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important themes. First, structures of governance have affected the outcome on
legal recognition in the target locations for this study. The US presents a system
where power is widely dispersed, most clearly between the federal government and
the states, but also between state legislatures, local government, state and federal
courts and, in the context of state-level ballot initiatives, the electorate itself.
The effect of this dispersal of power has enabled supporters and opponents of legal
recognition to pursue highly flexible strategies combining legislation and litigation.
In the US, the Defense of Marriage Act acts as a brake on recognition of same-sex
marriages at the federal level and the fallout from the Proposition 8 referendum
means that the struggle for same-sex marriage in California has assumed national
importance. Canada offers a contrasting picture. The Charter of Fundamental Rights
and Freedoms has also facilitated marriage equality by providing a robust, accessible
and enforceable human rights framework. The willingness of the courts to interpret
human rights legislation as providing a clear legal basis for same-sex marriage can be
seen as a decisive factor in securing marriage equality in Canada, with the human
rights cases brought before provincial courts creating a domino effect that left the
national government no option but to legislate. In contrast to the US, the division of
powers between provinces and territories and the federal government has proven
helpful to advocates of marriage rights in Canada. Although government in Canada
operates under a federal structure, competence over the definition of marriage rests
with the national government, whereas jurisdiction of other family relationships (for
example civil unions and cohabitation rights) falls to the provinces and territories.
Therefore, as recognition progressed, it was possible for individual provinces to
implement their own schemes that fell short of marriage, although once the
Supreme Court had ruled in favour of same-sex marriage, this became a matter for
national legislation. Canada’s parliamentary system also meant that once the
government had resolved to act, the legislation could proceed relatively smoothly.
The transition to same-sex marriage in Canada has relied upon a positive policy
inheritance in terms of relatively early decriminalisation at the end of the 1960s, the
availability of effective human rights instruments and a relatively well-developed
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