Abstract
The chapter analyses the path followed within the Canadian and South African case-law to recognize same-sex marriage on an equal footing with heterosexual couples. It highlights the similarity of their points of arrival as well as the differences between the Canadian and the South African approaches. Within the Canadian legal system, Courts decisions played a leading role in legitimating same-sex family from a social point of view, granting them legal significance and recognizing same-sex unions and same-sex marriages. On the contrary, the case-law of the South African Constitutional Court was facilitated by a legal formant which was very favourable to legal recognition of same-sex marriage.
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Notes
- 1.
- 2.
As Nelson Mandela, the first President of the post Apartheid South Africa, said during his Inaugural Speech (Pretoria, 5/10/94): “We enter into a covenant that we shall build the society in which all South Africans, both black and white, will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity - a rainbow nation at peace with itself and the world” (www.africa.upenn.edu/Articles_Gen/Inaugural_Speech_17984.html).
- 3.
See De Vos (2007), pp. 435–443.
- 4.
North v. Matheson (1975) W.W.D. 55, 52 D.L.R. 280.
- 5.
See Casswell (2001), p. 222.
- 6.
This approach has many consequences: see Bailey (2003–2004), pp. 1030–1032.
- 7.
Judge Penzance wrote: “Marriage has been well said to be something more than a contract, either religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom … What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others” ([L.R.] 1 P. and D. 133).
- 8.
Sec. 15, first clause, of the Charter sets out: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
- 9.
“The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law. Unions of persons of the same sex are not “marriages”, because of the definition of marriage. The applicants are, in effect, seeking to use s.15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect” (Ontario Divisional Court, Layland v. Ontario, para. 14–104 DLR (4th) 214).
- 10.
See Manderson and Yachnin (2003–2004), pp. 484–485.
- 11.
See MacDougall (2000–2001), p. 252.
- 12.
See Lahey (2001), pp. 243–247.
- 13.
For a broad analysis on case-law, see Chaplick (1997).
- 14.
Rusk (1993–1994), pp. 174–203, who explores the discriminations faced by same-sex couples claiming spousal rights at the beginning of 1990s.
- 15.
Miron v. Trudel (1995) 2 S.C.R. 418.
- 16.
Knodel v. British Columbia (1991) W.W.R. 728.
- 17.
Leshner v. Ontario (1992) 16 C.H.R.R. 184. Its consequences are analysed by Berg and Nunnelley (2002), pp. 218–221.
- 18.
(1995) 2 S.C.R. 513.
- 19.
See Radbord (2003), pp. 20–22.
- 20.
“The possibility of increase demands on public founds is not an issue”.
- 21.
For a broad analysis about adoption law of the nine Canadian Provinces regarding same-sex couples, see Dort (2010).
- 22.
(1995) 31 C.R.R. (2D) 151. See also Fraess v. Alberta, 2005 A.B..Q.B. 889.
- 23.
Dort (2010), p. 297.
- 24.
16 C.H.R.R. D-226.
- 25.
94 D.L.R. (4th) 1.
- 26.
Egan v. Canada, see note 18.
- 27.
(1998) 1 S.C.R. 493.
- 28.
“Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s[ect]. Fifteen protection as being analogous to the enumerated grounds”. Egan, see note 18, at 514.
- 29.
See, for example, Schnurr (1996–1997), pp. 34–38.
- 30.
See Kuffner (2000), p. 262.
- 31.
Among Canadian LGBT associations, EAGLE played the most active and significant role.
- 32.
2001 BCSC 1365 (CanLII).
- 33.
Loosemore (2002), p. 53.
- 34.
225 DLR (4th) 529.
- 35.
Van Kralingen (2004), pp. 159–160.
- 36.
See Davies (2008), p. 123.
- 37.
Davies, see note 36, p. 112.
- 38.
“If the Halpern and Rogers application for a marriage licence said Colin Rogers instead of Colleen Rogers, Hedy Halpern would today be legally married. … The State therefore denies Hedy Halpern the mate of her choice. In doing so, the law draws a distinction between the applicant and others, based on the personal characteristics of sex and sexual orientation”.
- 39.
“Similarly being restricted from affirming relationships and domestic life in the public sphere through the virtually universal currency of marriage constitutes a curb on public recognition as a valid actor in civil society”.
- 40.
Van Kralingen (2004), pp. 153–156.
- 41.
See Casswell (2004), pp. 710–716.
- 42.
Barbeau v. British Columbia, 2003 BCCA 251 (CanLII).
- 43.
See Romano (2003), pp. 6–10.
- 44.
See: Hendricks and Leboeuf v. Quebec, 2002 CanLII 23808 (QC CS)—Quebec; Dunbar and Edge v. Yukon and Canada, 2004 YKSC 54—Yukon; Vogel v. Canada (2004) M.J. No. 418 (QL)—Manitoba; Boutilier v. Canada and Nova Scotia; (2004) N.S.J. No. 357 (QL)—Nova Scotia.
- 45.
Murphy (2005), p. 25.
- 46.
See MacDougall (2006), pp. 360–363.
- 47.
Sec. 8.2, Const. 1993.
- 48.
See sec. 9.3, Const. 1996: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”.
- 49.
See Lind (2001), p. 285.
- 50.
See sec. 36.1, Const. 1996.
- 51.
Wolhuter (1997), p. 395.
- 52.
See Williams (2004), pp. 47–51.
- 53.
Langemaat v. Minister of Safety and Security and Others (1998) 4 B.C.L.R. 444.
- 54.
Langemat, see supra note 53.
- 55.
Dupper and Garbers (1999), pp. 766–769.
- 56.
On the case-law about discrimination in the employment benefits, see Wood-Bodley (2008), pp. 484–488.
- 57.
Satchwell v. President of the Republic of South Africa and Another, 2002 (9) BCLR 986 (CC).
- 58.
Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as amicus curiae), 2002 (10) B.C.L.R. 1006 (CC).
- 59.
Himonga (2004), p. 731.
- 60.
2006 (13) BCLR 355 (CC).
- 61.
See Marriage Act, Sec. 30.
- 62.
Barnard (2007), p. 510.
- 63.
See Romeo and Winkler (2010), pp. 391–392.
- 64.
De vos and Barnard (2007), pp. 802–806.
- 65.
Fourie, see note 29, at 153.
- 66.
De Vos and Barnard, see note 64, pp. 806–807.
- 67.
See the Civil Union Act 2006.
- 68.
- 69.
See Montalti (2008), pp. 73–77.
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Mostacci, E. (2014). Different Approaches, Similar Outcomes: Same-Sex Marriage in Canada and South Africa. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_4
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