Same-sex marriage has been defined as the quintessential “values” issue in American politics. In the 2004 elections, 11 states banned gay marriage and the marriage ban referenda were credited with increasing voting turnout in some states. Despite the fact that courts have issued rulings in favor of same-sex marriage in Hawaii, Vermont, and Massachusetts, political mobilization in support of lesbian and gay rights faces well-organized and well-entrenched opposition and seems unlikely to succeed in the foreseeable future. In contrast, in Canada, court rulings in the three most populous provinces as well as the Supreme Court of Canada, have led to proposed federal legislation legalizing same-sex marriage. Cross-national differences in human rights policies between Canada and the U.S. do not end on the same-sex marriage issue. In Canada, same-sex marriage is the culmination of a decade of legal and legislative change in the status of lesbian and gay citizens in Canadian society, changes that include broad measures recognizing same-sex relationships and parenting rights as well as systematic and constitutionally protected bans on public and private discrimination. In the U.S., same-sex marriage is a potent issue for the lesbian and gay communities in part because, in many jurisdictions, it is legal to discriminate against lesbians and gays in areas such as employment and housing and because the recognition of same-sex relationships is not nearly as widespread as it is in Canada.

In this paper I present a brief paired comparison of Canada and the U.S. in order to explore the cross-national variance in public policy in the lesbian and gay rights area, including the specific issue of same-sex marriage. These two countries are similar systems in many respects, sharing a common history, language, culture, legal roots, and religious heritage. Both societies have undergone substantial social change since the 1960s. With the rise of the women's movement and the increased participation of women in the labor force, both countries have witnessed important changes in family forms and gender relations. In both cases, the gay liberation and women's movements of the late sixties and early seventies gave rise to the modern lesbian and gay rights movement, focused on securing liberal citizenship rights for lesbian and gay (and, more recently, bisexual and transgender) people (Adam 1995; Rayside 1998).

Yet, despite these similarities, there are profound differences in public policy outcomes between these two countries. As Barry Adam has recently remarked, “legislation to bring gay and lesbian Americans full citizenship rights has been proceeding at a glacial pace,” a situation he characterizes as yet another form of American exceptionalism (2003, 261).While anti-discrimination measures have been solidly in place for 10 years in most Canadian jurisdictions, such measures are nonexistent in many U.S. jurisdictions. Only 11 U.S. states prohibit employment discrimination against lesbians and gay men at the state level and antigay ordinances are often used to forestall discrimination protection in cities and states across the U.S. (Solokar 2002). Local and city level bans on sexual orientation discrimination are usually restricted to the public sector and lack mechanisms for enforcement (Button, Rienzo, and Wald 2001). On the issue of relationship recognition, the Liberal government in Canada passed comprehensive federal legislation in 2000, and this has been followed by many provinces and territories (Smith 2002). In the U.S., relationship recognition has developed piecemeal across public and private sector employers. In Canada, same-sex marriage is a final and to some extent symbolic step in a successful legal and political campaign for the recognition of same-sex partners in Canadian law and policy. In the U.S., same-sex marriage is seen as the means to the achievement of many of the parenting and relationship rights that are already available to lesbians and gay men in Canada (Moats 2004).

What explains the public policy differences in human rights protections between these otherwise similar systems? The approach here draws on the historical institutionalist approach to explaining policy change. Developed by scholars such as Theda Skocpol and Paul Pierson, this approach suggests that political outcomes must be understood as the result of long-term historical processes in which critical junctures and path dependency foreclose certain options and reinforce others (Pierson 2003; Pierson and Skocpol 2003). Political institutions and policy legacies open up certain opportunities for social movement politics while foreclosing others and these opportunities influence the policy agenda of each of the movements.

In this case, differences in the process of social movement strategizing and organizing and the discursive constructions of lesbian and gay rights claims have been determined in part by the political institutional context in which the two movements arose and by the policy legacies of the late 1960s. Canada's 1969 law reforms, which legalized sodomy, formed a critical juncture in comparison with the failure of U.S. states to decriminalize sodomy. The legalization of sodomy has been the most important public policy issue in the lesbian and gay rights area in the U.S. over the last 20 years. In Canada, sodomy laws are a non-issue (Kinsman 1996). This difference between the policies of the two countries attracted little attention at the time; the change to Canadian law was made as part of a package of family law reforms designed on the British model of family law reform. The intent of the changes was to modernize family law; at the time the legalization of homosexual behavior (sodomy) attracted less public attention than other features of the reform package such as the easing of access to divorce.

Several features of the institutional environment facilitated this critically important change in Canadian policy. First, unlike in the U.S., the federal division of powers in Canada allocates criminal law powers to the federal government. Second, the parliamentary system makes it much easier for a determined executive to pass its legislative agenda unopposed. In the U.S., the division of powers system provides more points of access for determined opponents and the criminal law regulation of sodomy is a power belonging to the states, not to the federal government. These differences have greatly exacerbated the difficulty of legalizing sodomy in the U.S.

This critical juncture in the evolution of public policies to ward lesbians and gays has had important repercussions through policy debates on lesbian and gay rights. First, the lesbian and gay movement in the U.S. must counter the categorization of homosexuals as putative or potential criminals (Cain 2000, 282–3; Rimmerman 2002, 57–64). This puts the movement in a much more defensive posture than the Canadian movement, which has not had to counter the stigma of criminalization. In public opinion terms, the question of criminalizing homosexual behavior is still a live issue in American politics, while questions about the legality of homosexual behavior are no longer mentioned in public opinion studies in Canada. Although many states have dismantled their sodomy statutes, state sodomy laws on the books in the U.S. over the entire post-Stonewall era of social movement organizing in the U.S. up until the 2003 Lawrence decision (which struck down such statutes as unconstitutional) have had important shaping effects on the political debate on lesbian and gay rights in the U.S. In the U.S., the “legality” opens the door to the wholesale condemnation of homosexuality in public discourse and frames the definition reinforces the legitimacy of religious values that define homosexuality as evil or sinful. The discursive field of public policy and political debate defines the “gay marriage” debate as a question of moral values while, in the Canadian debate, by contrast, same-sex marriage is treated as a question of human rights. Canadian evangelicals have had to fight an uphill battle against the definition of same-sex marriage as a human rights question.

Second, the criminalization of homosexuality in the U.S. has had important effects on the construction of legal issues surrounding lesbian and gay rights claims. As Christopher R. Leslie argues,

In different ways, legal doctrines such as suspect status under the equal protection clause, the right to privacy and First Amendment rights have all been shaped, directly or indirectly, by the criminalization of sodomy. Under the equal protection clause, sexual orientation or homosexuality could be treated as defining a category of citizens whose differential treatment requires strict or heightened scrutiny. However, the fact that, until Lawrence, homosexual conduct has been defined as criminal has been cited as grounds for denying lesbian and gay citizens the protection of suspect classification on the basis of sexual orientation (Cain 2000, 185–192). Furthermore, criminalization has affected the way in which the First Amendment has been used to create a distinction between conduct and status. While the First Amendment protected the rights of gays and lesbians in the U.S. to assemble freely and to circulate newsletters and other materials through the mail, it was not legal for homosexuals to engage in certain conduct (i.e., sodomy). Hence, the criminal prohibition on sodomy was a factor in the development in American law and policy of the distinction between “conduct” and “status,” a distinction that is unknown else where and that has led to stigmatizing policies such as “don't ask, don't tell” (Halley 1999). In this way, the criminalization of sodomy reinforces the obstacles to lesbian and gay rights recognition in other areas.

Other features of the political-institutional landscape have also made life easier for lesbian and gay rights opponents in the U.S. These political-institutional differences are particularly striking in the current debate over same-sex marriage. Courts in both Canada and the U.S. have ruled in favor of same-sex marriage. The Massachusetts decision (Goodridge) is particularly noteworthy when compared to the Ontario Court of Appeal decision in Halpern. Both of the decisions draw on the legal heritage of English common law in reaching a decision on the constitutionality of same-sex marriage and the Goodridge decision cites Canadian precedents, including Halpern—an unusual move for an American court. But debates over same-sex marriage in Canada and the U.S. are only superficially similar. The observation that courts in both countries have ruled in favor of same-sex marriage obscures profound differences in the meaning of these decisions in relation to preexisting policies and the large political-institutional structure of which courts are a part (Smith, forthcoming).

With regard to the meaning of the decisions, as previously noted, same-sex marriage is largely a symbolic question in Canada. Canadian public policies, federal and provincial, have already legalized sodomy, banned public and private discrimination against lesbians and gay men, recognized same-sex relationships, and permitted same-sex couples and lesbian and gay people to adopt children. In contrast, in the U.S., same-sex marriage would indirectly extend partnership benefits and the recognition of the legal status of children in queer families. In addition, focusing on the similarity of the same-sex marriage decisions in Canada and the U.S. obscures important differences in the relationship between courts and other political institutions in the two political systems. In the U.S., the separation of powers, the impact of federalism, and the access points provided by state-level initiatives have provided gay rights opponents with important levers to oppose the recognition of gay and lesbian rights. In contrast, in Canada, the opposition lacks these institutional levers.

This is illustrated by the recent frustration of same-sex marriage opponents in Canada compared to the successes of their American counterparts. A spate of same-sex marriage cases led the Liberal government to write legislation favoring same-sex marriage, legislation that would create a common legal standard for same-sex marriage across the provinces and territories of Canada. There is strong opposition to such legislation across party lines (although especially concentrated in the Conservative party) and in well-financed evangelical organizations. Conservative provincial governments, such as Alberta's, which have close ties to the evangelical movement, have argued that Parliament should vote against the legislation or that a national referendum should be held on the issue. It is expected that the vote on same-sex marriage in the House of Commons will be quite close, with less than 25 votes separating the two sides in the 308-seat House. In other words, there is substantial opposition to same-sex marriage in Canada. But, votes in the House of Commons are usually controlled by the government side; although Canada currently has a Liberal minority government, it is thought that the Liberals, in conjunction with other parties in the House of Commons, will control the vote on same-sex marriage. There are no other means for federal Conservatives to stop the measure.

In contrast, recent events in the U.S. demonstrate how political institutions work to the advantage of same-sex marriage opponents. Federalism in the U.S. means not only that both state and federal governments have some jurisdiction over the definition of marriage but, more importantly, that some state constitutions provide for initiative and referendum; both have been used many times by opponents of lesbian and gay rights, most famously in Colorado in 1995 in a measure that outlawed protection from discrimination for lesbians and gays in that state (later overturned as unconstitutional in Romer) (Donovan, Wenzel, and Bowler 2001). The infamous gay marriage bans of the 2004 election year were mainly placed on the ballot by legislators or by petition.

If these measures were available in Canada, they surely would have been pushed hard by the Progressive Conservative government of Ralph Klein in Alberta, which strongly opposes same-sex marriage and which has used every possible legal and constitutional argument against having to submit to the will of the federal government and the courts on the issue. While the Canadian constitution contains an override clause, permitting legislatures (federal and provincial) to override certain rights provisions, this option is not available to the provinces because of their lack of jurisdiction over marriage (Hogg 2004).

Some might object to this institutionalist analysis by arguing that public opinion accounts for Canadian-American differences in human rights protections for lesbian and gay citizens. A longstanding tradition in political science attributes Canada-U.S. differences to political culture (Horowitz 1966; Lipset 1990). Applied to the human rights policy area, this might imply that Americans are simply more conservative, more religious and less postmaterialist than Canadians, factors that have fatally undermined support for lesbian and gay rights in the U.S. and that provide the essential contextual backdrop for the differences described above (Adams 2004).

While public opinion may play a role at certain policy junctures, differences in policy and in social movement politics are simply too vast to be explained in terms of public opinion or political culture alone. On some policy issues, there is virtually no difference between Canadian and American public opinion. For example, public opinion in the U.S. overwhelmingly favors anti-discrimination measures in employment for lesbian and gay citizens and scholarly analysis of the recent evolution of public opinion shows dramatic change in favor of lesbian and gay rights in the U.S. over the course of the 1990s (Lewis and Rogers 1999; Brewer 2003). But, despite public support, even simple anti-discrimination measures are not in force in most U.S. states. While Canada is legalizing same-sex marriage, the U.S. has debated and passed state and federal constitutional amendments to ban same-sex marriage. Yet, public opinion polls have reported a wide range of results on this issue in the two countries, ranging from a low of 28% support for same-sex marriage in Canada outside Quebec (putting English-speaking Canada behind the U.S. in support for same-sex marriage) to a national high of support in Canada of 54%. (Fournier et al. 2004; Ipsos Reid 2003). U.S. opinion has ranged as high as 50% in support of same-sex marriage, depending on the wording of the question (Grossman 2003). At a general level, public opinion is too blunt an instrument to explain specific policy differences.

Similarly, the politicized evangelical movement plays an important partisan and political role in both countries. This movement cannot be read simply as a political cultural phenomenon, but must be understood as a social movement, actively seeking and exploiting political opportunities (Staggenborg and Mayer 1998; Herman 1997). In the U.S., political institutions provide many openings for the Christian evangelical movement. In turn, these openings influence public opinion on lesbian and gay rights issues. Local initiatives and referenda are particularly important in this regard. These campaigns have important effects on public opinion. After all, public opinion is not a naturally given societal variable; rather it is molded in the political process through elite cues, media framing, and political campaigns (e.g., initiative or referendum campaigns) (Donovan, Wenzel, and Bowler 2001, 182–4; Soule and Earle 2001; Soule 2004). For example, Donovan, Wenzel, and Bowler found that Republican voters became more intolerant of lesbians and gays as the Republican leadership cued its base to an anti-gay message, an effect that was particular pronounced following anti-gay initiatives (Donovan, Wenzel, and Bowler 1998).

In sum, comparing the Canadian and American experiences in the lesbian and gay rights areas demonstrates that political institutional differences and the historical pacing of policy change can drive otherwise similar systems in different policy directions. Over time, the gap between Canada and the U.S. on lesbian and gay rights issues has widened substantially. While there may be some political cultural and public opinion differences between Canada and the U.S., these are not sufficient to have caused the huge gap that now exists with respect to lesbian and gay human rights protections. Political institutional differences and the legacies of previous policies have set up very different debates, policy dynamics, and policy outcomes in the lesbian and gay rights arena in Canada and the U.S. In turn, this suggests that Americans may not be as polarized as is sometimes suggested in red-state/blue-state analyses. Rather, differences between Americans on issues like same-sex marriage may be exacerbated and reinforced by specific features of American political institutions.