How a Hamilton judge helped change U.S. same-sex rights law

Meet the Hamilton-born, CFL-loving, Tiger Cats-cheering judge who helped write a page in the American history book on same-sex spousal rights.

Hamilton judge presided over wedding that led to a landmark U.S. Supreme Court decision

Members of the media look on as Justice Harvey Brownstone marries Scott Gould and Paul Langsholt (right) from Rockford, Ill during a same-sex marriage in Toronto, Saturday February 14, 2004. Gould and Langsholt were one of seven same-sex couples who made the trip to Canada to be married. (Adrian Wyld/Canadian Press)

One Canadian judge was particularly overjoyed as the U.S. Department of Justice, in a historic move Monday, broadened same-sex spousal rights across that country.

That's because this Hamilton-born, CFL-loving, Tiger Cats-cheering judge helped write a page of the American history book.

Harvey Brownstone presided over the same-sex wedding in Toronto that led to a landmark U.S. Supreme Court decision last year, a ruling that has since spurred changes in various federal departments.

The latest change came Monday in a memorandum declaring that all same-sex married couples — even those who live in states that won't recognize their union — are to receive the same legal benefits in court cases, prisons and bankruptcy proceedings as other married couples.

Brownstone said the fact that Canada blazed the trail for the U.S. on a civil-rights struggle is nothing new for a country where slaves exited the underground railway, draft-dodgers found refuge during the Vietnam War and Jackie Robinson began breaking baseball's colour barrier.

"I'm very, very proud that Canada had this major role to play in this monumental constitutional-rights litigation," said Brownstone, a longtime family-court judge who now presides over criminal cases.

"Canada has this amazing history, when you think about it, of being this place to come to for freedom, for respect... for recognition of your human rights."

The wedding that changed everything

It was in 2007, at the Sheraton hotel at Toronto's Lester B. Pearson airport, that Brownstone presided over the wedding that eventually upended the American legal order. Edith Windsor and Thea Spyer had been a couple for four decades and got married with Spyer gravely ill and confined to a wheelchair.

Windsor was later hit with a US$363,053 tax bill when Spyer died in 2009, because the state didn't recognize them as spouses. Thus began a legal fight that wound up at the Supreme Court, with judges ruling 5-4 last year to strike down the existing Defence of Marriage Act.

As the first openly gay judge in Canada, Brownstone had been asked by hundreds of foreign couples to preside over same-sex wedding ceremonies once the practice became allowed in Canada in 2003.

Among all those weddings, he said, he always considered this one couple particularly special. It wasn't just the fact that the New Yorkers had a camera crew documenting their wedding, or the entourage that helped a frail Spyer make the lightning trip from the airport, to the Sheraton, then back to the airport.

He said it was particularly touching because, unlike younger couples, they were celebrating a lifetime of love. Brownstone said he's stayed in touch with Windsor, who called him immediately after the Supreme Court rendered its verdict last year. They still speak by phone about once a month, he said.

'The Rosa parks of the same-sex marriage movement'

"Edie is the Rosa Parks of the same-sex marriage movement (in the U.S.)," said Brownstone, 57, who was named to the bench in 1995 by Bob Rae's Ontario NDP government.

"She was the one that stood up to the government and said, 'No, you can't treat me like this.' And she'll go down in history, for sure, as a pioneer."

Same-sex marriage is now legal in 17 American states.

Same-sex couple Scott Gould (right) and Paul Langsholt, from Rockford, Ill., kiss as Justice Harvey Brownstone fills in their marriage papers following a ceremony in Toronto, Saturday February 14, 2004. (Adrian Wyld/The Canadian Press)

The swiftness of the change would have been almost unimaginable a decade ago. At that time, while Canada had moved to allow same-sex unions, blocking gay marriage in the U.S. was frequently touted as a vote-winner by Republicans in 2004.

Since last year's Supreme Court ruling, the U.S. government has extended health insurance and other benefits for federal employees and their families. It has also recognized same-sex couples for tax purposes, in immigration law, and for military benefits.

Attorney General Eric Holder released a memorandum Monday going further. He instructed all Justice Department employees to give lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.

He said that will allow prisoners to receive the same rights — for visitation, furlough, and funeral-attendance — when they're in same-sex couples. Same-sex married couples won't be compelled to testify against each other in court, just like other married couples. Also, they will be allowed to file bankruptcy jointly.

Holder compared the struggle the civil-rights issue of the 1960s. And he mentioned the Windsor-Spyer case.

"As President Obama has said, 'The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: that when all Americans are treated as equal — we are all more free,' " Holder said in a weekend speech announcing Monday's change.

"In this great country, we move faster, we reach farther, and we climb higher whenever we stand together as one."