TORONTO — Two Toronto men were married on Tuesday, in the first legal gay marriage ceremony in North America. The men immediately took advantage of a landmark Canadian appeals court decision that ruled that Canada’s ban on gay marriage is unconstitutional.

Just hours after the decision, Michael Leshner, 55, and Michael Stark, 45, tied the knot in a civil ceremony at the largest courthouse in Toronto. Leshner’s 90-year-old mother sang “O Canada,” the Canadian national anthem, at the historic union, which was attended by about 50 of friends and relatives.

“Yesterday, we were giddy with happiness,” Leshner told the Blade. Justice John Hamilton performed the ceremony. “All we had to do was produce the license,” Leshner said. “He said it was an honor to marry us. They treated us like royalty."

In addition to allowing ceremonies like Leshner and Stark’s, the court retroactively validated the unions of two couples who had already been married by the Metropolitan Community Church in 2001. Canadian officials have confirmed that gay couples from the U.S. may also be married in Ontario, leading American gay activists working on legalizing gay marriage in this country to ask whether American couples married in Ontario will have their unions recognized back home. They are also talking about the impact of the Canadian ruling on court cases and pending bills in individual states.

Evan Wolfson, executive director of Freedom to Marry, is ecstatic about the decision.

“It puts tremendous winds in our sails in our freedom to marry movement,” said Wolfson, whose organization is seeking to win marriage equality nationwide.

Joanna Radbord, a gay marriage supporter in Toronto, just married her partner, Maretta Miranda. She was also one of the attorneys who argued the case before the appeals court.

Radbord expects Martin Cauchon, Canada’s minister of justice, to make an announcement soon about a potential appeal, but she is hopeful the decision will be left standing.

“It looks like the government is not going to appeal the decision,” Radbord said. “When we were arguing the case, one of the federal government lawyers said it would be the last time they were going to argue it.”

The issue of gay marriages has already been litigated in several Canadian provinces, with mixed results. Prime Minister Jean Chretien is stepping down soon. According to Radbord, Paul Martin, one of the leading contenders for Chretien’s position, has stated, “If [the gay litigants] were successful before the Ontario Court of Appeal, that should be the end of the legislation.”

Radbord added that Deputy Prime Minister and Minister of Finance John Manley, another front-runner to become prime minister, said that marriage for same-sex couples is acceptable to most Canadians.

Conservatives, however, have expressed their unhappiness with the decision. They have expressed interest in seeking to overturn Tuesday’s decision. “Should Parliament or the courts be deciding this?” asked Peter Jervis, a constitutional lawyer who is representing a multi-faith coalition that opposes the decision. “That’s why it’s an interesting issue.”

Jervis’ clients include the nation’s Roman Catholic Bishops (the largest religious organization in the country), the Islamic Society of North America, the Evangelical Fellowship of Canada (including 40 denominations), the Ontario Council of Sikhs and the Catholic Human Rights League.

“I’m not surprised at the finding that this was discriminatory,” Jervis said. “They’ve taken a radical approach. They said ‘We’re going to decide this ourselves. We’re not going to give the Parliament the chance to decide this.’” Jervis said he questions whether Parliament should be in the business of defining gay marriage. “A further complication is that the government is defining a social institution,” Jervis said. “It’s happened in Vermont. Is that the right approach?”

‘Comity’ for U.S. couples?

Stateside, Wolfson said the decision can only help gay men and lesbians here because the Ontario court ruled that discrimination is very clear in this context — and the remedy is very simple.

Although gay marriage lacks legal recognition in the United States, the decision will be a catalyst for change, said Wolfson. Vermont is the only state that recognizes civil unions, yet it is still outside the realm of the full rights and responsibilities of legal marriage.

“The exclusion from marriage infringes on human dignity, harms real families, and benefits no one,” Wolfson said. Legal challenges are ongoing in Hawaii, Massachusetts, New Jersey and Indiana. “In Massachusetts, where we expect a ruling from the state’s highest court, a decision could come in a matter of weeks,” he said.

Already, in Michigan, same-sex couples are planning on crossing the Friendship Bridge into Ontario to marry, according to the Associated Press. “There are no residency or citizenship requirements for Americans to marry in Canada,” said Radbord. But Wolfson cautioned that, upon return to the United States, the definition of “comity” will determine its value.

“Canadian and other foreign marriages are recognized in the U.S. via the legal concept of ‘comity,’” which, according to Wolfson, “is the respect given by jurisdictions to other jurisdictions. The bottom line of ‘comity’ is that in almost all cases, a marriage that is legal where celebrated is respected elsewhere. So people have the security of knowing their family is intact as they travel.”

In Michigan, some officials are already grappling with the predicament. A same-sex marriage license may never be recognized in Michigan because state law defines marriage as a union between a man and a woman.

“I think there is concern — whether it be in a neighboring province or in another state where homosexual marriage is legalized — that it may lead to court challenges of Michigan’s Defense of Marriage Act,” Gary Glenn, president of the American Family Association of Michigan told the Associated Press.

“The Vermont decision was good in its context,” Radbord said. “It is progressive, but in Canada we wanted to achieve something more than second-class status. Your courts are in a whole different era on gay and lesbian rights issues,” she said.

Internationally, she added, Canada’s highest court is well respected.

Leshner himself is an expatriated American who became a Canadian citizen in 1972.

“To be gay in America, you might as well be living in Kabul,” he said.

He added that in the United States, there is only public policy debate and tolerance but legal protection is absent. In Canada, on the other hand, gay sex was legalized nationwide in 1967. Common-law homosexual couples received the same rights as their heterosexual counterparts in 1999.

“This is the best tourist place short of the Netherlands and Belgium,” Leshner said. The Netherlands was the first country to legalize gay marriage on April 1, 2001. Belgium did so more recently.

Within the last decade, several countries have moved to create a new marital status for gay men and lesbians, according to Lambda Legal Defense & Education Fund. Denmark, Norway, Greenland, Sweden, Iceland and the Netherlands established a registered partnership by honoring each other’s partnerships. Several other European countries are considering similar legislation, as is the European Parliament.

“When the country’s largest trading partner, closest neighbor and NATO ally has ended marriage discrimination, it means that the Canadian couples will need to be treated with respect here,” Wolfson said. “They will see that the sky doesn’t fall when a country treats its gay citizens with respect and equality, including the freedom to marry,” he added of the United States. “If Canada can do it, we can, too.”

GAY MARRIAGE LAWS
Countries with gay marriage:
Netherlands (2001), Belgium (2003)

Countries with marriage-like “registered partnership”:
Denmark (1989), Norway (1993), Greenland (1994), Sweden (1995), Iceland (1996)

Countries with D.P. laws:
France (1999), Germany (2001), Portugal (2001)

Countries with some D.P. recognition:
Austrialia, Brazil, Israel

U.S. states with civil union laws:
Vermont

U.S. states with D.P. laws:
California, Hawaii, New York, District of Columbia

U.S. states with pending marriage challenges:
Massachusetts, Hawaii, Indiana, New Jersey