International Case Law

CANADA

M. v. H. [1999] 2 S.C.R. 3 - 1999
In 1999, the Supreme Court of Canada ruled in M. v. H. that same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with marriage. However, this decision stopped short of giving them the right to full legal marriage. Most laws which affect couples are within provincial rather than federal jurisdiction. As a result, rights varied somewhat from province to province.

Ontario - 10 June 2003
Halpern v. Canada, [2003] O.J. No. 2268
Halpern v. Canada is a notable decision of the Court of Appeal for Ontario where the Court found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and Freedoms.

British Columbia - 8 July 2003
Barbeau v. British Columbia (A.G.) 2003 BCCA 406
Same-sex marriage in British Columbia became legal on July 8th, 2003, becoming the second region in Canada to legalize same-sex marriage, behind Ontario, after a series of court rulings which ultimately landed in favour of same-sex couples seeking marriage licenses.

Quebec - 16 March 2004
Catholic Civil Rights League v. Hendricks, 2004 J.Q No. 2593 (Q.L)
On March 19, 2004, the Quebec Court of Appeals ruled unanimously that a religious organization that had intervened before the Cour Supérieure lacked legal standing to appeal that Court's 2002 Charter decision finding opposite-sex marriage provisions contrary to section 15 of the Charter. The Court allowed a motion to reject the appeal, and in doing so, declined to exercise its discretion to render judgment on its merits. In its view, the appeal duplicated the reference to the Supreme Court of Canada for which the organization had also been granted intervener status, and in which the constitutional issues it wished to address would be debated. Noting the acquiescence of the federal Attorney General, the court lifted the suspension of remedy imposed by the lower court, thus enabling same-sex couples to marry legally within the province with immediate effect.

Yukon - 14 July 2004
Dunbar & Edge v. Yukon (Government of) & Canada (A.G.), 2004 YKSC 54
The Supreme Court of Yukon ruled that the common law definition of marriage was unconstitutional and modified it to a gender neutral one.

Manitoba - 16 September 2004
Vogel v. Canada [2004] M..J. No. 418 (Man. Q.B.)
Manitoba became the fifth jurisdiction in Canada to legalize same-sex marriage, when the Manitoba Court of Queen's Bench declared the opposite-sex definition of marriage unconstitutional and reformulated it as a voluntary union of two persons. The Federal Government did not oppose the Judge's order, which was consented to by the provincial Attorney General.

Nova Scotia - 24 September 2004
Boutilier v. Nova Scotia (Attorney General), [2004] N.S.J. No. 357 (Q.L), 24 September 2004.
In August 2004, three couples in Nova Scotia brought suit in Boutilier v. Canada (A.G) and Nova Scotia (A.G) against the provincial government requesting that it issue same-sex marriage licenses. On September 24, 2004, Justice Heather Robertson of the Nova Scotia Supreme Court ruled that banning such marriages was unconstitutional and ordered the province to recognize same-sex unions. The common law definition of marriage was then altered to "the lawful union of two persons".

Saskatchewan - 5 November 2004
W. (N.) v. Canada (Attorney General), 2004 SKQB 434, [2004] S.J. No. 669 (Sask. Q.B)
The Saskatchewan Court of Queen's Bench allowed a Charter application seeking the reformulation of the common-law definition of marriage and issued an order authorising same-sex in the province.

Re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 - 9 December 2004
Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79, was a reference question to the Supreme Court of Canada regarding the constitutional validity of same-sex marriage in Canada.

Newfoundland and Labrador decision - 21 December 2004
Pottle et al. v. Attorney General of Canada et al., 2004 O1T 3964
Two lesbian couples brought suit on November 4 to have Newfoundland and Labrador recognize same-sex marriage. As with the previous decisions, the provincial government did not oppose the suit; moreover, the federal government actually supported it. The case went to trial on December 20 and the next day, Mr. Justice Derek Green ordered the provincial government to begin issuing marriage licenses to same-sex couples, an order with which the provincial government announced it would comply.

 
New Brunswick - 23 June 2005.
Harrison v. Canada (Attorney General), [2005] N.B.J No. 257. (Q.L)
New Brunswick became the eighth province to legalize same-sex marriage when a Court of Queen's Bench Charter ruling redefined civil marriage in the province in gender neutral terms.

 
Northwest Territories - 20 July 2005
On May 20, 2005, a gay male couple with a daughter brought suit in the Northwest Territories for the right to marry. The territorial justice minister, Charles Dent, had previously said that the government would not contest such a lawsuit. The case was to be heard on May 27 but ended when the federal government legalized same-sex marriage.

 
Canada (Attorney General) v. Hislop, 2007 SCC 10
Canada v. Hislop is a leading decision of the Supreme Court of Canada on equality rights under section 15 of the Canadian Charter of Rights and Freedoms and the retroactivity of Charter remedies. The Court struck down provisions in the amended Canada Pension Plan on grounds that it discriminated against same-sex couples.

UNITED STATES

Marriage equality has been legalised in six of the 50 states:

Massachusetts - 18 November 2003
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)
On November 18, 2003, the Supreme Judicial Court of the Commonwealth of Massachusetts famously ruled that reserving the protections, benefits, and obligations of civil marriage solely to opposite-sex couples lacked a rational basis and violated the Commonwealth's constitutional equal protection principles.

Connecticut - 10 October 2008
Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn. 2008).
The Connecticut Supreme court ruled that sexual orientation is a quasi-suspect classification (similar to gender), such that laws discriminating against gay persons are subject to intermediate scrutiny and laws restricting civil marriage to heterosexual couples violates same-sex couples' state constitutional equal protection rights. Connecticut became the third state in the U.S. to issue state-sanctioned marriage licenses to same-sex couples on November 12, 2008.

California - 2008
In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384]
On May 15, 2008, California became the second state to legalize same-sex marriage. In re Marriage Cases, held that past state legislative and initiative measures limiting marriage to opposite-sex couples violated the state constitutional rights of same-sex couples and could not be used to preclude same-sex couples from marrying. Between June and November of 2008, eighteen hundred same-sex couples were issued marriage licenses in California.

Notably, the California Supreme Court also ruled that gays and lesbians are subject to strict judicial scrutiny, making California the first state in the United States to set such a strict standard of review for sexual orientation as a class.

The passage on November 4, 2008 of Proposition 8, codified as Article I § 7.5, amended the California Constitution to define civil marriage as only between one man and one woman. Since this amendment's passage, no same-sex marriage licenses have been issued by the state of California. The validity of same-sex marriage licenses already issued remain in doubt. The amendment, however, does not disturb that part of the California Supreme Court's holding that gay men and lesbians constitute a Suspect Class for purposes of equal protection under Art. I § 7. Proposition 8's amendment of the California Constitution is currently being reviewed by the California Supreme Court to determine whether it is an amendment (and thus valid) or a revision to the California Constitution (requiring a larger share of votes than Proposition 8 received in the 2008 election).

Iowa - 27 April 2009
Varnum v. Brien, CV 5965 (Iowa Dist. Ct Aug. 30, 2007)
Varnum v. Brien is an Iowa court case in which six same-sex couples filed suit against Timothy Brien, Polk County Recorder, for refusing to grant marriage licenses to them. This refusal was consistent with Iowa law at the time, but the plaintiffs argued that the statute defining marriage only as a union between a man and a woman violated the equal protection clause in the Iowa constitution. Robert Hanson, a judge in the Polk County District Court, granted summary judgment in favour of the plaintiffs. This judgment was appealed to the Iowa Supreme Court, where it was unanimously upheld in a ruling that was released on April 3, 2009, legalizing same-sex marriage in Iowa.

Vermont - 1 September 2009
Baker v. State (199) (98-032); 170 Vt. 194; 744 A.2d 864
The Vermont Supreme Court held that the state must extend the same benefits to same-sex couples that opposite-sex married couples receive and directed the Vermont legislature to act on this problem. The Vermont Legislature responded by creating a "civil union" status to fulfill that mandate. Vt. Stat. Ann. tit. 15, §§ 1201 - 1207.

On April 7, 2009 Vermont legalized same-sex marriage through legislation. The Governor had previously vetoed the measure, but the veto was overridden by the Legislature. Vermont became the first state in the United States to legalize same-sex marriage through legislation, as opposed to litigation, albeit without the governor's signature.

New Hampshire - 1 January 2010
On March 18, 2009, the New Hampshire House of Representatives Judiciary Committee voted in a deadlocked vote to send a same-sex marriage bill, HB 436, to the floor of the House of Representatives. On March 26, 2009, the New Hampshire House of Representatives voted 182-183, but after a motion to reconsider the first vote, the vote was 186-179. On April 23, 2009, the New Hampshire Senate Judiciary Committee by a vote of 3-2 recommended that the full Senate defeat the bill, but the following Wednesday, the Senate approved an amended version of the bill 13-11. The amended bill then went on to pass the House, and thus the legislature, on May 6, 2009; however, it was not clear whether Gov. John Lynch would sign it, veto it, or let it become law without his signature. The bill recognized out-of-state civil unions as marriages. Couples who had New Hampshire Civil Unions would be able to apply for a marriage license, however if they didn't apply for a marriage certificate their civil unions would automatically be converted to marriages on January 1, 2011.[1]

On May 29, a compromise with some minor changes was reached, which the governor approved of, which was sent back for a vote. The new version was approved 14-10 by the Senate and 198-176 by the House, on June 3, and was signed by the Governor shortly thereafter.
http://www.gencourt.state.nh.us/legislation/2009/HB0073.html

 
Washington, D.C. - 9 March 2010
Same-sex marriage in the District of Columbia was legalized on December 18, 2009, when mayor Adrian Fenty signed a bill passed by the Council of the District of Columbia on December 15, 2009. Following the signing the measure entered a mandatory Congressional review of 30 work days. Marriage licenses became available on March 3, 2010, and marriages began on March 9, 2010

OTHER US STATES:

• A bill to allow same-sex marriage in Maine was signed into law on May 6, 2009. The law would have taken effect on September 11, 2009, but was repealed by 52.8% of voters on November 3, 2009. Maine's domestic partnership law remains in force.
• In New York, same-sex marriages from other states or foreign countries are recognized but not performed.
• Maryland, New York and Rhode Island are expected to introduce marriage equality legislation in 2011.

OTHER SIGNIFICANT US DECISIONS

Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006)
The New Jersey Supreme Court held that same-sex couples were entitled to the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The New Jersey Legislature complied with that decision by enacting a civil union act. N.J. Stat. Ann. 103.

 
Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006)
In July 2006, opposite-sex exclusive definitions of marriage were upheld by the highest court of New York in Hernandez v. Robles

Andersen v. King County, 158 Wash.2d 138, 138 P.3d 963 (Wash. 2006)
Opposite-sex exclusive definitions of marriage was upheld by the highest court of Washington.

Lockyer v City and County of San Francisco 95 P.3d, 459 (Cal. 2004)
In February 2004, the Mayor of San Francisco directed marriage licenses be issued to same-sex couples in direct defiance o state statutes prohibiting same-sex marriages. The Californian SC ruled in Lockyer that such orders were unlawful rendering the 4000 marriages performed null and void. However the court left the question of the marriage statutes' constitutionality undecided, signaling the issue is far from settled.

 
In re Opinions of the Justices to the Senate, 440 Mass 1201, 802 N.E.2d 565 (Mass. 2004).
The Massachusetts General Court attempted to create a civil union option as Vermont had. On February 3, 2004 the Supreme Judicial Court decided that the proposed civil union bill (Senate, No. 2175) would establish an "unconstitutional, inferior and discriminatory status for same-sex couples." This advisory opinion reiterated the Court's November decision that backed full marital rights for same-sex couples so to comply with the equal protection and due process clauses of the Massachusetts Constitution. On May 17, 2004, Massachusetts became the first state in the United States to legally issue marriage licenses to same-sex couples. Subsequent efforts to amend the Massachusetts Constitution by the Massachusetts General Court to ban same-sex marriage have failed.

 
Lawrence v. Texas, 539 U.S. 558 (2003)
In Lawrence v. Texas, the Supreme Court, in a 6-3 decision, declared unconstitutional a Texas law that prohibited sexual acts between same sex couples. Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. Justice Kennedy's opinion expressly overruled the Court's decision in Bowers v. Hardwick (1986), which had come to an opposite conclusion.

Brause v. Bureau of Vital Statistics, Not Reported in P.2d, 1998 WL 88743 (D. Alaska 1998)
In Brause v. Bureau of Vital Statistics, an Alaskan Superior Court judge ruled that choosing a martial partner is a fundamental right that the opposite-sex requirement of state-issued marriage licenses violated. That same year, the citizens of Alaska voted to amend the Alaska Constitution requiring that all marriages be between a man and a woman. AK Const. Art. 1, § 25.

Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Haw. 1993)
In Baehr v. Lewin, the Hawai'i Supreme Court held that the Hawaiian marriage statute restricted marital relations to opposite-sex couples and thus established a sex-based classification. The fact that the law made no provision issuing same-sex marriage licenses made it subject to the "strict scrutiny" test in an equal protection challenge. In response to this decision, the state constitution was amended to allow the legislature to preserve that restriction. Hawai'i Constitution, Art. I, § 23. The amendment reads: "The legislature shall have the power to reserve marriage to opposite-sex couples." It is the only amendment of its kind in the United States to give discretion on this issue solely to the legislature.

Turner v. Safley, 482 U.S. 78 (1987)
Turner v Safley was a U.S. Supreme Court decision involving the constitutionality of prison regulations. Applying a lower standard of review due to the reduced liberty and greater security needs of the prison context, the Court upheld a regulation that prohibited inmates at one prison from corresponding with those at another, but struck another regulation that prohibited inmates from marrying without the permission of the warden. On the latter decision, the Court held that prisoners have the right to marry. This decision is in line with the Supreme Court's decision that the right to marry is a fundamental right protected by the liberty element of the due process clause Loving v. Virginia.

Zablocki v. Redhail 434 U.S. 374 (1978)
US Supreme Court decision confirmed that impediments to marriage are subject to strict scrutiny because the right is "of fundamental importance for all individuals."

Loving v. Virginia, 388 U.S. 1 (1967)
This was a landmark civil rights case in which the United States Supreme Court by a 9-0 vote declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.

Cases holding that state constitution requires that state employees in same-sex relationships be provided with the same benefits as those who are married:

Alaska Civil Liberties Union v. Alaska 122 P.3d781 (Alaska 2005)

Snetsinger v. Montana Univ. Sys., 325 Mont. 148, 104 P.3d 445(Montana 2004)
The Montana Supreme Court ruled that the state must provide lesbian and gay employees of the University of Montana System with the option of purchasing health insurance and other employee benefits for their domestic partners.

Tanner v. Oregon Health Services Univ.161 Or. App.129, 980, P.2d 186 (Or. Ct. App. 1999)
http://www.danpinello.com/Tanner.htm

SOUTH AFRICA - 30 November 2006

Fourie and Bonthuys v Minister for Home Affairs (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005)
Same-sex marriage became legal in South Africa on 30 November 2006 when the Civil Unions Bill was enacted after having been passed by the South African Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had imposed a deadline of 1 December 2006 to make same-sex marriage legal. South Africa became the fifth country, the first in Africa, and the second outside Europe, to legalize same-sex marriage.

NEPAL

On November 17, 2008, Nepal's Supreme Court ruled in favour of laws to guarantee full rights to LGBT people, and all gender minorities must be defined as "natural persons" under the law; this including the right to marry.
Same sex marriage bill ordered in Nepal but not yet legislated. However Nepal has recently formed a committee to make recommendations on the introduction same-sex marriage, based on the decision of the Supreme Court.
http://www.bds.org.np/decision.html

IRISH PRECEDENTS

Case Law on the interpretation of the constitution as a living instrument:

McGee v. A.G. & Anor [1973] IESC 2; [1974] IR 284 (19 December 1973)
Walsh J. at p319
"No interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts."

A similar approach was expressed by the Irish Supreme Court in:
Sinnott v. Minister for Education [2001] IESC 63; [2001] 2 IR 505 (12th July, 2001)

Dissenting Irish Case Law on the constitutional definition of marriage to be confined to persons of the opposite sex:

Murphy v Attorney General [1982] IR 241 per Kenny J at 286
In Murphy v Attorney General, Kenny J, for the High Court, says that the pledge to "guard with special care the institution of marriage is a guarantee that this institution in all its constitutional connotations ...will be given special protection so that it will continue to fulfill its function as the basis of the family and as a permanent, indissoluble union of man and woman".

Murray v. Ireland (1985) I.R. 532
Costello J. in the High Court stated that "the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of a partnership based on an irrevocable personal consent, given by both spouses which establishes a unique and very special life-long relationship." The implication of this statement would be that the Christian notion of marriage, as interpreted in the Constitution, would be restricted to one between two people of the opposite sex.

TF v. Ireland [1995] 1 IR 321
Murray v. Ireland was quoted favourably in decision of the Supreme Court in TF v. Ireland (1995). However, in that case the Supreme Court also noted that "marriage is a civil contract which creates reciprocating rights and duties between the parties" (emphasis added). This would seem to emphasize the civil rather than the Christian nature of marriage as defined under our Constitution. The TF case also saw the refusal of the Court to accept evidence given by a Catholic theologian as to the nature of marriage under our Constitution.

B v. R (1995) (unreported)
In B v. R (1995), a case dealing with bigamy, Costello J. in the High Court defined marriage as "the voluntary and permanent union of one man and one woman to the exclusion of all others for life".

 
Foy v An t-Ard Chláraitheoir [2002] IEHC (9 July 2002).
In Foy v An t-Ard Chláraitheoir, McKechnie J. in the High Court restricts the definition of marriage to a biological man and woman, refusing to allow individuals who have undergone gender reassignment to marry individuals of the same biological sex.

D.T. v C.T [2003] 1 ILRM 231
Following the introduction of divorce, in D.T. v C.T., Murray J says that, although society is evolving, "marriage itself remains a solemn contract of partnership entered into between man and woman".