Marriage License

The Dutch do it. The Belgians do it. Now the Canadians are doing it, too. When will Americans join the modern world and start legally recognizing same-sex marriages?

This month, both Brussels and Ottawa threw open marriage's legal doors to same-sex couples. But it was Canada's newly gender-neutral marriage law that set American lesbian and gay couples' hearts beating faster. Canada has no residence requirement or waiting period for marriage licenses. As a result, whether from Seattle to Vancouver, Minneapolis to Winnipeg, Detroit to Windsor, Buffalo to Toronto or pretty much anywhere from New England to Montreal, American same-sex pairs can now take legal vows -- in English, no less -- with just a quick trip across the border. Feeling here is running so high that a number of American lesbian- and gay-rights organizations have distributed a joint advisory to listservs and newspapers explaining the legal implications of making the trip. American lesbian and gay couples are already zipping over and back; by year's end, the new underground marriage railroad will have carried hundreds, if not thousands. "We're used to American refugees from injustice," said Douglas Elliott, one of the Canadian lawyers who sued the government for marriage licenses and won.

But American media coverage continues to miss the main point of this shift: Canada is far from alone. In fact, as few Americans realize, the United States lags badly behind most of the developed world in recognizing and regulating same-sex pairs. And we may soon be forced to catch up.

Most Americans first heard the phrase "gay marriage" in the wake of the Hawaii Supreme Court's 1993 ruling when three same-sex couples challenged the state's marriage law. The court didn't quite order the government to start issuing marriage licenses to lesbian and gay pairs, but it did rule that for the state, under Hawaii's equal rights amendment, to refuse such licenses looked like sex discrimination -- and so government had the burden of showing why such marriages were unjustified. After voters passed a state constitutional amendment that gave the legislature the power to ban such marriages, the Hawaii Supreme Court backed down. Nevertheless, the case, Baehr v. Lewin, set off a nationwide debate, as well as the passage of an Orwellian series of "defense of marriage acts" in 1996 by the U.S. Congress -- and, as of now, by 37 states as well. This summer, when it's expected to decide a same-sex marriage lawsuit in Goodridge v. Dept of Public Health, the Massachusetts Supreme Judicial Court may well open marriage to American lesbian and gay citizens -- a step that I'll wager is just a bit more likely in the wake of our northern neighbor's recent decision. New Jersey is next in the judicial queue. Given the predicted clash over whether marriages in Canada, Boston or Trenton will count in other American states, nuclear-family forces are already preparing their troops for what Stanley Kurtz of the National Review warns will be "the mother of all cultural battles."

But here's the bigger picture: In the rest of the developed world, same-sex marriage is less controversial every day. South Africa is poised to recognize it in 2004, and Sweden may not be far behind. Half the countries in Europe already offer or will soon introduce systems protecting lesbian and gay relationships more comprehensively than Vermont's civil-unions law does.

Marriage everywhere has been forced to the top of the gay-rights agenda because no other legal idea so comprehensively helps a couple care for each other (or themselves) through sickness, disaster, divorce, disputes and death. Who gets to inscribe a cancer victim's epitaph, her beloved of 13 years or her estranged family? If a couple breaks up, can one partner claim all the property and leave the other penniless? Can a same-sex widower claim his partner's military pension? While each of these questions has surfaced in particular cases here and abroad -- Barone v. Friedman (Pennsylvania, 1998), M v. H (Canada, 1999) and Steiner v. IDF (Israel, 1997), respectively -- the underlying questions about who officially belongs to whom have been percolating into public discussions everywhere from Brazil to Slovenia. In all those countries, civil marriage -- and its shadow, common-law or de facto marriage -- is a legal shorthand, a zip file full of answers that have accumulated over centuries to hundreds of disputes.

But of course, marriage is not just a legal instrument; it's also a symbolically powerful institution, a religious and political battleground whose rules and borders have been fought over for millennia. Each country that has tackled this issue has had to figure out how to help same-sex partners according to its own traditions. Which means that looking at civil marriage worldwide offers a number of models that differ dramatically from our own, and from each other.

Both Canada's and Belgium's weddings have been thrilling for those who've been watching the issue. But full marriage rights are just the tip of the iceberg: In most of the developed world, lesbian and gay couples have been getting partnership rights under some other name. More than 318 million world citizens live under national family-law systems that treat lesbian and gay couples equally, or very close to it. By the end of 2005, that roll call will include the Netherlands, Belgium, England, Sweden, Denmark, Norway, Finland, Iceland, Greenland, Germany, Hungary, Scotland, Switzerland, France, Australia, New Zealand, Portugal and South Africa. And in many places where the national government is dragging its feet, states, cantons and provinces (such as half those in Spain, Switzerland's Zurich and Geneva, most of Australia, and Argentina's Río Negro and Buenos Aires) have raced ahead of their federal governments to offer as much as their laws allow.

Those nations that have gone furthest share at least two out of three key elements: profound cultural, political or constitutional commitments to social justice; legal pragmatism about regulating couples, whether or not they've said "I do"; and genuine separation of church and state.

Start with the first two and you're in Scandinavia. Scandinavian national and religious identities have fairness and tolerance at their core: To be unfair is to be un-Danish, un-Swedish and so on. And the Scandinavians have a long tradition of marital nonconformity: Historically, up to half of Scandinavian couples didn't marry until the first baby was born. So perhaps it's no surprise that the world's first same-sex partnership breakthrough came in 1989, when the Danish parliament passed a brilliantly simple bill. In just a few sentences, the statute says that two people of the same sex can register their partnership -- and that registered partnerships (RPs) would have all but a few of the legal effects of marriage. Within a decade of Denmark's RP law, every Scandinavian country and the Netherlands had followed suit.

Almost no one in the United States noticed Scandinavia's conversion to lesbian and gay equality. But Europe did. Given its exhausting history of bloody religious warfare, it's no surprise that northern European countries separate church and state far more strictly than our country does, especially when it comes to marriage. The French Revolution stripped priests of any legal power over marriage, a concept spread by Napoleon's conquests across much of the continent (and beyond). From Germany to Belgium, couples must take God-free marriage vows in city hall -- and only afterward, if they so choose, may they walk to a church, synagogue or mosque for a second wedding. Europeans are often shocked to find that, in the United States, ministers, rabbis, imams and priests can wave the magic wands of both church and state at the same time. The result: Europeans grasp more easily than Americans that changes in civil marriage make no incursions into religious marriage.

Throughout Europe, in recent years, when liberal-left coalitions have won power, they usually pass same-sex partnership laws. Sometimes the measures are weak, as in France's 1999 Pacte Civil de Solidarité or Portugal's de facto unions law. Sometimes it's almost as comprehensive as the Scandinavian laws, as in Germany's 2001 Lebespartnerschaften or Life Partnerships, or the Swiss law that will take force in 2005. Under a constitutional nondiscrimination clause, Hungary's constitutional court gave common-law marriage to same-sex pairs in 1995. Scotland's Liberal Democrats have put an RP law in their platform, and in England, Labor will submit a bill on the topic this summer. Even under Spain's conservative government, which regularly squashes any RP-like proposals, nearly half the country's regions -- nine of 19 -- have passed local "civil union" laws like Vermont's. The Dutch began with an RP law, but in April 2001, leapt ahead of the pack, declaring that lesbians and gay men deserved full equality -- and broke open the "m-word" for lesbians and gay men.

The word "marriage" matters because it's recognized by every nation in the world, unlike any alternative system a nation might invent. No one knows yet whether or how if a couple is registered in Denmark, the legal relationship would be recognized if they travel through the Czech Republic or Cyprus. In fact, the liberal European Parliament (based in Brussels) and the conservative European Council of Ministers have been battling fiercely over that question: Should the European Union require cross-recognition under its guarantee of "free movement" throughout the union? Yes, there will surely be cross-recognition challenges about same-sex marriage as well -- but at least the word "marriage" gets the couple into court.

Which brings us to why Belgium, of all countries, became the second in the world to perform same-sex marriages. By the time the Dutch-speaking Flemish and the French-speaking Walloons -- each of which had listened to their linguistic compatriots' respective debates, just across the border -- got around to deciding how to treat lesbian and gay pairs, in the popular mind there was just one question left: RP or marriage? Belgian citizens yawned and leapt directly to marriage.

A slightly different set of legal traditions led Canada to full marriage rights, traditions it shares with two other common-law nations, Australia and New Zealand. In the 1970s, as different-sex couples started shacking up in massive numbers, Canada, Australia and New Zealand decided to make marriage automatic -- lest women get exploited, tossed aside and land on the dole. No need to sign in: Should you and your honey dally more than a few months at the same address, the state automatically treats you as married, with or without your consent. Because such informal couples exchange no vows, hymns or blessings, religion had far less investment in keeping common-law marriages homo-free. Australia and New Zealand have strong socialist traditions; Canada has a constitutional clause banning discrimination based on sexual orientation. As a result, all three countries have steadily extended de facto unions to same-sex pairs. And in Canada, it wasn't far from de facto unions to the M-word itself -- which, according to polls, was a jump favored by 54 to 44 percent of the citizenry, with numbers lower in rural areas and higher among young people and the Quebecois.

South Africa will probably be next to extend full marriage rights to gay and lesbian pairs. There, under a beautiful constitutional article that bans discrimination based on sexual orientation, lesbian and gay activists have won all marriage's rights and recognitions except the word itself. What's more, they're about to launch a lawsuit for that last brass ring, which they expect to grab in 2004. "The courts have said that second-grade recognition and second-grade accommodations are not adequate," explains Evert Knoesen, director of the Lesbian and Gay Equality Project in South Africa. "Our own view is that our case is iron clad."

In other words, not just North America and the European Union but the entire developed world will soon be facing questions about cross-recognition. If a Canadian man gets an American job, will he automatically be able to bring his husband to the United States? If a Belgian woman who owns a Tuscan vineyard unexpectedly dies, will Italian courts recognize her bereaved widow as the automatic heir? If a bisexual man leaves his South African husband and marries a woman in Ireland, in which country can he be tried for bigamy? If an Indianapolis woman zips up to Toronto to marry her female partner, will Indiana's family law courts agree that she's fulfilled her custody decree -- which bans anyone but a legal spouse from spending the night when her children are home -- or yank away her kids? Such questions will be as annoying as mosquitoes, and will keep pestering U.S. courts and such international forums as the United Nations Committee on Human Rights in the years to come.

So why is the United States behind the rest of the developed world on lesbian and gay partnership rights? As a nation, we lack all three elements that have led to breakthroughs elsewhere: the shared commitment to tolerance and social justice, the matter-of-fact attitude toward civil marriage, and the bright-line distinction between church and state. But of course the comparison is more than a little unfair. The United States -- culturally and, on family matters, legally -- is really many countries divided by a common language. On gay rights, New England is our Scandinavia while Texas and the Deep South are as recalcitrant as eastern Europe.

As in Europe, one American state will, sooner or later, go first. Vermont's hesitant step wasn't much. Its governor and legislature did the least possible under its top court's Baker v. Vermont ruling. So far, civil unions have had almost no legal effect in other states -- which means that the lesbian and gay couples within Vermont's population of 608,827 (or .02 percent of the nation) are protected only so long as they don't drive to New Hampshire for dinner. But this summer, Massachusetts may very well open marriage's doors. According to a 2003 Boston Globe/WBZ-TV poll, 50 percent of state residents give same-sex marriage the thumbs up. According to the University of New Hampshire's Granite State poll, the live-free-or-die folks favor same-sex marriage by 54 percent to 42 percent. In New Jersey, where a similar lawsuit is percolating, 55.6 percent of working-class Hudson County residents believe lesbians and gay men should have full marriage rights. And the younger Americans are, the harder it is for them to understand why their gay and lesbian friends can't be legally married, with approval numbers among those under 35 typically jumping to around 70 percent.

Whether American gay and lesbian couples head to Toronto, Boston, Trenton or some other city to say "I do," they'll want to be married when they fly back to vowel states such as Alabama, Iowa and Utah. It took more than 50 years of pitched battles before states fully recognized one another's divorces; it may well take that long before Boston marriages are good throughout the nation. As lawyers and legislators duke this out in courts and committees, let's hope they notice that Americans are scarcely innovating. We're simply catching up with the rest of the world.

EJ Graff, the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution, is a visiting scholar at the Brandeis Women's Studies Research Center and a Prospect contributing editor.