International Journal of Law, Policy and the Family Advance Access originally published online on April 11, 2006
International Journal of Law, Policy and the Family 2006 20(3):249-285; doi:10.1093/lawfam/ebl008
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The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales
* Associate lawyer, Blake, Cassels and Graydon LLP, Toronto, Canada.
The tide in favour of legal equality for gay and lesbian individuals and couples continues to roll forward on both sides of the Atlantic. In Canada, the federal Parliament recently passed legislation (the Civil Marriage Act) (CMA) that extends the legal capacity to marry for civil purposes to same-sex couples throughout the country. This change in the law was driven not by the executive and legislative branches of government but by the courts, interpreting and applying the Canadian Charter of Rights and Freedoms (the Charter). On the other side of the Atlantic, in England and Wales, the Westminster Parliament in 2004 passed legislation (the Civil Partnership Act) (CPA) that will enable same-sex couples to obtain legal recognition of their relationships, and to access most of the legal rights and responsibilities offered to married couples. However, unlike the Canadian legislation, civil marriages between same-sex couples will still not be legally recognized. This article considers whether the English courts will also facilitate the legal recognition of same-sex civil marriage, like their Canadian counterparts. The author concludes that, in light of recent case law, there is an increasingly strong argument that the opposite-sex marriage requirement in England and Wales violates Article 14 (the equality provision) of the European Convention on Human Rights (ECHR), which is incorporated into UK law by the Human Rights Act, 1998. However, the author also concludes that there are a number of reasons to be cautious that a positive result would flow, at this point, from a domestic court challenge to the opposite-sex marriage requirement.