Robert Leckey is director of the Paul-André Crépeau Centre for Private and Comparative Law at McGill University.
Those marking Pride in downtown Toronto have even more to celebrate. On Friday, the U.S. Supreme Court ruled that their Constitution requires states to recognize same-sex marriage. Advocates for marriage equality have much to celebrate. As we reflect on how quickly the ground has shifted on marriage, we mustn't overlook the unfinished business.
Undeniably, the path to formal equality for gay men and lesbians has developed at a staggering speed. A dozen years ago this month, Ontario's highest court recognized same-sex marriage. That same month, south of the border, the U.S. Supreme Court struck down Texas's law criminalizing sodomy. Our American neighbours seemed decades behind us.
In 2008, the Election Day that sent Barack Obama to the White House included referendums in many states by which citizens voted against same-sex marriage. Conversely, some American states recognized equal marriage. The issue was deeply divisive. People didn't expect to see equal marriage in all fifty states in their lifetimes.
That day has come much sooner. Now it's worth thinking critically about the legal and social conditions that make marriage so significant in the U.S.
We can read today's judgment as affirming that committed same-sex relationships merit respect. But beyond the symbolism, marriage in the U.S. has concrete stakes that it doesn't have in Canada. For many Americans, access to health insurance comes through marriage to someone whose job offers good benefits. So may immigration status.
In contrast, Canadian law and social policy often treats married and cohabiting couples the same. The U.S. relies much more on marital status as it delivers public goods.
Today's judgment means that relying on marriage no longer discriminates based on sexual orientation. A question that remains relevant, however, is whether it's fair for so much to turn on marital status.
Answering this question requires awareness of the wide range of ways in which people shape their family lives, whatever their sexual orientation. Family policy can't stop with marriage, however defined.
Furthermore, today's marriage judgment doesn't solve all the legal issues facing sexual orientation and gender identity minorities in the U.S. It doesn't solve all the legal problems of parenting in various configurations by gay men and lesbians. It doesn't address the serious legal and social difficulties facing trans individuals. Internationally, of course, there remain countries where same-sex relations are punishable by jail time, even by death.
Those who have fundraised and fought hard for equal marriage in the U.S. are right to take today for celebration. After the party, it will be time to prove that equal marriage isn't the end of the road. It must be one step, albeit a momentous one, in a broader pursuit of sexual and social justice.