rainbow flag in page

It was in the 1970s that the rainbow flag came to be adopted as a symbol of the gay rights movement. That cheerful flag must then have seemed like an obvious choice as an emblem of the inclusive communities of which lesbian, gay, bisexual and transgender (LGBT) people dreamed.

Today it has lost none of its potency, and the rainbow flag continues to be seen at pride celebrations worldwide. An almost equally vivid spectrum can be seen when we consider the ways in which the cause of legal equality for LGBT people has progressed around the world. At one end of this spectrum are those sunlit uplands where full equality has been all but achieved (together with broad social acceptance).

At the other, darker, end are those countries where gay people’s lives routinely attract the attention of the criminal law, and even the death penalty.

Perhaps the most interesting way to illustrate this spectrum is to consider the evolution of partnership rights for same-sex couples. In Great Britain, for example, and in the space of just a few years, there has been a progression from no legal recognition of same-sex relationships to civil partnerships to full marriage equality. All this was achieved incrementally, through the usual parliamentary and political processes, and readers would be forgiven for assuming that similar patterns have been followed elsewhere. In fact, this is an interesting exercise in comparative law because, even among countries that are moving towards equality, we find a wide range of routes leading to the same destination.

Great Britain or UK?

Eagle-eyed readers will have spotted the deliberate reference to ‘Great Britain’ rather than the ‘UK’. Northern Ireland remains the one part of the UK that does not yet have same-sex marriage and so, before looking further afield, a comment about the experience here.

Progress towards LGBT equality in the UK in recent history was hard work. It was the Sexual Offences Act 1967 that decriminalised male sexual activity for those over the age of 21, but that Act did not extend to Scotland or Northern Ireland: the equivalent reforms there had to wait until the 1980s. Then came the notorious s28 Local Government Act 1988, which forbade the ‘promotion’ of homosexuality in schools as ‘pretended family relationships’. Other battles were fought over the different age of consent, including a memorable episode in 1994 when Parliament rejected equality but reduced the age differential. For many campaigners, the replacement of one discriminatory law with another felt like a legislative slap in the face, rather than incremental progress.

In the context of this legal history, the relative enthusiasm with which the new civil-partnership status was received in 2004 was a sea change. Not only were same-sex relationships recognised across the UK for the first time, but some traditionally conservative voices (notably in the press) welcomed the reform. These changing attitudes paved the way for a Conservative prime minister to propose full marriage equality: the Marriage (Same Sex Couples) Act 2013 received royal assent on 17 July 2013 and the Scottish Parliament followed with its own Act in 2014. Only in Northern Ireland does this debate continue. But, if the co-existence of the four nations within the UK added to the complexity of law-making there, consider the U.S. The interplay of federal and state laws within the American system has made for a still more complex picture.

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U.S.: Supreme Court rules OK?

The status quo of traditionally defined marriage in the U.S. began to be seriously challenged in 1993 when the Supreme Court of Hawaii found the state’s prohibition on same-sex marriage was unconstitutional. The decision prompted a flurry of activity that saw other states take legislative action explicitly to restrict marriage to opposite sex couples, and there were similar pressures at a federal level. Those pressures ultimately led to the drafting of the Defense of Marriage Act (DOMA), which, according to the House Judiciary Committee, aimed to ‘reflect and honor a collective moral judgement (as to traditional marriage) and to express moral disapproval of homosexuality’. At the time, President Bill Clinton did not officially support gay marriage but he did regard DOMA as unnecessarily divisive. Nevertheless, when the Bill passed easily through both houses of Congress, the President was bound to sign it into law.

American same-sex couples during this period – and the STEP members advising them – had, you might think, a difficult time. Gay couples living in some states could get married (and divorced) and have their relationships recognised locally, including for state taxes, but not in others. At a federal level, these marriages were disregarded. In tax terms, this required state-tax filings as a married couple but individual federal filings: a legal and fiscal mess of a particularly unhappy kind for all involved. Of course, this was not the end of the story. There was a multiplicity of litigation in which the issue was tested across the country, until the opponents of DOMA found a powerful new ally in President Obama. In 2011, the Obama administration decided that it would no longer defend DOMA in court and announced that it regarded the key provision, s3, as unconstitutional. The Supreme Court got the chance to rule on the matter in 2013 in United States v Windsor.

That case involved a widow whose late wife’s estate had been subject to federal tax as if they were two single people. By a slim majority of 5–4, the Supreme Court struck down s3 of DOMA as unconstitutional. Of course, in a unitary state with a single legal system, the Windsor case would have been the end of the matter. In the U.S., however, there remained various state-wide bans and it took another Supreme Court case, Obergefell v Hodges in 2015, to overturn those.

Republic of Ireland: Vox popului, vox dei?

When Ireland came to tackle gay marriage, it did not have a federal constitution to contend with, but it did have a long history as a socially conservative, Catholic country. A form of civil partnership had been introduced in 2010 (conferring similar, but inferior, rights to marriage) but it was clear that the references to marriage in the Irish Constitution meant, and had always meant, traditional heterosexual marriage.

A change to that position would require a referendum. And so it was that, in 2015, 62 per cent of Irish voters supported marriage ‘by two persons without distinction as to their sex’. This was the first time any country had achieved marriage equality as a result of a plebiscite and an outcome that many outside of Ireland saw as something of a challenge to other liberal democracies, where progress has been slower.

Under the rainbow

At the other end of the spectrum, we find many countries – including most of Africa, the Middle East and the Far East – where, realistically, we do not expect much progress towards LGBT partnership rights. Uganda, for example, passed an Anti-Homosexuality Act in 2014, which briefly made same-sex marriage a crime punishable by life imprisonment. But there are other countries where the slow progress is surprising. Australian couples, for example, can form what are known as ‘de facto unions’ (surely the most unromantic terminology ever?), but there has been no real progress in Canberra towards extending de jure marriage beyond its traditional definition.

Another striking example is Italy. Unlike some other Catholic countries, there was until recently no progress towards the legal recognition of gay relationships in Italy. Of course, Italy is a signatory to the European Convention on Human Rights and the mismatch between the European jurisprudence and Italian law had become clear. European case law had established that states were not required to permit same-sex marriage (the definition of marriage falling within their ‘margin of appreciation’) but they were required to establish some sort of ‘specific legal framework providing for the recognition and protection of… same-sex unions’. The European Court of Human Rights ruled against Italy in these terms in 2015 and a Civil Unions Bill – the latest of many – was finally passed by Italy’s parliament in May.

Conclusion

The need for legal recognition of same-sex relationships has produced a wide spectrum of responses from courts and legislators around the world. We now find numerous varieties of registered partnership, as well as marriage itself, on statute books globally and these give us fascinating glimpses of the workings of the different parliamentary and constitutional systems that have created them. An examination of these differences can be an education in itself (for those of us used to dealing with our own jurisdiction alone). And let us not forget those parts of the globe where equality remains just a dream.

This article was original published in STEP Journal, Volume 24, Issue 1 and had been subsequently updated by Royal Bank of Canada on June 20, 2016.