t binding on members, but rather constitutes a legal point of reference for them.
- A vote on February 11, 2003, by the European Union Parliament at Strasbourg, France, called for a recognition of same-sex marriage rights throughout Europe. It also called for the legal acceptance of partnership unions by those same-sex couples who want recognition without actually having a legal marriage. While opposite-sex marriage is recognized throughout the E.U., same-sex relationship laws are different from country-to-country, and are not portable. The E.U. member states are now required to adapt to the stance of it’s Parliament, which is expected to be a lengthy process.
During the week of September 22, 2003, EU ministers endorsed a proposed set of rules ensuring that same-sex married couples from the Netherlands and Belgium — the only countries where such unions were legal at that time — are recognized across the EU by countries whose own gay and lesbian populations are still far from receiving the same recognition.
Under the new rules, which have yet to be made EU law, gay and lesbian EU citizens and their families will be able to move freely around the EU and obtain permanent residence in any EU state once they have been resident there for at least five years.
- The European court, on July 24, 2003, ruled that a gay man, who lost his tenancy when his partner died, was the victim of unlawful discrimination. Siegmund Karner was evicted from his Vienna home after his partner died in 1994. His partner had been the official tenant of the flat where the couple had lived for five years.
This decision will have significant consequences for lesbians, gay men and bisexuals in 45 countries. Currently 32 European countries grant no rights to same-sex partners. All benefits, or rights, granted by governments to opposite-sex cohabiting partners will, in future, have to be granted to same-sex cohabiting partners.
But the case may have even wider implications: The Austrian government argued that this discrimination was necessary for the “protection of the family in the traditional sense.” In rejecting this comprehensively, the Court demolished the main argument used around the world by the religious right for continued discrimination against same-sex partners.
- On March 3, 2004, the European Parliament widened the definition of family, simplifying how lesbian and gay Europeans and their families can move and live within the European Union. The directive cuts down on the bureaucracy same-sex couples face, however, it only applies to countries that honor same-sex relationships. That means, that in 2004, a non-E.U. citizen with a same-sex partner in Denmark could move to Belgium and have automatic residency rights, but not in Spain or Greece.
- On January 20, 2006 the European Parliament passed a non-binding resolution — by a vote of 468-149, with 41 abstentions — which states that European countries that do not recognize same-sex unions are condemned as “homophobic.”
- April 1, 2005 marked the enforcement of Protocol 12 to the European Convention on Human Rights. It prohibits discrimination against individuals and requires public authorities to prohibit discrimination as well. While sexual orientation discrimination is not explicitly listed among the prohibited, European Court of Human Rights case law has found such discrimination to breach the convention.
Patricia Prendiville, executive director of the European arm of the International Lesbian and
“This is a very significant legal development in European anti-discrimination legislation which has great potential for lesbian, gay, bisexual and transgender people in Europe who still experience discrimination in many areas of their lives.”
As of April, 2005, only 11 of the 46 European countries that are signatories to the convention have ratified Protocol 12: Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, Macedonia, Netherlands, San Marino, and Serbia and Montenegro.
Legal Status by Country|
- Since 1997, Argentinean same-sex widow’s or widower’s could claim pension Medical benefits.
- Since, 1998, a union-run health care program for teachers and flight attendants has extended health coverage to domestic partners.
- In the Mendoza province of Argentina, in October 1998, Judge Graciela Mastracusa granted a male couple, who have been together for four years, the same social benefits as those enjoyed by opposite-sex partners in a legal or common-law marriage — welfare payments, workers’ compensation and a pension upon the death of one of the partners. The ruling says that the male couple had the same “evident, stable and permanent” living arrangement as a traditional marriage between a man and a woman. The couple, a 35-year-old public employee and 25-year-old machine operator, launched their suit in October 1997.
- On December 13, 2002, Buenos Aires became the first Latin American city to adopt laws allowing both same- and opposite-sex couples medical insurance, hospital visitation rights, and pension rights. The new law does not give same-sex couples the right to adoption children.
The 18-year-old activist group Comunidad Homosexual Argentina led the campaign. The law was approved despite opposition from Argentina’s Catholic Church, which argued city legislators had no authority in defining civil unions.
The law went into effect on July 21, 2003. The first couple to sign up: Cesar Cigliutti, 45, and Marcelo Suntheim, 35.
Cesar: “Our society has really demonstrated maturity in recognizing our rights.”
Marcelo: “Every gay, lesbian, transvestite, and transsexual in Argentina has always fantasized about this moment.”
- A federal court in Rosario, Argentina, ordered the country’s largest union-operated health-care organization, the Obra Social de Empleados de Comercio y Actividades Civiles (Retail and Store Personnel Union Health Care Organization), to extend coverage to same-sex partners in early October 2005. The ruling was based on the national Constitution, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, and the International Covenant on Economic, Social and Cultural Rights. Judge Sylvia Aramberri stated:
“The dynamics of social life require that the laws regulating human conduct adapt to the variations that operate within it to prevent reality from overflowing the legal norms.”
- Buenos Aires passed a Civil Union style legislation in 2002.
- In December 2009, Alex Freyre, 39, and Jose Maria De Bello, 41, obtained permission to marry from the Tierra del Fuego government in Ushuaia, the world’s southernmost city, after a Buenos Aires judge annulled another judge’s decision to allow the marriage in the Argentine capital. On April 15, 2010, Ushuaia Judge Marcos Mellien annulled the first same-sex marriage in Latin America, citing an article in Argentina’s civil code forbidding marriage between two people of the same sex. The two men said they would appeal the decision.
- On July 22, 2010, the marriage bill became law and Argentina became the 9th government in the world, and the first Latin American country to offer same-sex marriage nationally. Please see: Argentina Offers Legal Marriage.
- Parliament amended language in 14 acts, on October 17, 2001, in accordance with the government’s anti-discrimination legislation, bringing the total amended acts to 43. Attorney General Rob Hulls said the Statute Law Further Amendment (Relationships) Bill ended discrimination against same-sex couples by adopting the terms “spouse,” “domestic partner,” and “partner.”
Hulls said, “These amendments will ensure same-sex couples receive the same legal rights as heterosexual couples.”
- In November 2005, the Australian government announced that same-sex couples will gain the right to claim each other’s superannuation (pension) benefits. The policy also extends to cohabiting elderly siblings, and to adult children caring for elderly parents.
Superannuation requires employers to make contributions on behalf of employees (currently 9 percent of the salary package) into funds that are administered by financial institutions and employee/employer groups. Employees are taxed at a lower rate on the contributions than on other income. At retirement, individuals may opt for a one-time payment, or monthly pension. For low income earners, the government matches the savings balance.
To determine if there was an “interdependent relationship,” officials will consider the length of the relationship, whether it involved sex, the degree of emotional support, and ownership and use of property. The news reports did not indicate how they will determine the degree of emotional support or sexual activity.
- In December 2005, the Australian Defence Force policy was changed to recognize the current partners of same-sex service members, and gave them similar entitlements as opposite-sex partners.
- The national Australian Parliament passed a law, in 2004, defining marriage as between a man and a woman for federal purposes.
- As of July 1, 2006, skilled migrants are able to sponsor same-sex partners to migrate to Australia, an ability already offered to citizens and permanent residents. Skilled migrants could include same-sex partners on their visa application.
- In October 2007, two woman, Grace Abrams and Fiona Power, were officially recognized as married when the Administrative Appeals Tribunal allowed Grace, a transgender woman, to change the sex designation on her passport. Grace had married her long-term female partner using her male birth certificate before undergoing gender reassignment surgery in Thailand in 2005. On her return to Australia, she was denied a passport in her new gender on the basis that she was married to a woman. She appealed this decision, maintaining that without a female passport she was unable to travel, contradicting both the Australian Passports Act, which states that every Australian citizen is entitled to a passport, and the International Covenant on Civil and Political Rights, which states that everyone has the right to liberty of movement and freedom to choose their residence.
- In May 2008, the Australian government began removing or changing nearly 100 laws that discriminate against same-sex couples. These changes — which should be operational my mid-2009 — were promised during the November 2007 elections when the Labor Party came to power. Items affect taxes, pensions, social security, health benefits, and more. Legal marriage is still limited to opposite-sex couples.
- In December 2001, a group of parliament members said legal recognition was needed to solve the flaws existing in Tasmanian law. The MP committee members urged amendments to the De Facto Relationship Act to erase the inequality. They did not address issues relating to adoption.
The Tasmanian government announced, September 2002, that it would amend 120 pieces of legislation covering property rights, child maintenance, organ donation, guardianship, access to a partner in the hospital, pensions, funerals, wills and various parenting, family and work leave entitlements. Gay sex was illegal in Tasmania until 1997, when the anti-sodomy law was repealed (earlier reports placed the law change in 1994).
- As of January 1, 2004, Tasmania was the first state in Australia to allow same-sex couples, and many others, to register their relationship. The Relationships Act recognizes a range of “significant relationships,” including that between a person and a long-term care giver, or elderly friends who live together.
The Relationships Act provides immediate access to spousal rights in these areas: superannuation, taxation, insurance, health care, hospital visitation, wills, property division, and employment conditions such as careers, parenting, and bereavement leave.
[See: Tasmanian Approach: Relationships Act]
- On April 12, 2005, the Greens party proposed, in the Tasmanian Parliament, a bill to legalize same-sex marriage. While the 2004 national law defined marriage as between a man and a woman for federal purposes, states might remain free to choose their own definition.
On December 1, 2005, the Greens’ move to give same-sex couples the right to marry was scuttled in the State Parliament. The Government and Liberals opposed the move with Attorney General Judy Jackson arguing that the state does not have constitutional power to amend marriage laws.
Greens justice spokesman, Nick McKim, said he had expert legal advice to the contrary: “The Labor and Liberal parties have unfortunately voted against even discussing laws to allow same sex couples to express their love for each other by getting married. And that is just an outrageous thing to do. Voting against equality, against fairness and voting to entrench discrimination.”
- An early July 2006 ruling by Austria’s highest court has resulted in the country’s first same-sex marriage. After a man married a woman, he later became a transsexual. Neither party wanted to divorce.
The transsexual spouse was turned down by the Interior Ministry when she requested to have her birth records and other official documents amended to reflect her current sex. They rejected the request based on the fact that same-sex marriage is not allowed in Austria.
The Constitutional Court agreed to the name change, noted that amending records for transsexuals is commonly done in Austria and said that the very fact the woman was married should have no bearing on the case. The ruling did not specifically address the issue of same-sex marriage leaving open a possible government challenge to the marriage.
- “Civil Unions” were instituted in Austria on December 10, 2009. The law became active on January 1, 2010.
[See: Austria: Civil Unions]
- The Flemish regional government, in 1998, allowed a reduction in the inheritance tax. Opposite-sex spouses pay two percent, while unrelated heirs pay up to 45 percent. Under the new regulation, surviving same-sex partners will pay 10 percent.
- A male-to-female transsexual, Priscilla (formerly Rony) Van Sandt, and her wife of 25 years, Jeannine Van Sandt, in January 1999, contested a Belgian court order requiring that they divorce because the country’s laws do not recognize same-sex marriages.
Priscilla adamantly refuses to abandon her marriage, saying, “Why should I? My partner has supported me during this difficult period. Should I just throw her away saying thank you for the service given? It’s not possible.”
Jeanine stated, “I love this person, whether he’s a man or a woman. That may seem bizarre, but that’s how it is.”
- As of January 1, 2000, same-sex couples were able to to sign up for limited registration. Not included were matters such as inheritance and adoption.
- Belgium considered offering legal marriage to same-sex couples, according to a report from Reuters on April 2, 2001. Health Minister Magda Alvoet, a member of the leftist Green Agalev party, said legalizing same-sex marriages was an important step in eliminating discrimination against gay men and lesbians. According to Alvoet, “The government considers the right to marry a constitutional right, and the chance to marry the sole true opportunity to see that homosexual and heterosexual couples are treated in the same way.”
The report says that the proposal would be presented to the core cabinet later in April, and that agreement was likely: A source at the office of Liberal party prime minister, Guy Verhofstadt, said, “There are no objections on principle for the moment.”
- Belgium’s core cabinet approved a bill allowing same-sex couples to marry, which would make it the second country in the world — after The Netherlands — to legalize such marriages. The bill, approved on June 22, 2001, would amend Belgium’s civil code to grant same-sex couples virtually the same legal status as opposite-sex couples. However, it does not allow simultaneous adoption of children.
The bill follows a trend-setting 1998 law recognizing cohabiting same-sex couples as households with some of the same legal rights as opposite-sex couples.
- The Belgium Senate Justice Commission on October 23, 2002, voted 11-4 in favor of allowing legal marriage for same-sex couples. Before the bill became law, it had to pass both parliament houses.
- Belgium became the second nation in the world to offer legal marriage for same-sex couples. On January 30, 2003, the Belgium legislature made a law allowing same-sex couples to obtain a marriage license.
[Please see: Belgium Offers Legal Marriage]
- On April 20, 2006, Belgium became the fifth member of the European Union to allow same-sex couples equal rights in adoption. Senators in the upper house backed the proposal by a 34-33 vote with two abstentions.
- Two groups in Brazil (Atoba Group of Rio de Janeiro and the Gay Group of Bahia state) demanded legal marriage on May 7, 1995, threatening to name 18 gay people in Congress and 50 in the local Catholic Church if they are denied.
A bill was drafted in 1995 by congresswoman Marta Suplicy that would have created a domestic partner status to extend benefits such as social security and health plans, as well as provide for property transfers. No action on the bill was forthcoming.
Suplicy, now mayor of Sao Paulo, again supported the bill in May 2001. Brazil’s Congress has periodically looked at the bill, watering it down to include any kind of relationship such as sisters or a grandfather sharing a household.
In May 2002, Brazil’s president, Fernando Henrique Cardoso, endorsed a proposal to legalize same-sex unions. He urged the Brazilian congress to pass legislation that had become bogged down in committees. The legislation would permit the property transfer and extend pension and medical benefits to same-sex couples.
- The Brazilian High Court unanimously decided, February 11, 1998 to grant property rights to the surviving partner of a same-sex relationship. Businessman Milton Alves Pedrosa, from Belo Horizonte, capital of Minas Gerais, won the right to half of the estate of his deceased partner.
- As a result of a court ruling, the Brazilian government, on June 8, 2000, extended de facto legal recognition to same-sex relationships by granting such couples the right to inherit each other’s pension and social security benefits. Applicants who can prove that theirs is a “stable union” will be treated by the National Social Security Institute no differently than a married couple in cases of retirement or death. The policy also allows people in same-sex relationships to declare their partners as dependents on income tax returns.
- Following recording rock artist Cassia Eller’s death in December 2001, Eugenia Vieira, her partner for 14 years, received temporary, six-month custody of Eller’s 8-year-old son, Francisco Ribeiro Eller (nicknamed Chicao). The Rio de Janeiro court also ruled on January 9, 2002 that Vieira had the right to inherit the her estate and copyrights. According to Vieira’s lawyer, it is the first time in Brazil that a female partner of a mother received custody.
Vieira has since received permanent custody of their son Chicao. He was fathered by Tavinho Fialho, a friend and fellow musician of Eller’s who died in a car crash before the boy’s birth.
- Civil Unions style registrations between same-sex couples were offered in the southern, border state of Rio Grande do Sul in 2004.
- A Brazilian court, on October 1, 2004, barred the lesbian partner of the outgoing mayor of an Amazon town from trying to succeed her, citing a ban on political office passing between family members. Eulina Rabelo was forced to quit the mayoral race in Viseu, in the state of Para, when judges ruled that her relationship with incumbent mayor Astrid Maria Cunha e Silva would violate a constitutional article that prevents executive posts in local government being transferred between members of the same family.
The unanimous ruling by the country’s top electoral court effectively recognized the two women as being married, even though Brazil’s constitution does not allow same-sex marriage. The laws on same-sex couples are muddled. The federal social security system recognizes same-sex unions and one state, Rio Grande do Sul, has performed same-sex civil marriages.
- In February 2005, federal prosecutor João Gilberto Gonçalves in the Brazilian farming and factory town of Taubaté has begun a case aimed at legalizing same-sex marriage. It could face repeated challenges and appeals, travel through three federal courts, and end up at the Supreme Court, all of which could take 10 years. Says Gonçalves:
“Gays deserve equal rights, not more rights or less rights. This is something that should be discussed objectively, without interference by the church’s moral standard of marriage. A long time ago it was considered inappropriate to talk about equal rights for women and blacks. The church used to teach that blacks didn’t have souls. We now know that’s an entirely absurd idea. I think in the future we will look back and be shocked by how poorly we treated homosexuals.”
- In early July 2005, a Sao Paulo judge ruled that there is no valid reason for denying a same-sex couple the right to adopt children. While single gay men or lesbians have been allowed to adopt in the past, it is the first time a court has permitted a couple to jointly adopt.
- Two Cambodian women were married on March 12, 1995, according to a Reuters news service report from the Cambodian Daily newspaper. Originally reported as a legal marriage, it was, in fact, a ceremony not recognized by the state. It took place in Kro Bao Ach Kok village in Kandal province. The couple, Khav Sokha and Pum Eth, received the well-wishes of their families and hundreds friends.
- King Norodom Sihanouk backs lesbian and gay rights, and has even expressed his wishes for his country to accept and legalize same-sex marriages. According to his Web site, the 81-year-old King came to the conclusion that these rights are important after watching television footage of the San Francisco weddings taking place in February 2004. The U.S. city allowed same-sex couples to apply for civil marriage licenses. Despite the fact that the licenses were not legal, and there would be court challenges from radical, right-wing groups, more than 3,000 couples married.
“It is the good Lord who loves diversity of taste, of colors and of different humans, etc.,” said King Sihanouk.
King Sihanouk was so moved by the couples that he posted the comment calling for his country to allow marriage for “man and man or woman and woman” and for more acceptance of diversity. Although he has no power to introduce legislation, he is well respected by the public, and his opinions could lead to a more tolerant attitude toward lesbians and gays.
- A human rights tribunal ordered, in 1996, the Federal government to extend health and relocation benefits to the same-sex partners of federal employees, although pension benefits remained tied up in the courts. The Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms provide anti-discrimination protections to same-sex couples.
- Federal Justice Andrew MacKay ruled, in 1998, that the federal government discriminates against gay employees with its “separate but equal” benefits program for “same-sex partner relationships.” Instead, the word “spouse” must be redefined so that gay employees and their partners are included in the regular benefits program. MacKay’s ruling also granted human rights officials the power to order the Federal Government to rework all laws, regulations and directives that discriminate against same-sex couples in the area of job benefits.
- The Canadian Supreme Court altered the way “family” is defined when it ruled, on May 20, 1999 in M v. H & Ontario, that the term “spouse” includes same-sex partners. Striking down a key section of Ontario family law on the grounds that it is unconstitutional, the ruling has forced Ontario to rewrite hundreds of laws governing family relationships. Moreover, it has forced governments across Canada to rewrite laws that previously recognized only opposite-sex relationships.
- The Canadian Senate gave its final approval to Bill C-23, on June 14, 2000, the Government’s omnibus bill to give same-sex couples the same legal standing as unmarried opposite-sex couples.
The bill, called “The Modernization of Benefits and Obligations Bill,” was introduced on June 13, 2000 by Senator Lucie Pepin (Liberal-Quebec), who said, “We must pass Bill C-23 for reasons of justice, equality among people, tolerance and openness to diversity, as well as respect for each other. This is what fairness is all about. … Bill C-23 must be passed in a society that values equality, a value inscribed in the heart of our Charter of Rights and Freedoms, an inescapable fact of Canada’s political culture.”
Bill C-23 amends 68 federal statutes. It also contains clause 1.1 or “the rule of interpretation,” which states “For greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage,’ that is, the lawful union of one man and one woman to the exclusion of all others.”
The bill uses the undefined phrase “relationships of a conjugal nature” to distinguish the relationships subject to the benefits and obligations of the bill. It does not employ any sort of registry.
- On February 14, 2001, New Democrat MP Svend Robinson introduced a private member’s bill that would explicitly allow same-sex couples to marry. He was supported by Liberal MPs Bill Graham and Carolyn Bennett, Tory MP Scott Brison, Bloc Quebecois MP Real Menard, and Libby Davies. By the end of October 2001, however, the bill was denied the required unanimous consent to send it to committee, and it effectively died.
- In November 27, 2001, probably the first Canadian class-action lawsuit was filed to redress discrimination against gay men and lesbians. The suit against the government of Canada, as well as against Canada’s Attorney General, seeks survivor benefits for about 10,000 gay men and lesbians. The suit charges arbitrarily exclusion of those who lost their partners between 1985 and 1998.
In 2000, the federal government granted same-sex couples partner rights through a law [C-23, mentioned above] that, in part, amended the Canada Pension Plan Act. The revision allows survivor benefits, but only covered cases after 1998. The suit wants the government to post-date benefits to 1985, when the Charter of Rights and Freedoms in the Constitution came into effect, thereby guaranteeing equal treatment.
Lawyer Patricia LeFebour stated that many of the survivors who have joined the suit are aged, many are sick, and they are in desperate need of the money, which could amount to $4,000 a year per survivor. The suit was launched by longtime Toronto activist George Hislop, 75, whose partner Ronnie Shearer died in 1986. He could collect $85,000 if the suit is successful.
Early in December 2002, Ontario Superior Court Justice Maurice Cullity allowed an others to join in the suit. The suit expanded to include 6,000 other same-sex surviving partners in Ontario and several other provinces. A British Columbia suit also joined, represented 2,000 more surviving partners. Quebec is the only province not represented in the lawsuit, because it operates a separate pension plan and has already settled with gay and lesbian pensioners.
On December 19, 2003, an Ontario court ruled that the federal government had discriminated against same-sex couples by denying pension benefits to survivors whose partners died before 1998. Such benefits will now be retroactive to April 17, 1985, when equality guarantees were included in the Charter of Rights and Freedoms.
The Crown had contended that providing benefits retroactive to January 1, 1998, was generous, and in step with the evolving legal status of same-sex relationships. But in the ruling by Justice Ellen Macdonald, she said, “I can find nothing generous in codifying a mechanism for discrimination.”
It was estimated that the ruling will affect 1,500 gay men and lesbians, with survivor benefits worth $100 million.
- The Law Commission of Canada — an independent, government-funded group that advises Parliament on law reform — has called on the federal government to legalize marriage for same-sex couples. The Commission released a study in Ottawa in February 2002 which said: “There is no justification for maintaining the current distinctions between same-sex and heterosexual conjugal unions in the light of current understandings of the state’s interests in marriage.”
The study said marriage should provide a framework in which people can express their commitment to each other regardless of sexual orientation. It noted that, two years ago, Parliament recognized same-sex couples, giving many of the same benefits and obligations as other common-law couples, but it excluded same-sex couples from legal marriages.
The Commission’s president, Nathalie Des Rosiers, said that denying gay men and lesbians the right to marry, “amounts to discrimination on the basis of sexual orientation” and is illegal under the equal protections section of the Constitution. Des Rosiers chastised Parliament for not having the courage to legitimize same-sex marriage.
“If governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion,” stated the law report.
The study suggests that if the government is not prepared to go all the way in one piece of legislation, it should do so in stages. Des Rosiers said the first step might be introducing a national partnership union registry. Nova Scotia has a registry, and Quebec is studying a plan to have one.
- On February 13, 2003, New Democrat MP Svend Robinson introduced, for the second time, a private member’s bill that would explicitly allow same-sex couples to marry. Earlier in 2002 courts in Ontario and Quebec ruled the definition and the subsequent ban on same-sex legal marriage to be unconstitutional. The decisions are under appeal. In British Columbia, another challenge to the federal ban is underway. Private member’s bills seldom pass without the support of the government, which has been more than sluggish on this issue.
- In July 2002, a three judge panel of the Ontario Superior Court unanimously ruled that the legal definition of marriage of one man and one woman was “constitutionally invalid and inoperative.” The ruling was suspended for two years, giving Parliament time to redefine the term “marriage.”
The Canadian federal government appealed this ruling, and, at the same time, released a policy discussion paper on same-sex marriages. This paper, “Marriage and the Legal Recognition of Same-sex Unions,” was referred to the Standing Committee on Justice for public consultation, which will later report back to the House of Commons with recommendations regarding the four options contained in the paper.
The four options are:
- Leave marriage the way it is
- Change the definition to include same-sex marriages
- Get out of the marriage business and leave it to the churches
- Establish civil registries that allow same-sex marriages to be recognized without a ceremony
- On June 10, 2003, Ontario’s court of appeals ruled that the Canadian government must allow same-sex couples the right to marry. The court upheld the lower court decision, and it removed the court’s deadline of July 2004, instructing the federal government to allow same-sex marriage immediately.
The federal government is not appealing the ruling to Canada’s supreme court, and is making plans to offer legal marriage for same-sex couples in all nine provinces.
On July 8, 2003, the British Columbia court ruled that the waiting period for allowing legal marriage was no longer valid and proclaimed legal marriage for same-sex couples available immediately in that province.
Since then, Manitoba, New Brunswick, Nova Scotia, Ontario, Québec, Saskatchewan, and the Yukon Territory have offered legal marriage for same-sex couples.
- On December 9, 2004, the Canadian Supreme Court ruled that, firstly, the government has the authority to redefine marriage to include same-sex couples, and secondly, religious officials cannot be forced to perform unions against their beliefs.
The judgement was in favor of lower court findings from six provinces and one territory affirming same-sex marriages. The nine Supreme Court justices join 19 other judges across Canada that have found in favour of equal marriage for all Canadians, regardless of their orientation.
The ruling did not call the traditional definition of marriage “unconstitutional,” however, it removed the possibility that Alberta, the only province interested in upholding that definition through the use of the “notwithstanding” clause.
“Several centuries ago, it would have been understood that marriage be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.”
— Supreme Court of Canada, December 9, 2004
Court ruling allowing the Canadian government to proceed with legal marriage
- On June 28, 2005, the Canadian federal system allowed legal marriage by parliamentary vote.
- Alberta’s government announced on April 3, 2001 that it will review provincial legislation to ensure gay men and lesbians are afforded equal protection under the law. This follows a previous day’s ruling by Justice Del Perras who called provisions of the provincial Act discriminatory and inconsistent with the Canadian Charter of Rights and Freedoms. Perras wrote in his decision: “There is differential treatment, as the claimant is denied the right to access the [Act] based on his sexual orientation.”
Although Judge Perras declared the law unconstitutional, he refused an application to “read in,” or specifically include, same-sex couples and, instead, suspended the law for nine months. The case was brought to the Alberta Court of Queen’s Bench, by Brent Johnson, a gay man, who contested the Intestate Succession Act, a statute governing the disbursement of estate property when there is no will.
- A review of family law was released, January 10, 2002, by Justice Minister Dave Hancock. In it was the recommendation that Alberta should extend the same legal benefits to same-sex relationships as married couples.
- The Adult Interdependent Relationship Act (AIRA) in Alberta, in effect since April 2003, changed the wording of all family legislation in the province to include common law couples. These were defined as both same-and- opposite-sex, as well as other relationships that comprise emotional and financial commitment. This new status requires no waiting period. Same-sex couple may declare themselves as an AIR as soon as they wish, and have all the rights and responsibilities of legally married couples.
- British Columbia has extended some spousal rights to same-sex couples, recognizing them as common-law relationships.
- British Columbia legislation in 1997 recognized gay and lesbian couples as legal spouses for purposes of child custody, maintenance and access. Same-sex adoption was also granted.
- Same-sex couples in British Columbia, New Brunswick, Quebec and Ontario sought to challenge the federal “Marriage Act” by applying for marriage licenses across Canada, during May 2000.
When Michael Leshner and Michael Stark applied for their license in Toronto, the city’s director of legal services, Paul Jones, sought an opinion from an Ontario court as to how to proceed. It could be the first time that a Canadian government moved proactively on the status of same-sex couples, rather than waiting for activists to file lawsuits.
When Cynthia Callahan and Judy Lightwater applied for a marriage license in Victoria, British Columbia, instead of it being rejected, their application was sent on for review by the British Columbia Attorney General Andrew Petter (New Democratic Party). He quickly issued a written statement urging legal marriage for same-sex couples:
“Earlier today, a same-sex couple made application to the B.C. Executive Director of Vital Statistics for a marriage license.|
“The Executive Director deferred his decision and asked for a legal opinion from the Ministry of Attorney General.
“My Ministry will provide that opinion as soon as possible.
“It is unfortunate that the law in this area is uncertain.
“The federal Marriage Act is ambiguous but has traditionally been interpreted in light of common law principles that have not allowed same-sex marriages.
“Recently, however, the Supreme Court of Canada has held that equality rights under section 15 of the Charter [of Rights and Freedoms] protect against discrimination on the basis of sexual orientation.
“As yet, there has not been a definitive court determination on the application of section 15 with respect to the Marriage Act.
“This area of the law requires clarity. This is a question of dignity and fundamental human rights for a number of Canadians, and an issue of fairness for all.
“While it is possible to leave the issue of same-sex marriages to be determined through years of litigation, it would be far better in my view for the federal government to resolve the matter by clarifying its legislation and offering same-sex couples the same opportunity to marry as is available to heterosexual couples.
“In a modern society there is no justification for denying same-sex couples the same option to form marital bonds as are afforded to opposite-sex couples.
“Rather than waiting for the courts to determine this issue, the federal government should change the federal law to allow for equality for all couples who are in a committed relationship.
“As a province, we have taken action to eliminate discrimination on the basis of sexual orientation within our areas of competence. We are continuing to remove legislative barriers that discriminate on the basis of sexual orientation.
“Over the past five years we have amended more than 20 pieces of provincial legislation to eliminate this form of discrimination, and we will continue with our legislative initiatives in the near future.
“We have taken these steps because it is the right and the fair thing to do.”
— British Columbia Attorney General Andrew Petter, May 26, 2000
- Eight same-sex couples launched a court action in British Columbia, and began arguing their case on July 23, 2001. Their suit posits that the refusal to issue a marriage licence to same-sex couples violates their rights under Canada’s Charter of Rights and Freedoms.
The couples (and the number of years they had been together in 2001):
= Jane Hamilton and Dr. Joy Masuhara (eight years)
(and their children Sarah Hamilton and Meghann Hamilton)
[second parent adoption by Joy in 1997]
= Dawn Barbeau and Elizabeth Barbeau
= Murray Warren and Peter Cook (30 years)
(and adopted son, Brent Power)
= Bob Peacock and Lloyd Thornhill (32 years)
= Robin Roberts and Diana Denny (17 years)
(and their four children)
= Melinda Roy and Tanya Chambers
= Shane McCloskey and David Shortt
= Tess Healy and Wendy Young
The B.C. Supreme Court rejected their constitutional challenge to Canada’s definition of marriage, on October 4, 2001. In its ruling, the court claimed it did not have jurisdiction to strike down the law. The judgment stated, “The change would have broad legal ramifications and would require, at the least, rules to govern the formation and dissolution of same-sex unions. Any permitted changes to the common law of marriage must be made by legislation.”
In response, one of the litigants wrote to us (Partners Task Force):
“It was clear to me when we were sitting through long days in court this summer that this landmark case wasn’t just about the right for Canadian homosexuals to marry. It was the Canadian courts passing judgement on all gay and lesbian couples, and about our right to visibility. Did we lose something with Justice Ian Pitfield’s October 2nd. decision? We lost the fantasy that all of us count equally under the law.”
— Jane Eaton Hamilton, December 2001
The litigants took the next step and petitioned the B.C. Court of Appeals. And on May 1, 2003, the B.C. Court of Appeals agreed with the litigants, as well as with the courts in Ontario and Quebec, which have ruled that the prohibition on same-sex marriage violates equality guarantees in the Canadian Charter of Rights. In its decision, the Court gave the federal government until July 12, 2004, to reform the law and allow same-sex marriage.
The federal government decided not to ask the Supreme Court of Canada to review the B.C. decision. Instead, it introduced a bill that will confirm the Ontario ruling, changing federal law that applies across Canada, and allow same-sex marriage to become legal in all nine provinces.
- On July 8, 2003, the British Columbia court ruled that the waiting period for allowing legal marriage was no longer valid and proclaimed legal marriage for same-sex couples available immediately in that province.
[See our article: Canada Offers Legal Marriage]
- The Manitoba Human Rights Commission in 1997 ruled that the provincial Government must offer medical, dental, and optical benefits to gay and lesbian employees’ partners.
- Manitoba, in May 2001, is proposing to change legislation giving same-sex couples many of the same benefits as opposite-sex couples. The legislation would change 10 provincial acts dealing with such things as pension, spousal support, and survivor benefits. Notably missing is the ability to adopt as a couple. As gay or lesbian individuals may adopt, not allowing couples to adopt only prevents the children from being protected. The changes are required to bring provincial laws in line with the 1999 Supreme Court of Canada ruling requiring provincial governments to give unmarried, opposite-and same-sex couples the same legal rights as married couples.
On September 16, 2004, Court of Queen’s Bench Justice Douglas Yard ruled that the provincial marriage law definition was unconstitutional, and allowed same-sex couples access to legal marriage. Justice Yard: “The traditional definition of marriage in Manitoba is reformulated to mean a voluntary union for life of two persons at the exclusion of all others.”
[See our article: Canada Offers Legal Marriage]
- Fed up with the long wait for the federal system to universally allow legal marriage, four same-sex couples filed suit in New Brunswick on April 25, 2005.
- On June 23, 2005, New Brunswick Judge Judy Clendenning ruled in favor of the four same-sex couples seeking the right to marry. In her ruling, she agreed that the refusal to grant them marriage licenses is a violation of the Canadian Constitution, and changed the definition of civil marriage from a lawful union between a man and a woman, to a lawful union “between two persons.”
[See our article: Canada Offers Legal Marriage]
Newfoundland and Labrador
- The right for same-sex couples to adopt, becomes effective June 2002. The legislation, created in April 2002, provides for co-parenting, and also gives adoptive children more rights. Adoption records can be opened if all parties agree, new medical facts can be shared, and children as young as five will be counseled about adoption.
- On December 21, 2004, Newfoundland and Labrador same-sex couples gained the right to marry.
[See our article: Canada Offers Legal Marriage]
- Same-sex couples may register with the Department of Vital Statistics for $15 and obtain some of the rights formerly reserved for married couples. In a domestic partnership bill passed on June 1, 2001, there are now three classifications for relationships: common-law, registered domestic partners, and married couples.
Common-law partners include any two people living in a conjugal relationship for over two years. They are entitled to rights under income tax legislation, as well as pension and insurance plans.
Domestic partners now have additional entitlements such as spousal and child support, joint property, alimony, protection under the Matrimonial Property Act and the right to see their partners’ medical records, as well as make medical decisions in an emergency. Until this new law, a partner could be challenged by blood relatives and left completely out of any medical emergency process. The law still denies same-sex couples a legal marriage license, or the ability to adopt children as a couple.
- During the first week of July 2001, Nova Scotia’s highest court struck down a law preventing gay men and lesbians from adopting. Justice Deborah Gass ruled the law unconstitutional. An unidentified Halifax female couple brought the suit. The couple has several children.
Gass’s ruling means unmarried same-and opposite-sex couples will be permitted to adopt children. Her ruling also means children of common-law couples can register their relationships with both parents, inherit under the Interstate Succession Act, and receive maintenance from both parents.
Nova Scotia now joins British Columbia, Alberta and Ontario, in allowing same-sex couples to adopt.
On September 24, 2004, Nova Scotia allowed same-sex couples access to legal marriage.
[See our article: Canada Offers Legal Marriage]
- A provincial court judge in Ontario, Canada, in May 1995, ruled that same-sex couples have a constitutional right to adopt children. He declared that Ontario’s legal definition of spouse violates the federal Charter of Rights and Freedoms and granted adoption orders to four lesbian couples in Toronto. The judge also struck down regulations in the Child and Family Services Act that prevent same-sex couples from jointly adopting.
- The Ontario Court of Appeal ruled in 1996 that same-sex couples must be treated as common law couples under Ontario’s Family Law Act.
- In 1999, Ontario changed legislation giving same-sex couples the same benefits as opposite-sex couples. The changes are required to bring provincial laws in line with the 1999 Supreme Court of Canada ruling requiring provincial governments to give unmarried, opposite-and same-sex couples the same legal rights as married couples.
- On January 14, 2001, two same-sex couples legally married in a joint service before 1,000 people at Metropolitan Community Church (MCC) of Toronto. The ancient Christian tradition of the banns was used by Rev. Brent Hawkes to unite the couples. Elaine Vautour, 43, married Anne Vautour, 38, who legally changed her last name to Elaine’s. And Kevin Bourassa, 42, married Joe Varnell, 31. They have been partners for three years.
The publication of banns for two couples were posted on Sunday, December 10, 2000, International Human Rights Day. The form of banns was based on one used by the Anglican Church. The banns were published on the two following Sundays, with no legal objections.
Objections were stated on the two following Sundays, however, they were based on objections to the couple’s perceived sexual orientation. The underlying objection being that these were same-sex marriages. This was invalid under Ontario law because objections can only be raised if a couple was related by blood, under age, mentally unable to make such a decision, or had been married before.
Marriage banns are enacted by announcing at three consecutive church services, or in weekly bulletins, that a couple intends marriage, and asking “if any know any cause or just impediment why these two should not be joined in holy matrimony, you are to declare it.” This allows churches to issue a marriage license, according to centuries-old common law that is recognized in Ontario.
The Ontario government has refused to register the couple’s marriages. MCC’s lawyer, Douglas Elliott, said that doesn’t mean the couples weren’t legally married. Only the registering, or recording, of it will be held up by that action. On January 19, 2001, the province was sued by MCC for it’s refusal to register the marriages.
On June 10, 2003, Ontario’s court of appeals ruled that the Canadian government must allow same-sex couples the right to marry. The court upheld the lower court decision, and it removed the lower court’s deadline of July 2004, instructing the federal government to allow same-sex marriage immediately.
The federal government had 30 days to appeal the ruling to Canada’s supreme court. It chose instead to introduce a bill that confirms the Ontario ruling, thereby change federal law that applies across Canada, and will allow same-sex marriage to become legal in all nine provinces.
- Partners for 19 years, Michael Leshner, 53, and Michael Stark, 43, sued Ontario for legal marriage in May 2000 along with five other couples. When they first applied for their license in Toronto, the city’s director of legal services, Paul Jones, sought an opinion from an Ontario court as to how to proceed. It could have been the first time that a Canadian government moved proactively on the status of same-sex couples, rather than waiting for activists to file lawsuits.
However, two years later, on July 12, 2002, a three judge panel of the Ontario Superior Court decided that granting marriage licenses only to opposite-sex couples violates Canada’s Charter of Rights and Freedoms. Current federal law defines legal marriage as “a union between one man and one woman to the exclusion of all others.” The court also ordered the federal Parliament to officially redefine “marriage” within the next two years. If not, the courts would likely declare the marriages valid on July 12, 2004.
From the Court Ruling:
“There is thus a short answer to the question posed by the Applicants in these two proceedings. It is this: the constitutional and Charter-inspired values which underlie Canadian society today dictate that the status and incidents inherent in the foundational institution of marriage must be open to same-sex couples who live in long-term, committed, relationships — marriage-like in everything but name — just as it is to heterosexual couples. Each is entitled to full and equal recognition, and the law must therefore be adapted accordingly.” (p.20)
— Justice Blair
“The restriction against same-sex marriage is an offense to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This is turn conveys the ominous message that they are unworthy of marriage. For those same-sex couples who do wish to marry, impugned restriction represents a rejection of their personal aspirations and the denial of their dreams.” (p.118)
“Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. … I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage.” (p.118)
“[T]he denial of equal marriage can — and no doubt does — reflect and reinforce existing, inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society. … Excluding gays and lesbians from marriage disregards the needs, capacities, and circumstances of same-sex spouses and their children. It declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages.” (p.204)
“I do not accept that the objective of procreation is a basis that can support the restriction against same-sex marriage. Rather, it could reasonably be argued … that it appears to be a mere pretext used to rationalize discrimination against lesbians and gays.” (p.114)
— Justice LaForme
Ontario Superior Court rulings, July 12, 2002
The provincial government was expected to appeal the decision, however, Ontario premier Ernie Eves said on July 12, 2002, that the government will not appeal. He also said, “If two people decide that they want to be in a union, why would I interfere with that?”
Eves further called on the government to abandon any consideration of appealing the decision and enact legislation to make same-sex marriages legal. While marriage is registered by the provinces, marriage is federally regulated.
In spite of Eve’s sensible response, it has been reported that the ruling was appealed by Ontario.
- Paula Barrero, 27, and Blanca Mejias, 32, were married, by banns on September 29, 2001 in Toronto. The officiant, Rev. Dr. Cheri DiNovo, sent the proper forms for processing to the government and a marriage license was issued. The form did not have a place for “female and male,” only asking for the name of the “bride and groom.”
On the following Valentine’s Day, the couple received a government issued marriage certificate. As of March 2003, Paula and Blanca’s marriage remains legal. It may very well be the first registered same-sex marriage in Canada.
While the government of Ontario has threatened to revoke Rev. Dr. DiNovo’s license to officiate legal marriages, the Registrar General has allowed the license to stand. Even though the marriage is registered, the couple is unable to exercise their marital rights with the government and they do not have legal standing.
- On June 10, 2003, Ontario became the third government in the world to offer legal marriage to same-sex couples.
[See our article: Canada Offers Legal Marriage]
- Québec allows same-sex couples to adopt.
- After a suit running nearly three years ago, Québec Superior Court judge awarded survivors’ benefits to Rejean Lebeau, David Brody, Yves-Bernard Bleau and Andre Crispin in November 1998. Their partners had been of the same sex. In a rather mean-spirited move, the provincial Justice Department appealed the court order in December 1998.
- Québec’s legislature unanimously approved Law 32, on June 10, 1999, making it the first Canadian province to amend all its relevant laws giving same-sex couples the same rights and responsibilities as unmarried opposite-sex couples. The bill modifies 28 laws to a gender-neutral definition of de facto couples. Some areas covered include social benefits, tax deductions and pension benefits. However, common-law opposite-sex couples are not as strongly defined under Québec law as in some other provinces. For example, they do not qualify for support payments after a relationship dissolution.
- Québec announced legislation to create a domestic partnership registry on November 9, 2001. The surprise announcement stated that the government hopes to have the legislation introduced by the end of the year with hearings in 2002. The registry would be open to all unmarried couples, same-sex as well as opposite-sex.
The announcement was seen as an attempt to draw attention from a Constitutional challenge to Québec and Canadian definitions of marriage. Québec is the only Canadian province that defines legal marriage, part of its unique legal system, the Civil Code.
- Legislation was proposed on December 7, 2001, by the Québec National Assembly that allows same-sex couples to enter “civil unions”. The status would offer many legal benefits, including division of assets after a breakup, the right to see a partner’s medical records, and automatic status as a beneficiary when a partner dies. The draft bill did not allow for co-adoption by couples.
On June 7, 2002, Bill 84 passed, same-sex couples will be able to enter a civil union and co-adopt children in July 2002. It puts Québec on par with more than half of Canadian provinces in granting adoption rights to same-sex couples. Provinces with similar laws include Nova Scotia, British Columbia, Ontario, Alberta and Saskatchewan.
At the time, Nova Scotia was the only other province to extend legal protections for same-sex unions.
While a big step forward, the bill also codifies a second-class status, as legal marriage is still denied same-sex couples.
- In March, 2002, four Québec gay men won a decisive victory in a suit over the date when partners are eligible to receive Widows Pensions from the government. The court has ordered the government to roll back the date at which surviving partners could be considered “widows“ to coincide with constitutional protections, 1977, the date gay men and lesbians were given civil rights in Canada.
The pensions are worth about $400 a month. The money is in addition to the survivor’s own government pension. The back pensions owed, plus interest, could be over $100,000 for each of the survivors.
The pensions were originally created by the federal government to assist widows in dire need. The plan was then extended to all widows in Canada, and finally to include men. Québec and Canada have separate (though virtually identical) pension plans for citizens. In 1998, both were amended to include surviving partners in same-sex relationships.
However, both the federal and Québec governments paid only those gay and lesbian survivors whose partners died after the law went into effect in 1998. The partners of the four Québec gay men had died before 1998, which prompted the suit.
A similar suit, against the Canadian government, has been launched by gay and lesbian surviving partners in the rest of the country, and is still before the courts. The class action suit seeks $440 million on behalf of an estimated 10,000 gays and lesbians whose partners died before the Canada Pension Plan began recognizing same-sex couples.
- A challenge to the marriage ban was filed in January, 1998, but the case’s couple, Martin Dube and his Mexican national partner, Manual Gambora, decided not to proceed.
A male couple since 1973, Michael Hendricks, 57, and Rene Leboeuf, 43, filed a similar suit in Québec Superior Court for the right to marry on September 14, 1998. The suit hinged on the fact that the Québec Civil Code — which states that a marriage license is granted only to a man and a woman — violates the province’s Charter of Rights and Freedoms, which has forbidden discrimination against gay men and lesbians since 1967.
It also challenged Québec’s right to decide who can get married, which it claimed is a federal jurisdiction. Apparently, there are no federal laws prohibiting same-sex marriage.
Québec Superior Court judge Louise Lemelin declared, on September 6, 2002, that the definition of marriage for opposite-sex only was unconstitutional. The judge stated, “the definition of marriage imposes a discriminatory distinction in excluding couples of the same sex.”
This is the second high court, after Ontario’s July 12, 2002 judgement, to demand that the Canadian government start treating all citizens equally.
- On March 18, 2004, Québec became the fifth government in the world to offer legal marriage to same-sex couples
[See our article: Canada Offers Legal Marriage]
- Saskatchewan was one of the first provinces in Canada to allow gay couples to adopt, but the changes in 1990 did not extend to gay couples applying for parental status of stepchildren.
- The Saskatchewan government, in July 6, 2001, finally amended 24 different provincial laws that will allow same-sex couples such things as the right to adopt stepchildren, and give them easy access to public pensions. The changes come two years after a Supreme Court decision requiring provincial governments to give unmarried, opposite-and same-sex couples the same legal rights as married couples.
- On November 5, 2004, Saskatchewan offered legal marriage to same-sex couples.
[See our article: Canada Offers Legal Marriage]
- The Chile Supreme Court repealed a decision to grant a lesbian mother full custody of her children, claiming her sexuality would have a damaging impact on the lives of the children. Karen Atala had been awarded custody of her three children by a lower appeals court. Her former husband appealed again, pushing the case to the highest court.
The May 31, 2004, 3-2 decision grants custody to the father, maintaining that Atala’s lesbian relationships disqualified her from any custody rights. The panel of judges opposed to the custody order said the children could be emotionally and sexually stunted by the “replacement [of a father figure] by another person of the female gender.” They also claimed that the children would be subjected to rejection because their family unit was “significantly different” to the norm.
The decision has been slammed by the international Human Rights Watch group, which accused the court of punishing Atala for her honesty. Although homosexuality was decriminalized in 1999, anti-gay and lesbian sentiment appears to be rife.
Those judges who voted against barring the mother from custody said they objected to the decision because it was discriminatory. They argued that Atala’s lesbianism was not a ground for depriving her of the custody she would normally enjoy as a separated mother under Chilean law.
Under Chilean law, separated mothers are given full custody of their children, unless in exceptional circumstances. Because it was from the Supreme Court, this decision is final, no appeal is possible.
- On March 15, 2004, a marriage certificate was issued to Zhang Lin, a transsexual from Peng Township, Shuangliu County in Southwest China's Sichuan Province. She obtained the certificate after being officially recognized by the state with a new ID card.
Zhang Lin, 37, and her husband, Yang Qicheng, will hold a marriage ceremony with 500 guests on May 1. Zhang had previously been married to a woman before her sex reassignment surgery, and has a 12-year-old daughter from that marriage.
- Apparently a first for Colombian family courts, in March 2000 a judge overruled the claim of the father and nephews of “Dagoberto,” awarding the entire estate to his same-sex partner “Cristian.” The Santafe de Bogota family court judge stated that Cristian “had been the man’s partner by default after having lived in a gay relationship that had lasted more than four years.”
Cristian had cared for Dagoberto throughout his struggle with AIDS without any assistance from the dying man’s family. Before the court ruling — immediately following Dagoberto’s cremation — the family had taken possession of the couple’s apartment and everything in it, and had told Cristian to leave.
- On Oct. 11, 2001, the Colombian Supreme Court granted conjugal rights to a lesbian prisoner, ordering the director of the Risaralda Women’s Prison to put Alba Nelly Montoya and her partner on an equal footing with the facility’s married women.
The Montoya decision is now expected to set national policy and lead to a settlement on behalf of another lesbian, Marta Alvarez, who has been petitioning for conjugal rights since the mid-1990s.
After years of dismissal by the courts, Alvarez asked the Inter-American Commission on Human Rights to consider the issue, which they did in October 1999. Alvarez’s hearing marked the first time that the commission had broached the subject of sexual orientation discrimination. However, their request for Alvarez and the government to come to reach a “friendly settlement” came to naught, as two years went by. Her case has been supported by The International Gay and Lesbian Human Rights Commission.
Both Alvarez and Montoya were represented by attorney Marta Lucia Tamayo, who called the recent ruling a “great triumph.” Tamayo gave credit for the victory to both her clients, “who had the courage to show their faces and fight publicly for love.”
- The Colombian First Commission of the Senate agreed to a law proposal, on November 21, 2001, that the unions made by same-sex couples should be recognized and protected by the nation. The proposed law would give couples access to social security, the “right to mutual nourishment, ” and to merge their patrimonial belongings. It would also allow a registered partner to inherit half of the assets accrued by the other partner during the relationship, and it extends spousal health, pension, and alimony benefits. Same-sex partnerships would be recognized, as long as they are made up of stable and free unions between two adults that have lived together for at least two years, and that have registered their partnership.
Six articles were withdrawn from the original draft presented by Senator Piedad Cordoba, including one that asked for the elimination of all content that was found to be sexually discriminatory from scholastic texts and programs, giving couples the right to inherit from their partners, as well as criminalizing discrimination against gay men and lesbians with sentences of one-to-three years.
An editorial in Bogotá’s El Tiempo supported the proposed legislation:
“There are reports that in zones controlled by paramilitary and guerrilla forces, homosexuals are forced to leave or are harshly persecuted. But armed groups are not the only ones that act against them. Under the antiquated morality that reigns among important levels in our society, they are tolerated as long as they remain hidden, but when they come out, they are discriminated without a second thought.|
“Blinding ourselves to the reality represented by nearly two million homosexuals is akin to covering the sun with our hands. Even if each person, as an individual, can think whatever they want regarding homosexuality, in a modern democratic nation, the law has the obligation to protect their rights. Even more so if in Colombian society — where ‘machismo’ and ‘pacatería’ prevails — we are dealing with a minority that still lives under unacceptable levels of discrimination. This is why Senator Cordoba’s project aims to address an oversight that has gone on for many years.
“The Constitution can state that all Colombians are free and equal under the law. But as long as it does not extend that equality to homosexual couples, it, in fact, sanctions the discrimination it condemns in written words.”
- translated from Bogotá’s El Tiempo, November 26, 2001
- In late August 2003, Colombia decided to abandon its plans to legalize same-sex relationships, likely a direct result of the Vatican’s recent anti-gay declaration, which called on Catholic politicians and members of the public to loudly oppose any laws that would lead to the recognition of same-sex committed relationships as being similar to marriage.
The country had planned to introduce the new laws, which would have given same-sex couples similar rights to opposite-sex married couples. Support for the legislation came from three previous presidents, and had been expected to pass easily through the country’s legal system.
- In February 2007, Colombia’s Constitutional Court ruled that spousal property and inheritance rights must be extended to same-sex couples.
- On October 4, 2007, Colombia’s Constitutional Court ruled 7-2 that, effective immediately, same-sex couples can add their partner to their medical insurance plans, as do married couples. They are required to register with a notary. The ruling applies to both private and governmental plans. The court said that denying benefits to same-sex partners violated their right to a dignified life and promoted an “absolute lack of protection for couples of the same sex.”
- On January 28, 2009, Colombia’s Constitutional Court ruled that same-sex couples are entitled to the same rights as opposite-sex couples in common-law marriages. The ruling means that civil and political rights such as nationality, residency, housing protection, and state benefits are now be granted to same-sex partners.
[See our article: Common Law Marriage: The Colombian Approach]
While the Colombian 1991 constitution promises equal rights for all citizens — and homosexual relationships were decriminalized in the 1980s — serious human rights violations against LGBT people are commonplace.
The ruling was a result of an April 2008 suit by the gay rights group Colombia Diversa, the Centre for Law, Justice and Society (Dejusticia), and the Group of Public Interest Law at the University of the Andes.
Colombia, a South American country of 45 million people, is largely Roman Catholic, and there is significant discrimination against gay people, despite other recent court rulings granting rights to same-sex couples. On numerous occasions, the police have been accused of abuse of authority and mistreatment of gay people. However, since the election of Álvaro Uribe Vélez in 2002, the situation has improved somewhat.
- The Republic’s cabinet approved, and sent to parliament, legislation to recognize same-sex partnerships on September 17, 2001. The law was designed to clear the way for a surviving partner to inherit, as well as gain other legal rights. It would allow same-sex couples to register at local government offices, and requires a court-approved, divorce-like process to leave a relationship. It would not allow same-sex couples to adopt children. On October 26, 2001, the Czech parliament lower chamber rejected a draft of the law, returning it to the government for revision.
Gay rights groups have lobbied for such a legislation for years, this being the third time such a law has been rejected. As expected, some lawmakers and the Catholic Church were staunchly opposed to the proposal. The Church had organized a petition drive against the bill.
Yet another bill for limited spousal right for same-sex couples was approved by the parliament’s lower chamber in December 2005, however, it needed approval by the upper chamber, the Senate, as well as the unlikely approval of president Vaclav Klaus.
Protest to such a law was launched from 10 Christian church groups. They claim, in a letter published on January 16, 2006, on the Czech Bishops Conference Web site that same-sex couples have the power to weaken opposite-sex couples’ family life and cause values chaos:
“We think that the adoption of a law on same-sex partnership will further weaken family life and will cause chaos in values, mainly in the young generation.”
President Klaus stated that the registered partnership was a “tragic illusion,” adding that laws grant privilege to opposite-sex marriage, given the fact that one of the outmost objectives of such marriage is to create a family and raise children. He has chosen to ignore the fact that same-sex couples constitute a family, and that some same-sex couples also raise children.
Signed by representatives of the Roman Catholic Church, the Orthodox Church, and eight Protestant churches.
Pres. Vaclav Klaus:
“One cannot create a family in same-sex marriage. I repeat, there is no single reason for the state to grant homosexual marriage a privilege”
In early February 2006, the registered partnership bill won a legislative vote — 86-78 — slightly above the required threshold. On February 16, 2006, the president announced his refusal to sign the bill.
However, the “Life Partnership Bill” was instituted in the Czech Republic on March 15, 2006. The Chamber of Deputies passed the law allowing a registered partnership of same-sex couples, overriding the veto of President Vaclav Klaus.
[Please see our article: Czech Republic: Registered Partnership Bill]
- On September 28, 2008, the new constitution granted equal rights for same-sex relationships, however, it also banned adoption and defines marriage as only being between a man and a woman. The constitution also banned discrimination based on orientation, gender identity and HIV status. Further, it also imposes a mandate to respect and learn about sexual orientation and gender differences, requiring schools to teach about sexual rights.
The constitution was formed with unprecedented public participation and received 64 percent of the vote. It contains 444 final articles, including the right to free universal health care; free education up to university level; a universal right to water and prohibition of its privatisation; and women’s control over their reproductive rights; and the granting of legal rights to nature, making it the constitutional duty of both government and citizens to protect the environment and natural biodiversity, to prosecute those who harm it, and to repair it when damaged.
- Finland offered domestic partnership status to same-sex couples in September 2001.
- The Finish Supreme Court ruled, October 19, 2001, that custody of two children would go to their deceased mother’s female partner instead of to their biological father. Lower courts had ruled that the children should go to the father, but the Supreme Court based its decision on the will of the children. It was the first Supreme Court ruling in which the custody of children was given to a person who was not related to them, rather than a biological family member.
The children, 12 and 14, had been in the sole custody of their mother. The children’s father lived abroad, and they had been living with their mother and her partner since 1993. The court stated, “The Court came to the conclusion that it was in the best interest of the children that custody be awarded to the person with whom the children were living.”
- While not the same as legal marriage, France offers “Civil solidarity pacts”. These provide far more than just symbolic significance, offering some of the tax, welfare, and inheritance rights that married couples enjoy. Registered couples are able to share such things as joint auto insurance, extend their social security coverage to each other, file joint tax returns, and leave each other property in their wills on favorable tax terms.
[See: Civil Solidarity Pact]
- Noel Mamere, mayor of Begles in southwest France, said in April 2004, that he will conduct a wedding ceremony for two men in June 2004. He said that he found no French laws that could block it. It was reported that Mamere found it “unacceptable” that lesbians and gay men do not have full equality when it comes to marriage, saying that in the European Union there is “nothing extraordinary” about same-sex marriages.
- In July 2004, a French court recognized, for the first time, joint parental authority of a lesbian couple who had given birth to three girls. The court decision opened new opportunities for homosexual couples to be recognized as parents, however, it did not recognize their right to bear children. At this time, adoption is only legal for opposite-sex couples.
France forbids un-wed women the right to insemination, resulting in tens of thousands of French lesbian couples seeking children outside of France. Some go to Belgium, while others inseminate at home.
- On February 24, 2006, France’s high court, the Cour de Cassation, ruled that both partners in a same-sex couple can exercise parental authority over a child, rather than just the biological parent. The court decides how to interpret French law, however, does not hear trials. The ruling could open the way for further debate in France on same-sex marriage and the adoption of children by same-sex couples, which remains illegal.
- The German military is contemplating exempting both married men and those in gay relationships from military service, according to Die Welt, October 23, 2000. And, according to Agence France Presse, the government issued a statement that this is still under study, and that gay men would qualify for such an exemption only if their partnerships were registered.
- A registered partnership law for same-sex couples, called “Life Partnerships,” was enacted in Germany in March 2001. The first registrations took place on August 1, 2001. The legal recognition of lesbian and gay partnerships have often been mistakenly called “same-sex marriages” by the public.
The provincial governments of Bavaria, Thuringia, and Saxonia announced that they opposed the new law. The Bavarian Minister of Justice asked the court to grant a legal injunction, to suspension the partnership law taking effect while their suit is pending. He claimed that the registered partnership law would somehow undermine the constitution and disregard family values. The courts refused to stop the law in July 2001. The Bavarian state assembly finally approved the measure on October 25, 2001, and it will take effect in that state on November 1, 2001.
[For more information on the German domestic partnership law, please see: “Life Partnerships”
- In early May 2004, Germany expanded its civil union legislation to ensure the financial benefits received by same-sex couples are the same as opposite-sex couples. The country’s labor court ruled in the case of a male nurse filing for equal benefits. Now, location allowances and other financial issues will be equalized throughout the country’s civil service and governmental agencies. Additionally, the judges ruled there should be no difference between opposite-sex couples who wish to get married and same-sex couples who wish to sign a register, further strengthening the law.
- Berlin’s Administrative Court ruled, on June 24 2005, that people united under Germany’s same-sex partnership law are entitled to each other’s pension when one of them dies. The court redefined the word “spouse” in pension benefit plans.
- While civil marriage is not legal in England, it is interesting to note that a network of 60 Church of England priests perform clandestine same-sex weddings in Anglican Churches. Reports the Sunday Times of London, “They have ushered hundreds of homosexuals up the aisles in services that could lead to their dismissal if discovered by bishops.” The secret ceremonies reportedly are arranged by the Lesbian and Gay Christian Movement.
- England may have had its first same-sex legal marriage. On March 18, 2000, two women, Diane Maddox, 43, and Clair Ward-Jackson, 23, were legally married in Aldershot, southern England. The marriage was allowed because Maddox, who underwent a sex change operation several years ago, was able to provide a certificate proving she had been born a man. In Britain, a person’s sex is officially determined by what is written on their birth certificate, not by any further sex reassignment surgery. While they are in fact a same-sex couple, they are legally an opposite-sex couple, and hence satisfy the major requirement for legal marriage.
- Ken Livingstone, the Mayor of London, set aside £100,000 of council taxpayers’ money for a register to formally recognize same-sex relationships on February 27, 2001. The registry has no legal standing, only symbolic value, however, it could result in some insurance companies recognizing same-sex partners for the first time.
There has been a huge increase in support within London for the introduction of such a register. An April 2001 poll showed that 43 percent of Londoners gave their support to Livingstone’s proposal for the creation of a register.
Livingstone called the move a “step on the road to equality,” adding he hoped other cities and organizations would follow suit. Political supporters see the register as a first step towards introducing a civil partnership law, as proposed by the Liberal Democrats, and introduced in many other European countries.
The “London Partnerships Register,” was implemented on September 5, 2001. It made the Greater London Authority the first public organization in Britain to offer recognition to same-sex couples. While the Register does not confer any of the rights of legal marriage, but it is expected to prove the existence of an intimate relationship should there be legal dispute concerning issues such as tenancy, pensions, and immigration.
Registered couples may also have a ceremony, which is presided by a city official at the visitors’ center of the Greater London Authority. Applicants are offered two options, a 10-minute event in which they sign the register, or a more elaborate 30-minute version which can involve readings and music. The cost is £85, and up to 25 guests are allowed. Registrations are only held on Wednesdays and Saturdays.
As of September 5, 2002, approximately 305 couples registered, the majority are same-sex couples. Also during this time there were five couples who de-registered; three female and two male couples.
During the this same period, other U.K. cities introduced or announced plans for their own versions of the register, including Manchester and Brighton.
By December 2002, more than 350 same-or opposite-sex couples have signed the London Partnerships Register, in spite of the fact that it does not confer any legal benefits.
- Britain’s Minister for Women, Baroness Sally Morgan was interview at the end of October 2001, and said that the Blair government is interested in setting up a national registry for partnership unions. According to the interview, the government is examining a formula similar to the London Registry created by Mayor Ken Livingstone. Under consideration were pension and tenancy rights, however, it is not considering legal marriage for same-sex couples.
- Stakeholder pension legislation, introduced in 2001, has made it possible for unmarried couples — same-and opposite-sex — to inherit each other’s personal pension funds for the first time. The old rules were junked that required personal pension trustees to pay only to a surviving spouse, or financial dependents.
- Lord Lester of Herne Hill QC, the Liberal Democrat peer, brought a Private Member’s Bill to the Lords on January 9, 2002. The “Civil Partnerships” Bill would have allow unmarried same-and opposite-sex partners, in mutually supportive relationships, to legally protect each other in the areas of health, social security and property issues. Lord Lester has been working closely with Stonewall, a gay lobby group, on the bill.
The legislation sailed through Second Reading in the Lords on January 25, and was slated for committee scrutiny. But, Lester withdrew it on February 11, saying he will not press for passage in this session of Parliament. Despite support in the Lords during second reading, private member’s bills seldom pass.
Lord Lester said he was instead recommending the creation of a select committee to examine the whole issue of partnership unions. The government did not support Lord Lester’s bill, but is looking to write its own legislation. If Lord Lester’s bill had been defeated in the Lords, it would make it more difficult to pass a future government bill.
- Same-and opposite-sex unmarried partners of MPs and civil servants are to be given the same pension rights as married couples. The move follows an MP vote in 2001, and will be introduced by October 2002.
- Same-sex and other unmarried couples should have the right to adopt children, a representative of Prime Minister Tony Blair’s government said on May 7, 2002. The government will now support such an amendment to an adoption bill now in Parliament, Health Secretary Alan Milburn said in an Associated Press report. Single people of any orientation are currently allowed to adopt children under British law. The new bill would allow unmarried couples, including same-sex partners, to jointly adopt and share custody.
“The government’s objective is to increase the number of children to have the opportunity, through adoption, to grow up as part of a loving, stable and permanent family,” Milburn said. He added that candidate couples would have to demonstrate long-term stability.
- In May 2002, prison rules were reformed in England and Wales allowing same-sex partners to be classified as close relatives. In addition, an inmate who is in a relationship with another inmate at a different prison will be allowed to apply for an “inter-prison visit.” Martin Narey, the Prison Service director general said that the hope is the change will encourage stability in the lives of gay prisoners, an important factor preventing recidivism.
- The Ministry of Defence (MOD) said on September 15, 2003, that it will increase its pension and compensation payments, and, for the first time, include surviving partners of gay and lesbian personnel. It is completely rejuvenating its systems after increasing pressure from civil rights groups. Couples will receive payments if there was a “substantial relationship.“
Partners left behind when a soldier dies in combat will now receive four times pension pay, instead of just 1.5 times. The increase in payment follows media concern following war in Iraq, where it became known that American soldiers’ partners received substantially more compensation (though not given to surviving same-sex partners).
It is possible that the new system may include a registration of non-married couples to ensure inclusion. In 2000, the military was forced to overturn its ban on lesbian and gay members after it was taken to the European Courts of Human Rights. Since then it has introduced a new code of sexual conduct without any reported problems.
- A domestic partner registration was established on November 19, 2004. It is called “Civil Partnerships.”
[See: Civil Partnerships: The Great Britain Approach]
- A British lesbian has won the right to visit her former partner’s biological children. The deputy head of the Family Division reversed a ruling on April 7, 2005, made at Telford County Court the previous November, when it denied a joint residence order to the first partner. The deputy stated: “What has been said about the importance of fathers is of equal application in same-sex parents.”
By winning a “joint residence,” the 46-year-old woman gained shared parental responsibility for the girls, now aged 3 and 6. The woman, who has a 16-year-old biological son, had lived with the 31-year-old mother of the girls, conceived by donor insemination, since 1995. Their relationship ended in May 2003 and the mother now has a new partner.
- On February 25, 2005, Greece’s National Human Rights Committee (EEDA) called for same-sex civil unions so that homosexuals and heterosexuals have equal social benefits, such as filing tax forms, and receiving pensions. EEDA, which advises the prime minister and government, proposed laws be amended for “the legal recognition of a real symbiotic relationship between homosexuals.”
After being asked whether she expected a reaction from the Catholic Church, the scientific adviser to EEDA, Christina Papadopoulou said: “We are dealing with this only as a state issue. We do not care if the Church agrees or not.”
Greek gay groups said the proposal was a good start, but needed to go further.
- The Honduras National Congress unanimously amended the constitution, on March 29, 2005, to ban same-sex marriage and adoption by same-sex couples. The amendment also forbids recognition of same-sex marriages or civil unions from other nations.
- Same-sex couples in Hungary are now covered by the legal protection of common-law marriage, which carries some of the same rights as legal marriage. The court action was initiated by Homeros Lambda and was ruled on by the Constitutional Court of Hungary on March 8, 1995. The ruling does not, however, make same-sex couples eligible for legal marriage registration.
- Iceland’s parliament amended the marriage law on June 11, 2010 to define marriage as between two individuals, thereby making it the 10th world government to offer same-sex legal marriage. The law became effective on June 27, 2010.
[Please see: Iceland Offers Legal Marriage]
- Lesbian couple, Jaya Verma and Tanuja Chauhan, held a Hindu marriage ceremony at their home in the small township of Ambikapur in the central state of Chattisgarh in May 2001. They are pressing the local registrar to grant them a marriage license. In the meantime, their landlord asked them to leave their home.
- On February 6, 2006, same-sex couple Katherine Zappone and Ann Louise Gilligan, sued for legal marriage recognition. A couple for more than 20 years, they had a Canadian legal marriage in 2003. The suit is against Ireland’s tax service because it refuses to acknowledge them as a married couple. Case outcome could go beyond just the tax codes. Same-sex couples have no legal recognition in Ireland, although senior government officials have recently called for a similar system to the U.K. civil partnership registration.
On December 4, 2006, Padua has become the first Italian city to legally recognize same-sex couples. Padua’s city council decided to recognize unmarried cohabiting couples, including gay men and lesbians, allowing the statistics office to issue certificates to domestic partners recognizing them as “a family founded on bonds of affection.”
The measure was sponsored by Alessandro Zan, a city councilman from the Democratic Party of the Left, who is also the regional president of the gay rights group Arcigay. Zan said the measure wasn’t intended as a precursor to gay unions but rather as official recognition of a legal status.
La Repubblica quoted Alessandro Zan:
“It will be a very important instrument because it grants power to obtain all the rights and benefits that many laws and rules give to domestic partners, but which you can’t enjoy without an official certificate from the statistics office.”
Such a certificate could be useful, for example, in obtaining a joint bank account or protecting the rights of a partner in the case of death.
- On December 7, 2006, the Italian government announced it will draft legislation giving legal rights to civil unions including homosexual couples by the beginning of 2007. The decision was announced by the Senate speaker of the Union, the largest political faction in the center-left cabinet majority, Anna Finocchiaro.
- The Supreme Court ruled that the airline El Al must provide equal benefits to both the married partners and the same-sex partners of its employees. (Section 2a of Israel’s Equal Employment Opportunities Law, as amended in 1992, prohibits employers from discriminating against employees based on their orientation.)
- A court ruled in 1997 that the Israeli Defense Force must provide pension benefits to the gay male partner of a deceased officer. It was expected that the IDF would appeal this decision. We have no follow-up information.
- Tel Aviv passed a law on October 3, 2002, that makes same-sex couples eligible for discounts and benefits at cultural facilities, libraries, swimming pools and various city events. Under the regulations, “the Tel Aviv municipality will not discriminate against a person in the conferral of services due to his personal status. The municipality will treat couples known to the public, including single sex couples, as couples in every sense, and will confer to them the same discounts and benefits in public services which are provided to married couples.”
To be eligible, couples submit an affidavit signed by an attorney. They then receive municipality benefits vouchers, similar to ones received by single parent families.
- On November 13, 2004, a Nazareth District Court ruled that gay men and lesbians will automatically inherit a deceased partner’s estate, unless it is willed to someone else. Same-sex couples in Israel will now have the same rights as common law spouses regarding matters of property, taxation, and inheritance.
The suit was brought by “I.M.” who sought ownership of the house he shared with his late partner for 40 years. Israel’s attorney general, Menachem Mazuz, decided not to appeal the decision, so the finding stands as law. The former attorney general, Elyakim Rubinstein, had declared in 2003 that Israel would not recognize same-sex couples.
- The Tel Aviv District Court ruled, on December 29, 2005, that Israel’s Interior Ministry cannot deport a Colombian gay man with an expired visa as long as he remains coupled with his partner, who is an Israeli Defense Forces soldier. Judge Uzi Vogelman said common-law, same-sex couples have the same right to stay together as married couples. The case was brought on the couple’s behalf by the Association for Civil Rights in Israel.
- The Israeli Supreme Court ruled 7-2 on January 10, 2005, that a female couple, together for 15 years, would be allowed to adopt each other’s children. The women, Tal and Avital Yaros-Hak, have three children. In 1997, they petitioned the Ramat Gan Family Court seeking the right to adopt each other’s children, and court recognition of their joint parenthood. While the court rejected the petition, it granted them guardianship of each other’s children, a precedent that has since become customary.
Their appeal to Tel Aviv District Court was also rejected in a two-justice majority over a minority opinion by Saviona Rotlevi, who wrote:
“The need to provide the children and the family unit in which they are growing up a legal framework, fits the court’s obligation to create social norms and stand strongly against the intolerance of parts of society toward those who are different.”
The adoption is good for the children because it provides better protection and more rights for them than custodianship should their natural mother die, as well as greater emotional and psychological stability for them as they grow up.
- On March 15, 2005, Attorney General Menachem Mazuz ordered the National Insurance Institute to begin paying survivor benefits to same-sex partners. This was in response to a lawsuit filed by Giora Raz who quit working to care for his cancer-stricken partner of 23 years, who had worked for El Al Israel Airlines. The ruling will also apply to areas such as work accident insurance, childbirth allowances, and disability pensions.
- On June 7, 2005, the Knesset passed a bill allowing same-sex partners to inherit from the deceased partner, if they died intestate. The law stipulates that customary alimony arrangement of “common-law spouses” applies to homosexual couples.
- On November 15, 2005, the Be’er Sheva Family Court ruled that a woman can adopt her female partner’s daughter. The biological mother had the child through donor insemination, and had since sued in an effort to force the state to recognize both her and her partner as the child’s parents.
Judge Pinhas Asulin based his decision on supportive testimonies describing the two women as a family in every way. He ruled that responsibility for the child should be placed equally on both parents, similarly to the way most families function.
The two women, both in their 30s, are also raising a second child, whose testimony was also heard by the court. The court legally recognized the women as a couple three years ago, setting a precedent as the first legally recognized same-sex couple in Israel.
The High Court of Justice set an additional precedent in January 2005, ruling that a same-sex couple could adopt each other’s children.
- Reported on May 9, 2006: A government appointed commission on inheritance law reform recommended to allow same-sex partners to inherit each other’s property without having to go to court.
- On November 21, 2006, the High Court of Justice ruled 6-1 that five same-sex couples wedded outside of Israel can be registered as married couples. The marriages were obtained in Toronto, Canada, and can listed as married on the Israeli population registry.
The Association for Civil Rights in Israel, that filed the petition on the behalf of the couples, argued that the Interior Ministry’s refusal to register them as married compromises their right to equality and to hold family life, and was based on homophobic social perceptions.
The State Attorney had argued that states recognizing same-sex marriages cannot expect Israel to recognize such nuptial agreements drawn in those countries. He also presented the circular argument that “Israel lacks the appropriate legal framework for such marriages,” and therefore it cannot register them.
The Court held that the registration clerk must register the couples as married, in accordance with the public record presented to him. Because the petition was only for registering and not recognition, the Court did not take a position regarding recognition of same-sex marriage by Israel. The Court hoped that the Knesset (Israel’s Parliament) would address the issue of recognition.
Right-wing reactions were as vicious, ignorant, and specious as could be expected, claiming — without any sort of proof — that the court action would bring about the “destruction of the family unit in the State of Israel.”
- On December 15, 2005, Latvia’s parliament, The Saeima, approved of amendments to the Constitution which effectively ban same-sex marriages. The amendments were initiated by Latvia’s First Party. The amended, Article 110 of the Latvian Constitution, reads, “The state shall protect and support the institution of marriage — a union between a man and a woman, the family and the rights of parents and children.” The amendments were supported by 65 members of parliament, with six nays and nine abstentions. It does nothing to “protect marriage,” and nothing to support same-sex couples or those couples who have children.
- Liechtenstein, a principality, has approved draft legislation that would give same-sex couples many of the rights associated with legal marriage. The December 2001 bill awaits approval by the parliament. The benefits of the legislation including tax, inheritance, and health benefits. Like many of the other countries offering some sort of second-class, domestic partner status, the bill excludes same-sex couples from the right to adopt children.
- A proposal for legal marriage was made in the fall of 2000. It was not widely accepted by Mexican activists. Instead they have focused on establishing a legal framework for nontraditional unions, which they said would go far toward protecting same-sex couples against discrimination.
In the winter of 2001, a proposal was made that would grant legal recognition to same-sex unions, though only in Mexico City. It would create a version of common law marriage, extending inheritance rights and social security to couples who currently lack legal recognition in Mexico. The bill would also apply to the elderly and their care givers.
Mexico never outlawed homosexual acts. However, police regularly raid areas in which gay men congregate, invoking an ill-defined statute known as crimes against morality, largely as a means of extortion.
- Effective in March 2007, Mexico City, Mexico, offered a Registration for same-sex couples. The municipal assembly, controlled by left-wing legislators, voted for the measure 43-17, on November 9, 2006. The law was signed by the mayor on November 13, 2006. The measure offers the same financial and legal rights to an array of platonic relationships: between two longtime roommates, for instance, or between a person of age and a devoted care giver. Religious workers without children, such as nuns, also could benefit. The measure was modeled on France’s civil code and provides property, pension, inheritance and even co-parenting rights. However, it does not allow full civil marriage, or adoption of children.
- In January 11, 2007, Coahuila, a mining and ranching region south of Texas, approved a registration process for same-sex couples, becoming the second area in Mexico to offer a legal status. Legislators in the state Congress voted 20-13 for the bill which gives more rights than the similar law instituted by Mexico City in November 2006. Coahuila offers social security benefits. The law was promoted by Coahuila’s Institutional Revolutionary Party, which rules the state. Debate for the law had begun in late 2006. The measure was modeled on France’s civil code and provides property, pension, inheritance and even co-parenting rights.
- On December 22, 2009, Mexico City passed the Marriage Equality Act. It became the 9th government in the world to offer legal marriage.
[Please see: Mexico City Offers Legal Marriage]
- A high court ruling, on June 25, 1999, stated that same-sex couples have exactly the same rights as opposite-sex couples. The rabidly anti-gay government had sought to deny a German woman a residence permit because of her homosexual relationship with her Namibian partner. Judge Harold Levy also that ruled the Ministry of Home Affairs must supply reasons for refusing an application for permanent residence. The couple has been living together for several years and are raising a son. Levy ruled, “Not only is this relationship recognized, but the respondents (Home Affairs) should have taken it into account … I have no hesitation in saying that the long-term relationship between the applicants, in so far as it is a universal partnership, is recognized by law.”
- More than 100 Dutch cities offer to register relationships, a formality that carries no benefits or legal rights of any sort. As of July 1995, more than 800 couples had registered.
- In January 1998, the Netherlands instituted “Registered Partnerships.” It is the only country to offer it for both same- and opposite-sex couples. Some professions, including civil service, health care, education, and KLM Airlines had already received spousal benefits.
- The Netherlands became the first nation in the world to offer legal marriage for same-sex couples. On December 19, 2000, the Dutch legislature made a law allowing same-sex couples to obtain a marriage license. It also allows those who have already signed up as domestic partners (which has restrictions regarding adoption) to convert them to full, legal marriage status. Only citizens and legal residents of the Netherlands will be able to marry there. The law took effect on April 2001.
[See: Netherlands Offers Legal Marriage]
- On August 23, 2005, the Superior Court of the Caribbean island of Aruba (population 71,566) ruled that the island must recognize and register a marriage between a local woman and a Dutch woman. The court stated: “Since Aruba is part of the Kingdom of the Netherlands, it must comply with demands of the Kingdom.” While granting Aruba self rule, Kingdom law mandates that Aruba, the Netherlands and the Netherlands Antilles must recognize each other’s legal documents.
Charlene and Esther Oduber-Lamers got married in the Netherlands in 2001. After settling on Aruba, they facing harassment after suing for recognition of their marriage, which prompted their moving to the Netherlands. Esther also faced Aruban immigration rules that prohibited her from spending more than half of each year on the island. Plus, Charlene’s government employer refused to grant Esther spousal health coverage.
The Aruban government appealed the ruling. A spokesman for Aruban Prime Minister Nelson Oduber claimed he considered it a moral issue. The Netherlands’ Supreme Court ruled, on April 13, 2007, that Aruba must recognize Dutch same-sex marriages.
- The labor laws were modified in 1997 to allow care leave for a same-sex partner.
- On October 22, 2000, Prime Minister Helen Clark indicated that her labor government will introduce a bill within a year to extend legal recognition to gay and lesbian couples. Previously, there had been overwhelmingly negative public comment on a discussion paper regarding adoption, marriage, and even to a registry. However, like Attorney-General Margaret Wilson before her, Clark said, “I don’t think it represents public opinion,” and reiterated her personal support for recognition of gay and lesbian couples. Predictably, the right-wing extremists have responded with a pledge to fight any recognition of same-sex couples.
- Parliament passed a new Property Relations Act, on March 29, 2001 (effective February 1, 2002). The new law gives de facto opposite-sex and same-sex couples the same property rights as married couples after three years together. Courts could now now split assets 50-50, allow for spousal or partner maintenance, and allow a surviving partner to claim against their dead partner’s estate.
People who do not want that arrangement can opt to “contract out” of the new rules. Depending on the complexity of an opting-out contract, it could cost $600-$2,500 for an agreement.
It is reported that there are about 230,000 New Zealanders are in de facto relationships. What is not clear is how couples will be judged to be in a de facto relationship and when it began, as there is no event date as with a marriage license.
The law also changes some rules for married couples. Judges will have the power to award lump sum payments, which could take into account a partner’s future earning power.
- Also passed on March 29, 2001, were three more bills:
= The Administration Amendment Act gives same-sex partners access to the same rights as married partners in relation to the estate of a deceased partner who did not leave a will.
= The Family Protection Amendment Act provides same-sex partners with the same rights and legal standing to make a claim against the estate of a deceased partner where, for example, the deceased’s will is out-of-date, or has failed to make provision for the surviving partner.
= The Family Proceedings Act provides for “spousal maintenance” after relationship breakdown (where necessary), but is a separate issue from the division of property.
- Labour MP Tim Barnett hopes his proposed Civil Union Bill will pass through Parliament in 2002. The bill would allow same-and opposite-sex de facto partners gain the rights of married couples by officially registering their relationships.
Barnett stated in a June 2001 interview that the lack of rights in the nature of marriage for same-sex couples was a significant human rights anomaly that had to be tackled. The Government would be bound by the Human Rights Act in 2002, and he predicted a same-sex couple would quickly bring a case claiming the Marriage Act breached the Human Rights Act.
- The Civil Union Act became law on April 26, 2005. Same-sex and opposite-sex couples can apply to the office of Births, Births and Marriages for their Civil Union licence.
[See our article: New Zealand: Life Partnerships]
- In mid-January 2006, the Nigerian government announced laws that will ban same-sex marriages and dictate five-year jail sentences for anyone who has a same-sex wedding or officiates at one. Nigeria, like many former British colonies, has laws dating back to the Victorian era that make sodomy punishable by up to 14 years in prison. While these old laws have been applied only occasionally, they contribute to a modern climate of deep intolerance towards homosexuals that denies the reality of past practice in Africa’s most populous country.
Formerly, in parts of the north, prominent men kept harems of what were termed in Hausa “dan daudu,” meaning “men who are wives of men,” to demonstrate that they were truly rich. Such old practices fly in the face of the popular myth that homosexuality was unknown in Nigeria until it was introduced by the Arabs, who brought Islam, and the British colonialists, who were followed by Christian missionaries. In present day Nigeria, religious fundamentalism grips both the Christian south and Muslim north.
- Senator Maria Szyszkowska has proposed a civil union bill, in late August 2003, which would help grant same-sex couples similar rights as marriage. She created the bill after being informed that authorities refused to allow a dying man’s partner to visit him in hospital. The bill has received support from leaders of the ruling Democratic Left Alliance and the head of the populist Self-Defense Party, perhaps as an attempt to soften the image of the former communist country as it prepares to enter the European Union.
“If we are going to be part of Europe, we have to learn to accept some things that we may not personally agree with. Tolerance is what a democratic society is all about,” Szyszkowska remarked.
It is unlikely that the bill will be made into law in this heavily Catholic country, which happens to be the birthplace of the current Pope. An August 2003 survey showed that 4 percent of the country supported legalizing same-sex unions, while 62 percent strongly opposed the idea. 14 percent “somewhat” opposed the idea.
- Portuguese lawmakers, on March 15, 2001, granted legal rights and tax benefits to same-sex couples who have lived together for more than two years, allowing them the same rights as opposite-sex couples in common law marriages.
- In the early part of February 2006, two women attempted to register their marriage with civil authorities. The failed attempt helped mobilize gay rights activists, who claim that the marriage law is inconsistent with the Constitution, which was revised in 2004 to prohibit discrimination based on sexual orientation.
- Marriage equality advocates in Portugal submitted a petition to Parliament in Lisbon on February 17, 2006. The petition, bearing 5,000 signatures, seeks civil marriage for same-sex couples. Petitions with at least 4,000 valid signatures can influence the country’s laws, as parliamentarians must consider such initiatives and decide whether or not to put the issues to a debate.
- As of the end of 2006, public employees who live with a partner for at least two years can extend their health coverage, and certain other benefits, to their partner. Also, if a couple cohabits for three years, whether in Portugal or abroad, a citizen can sponsor their alien partner for immigration, once a judge confirms the legitimacy.
- Edvard Murzin, a Bashkortostan State Assembly deputy, reported on April 18, 2006, that the Russian Constitutional Court will consider his inquiry in May or June 2006 to repeal Art. 12 of the Family Code that prevents recognition of same-sex marriages.
Murzin: “Religious, national or color discrimination is inadmissible from the point of human rights and freedoms. So, discrimination of persons wanting to marry each other for reasons of their sex is also inadmissible.”
To set the process in motion, he and his partner attempted to register their same-sex marriage in a Moscow registry office and were denied. The court then accepted the application as being in order.
- The Scottish Liberal Democrats voted in favor of legalizing same-sex marriages and adoptions at their annual conference in 1995.
- Scotland’s parliament granted travel allowances to the same-sex and opposite-sex domestic partners of it’s members on June 13, 1999. Partners will be reimbursed for up to 12 journeys a year between their homes and Edinburgh.
- A member of the Scottish Parliament, Nora Radcliffe (Liberal Democrat - Gordon), on October 24, 2000, urged the Parliament’s Equal Opportunities Committee to extend equal civil marriage rights to gay and lesbian couples. She said, “Same-sex marriage is an issue that has to be discussed and parity of same-gender couples is something that has to happen. Cohabiting couples in a relationship who are not married should be treated equally, whether they are the same sex or not.”
She also told reporters that the Parliament was far from ready to act on the issue, but that for herself, “Marriage meant a great deal to me, that seal of approval and family approval. In my view, why should we deny this to people of the same gender?”
- The first legal recognition of same-sex partners in Scots law occurred on March 2000, when the new Parliament passed an act giving the right to an adult, same-sex, cohabiting partner to be consulted on the affairs of an incapacitated partner; the same right as is afforded to an unmarried opposite-sex cohabiting partner.
- It was reported in October 2000, that the Scottish Executive is preparing a bill to give unmarried cohabiting couples, regardless of their biological sex, access to the courts on dissolution for a possible lump sum payment for an economically disadvantaged partner. If passed, the bill would also serve to make private cohabitation contracts more consistently enforceable.
This bill was recommended eight years ago by Scotland’s Law Commission and was given some attention last year as a Parliamentary committee considered extending next-of-kin status to gay and lesbian couples.
- The year 2001 Scottish Parliament considered two bills. One would have extend the right of succession to a same-sex cohabiting partner upon the death of the tenant in a public sector rental. The other bill would have extend domestic violence protection to same-sex partners.
- A Glasgow court has ruled, in March 2002, that a lesbian couple cannot constitute a family unit under Scottish law. The case involved a couple and the gay man who fathered their child. The man sued seeking co-custody, after a falling out with the mother and her partner.
He testified that, after the baby was six months old, the women began to limit the amount his time with the child. The mother said that she wanted her partner named the child’s co-parent. The women testified they regarded the man only as a sperm donor.
Sheriff Laura Duncan ruled that the child’s welfare was of paramount importance in granting the man “full parental rights and responsibilities,” because it would be in the child’s best interests to have access to his father. She also ruled that he is “liable for the support of the child.”
The man now has more legal rights to his child than an unmarried heterosexual father living with his girlfriend and child. Duncan also called on the Scottish Parliament to set down laws regarding the rights, privileges and obligations of same-sex relationships.
- Sheriff Noel McPartlin agreed to give a lesbian couple from Edinburgh rights over each other’s children in early April 2002. One of the women has a 4-year-old son from a previous marriage. The second woman, 30, has an 8-month-old baby fathered by an anonymous sperm donor. The older boy now has three legally recognized parents. The couple began their legal action after discovering that one could not give permission for the other woman’s child to have medical treatment.
- The Scottish government announced on June 10, 2005, that it will recognize the rights of both partners in same-sex relationships to be co-parents of their children. The government said it will overhaul the adoption law to give both partners legal rights and responsibilities.
Although it was already legal for gay men and lesbians to adopt, partners were often left out in the cold, and often children born to lesbians through in vitro fertilization were not recognized as the legal kids of a partner. In announcing the changes, Euan Robson, the deputy education minister, said that it will speed up the whole adoption process.
This announcement follows a recent report to the government on the Scottish system by adoption experts who recommended that the barrier to gay adoption be dropped. The law in England and Wales has already been changed.
- Slovenia, the former Yugoslav republic, is considering a same-sex partnership bill. Drafted by the Ministry of Labor, Family and Social Affairs, the bill was discussed at a regularly scheduled meeting on March 312005, and sent to Parliament for a first reading. The bill addresses housing, inheritance, property, joint income, access to health information, and hospital visitation.
- A Pension Funds Adjudicator ordered, in October 1998, a South African pension fund to pay death benefits to a Cape Town man following the death of his male partner. The dead man’s adult children and grandchildren also get a smaller share of the death benefit totaling R340,000. The dead man’s former wife receives nothing.
- In 1997, the African National Congress, South Africa’s ruling party, passed a wide-ranging resolution on gay and lesbian equality, including a call for Parliament to legalize same-sex marriage.
- On December 2, 1999, South Africa’s Constitutional Court held that a foreign partner in a same-sex relationship with a citizen, or permanent resident, must be afforded the same immigration rights as a married person. Relying on constitutional protections, the court held that denying those rights discriminated unfairly against lesbians and gay men on the grounds of sexual orientation and marital status, and seriously limited their equality rights and their right to dignity.
The decision took effect immediately, but Parliament later amended the immigration laws. The Immigration Act of 2002 provided that “the Department [of Home Affairs] shall issue a permanent residence permit to a foreigner who…is the spouse of a citizen or resident.” It defined “spouse” as “a person who is party to a marriage, or a customary union, or to a permanent homosexual or heterosexual relationship which calls for cohabitation and mutual financial and emotional support, and is proven by a prescribed affidavit substantiated by a notarial contract.”
- In September 21, 2001, Judge Frans Kgomo of the Pretoria High Court ruled in favor of making it easier for same-sex couples to co-adopt children, and also declared that a lesbian judge could share the same worker benefits with her domestic partner as do married judges.
Judge Anna-Marie de Vos, also of the Pretoria High Court, had been deemed the sole adoptive parent of two children in 1995, although both she and her female partner sought legal custody. The couple argued that it was in the best interests of the children that their experience of family life be reflected in the law. In his decision, Kgomo said he had no evidence to show that same-sex life partners are less capable of raising children.
In the second ruling, Kgomo said that sections of a compensation act for judges should be declared unconstitutional because they prevent same-sex partners from sharing benefits enjoyed by their married counterparts. Altering the act entitles the same-sex partner of a judge to such benefits as medical insurance and death compensation packages.
Both rulings await approval by the Constitutional Court, South Africa’s highest legal body.
- The full bench of South Africa’s highest court, the Constitutional Court ruled in July 2002 that High Court judge Kathy Satchwell’s partner should receive the same financial benefits as if she were a partner in a legally recognized opposite-sex marriage. A lower court had ruled that the couple should qualify for state benefits, but the decision had been appealed by the government. The court noted that Satchwell and her unnamed partner had been involved in an intimate, committed, exclusive, and permanent relationship since 1986.
The Constitutional Court ruled on March 17, 2003, that the same-sex partner of High Court judge Kathy Satchwell is entitled to the benefits which apply in (presumed) heterosexual relationships. Before this ruling, a revised version of the Judges Remuneration Act had been passed, but the words “partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” had been omitted. This Court order now required those words be inserted into the Act and its regulations.
- A case was filed by Marie Fourie and Cecilia Bonthuys against the Minister of Home Affairs in July 2002. The Pretoria High Court will decide whether to legalize same-sex marriages. If allowed, the case will not need to go to the Constitutional Court.
- On March 31, 2003, two-year-old twins, who live in Durban, were registered as having two mothers.
The Constitutional Court declared legislation that did not make provision for this to be unconstitutional. The judges also called on parliament to formalize same-sex relationships in legislation.
“Comprehensive legislation regularizing relationships between gay and lesbian persons is necessary. It is unsatisfactory for the courts to grant piecemeal relief to members of the gay and lesbian community as and when aspects of their relationships are found to be prejudiced by unconstitutional legislation,” said Justice Richard Goldstone, who wrote the judgment.
Two women, “J” and “B,” have been in a partnership since 1995. In August 2001, B gave birth to an alternatively conceived girl and boy. The ova was from J, and the sperm from an anonymous donor. The women wanted to be registered as the parents of the twins. However, only B was recognized as a legal parent.
The couple approached the Durban High Court to have the relevant part of the Children’s Status Act declared unconstitutional. After winning, they approached the Constitutional Court to have this order confirmed.
Judge Goldstone said, “The provisions of the Children’s Status Act do not permit J to become a legitimate parent of the children. This unfairly discriminates between married persons and J and B as permanent, same-sex, life partners. The section is accordingly unconstitutional as the constitution prohibits discrimination on the ground of sexual orientation. It is unfairly discriminatory to deprive J of such recognition. It is a matter of our history (and that of many countries) that these relationships have been the subject of unfair discrimination in the past. However, our constitution requires that unfairly discriminatory treatment of such relationships cease.”
- The Supreme Court of Appeal in Bloemfontein, South Africa, has agreed to hear a case involving two women who want to marry. Marie Fourie and Cecilia Bonthuys, together since 1994, had gone to the High Court in Pretoria in 2002 where their case was dismissed.
In court documents filed in the appeal, their lawyer, Pieter Oosthuizen, wrote that because they were not married, they could not open a joint bank account, obtain a joint mortgage, adopt a child, or take one in foster care. Oosthuizen argued that the common law should be developed to promote the spirit, tenor, and aim of the Constitution, including the recognition of same-sex marriages as legally binding.
He said that the Constitutional Court had recognized the rights of gay men and lesbians as being no different from that of opposite-sex couples in three different rulings, but had never been given the opportunity to look at the issue “holistically.” Oosthuizen said there was only one way to get the same status as opposite-sex couples, and that was to let them get legally married.
- In August 2003, the public servants’ pension fund regulations were altered to include a “life partner,” including a same-sex partner, and more than one partner in a common-law marriage. In the past, spouse referred only to a legally married man or woman. An employee is now be able to register more than one life partner with the fund, who will be able to lay a claim to the pension when the employee dies.
Provision has also been made for a “child pension.” This means that dependent children will also be able to claim part of the pension benefits when an employee without a spouse dies. One child can get 20 percent of the pension benefit, two can claim 30 percent and three or more children 40 percent.
In future, a funeral benefit of R7 500 will be paid to the next-of-kin of an employee. The same amount will be paid out if the employee's life partner dies and R3 000 will be paid out when an employee’s child dies. Older pensioners will also be advantaged by the changes. The contribution they get annually will now be linked to the consumer price index.
Members will now also have the option to ensure that their spouses are better off after their death. In the past, a spouse could only claim 50 percent of the pension benefit. This will increase to 75 percent if the employee agrees to a smaller monthly pension or gratification.
- If the public endorses proposals made by the SA Law Reform Commission, Same-sex couples could get legally married. They could also be allowed to register their relationships as “civil unions,” with the same legal consequences.
The proposals address a growing number of people who are not married but are in dependent or committed relationships. The commission made seven proposals, on same-and- opposite-sex relationships. The proposals will be re-drafted early in 2004 and submitted to Justice Minister Penuell Maduna.
The Constitutional Court has ruled in favor of same-sex relationships in many cases, and has stated that these couples should have legal recognition. The cases include that of High Court judge Kathy Satchwell, who won the same financial benefits for her partner as those given to spouses.
Regardless, legal developments have led to “a patchwork of laws that do not express coherent family policy,” the commission stated on August 28, 2003.
- On September 19, 2003, Tom Cloete, an appeal judge at the Supreme Court of Appeal in Bloemfontein, found in favour of Antonie Michael du Plessis, whose 11-year partner, Albert Ernest Clack, died in a 1999 vehicle collision. Antonie will be able to claim compensation from the Road Accident Fund (RAF) to compensate for 75 percent of the damages he suffered for loss of Albert’s financial support. The judge also ruled the fund liable to pay Albert’s funeral costs. To a large extent, Albert had been financially maintaining Antonie because of medical problems.
In his ruling, the judge said the main Constitutional rights relevant to the case were those of equality and human dignity. Nobody may unfairly discriminate against anyone on the ground of sexual orientation. The common law only afforded opposite-sex married couples the right to action against wrongdoers who unlawfully killed their spouses. It could therefore be inferred that the common law unfairly discriminated against same-sex partners.
- On July 8, 2004, the Lesbian and Gay Equality Project, Cape Town’s Triangle Project, the Durban Lesbian and Gay Health Centre, Johannesburg’s Forum for the Empowerment of Women, Pretoria’s OUT, and seven same-sex couples, filed an application with the Johannesburg High Court to have the common law definition of marriage declared unconstitutional, thereby enabling same-sex marriage. The current laws prohibit lesbians and gay men from exercising the fundamental human right of the freedom to determine a spouse of choice.
- On December 1, 2005, South Africa became the fifth nation in the world to offer legal marriage to same-sex couples. The court gave a year for Parliament to conform the laws.
[Please see: South Africa Offers Legal Marriage]
- One of the last pieces of legislation that discriminates against same-sex relationships was ruled on by the Pretoria High Court on March 31, 2006. In a written judgment, Judge Willie Hartzenberg declared that sections of the Intestate Succession Act, which excludes reference to same-sex life partners, to be inconsistent with the Constitution. Mark Gory and his partner Henry Brooks met in 2003, bought a house in 2004, and lived together as a married couple until Brooks died suddenly without a will in April 2005. The ruling also declared Mark Gory the sole heir to his partner’s estate after a legal wrangle with Henry’s next-of-kin.
- On November 23, 2006, the Constitutional Court of South Africa ruled that surviving same-sex partners should have the same inheritance rights as opposite-sex surviving spouses when a partner dies without a will. In Gory v. Kolver, Case CCT 28/06, the Court said that because Parliament had failed to respond to the Court’s repeated orders to revise South Africa’s laws to respect the rights of same-sex partners, it would be appropriate to “read in” to the intestate succession law the following words after every mention of “spouse:” “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support.”
Ruling was based on the claim by Mark Gory to be the sole heir of his long-time domestic partner, Henry Harrison Brooks. The Court based its decision on the explicit requirement in the 1994 South African Constitution that the government not discriminate on grounds of sexual orientation.
- Spain is likely to consider a partnership registration. Legislation written by gay groups has received support from the media, as well as the regional and federal parliaments. Currently, individuals may adopt in Spain, regardless of orientation. About 30 cities register “civil unions.” Also, a new national law allows a widowed partner the option to remain in rental housing, even if their departed partner signed the lease.
- The Province of Catalonia instituted domestic partnership status for both same-sex and opposite-sex couples in 1998. The law provides inheritance and pension rights; job benefits and rights for public employees, such as care leave. It does not allow adoption rights, shared social security, nor immigration rights, since these depend on the national government.
The Parliament in the autonomous region of Navarra, Spain, passed a law on June 23, 2000, allowing all Navarra registered couples (which includes same-and- opposite-sex couples) to adopt children, enjoying the same rights and obligations as legally married couples (who can only be opposite-sex couples).
- A bill to legalize marriage for same-sex couples was made by the Socialists on April 18, 2001. The Socialist’s parliamentary speaker, Javier Barrero, remarked that the 1978 Spanish constitution does not specify opposite-sex status for marriage, and that marriage “is a right of everyone.”
- Three same-sex couples applied for marriage licenses in Madrid on October 22, 2003. If the request is rejected, they intend to sue in Spain’s constitutional court and, perhaps, at the European Court of Human Rights. Participants include Pedro Zerolo, who is a member of the Madrid City Council, and Boti García. The couples are backed by the Socialist Workers and United Left parties.
- The autonomous government in the Basque region passed a law allowing adoption for “common-law” couples in 2003, although this is currently under reconsideration after the Spanish Council of Ministers filed an appeal.
- A woman won the right to adopt her partner’s twins in February 2004. It is the first time a Spanish court heard such a case and the first time it ruled in favor of same-sex co-parenting. While the case had progressed slower than usual, had it been an opposite-sex couple, the result is that the ruling can not be appealed and is permanent.
- José Luis Rodríguez Zapatero, the incoming prime minister announced on March 18, 2004, he will oversee the introduction of civil union legislation for same-sex couples. Zapatero, who won the country’s elections with a surprise majority, says the unions will not be called marriage, but will have similar rights to those currently received by opposite-sex couples.
Zapatero said in an interview on the Telecinco television channel: “We are going to present a bill to set gay unions on the same footing as marriage. From a semantic point of view marriage may be a concept that does not cover this type of union, but it will have the same legal effects.”
Leaders in Zapatero’s Socialist Party had expressed interest in unions at the start of the election campaign. They told voters they would work to reduce discrimination against lesbians and gay people, as well as increase the legal standing of long-term same-sex relationships.
As Prime Minister, Zapatero used part of his first parliamentary speech to pledge his support for same-sex marriage:
“It is time to bring to an end, once and for all, the intolerable discrimination still suffered by many Spaniards exclusively by virtue of their sexual preferences.|
“Homosexuals and transsexuals deserve the same public consideration as heterosexuals and have the right to live freely the life that they themselves have chosen.
“We will recognise, on an equal basis, their right to marriage, with the consequent effects on labour rights, inheritance and social security protection.”
- José Luis Rodríguez Zapatero, April 15, 2004
- On June 29, 2005, Spain became the fourth nation in the world to offer legal marriage to same-sex couples.
[See: Spain Offers Legal Marriage]
- Domestic partnership status for same-sex couples has been offered in Sweden since 1995.
- Early in 2003, those registered as domestic partners may jointly adopt Swedish or foreign children. The law, enacted on June 5, 2002, also allows partners to adopt each other’s children.
- On March 2, 2005, Swedish public radio reported that the government is proposing allowing female couples to receive artificial insemination treatment. Currently, the law allows only women living in an opposite-sex marriage or union to be treated. The move is considered a next logical step in Sweden, which allows same-sex couples to adopt and form domestic partnerships.
[See our article: Scandinavia: Registered Partnership]
The Democratic Party, Left Party, and the Greens have agreed to propose the rule change on March 3 that the new law would take effect on July 1, 2005.
- On October 31, 2005, Radio Sweden reported that Sweden’s ruling Social Democrats had expressed support for opening marriage to same-sex couples. The idea was put forth by Health and Elderly Care Minister Ylva Johansson and approved by a vote of delegates at the party’s annual convention. Since 1995, Swedish same-sex couples have had access to registered partnerships that grant nearly every right and obligation of marriage.
- On May 1, 2009, Sweden became the 7th country to offer full, legal marriage to same-sex couples. The law was enacted on April 1, 2009.
- In August 1994, the Swiss Federated Railways (Switzerland) announced reduced fares, and spouse passes for same-sex partners who live together.
- Switzerland’s Justice Minister Ruth Metzler announced, on October 25, 2000, that the Government has directed her to draft legislation to create registered partnerships for gay and lesbian couples with many of the benefits of marriage. This follows consultation with local and regional governments, as well as with non-governmental organizations.
The Justice Ministry is expected to write a bill that provides greater equality in inheritance, taxation, government benefits, and immigration. However, the Federal Council opposes adoption rights for same-sex couples and fertility treatment for lesbians. The bill did not get introduced in the Parliament in 2001 as was expected.
- Geneva offered a domestic partner registration process, in May 2001. Same-and opposite-sex cohabiting couples are offered the same status as legally married couples, except for state run functions such as taxes and social security benefits.
- Zurich residents voted 63-37 to offer benefits to same-sex couples in the areas of tax, inheritance, and social security. The September 2002 law required both partners to live in Zurich canton, and, six months in advance, formerly commit to cohabiting and providing mutual support and aid.
- In July 2004, the canton of Neuchâtel passed a law recognizing unmarried couples.
- The Swiss the governing cabinet proposed a law, on November 28, 2002, that would allow same-sex couples to enjoy civil recognition “like married couples.” In announcing the proposal of the seven-member cabinet, Justice Minister Ruth Metzler said she regarded the proposal as “a day of tolerance and a step toward a modern and open Switzerland.”
- In a June 2005 referendum, Swiss voters approved a law allowing same-sex couples to register their partnerships. The partnerships will be granted the same legal rights as married couples in the areas of pensions, inheritance and taxes. Same-sex partners will not, however, be allowed to adopt children or have access to fertility treatment.
The referendum was approved by 58 percent of voters. Previously registered partnerships for same-sex couples existed at a regional level in the cantons of Zurich, Geneva and Neuchâtel. Switzerland was the first nation to pass a same-sex union law by referendum.
[See: Registered Partnership: The Swiss Approach]
- Taipei gay activist, Chi Chia-wei, has been fighting for the right of same-sex couples to marry. The Deutsche Press-Agentur reported on Oct 18, 2000 that, after being denied a marriage license for himself and his male partner by the Office of Notaries Public, his case was rejected by the Taipei District Court, and the Taiwan High Court. He has now appealed to Taiwan’s highest judicial body, the Judicial Yuan.
The Taiwan High Court said that, although the law does not prohibit same-sex marriage, the law was written with the pre-condition that marriage should be between a male and a female.
Chi said, “Taiwan’s law deprives homosexuals of their basic rights. The Grand Justices [of the Judicial Yuan] should declare the law is unconstitutional and make an interpretation in our favor.”
- The Taiwan government announced, on October 27, 2003, that it is drafting legislation to legalize same-sex marriages. If it is approved by parliament, Taiwan will be the first in Asia to do so. A cabinet official said that the proposal, jointly drafted by the presidential office and the cabinet, is designed to protect basic human rights.
The office of President Chen Shui-bian said that the government is also seeking to recognize the right of homosexual couples to adopt children. The final draft of the bill is expected to be ready for parliamentary review in December 2003.
- On September 29, 2005, Ugandan President Yoweri Museveni signed a constitutional amendment banning same-sex marriage. Uganda is the only country in the world to have specific constitutional law outlawing same-sex marriage. The specific penalties for couples who wed are to be set in 2006. Current punishment for homosexual behavior runs from five years-to-life imprisonment.
- An Alaskan male couple, Jay Brause and Gene Dugan, sued for legal marriage in 1995 (Brause v. Bureau of Vital Statistics). On, February 20, 1998, Superior Court Judge Peter Michalski threw out the state’s bid to dismiss the case and ruled that choosing a partner is a fundamental right. The ruling did not legalize same-sex unions in Alaska, but would have forced the state to prove a compelling reason why such unions should be illegal.
[See: Alaska Court Finding]
A 1998 ballot measure limited marriage as a union between one man and one woman, and prohibited any legal recognition of same-sex marriage. While such a law may or may not have affected the outcome of the case, the litigants decided to stop pursuing legal marriage and continue their fight for equal rights and benefits of marriage, but not as married persons. If the case is successful under their new direction, it will have no effect on marriage laws in Alaska or in any other state. Further, it could potentially install a second-class domestic partner status, as in Hawaii.
[See: Marrying Apartheid: The Failure of Domestic Partnership Status]
- Nine same-sex couples asked an Alaska judge to strike down policies denying health benefits to unmarried partners of Alaska state and Anchorage city employees, on April 18, 2001. The case was filed in 1999 shortly after Alaska voters amended the state’s constitution to exclude same-sex couples from marriage. The plaintiffs were represented by the Alaska Civil Liberties Union (AkCLU) and the American Civil Liberties Union (ACLU). The Plaintiffs were not seeking marriage, however, they argued that it was unconstitutional to deny them marriage, and to then simultaneously deny them benefits accessible only through marriage.
The Anchorage Superior Court ruled on November 16, 2001, that the state and city are not required to provide benefits to employees or retirees. Judge Stephanie Joannides decided that same-sex couples fall into the same category as unmarried opposite-sex couples, and neither is entitled to city or state benefits under current law. The AkCLU plans to appeal the case to the Alaska Supreme Court.
- After failing in 2004, an anti-gay, anti-marriage constitutional amendment won in November 2008.
- In 1999, the California Legislature passed Assembly Bill 26, which was introduced by Carol Migden. This established, after Hawaii, the second statewide domestic partner registry in the U.S. It provided for a division of property in the event of a break-up, could be used as an affidavit of partnership by the California Public Employees Retirement System to extend medical coverage to member’s partners, and allowed recognition for hospital visitation but not medical decisions.
[For more details on this status, please see: Domestic Partner Registration: California]
- In October 2001, AB 25, also introduced by Carole Migden (D-San Francisco), granted about twelve new rights and benefits to domestic partners, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or partner’s child, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if forced to relocate because of a partner’s job, to use stepparent adoption procedures to adopt a partner’s child, and to administer a partner’s estate.
- On July 27, 2001, Sharon Smith was granted legal standing to sue Robert Noel and his wife Marjorie Knoller over the death of Smith’s partner, Diane Whipple. The death was caused by an attack from Noel and Knoller’s dogs on January 26, 2001. Superior Court Judge A. James Robertson said that, in the absence of state laws permitting same-sex marriages, Smith has the right to file the civil suit as a de facto surviving spouse. This is the first time in California — and perhaps the first in the nation — that a non-legal spouse has been allowed to bring a wrongful death suit.
- Assembly Bill 1338 was introduced in February, 2001, by Assembly Member Paul Koretz (D-West Hollywood), that would have brought Vermont style Civil Unions to California. It did not advance.
- SB 1049 was introduced on April 9, 2002 by Jackie Speier (D-Hillsborough). This granted San Mateo County the ability to offer death benefits to surviving domestic partners of county employees.
- In 2002, AB 2216 was introduced by Fred Keeley (D-Boulder Creek). It granted the right to automatic inheritance of a specified portion of a partner’s separate property if a partner dies without a will.
- AB 2777 introduced by Joe Nation (D-San Rafael) in 2002, permitted three more counties to offer death benefits to surviving domestic partners.
- SB 1575, introduced by Byron Sher (D-Stanford, District 11) in 2002, included domestic partners among the family members exempted from the prohibition of being a beneficiary from a will that one helped to draft.
- In 2002, Sheila Kuehl (D-Santa Monica) introduced SB 1661, which granted six weeks paid family leave to employees to care for a sick spouse or domestic partner.
- On January 28, 2003, AB 205 was introduced by Assembly Member Jackie Goldberg (D-Los Angeles). Dubbed “The Domestic Partner Rights and Responsibilities Act of 2003,” it has 28 co-sponsors, and had a hearing by the Assembly Judiciary Committee on April 1, 2003.
“The Domestic Partner Rights and Responsibilities Act of 2003” significantly expands the rights and responsibilities currently provided to registered domestic partners and their families to include nearly all the legal rights, benefits, responsibilities, duties, and obligations under state law currently available only to married couples. The legal protections and responsibilities guide couples through many complex legal situations such as death, divorce, custody disputes, illness, childbirth, and adoption. Some of the protections include:
- Financial support during and after the relationship, and community property ownership protections
- Protection from threats and crimes against the families of public officials
- Child custody, visitation, and duties of financial support of children
- Anatomical gifts, consent to autopsy and disposition of remains, and burial in family cemeteries
- Legal claims dependent upon family status, including claims for victim’s compensation
- Housing protections, including access to family student housing, senior citizen housing, and rent control protections
- Bereavement leave, family care and medical leave, coverage of partners under medical, dental, life, and disability insurance, pension rights, and death benefits for surviving partners of firefighters and police officers
- Obligations to make disclosures regarding family relationships and to take other steps to avoid nepotism, conflicts of interest and self-dealing
- Access to family court for dissolution of relationships for long-term partners, couples with children, and couples with significant assets
- Mutual responsibility for debts to third parties
- Joint filing of state income tax returns, different tax rates, and estate and gift tax exemptions
- Government regulated benefits, including workers compensation, public assistance, transfer of licenses upon death, and the ability to apply for absentee ballots for a partner
- Communication privileges, including the right not to be forced to testify against a partner
AB 205 will not change the:
- method for entering into domestic partnership,
- basic criteria for registering as domestic partners,
- termination procedure for domestic partners who have been together less than five years, and who have no children and no significant joint assets;
- nor will it make any changes that would require a two-thirds vote by the Legislature, such as laws regulating property tax reassessment upon death of a partner.
- The California Board of Equalization ruled, early in July 2003, that the death of a domestic partner no longer would trigger a property tax reassessment that often leads to higher tax bills. The rule change was inspired by a number of cases in which surviving partners have been forced to sell their homes because they couldn’t afford to pay the higher property taxes.
Under current law, property owned by married couples isn’t reassessed when one spouse dies or ownership changes, so the property tax bill doesn’t change. Now that same protection will apply to many same-sex couples who own homes as joint tenants or tenants-in-common.
The San Jose Mercury News, July 16, 2003, gave an example of the financial impact to a partner:
“Take the case of a Silicon Valley couple who bought a home for $100,000 that is now worth $500,000. If the husband died, his widow’s property tax would remain the same. Disregarding annual property tax adjustments, the tax bill would continue to be based on $100,000.
The new tax rule took effect September 2003.
“Until last week, that tax rule did not apply to any same-sex couples. A surviving domestic partner would see her partner’s half of the $400,000 appreciation — or $200,000 — reassessed. Assuming a baseline 1 percent property tax rate, that would translate into an extra $2,000 property tax bill each year.”
- In March 2005, the anti-marriage laws were declared unconstitutional by a San Francisco Superior Court Judge Richard Kramer, however, the ruling will not take effect while being appealed by the state and opponents of same-sex marriage.
- On September 6, 2005, the California legislature became the first legislative body in the U.S. to allow same-sex marriages without being forced by a court ruling (as had Vermont and Massachusetts). The bill’s supporters compared the legislation to earlier civil rights campaigns, including efforts to eradicate slavery, and give women the right to vote. It passed the Senate by 21-15 and the Assembly by 41-35.
On September 29, 2005 Gov. Arnold Schwarzenegger vetoed the bill.
- As of October 19, 2005, the following California counties enacted resolutions in support of legal marriage for same-sex couples: Los Angeles, Marin, Mendocino, Santa Cruz, Sonoma, and San Francisco.
- For In re Marriage Cases, 6 appeals were combined. The suit won. On May 15, 2008, California became the second American state — and the seventh governmental entity — to offer legal marriage. It is fully equal to opposite-sex marriage licenses, however, it remains to be seen if other states will honor it. The U.S. federal system will not.
[Please see: California Offered - then banned - Legal Marriage]
[For information about other U.S. suits, please see: Legal Marriage Court Cases — A Timeline]
- Radical, right-wing groups — which received significant funding from out-of-state — launched Proposition 8 in May 2008, which asks voters to amend the California constitution to reverse the court’s decision, and deny same-sex couples the freedom to marry. The largest amount of money was donated by the Mormon Church — nearly $188,000 — a repeat of their efforts to help alter the states constitutions of Hawaii and Alaska to deny legal marriage, a right that had also been won in court in those states.
- On November 8, 2008, Proposition 8 was narrowly won, which gutted the right of same-sex couples to marry by amending the state constitution. Three suits were quickly launched to stop the evisceration of civil rights.
- Connecticut legislators proposed, and then approved on April 20, 2005, a Civil Union status, which can only be utilized by same-sex couples. The more than 500 rights and responsibilities triggered by legal marriage are available to those who reside in Connecticut.
[Please see our article: Civil Unions: The Connecticut Approach]
- Connecticut offered legal marriage on November 12, 2008.
[Please see: Connecticut Offers Legal Marriage]
District of Columbia
- In 2001, Washington, D.C. provided a domestic partner status for both same-sex and opposite-sex couples that give access to limited benefits.
[Please see: Governments Offering Benefits]
- On May 5, 2009, the Washington, D.C. city council voted 12-1 to recognize same-sex marriages performed in other jurisdictions. Mayor Adrian Fenty (D) signed the bill on May 6, 2009. Opponents of marriage equality
attempted to stop the legislation from taking effect by proposing a referendum. However, the D.C. Board of Elections and Ethics ruled in June that the proposed referendum would violate the D.C. Human Rights Act and therefore was not a proper subject matter for the referendum process. A D.C. Superior Court judge upheld this ruling and denied opponents’ request for a preliminary injunction to stay the legislation. The law took effect effect on July 2009, at the conclusion of the mandatory 30-day U.S. Congressional review period. Council members say they plan to introduce another resolution that would allow same-sex marriages in the district.
- D.C. offered legal marriage on March 3, 2010.
[Please see: District of Columbia Offers Legal Marriage]
- An anti-gay, anti-marriage constitutional amendment won in November 2008. Because it is worded: “This amendment protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized” it is likely that this law will be utilized to also smash personal contracts between same-sex couples, such as relationship agreements and wills, as well as workplace domestic partner benefits.
- Once thought to be the best hope for same-sex legal marriage in the U.S., had been the Hawaii lawsuit (Baehr v. Anderson). The three plaintiff couples won their first round in the Hawaii Supreme Court, which ruled that same-sex marriage would be required under the state’s constitution unless a “compelling state interest” in discrimination was established in a lower court. The state could not prove there was any valid reason to deny legal marriage.
[See: Hawaii Court Finding]
After the state legislature actually altered their constitution to deny same-sex couples equal treatment, the Hawaii State Supreme Court made a final ruling in December 9, 1999 which denied legal marriage to same-sex couples.
The three couples were Joseph Melillo and Patrick Lagon, Ninia Baehr and Genora Dancel, and Tammy Rodriguez and Antoinette Pregilthese. Their case was initially supported solely by the Marriage Project-Hawaii.
The Mormon Church took a very special interest in this case and filed numerous requests to be a co-defendant with the state. When a commission was appointed to study domestic partnerships for Hawaii, the Mormons demanded a seat claiming that they “represent all religions.” However, their requests to co-defend were denied.
The Mormon Church’s attempted intrusion into civil law is astonishing considering it’s own experience of discrimination and having been forced by the U.S. Government to abandon the Church’s tradition of polygamous marriage contracts. A practice widely understood to have only gone underground.
The Christian Coalition also poured hundreds of thousands of dollars into political advertisements and other efforts in an attempt to destroy the civil rights protections of the Hawaii Constitution, which supports the court judgment in favor of legal marriage.
- While the marriage suit was denied by the Hawaii court because of changes to the state constitution, the legislature did create the “Reciprocal Beneficiaries” law (Act 383), on July 8, 1997. This was an effort by Hawaii legislators to circumvent providing full, legal marriage for all citizens.
[Hawaii greatly expanded registration coverage in January 2012.
See Civil Unions: The Hawaii Approach.]
- On August 29, 2008, a same-sex couple was allowed to move back into family housing at the University of Hawai’i, Mânoa. The University revised its housing policy to provide accommodation for committed same-sex couples in settlement of a lawsuit Phi Ngo and Joseph O’Leary filed on March 10, 2008. When they reapplied for family housing, the university denied their request based on the fact that they were not married. However, the Hawai’i Supreme Court already found that the denial of any of the benefits of marriage to same-sex couples constitutes discrimination in violation of the Hawai’i Constitution.
- The Indiana Civil Liberties Union (ICLU) on behalf of three Indiana same-sex couples filed a suit for legal marriage on August 22, 2002. All three had obtained Vermont Civil Unions. The suit, filed in Marion County Superior Court, demanded the right to marry in Indiana, or alternatively, full recognition of their Civil Unions.
In the early part of May 2003, Judge S.K. Reid, dismissed the freedom-to-marry lawsuit. Reid did not address the core issue: whether limits on marriage, by elimination of a class of people, should be done without a legitimate public policy goal. Instead, she appeared to find it self evident that the goal of protecting traditional marriage as an institution for procreation was unassailable.
Marriage laws, she wrote, “promote the state’s interest in encouraging procreation to occur in a context where both biological parents are present to raise the child.”
Second, the law “vindicates the related interest in promoting the traditional family as the basic living unit of our free society.”
And third, Reid said that the restriction against same-sex couples is a necessary feature of traditional marriage, and that allowing gay and lesbian couples to share the institution “would undermine the meaningfulness and sanctity of opposite-sex marriages.”
The suit was filed on the initiative of ICLU lawyers, and an appeal in Indiana may not be advisable as the state was not strategically chosen. Indiana has a blanket ban on recognizing same-sex marriages, and is a conservative state.
- On December 13, 2005, Varnum v. Brien was filed on behalf of six couples by Lambda Legal. This case won the right to legal marriage in the Iowa District Court for Polk County, on August 30, 2007. The case finally won the right to marry final ruling from the Iowa Supreme Court on April 3, 2009.
- Iowa offered legal marriage on April 27, 2009.
[Please see: Iowa Offers Legal Marriage]
- n May 6, 2009, Maine became the 6th American state to offer full, legal marriage to same-sex couples. This is the 2nd U.S. state, after Vermont, to offer legal marriage without a court order, as well as having the governor sign it into being. The law was to become effective mid-September 2009.
However, with a mean-spirited, anti-gay, anti-marriage “Question 1” referendum, voters in November 2009 repealed Maine’s equal marriage law by only a 52-47 margin (with 87 percent of precincts reporting).
- Maine’s legislature offered legal marriage - then citizens voted it away.
[Please see: ]Maine Offers Legal Marriage
- Seven Massachusetts couples sued for legal marriage. Goodridge v. Dept. of Public Health was filed on April 11, 2001. The suit won. On May 17, 2004, Massachusetts became the first American state — and the fourth governmental entity — to offer legal marriage. It is fully equal to opposite-sex marriage licenses, however, it remains to be seen if other states will honor it. The U.S. federal system will not.
[Please see: Massachusetts Offers Legal Marriage]
[For information about other U.S. suits, please see: Legal Marriage Court Cases — A Timeline]
- While not offering legal marriage, Maryland may recognize legal marriage obtained by same-sex couples in other jurisdictions.
“The Court of Appeals would start from the general principle that a marriage that is valid in the place of celebration remains valid in Maryland. There is an exception to that rule if the particular marriage is contrary to a strong State public policy. A statute that limits marriage in Maryland to opposite-sex couples could be said to embody a policy against same-sex marriage. However, there are many restrictions in the State’s marriage statutes and the Court of Appeals has not construed the public policy exception to encompass all those restrictions. For example, it has recognized common law marriages from other states, although there is no common law marriage in Maryland, and has recognized a Rhode Island marriage between an uncle and a niece, although a statute prohibits marriage between an uncle and a niece in Maryland. Indeed, the public policy exception is a very limited one that the Court has seldom invoked.
“While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland’s developing public policy concerning intimate same-sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.”
From a family law legal opinion issued by Douglas F. Gansler, Maryland’s attorney general, and Robert N. McDonald, Maryland’s chief counsel on February 23, 2010.
- On June 3, 2009, New Hampshire became the 7th American state to offer full, legal marriage to same-sex couples. New Hampshire was the 3rd state to offer legal marriage, after Vermont and Maine (which was soon removed by ballot measure), without a court order, as well as having the governor sign it into being. The law became effective on January 1, 2010.
[Please see: New Hampshire Offers Legal Marriage
- Seven New Jersey couples sued for the right to marry on June 26, 2002. The case, Lewis et. al. v. Harris et. al., is joined by Lambda Legal Defense and Education Fund and is based solely on the New Jersey Constitution.
New Jersey Superior Court judge Linda Feinberg ruled on April 2, 2003, that a constitutional challenge to the state’s ban on gay marriage will be limited to the seven same-sex couples challenging the law and the state attorney general. The conservative “family” organizations and a number of state legislators had sought to present arguments before Judge opposing the case. Feinberg ruled the groups did not have a legal right to formally oppose the suit.
Several lawmakers claimed they should be allowed to intervene because they thought a court ruling could undermine their legislative authority. They apparently have forgotten about the legal balance of authority in the American system. Among those lawmakers are Senators Gerald Cardinale (R-Bergen), and Anthony Bucco (R-Morris), who are co-sponsors of legislation seeking to ban same-sex marriage.
Still pending before Feinberg is a 42-page motion by the attorney general’s office asking Feinberg to throw out the entire lawsuit. That motion is expected to be argued in May 2003.
- On January 4, 2011, state attorney general Gary King issued an opinion stating that same-sex marriage obtained in other states or jurisdictions could be recognized under New Mexico law:
“A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico. While we cannot predict how a New Mexico court would rule on this issue, after a review of the law in this area, it is our opinion that a same-sex marriage, that is valid under the laws of the country or state were it was consummated, would likewise be found valid in New Mexico.”
- A male couple in Ithaca, New York got the sympathetic ear of the town’s mayor in requesting a legal marriage license. Phillip and Toshav Storrs were ultimately thwarted, however, by prohibitive state laws. They sued (Storrs v. Holcomb), in April 1996 against the Ithaca City Clerk for denying their application for a marriage license in December 1995.
The trial court ruled against them and they appealed to an intermediate-level appellate court. That court ruled that they had failed to include a necessary party (the N.Y. State Dept. of Health) and dismissed the suit. In February 1998 they re-filed the case against the Ithaca City Clerk and the N.Y. State Dept. of Health. A hearing was due on September 11, 1998.
- On July 2, 2001, the New York Court of Appeals unanimously ruled that the Yashiva University’s Albert Einstein College of Medicine policy of giving subsidized housing breaks only to couples who are legally married can be challenged as anti-gay discrimination. The ruling reversed two lower courts and made clear that a suit could be brought because same-sex couples — unlike opposite-sex couples — are prohibited from legal marriage. A lower court must now determine whether the university’s housing policy breaks New York City’s law against sexual orientation discrimination.
- On February 3, 2006, Governor George Pataki signed a bill that allows same-and opposite-sex domestic partners the ability to make decisions about the disposition of partner’s remains. The bill places a domestic partner, just like a spouse, ahead of a surviving child or parent in decisions over burial. The bill was sponsored by state Assemblymen Jeffrey Dinowitz (D) and Richard Gottfried (D), and state Senator Michael Balboni (R-East Williston).
- On February 1, 2007, the five-judge panel of the Appellate Division of State Supreme Court in Rochester, New York, unanimously ruled that valid out-of-state marriages of same-sex couples must be legally recognized in New York, just as the law recognizes those of opposite-sex couples solemnized elsewhere. The ruling rejected a 2006 lower court decision, and applies to all public and private employers in New York state.
The suit was brought by Patricia Martinez to cover her partner Lisa Ann Golden. They had a Civil Union from Vermont in 2001, and were legally married in Ontario on July 5, 2004.
Even though same-sex couples may not legally marry in New York State, the court held that a same-sex couple’s Canadian marriage must be respected under the state’s longstanding “marriage recognition rule,” and that an employer’s denial of health benefits had discriminated against the couple on the basis of their sexual orientation. The court noted that until the state legislature decides to prohibit the recognition of same-sex marriages solemnized abroad, such marriages are entitled to recognition in New York, as it has done with valid opposite-sex out-of-state marriages for more than a century.
In an earlier ruling on legal marriage, the Court of Appeals, the state’s highest judicial body, previously said that the legislature may choose to enact laws recognizing same-sex marriages. The Appellate Court further said “In our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York.”
- On September 2, 2008, a New York trial court dismissed a lawsuit against Governor Paterson that challenged his directive that state agencies respect out-of-state marriages of same-sex couples. This was the fourth court to dismiss the suit brought by the Alliance Defense Fund and a few taxpayers, which targeted state government officials who follow this directive. The court granted a motion to intervene in the case on behalf of Peri Rainbow and Tamela Sloan, state employees who married in Canada. They are raising a special-needs child adopted after being foster parents. Justice Lucy Billings: “When partners manifest the commitment to their relationship and family, by solemnizing that commitment elsewhere, through one of life’s most significant events, and come to New York, whether returning home or setting down roots, to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon that solemnized commitment.”
- On June 24, 2011, the New York State Legislature passed the Marriage Equality Act, which was signed into law by Governor Andrew M. Cuomo the same day. New York became the 8th American state to offer full, legal marriage to same-sex couples.
[Please see: New York Offers Legal Marriage
- While not offering legal marriage, Rhode Island will likely recognize legal marriage obtained by same-sex couples in other jurisdictions. Attorney General Patrick C. Lynch, in a February 21, 2007 legal opinion, stated that the state prohibited discrimination based on sexual orientation and did not explicitly prohibit same-sex marriage:
“Rhode Island will recognize same-sex marriages lawfully performed in Massachusetts as marriages in Rhode Island.”
In an interview the Rhode Island attorney general stated:
“This is about Rhode Island citizens who entered into a valid, legally recognized same-sex marriage and returned here to live and work.” There is no way, no law, no constitutional provision and, in my estimation, no right to allow the denial of basic human rights.”
- Three same-sex Vermont couples filed suit in Chittenden Superior Court, Burlington, Vermont, on July 22, 1997, seeking the right to marry (Baker et al v. State of Vermont et al). The couples, Stan Baker and Peter Harrigan, Nina Beck and Stacy Jolles, and Lois Farnham and Holly Puterbaugh, sued the State of Vermont as well as Shelburne, South Burlington and Milton, because the town clerks refused to issue marriage licenses to the couples.
After losing the first court hearing on December 19, 1997, the Vermont suit for legal marriage for same-sex couples got a mixed result in the final ruling on December 20, 1999.
[See: Vermont Court Finding]
Based on the Vermont Constitution, the ruling establishes the necessity to treat all families alike — no matter what their make-up — but the ruling does not remedy the situation by immediately requiring the state to issue licenses. Instead it required the legislature to institute marriage or some kind of “domestic partnership” or “registered partnership law.”
Rather than offer legal marriage — the same procedure to protect families as is offered to opposite-sex couples — the Vermont legislature created a new law labeled “Civil Union”.
By designing a totally separate form of marriage, which could rightly be called “marriage light,” they created an apartheid. As the U.S. Supreme Court ruled regarding segregation, there is no such thing as separate and equal.
[See: Marrying Apartheid]
Civil Unions — effective July 1, 2000 except for provisions relating to insurance and taxes that become effective in 2001 — do not have any legal weight in the Federal sphere, and many other state do not honor the new, almost-but-not-quite-marital license.
The new status, however, did offer a vastly improved range of protections for same-sex couples never before available in the United States. Those couples who live in Vermont, once signed up as a civilly unionized couple, can say they are no longer “legal strangers” — they are finally “next-of-kin.”
[See: Civil Unions: The Vermont Approach]
Vermont eventually became the 5th American state to offer legal marriage to same-sex couples on April 7, 2009. The transformation to legal marriage from a “Civil Union” was brought about by legislative vote, which overid the governor’s veto.
[Please see: Vermont Offers Legal Marriage]
- On January 1, 2008, Uruguay became the first Latin American country to allow a legal status for same-sex couples. Called “Cohabitation Union Law,” it covers both same- and opposite-sex sex partner who have lived together for five years to receive the same benefits and responsibilities as legal marriage.
The first same-sex couple to register — on April 24, 2008 — was Adrian Figuera, 38, and Juan Carlos Moretti, 67, an actor and theater director. They had been partners for 14 years.
While many U.S. news sources have headlined the new law as gay “marriage,” it is not legal marriage, it is a registration, and likely will not be recognized by other countries.
© 2014, Demian|
None of the pages on this Web site may be reproduced by any form of reproduction without
permission from Partners, with the exception of copies for personal (including student),
non-commercial use. Please do not copy this article to any Web site.