In 1929, when Lorna Parsons tired of her four-year marriage to a London, Ontario tailor, she decided to seek a divorce—in Reno, Nevada. Even though Lorna's divorce was not generally recognized in Canada, obtaining it was important to her and to the hundreds, if not thousands, of Canadians who similarly sought United States divorces at a time when Canadian law was extremely restrictive. The choices of Parsons and her compatriots should be of interest to legal historians. They problematize the idea of national legal history by reminding us that law does not always remain in the tidy jurisdictional containers constructed by legal authorities and academics. National boundaries are more porous, and the nature of law itself more fluid, than we often admit.Footnote ¹

It is not surprising that legal history, as it has been practiced in academic settings over the last century, is almost always written as national legal history. National institutions such as courts and legislatures have a comforting boundedness about them, law schools teach national law, and most lawyers practice it. Our sources tend to be located in national archives and in the national language(s), and our legal literatures limit themselves to their nation of origin. All of these factors lead legal historians to assume as normative the shape of the modern nation–state and to project it backwards, thus assuming the exceptionalism of their own nation. It may also be observed that scholars have not rushed to embrace comparative legal history, which again is probably related to the assumption that nations are exceptional and cannot be profitably compared.Footnote ² Certainly this was Montesquieu's view. Writing in the 1740s, he observed that as laws should be framed to suit the people whom they are to govern, “it should be a great chance if those of one nation suit another.”Footnote ³

It cannot be denied that national cultures help to shape their laws, but it is also the case that nations and national cultures do not exist in hermetically sealed silos. They share features with other nations as well as possessing distinctive traits. Our argument is not that there is no such thing as national law, that studying the history of national legal orders is unimportant, or that individual nations do not have distinctive legal traditions. Rather, it is that national legal traditions as they may exist today are themselves the product of ongoing exchanges of legal and cultural ideas and practices within and beyond national boundaries. National boundaries are more like nets than walls; they are porous barriers that may block the entry of some ideas but not others. This porosity is itself subject to historical flux. At some times the holes in the net may be larger or smaller, but there are always some holes. In the early national period and down to the mid-nineteenth century, for example, the United States was particularly receptive to foreign law and continued to draw significantly on English law even though it fought a second war with Britain from 1812 to 1815. Bernard Hibbitts has shown how United States law reviews displayed perhaps surprising interest in Canadian legal developments down to the beginning of the twentieth century, after which that interest waned rapidly. Broadening the point, he goes on to cite “a substantial modern literature that has begun to describe the nineteenth century's legal pantheism and to relate its demise to factors like the consolidation of nation states, the imperial use of discretely metropolitan law for empire-building purposes, the triumph of legal positivism, and the proliferation of locally oriented legal publishers.”Footnote ⁴

Building on these ideas, we wish to make two arguments using the Canadian experience as a case study. First, Canada provides a particularly clear example of a porous legal order. Although what are now the common law provinces all received, at different times, English law and English-style legal institutions, and although that law and the ideologies underpinning it long remained powerful, Canadian legal history is far from a tale of monolithic transplantation of the imperial inheritance. Basic concepts were inherited not only from England, but also from the French and Aboriginal traditions. In addition, as social, economic, and political changes called for legal reform, Canadians were presented with a choice of models not restricted to those of the “founding” traditions but including the United States, other settler societies, and continental European countries other than France.

Second, Canadian legal history may be fruitfully invoked in a comparative perspective to provide insights about the legal history of other nations. Why Canadians chose to follow or not follow a United States legal innovation, for example, may tell us something about the history of United States law as well as of Canadian law, as we will demonstrate later on. The Canada–United States comparison is especially interesting because both nations share the heritage of the English common law; a unified legal profession; a continental geography with an open border until 1930; long interaction with indigenous peoples; significant multicultural immigration; a tradition of religious diversity inflected with a strong Protestant ethic; and similar economies, patterns of landholding, transportation and communication networks, and leisure pursuits. Where they differ is in Canada's rejection of the American Revolution and its commitment to incremental legal and political change within a parliamentary system based on British ideas of liberty and order.Footnote ⁵ The Canadian example therefore presents a fruitful terrain for examining the relative influence of formal legal and constitutional ideas and assumptions versus those deriving from the culture at large.

We will pursue the two branches of our argument using the example of family law, which seems appropriate for two reasons. First, there is often an assumed homology between the nation and the family.Footnote ⁶ The family is often seen as the nation in miniature, or put another way, the nation is the family writ large. Second, family law has long been viewed by historians as one of the most deeply-rooted areas of law in a given society, one that is most reflective of deep cultural assumptions and therefore most resistant to change. Although this view may itself be exaggerated,Footnote ⁷ as indeed parts of this article amply demonstrate, the fact remains that at least some aspects of family law can be argued to reflect deep cultural values.Footnote ⁸ It is also the case that the perceived importance of family law has produced an ample literature that we can exploit for this foray into comparative legal history. If we can demonstrate the utility of our approach to the development of family law, it suggests that this perspective would have an even wider impact in other areas of law.

Time and space do not permit an examination of all areas of family law. We consider a number of suggestive examples, drawn from the eighteenth to the later twentieth centuries, which illustrate these themes.

Aboriginal Marriage and Intercultural Marriage

Until well into the eighteenth century, intermarriage between Europeans, whether French or British, and indigenous inhabitants, was not uncommon in the northern reaches of North America, leading ultimately to the creation of a new people, the Métis of western Canada. It became less common in the Laurentian valley of New France after the arrival of more French women in the latter part of the seventeenth century helped to balance the sex ratio within the European population, but it continued to be practiced in Acadia until the deportation of 1755 and remained important in the upper Great Lakes, Rupert's Land, and British Columbia well into the nineteenth century. These pairings usually involved male Europeans and native women, but not always. Some European women married native men after being captured in the raids on New England by the French and their native allies, the most famous example being Eunice Williams, the daughter of a Puritan minister carried off after the raid on Deerfield, Massachusetts in 1704. Williams converted to Catholicism, married a Mohawk warrior, and became a well-known figure in the Kahnawahka settlement near Montreal.Footnote ⁹

Some of these intercultural pairings were transient relationships but many were actual marriages celebrated according to native customary law.Footnote ¹⁰ Eventually courts administering both the French-derived civil law of Quebec and the common law had to decide whether mixed marriages celebrated according to native custom were legally valid. In Connolly v. Woolrich, decided in 1867, the Quebec Superior Court held that such a marriage, celebrated in 1803 at Rivière-aux-Rats in what would later become the Northwest Territories, was valid by Cree law and recognized by Quebec law, rendering a subsequent Christian marriage by Mr. Connolly bigamous. His attempted divorce of his first wife according to Cree law, however, would not be recognized by Quebec law.Footnote ¹¹ Two decades later the Northwest Territories Supreme Court had to decide whether a marriage according to native customary law between a Native American man and woman was valid after the date of reception of English law (15 July 1870) into the Northwest Territories. In R. v. Nan-e-quis-a-ka, Justice Wetmore not only decided that it was, but stated that it would be “monstrous” to expect Native American people to marry according to English traditions and laws at that point in the history of the Canadian West.Footnote ¹²

There were some conflicting precedents in later decades but ultimately it was Connolly v. Woolrich that formed the cornerstone of federal policy toward native marriage for decades, as articulated in an 1887 order-in-council. That policy had three elements: yes to marriage by native law, whether between Native Americans or a mixed couple, and even if the marriage was potentially polygamous under native lawFootnote ¹³; no to native divorce; and no to polygamous native marriage. There was also a fourth, invisible, element to this policy, which was the failure of the law to proscribe racially mixed marriages. In her recent book The Importance of Being Monogamous, Sarah Carter argues that federal policy was not motivated by any particular solicitude for Native Americans, but was instead part of a larger effort to shore up the institution of monogamous marriage from threats by Mormons and polygamous immigrant communities as well as polygamous native peoples.Footnote ¹⁴ We are less interested in the motivations, however, than in the underlying assumptions about the validity of native law and native marriage as co-existing with European law.

There were, or would soon be, several choices available to lawmakers. In 1888 the English Chancery Division decided that a potentially polygamous marriage in South Africa between an Englishman named Bethell and a woman named Teepoo of the Barolong tribe was invalid according to English law even though it may have been valid according to Barolong law.Footnote ¹⁵ Therefore, when Bethell died in the course of fighting against the Boers, his estate went to his brother in England and not to his wife in South Africa. Critics of Canadian federal policy often cited Bethell v. Hildyard in an effort to persuade the Department of Justice to withdraw its recognition of native marriages, but to no avail.Footnote ¹⁶

In the United States, the law on native marriages depended upon the racial identity of the parties. Consistent with its broad approach to tribal sovereignty in many areas, United States law recognized both marriage and divorce according to tribal laws, even polygamous marriage, so long as the parties in question were Native Americans and resident on a reserve. As the Michigan Supreme Court stated in Kobugum v. Jackson Iron Co. in 1889, “We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usage are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes.”Footnote ¹⁷ Marriages between whites and Native Americans according to native custom were recognized in some states at some times, but after the Civil War they faced increasing resistance; courts began to overturn or ignore earlier favorable precedents on the subject, and eight states passed laws proscribing Native American–white marriages altogether.Footnote ¹⁸

The recognition of native marriage law by the Canadian government and Canadian courts undoubtedly sprang in part from the particular circumstances of European–aboriginal relations, such as the economic interdependence that was the hallmark of those relations in many places and periods, and the fact that the “subjugation” of many native groups was a planned and relatively nonviolent process in the prairie West. But Canadian policy was also based on views about law and specifically the acceptability of a degree of legal pluralism in the crucial period in which native marriage law was debated and decided. Perhaps as a result of long experience with a dual system of law among the European population, it was seen as acceptable for law to occupy precisely the “middle ground” castigated by the Michigan Supreme Court. Canadian authorities recognized native law not as a separate and distinct law radically different from Canadian law itself, but as a body of law at least partially incorporated into Canadian law. How else to explain that federal authorities felt able to recognize parts of native marriage law but not others, such as divorce?Footnote ¹⁹ Unlike the “all or nothing” stance taken by United States courts, or the non-recognition position taken by the English courts, Canadian courts did not treat native marriage law as radically “other.” Timing and settlement patterns were also significant here.Footnote ²⁰

Later courts would be more explicit about how native customary law was related to Canadian common law. In a case dealing with Inuit customary adoption in 1972, the Northwest Territories Court of Appeal decided that native customs could be regarded in the same way that the common law regarded other customs such as gavelkind: custom did not have to extend to time immemorial, rather “a continuous, peaceable, and uninterrupted user of the custom” as far back as living memory goes was sufficient to establish it.Footnote ²¹ And although marriages according to native customary law are seldom encountered today, adoptions under native customary law continue to be recognized for most legal purposes; indeed, Connolly v. Woolrich was cited with approval as recently as 1994 in this context.Footnote ²²

Moral Visions of the Family vs. Family Economy

On the question of which family law would govern the European population, Canadian courts and legislators again were faced with choices, this time not only about marriage and divorce, but also about parent–child relations, marital property, and inheritance. Provinces with a common law tradition had at least two models open to them: English family law, strongly marked by marital and paternal authority, the protection of legitimate lineage as determined by primogeniture, and by male authority over property; and United States “republican” family law, with its more egalitarian impulses, which began to chip away at marital and paternal authority; abolish primogeniture; liberalize divorce; and blur the distinctions between legitimate, illegitimate, and adopted children. Although the role, function, and ideology of the family were broadly similar in English and United States life there were some divergences based on underlying economic, social, and cultural differences between the two societies. To put it starkly, the imagined community of English family law was one of landed gentlemen and their dependent ladies, whereas that of United States family law one of white yeoman farmers and their helpmates.

The imagined community of Canadian family law was an amalgam of these two visions. From the eighteenth to the early twentieth centuries Canadians were open to United States-inspired changes in inheritance and marital property law that recognized the reality of widespread landholding and family capitalism, while adhering strongly to the ideal of the English patriarchal family in matters of divorce, illegitimacy, and custody. Perhaps the best example of this gap is in the province of New Brunswick, which abolished primogeniture in 1786 and pierced the veil of coverture by statute in 1851 by shielding a wife's assets from her husband's creditors, but continued to insist upon fathers’ rights in custody law until at least 1975, long after they had been abandoned in England and virtually everywhere else in the Western world.Footnote ²³

The origins of the New Brunswick married women's property law remain obscure, but those of a similar statute of 1859 passed in Upper Canada have been better documented.Footnote ²⁴ The statute, as was common with the “first wave” of married women's property statutes, did not grant full dispositive powers to a wife who had brought property to a marriage or acquired it afterwards. Rather, the Act simply declared that such property would be “free from the debts and obligations of her husband, and from his control or disposition without her consent,” implying that he still had to consent to any disposition of her property. It also set out a process whereby a married woman could obtain a protection order for her earnings and those of her minor children, and could actually spend them without her husband's consent, in a variety of cases in which the husband was unfit or in which she was living apart from her husband for any reason “which by law justifies her leaving him.”

While earlier versions of the Act were being debated in the later 1850s, legislators made clear their familiarity with a variety of laws, including those of New York State, the English Matrimonial Causes Act of 1857 (which pioneered the protection orders mechanism), and both French and Quebec civil law. Upper Canadians were particularly interested in the French concept of marchande publique, by which a married woman could engage in business on her own account and contract in her own right without her husband's consent for business purposes, although they did not ultimately go that far in the 1859 Act. Closer to home, they were aware of the possibility of marrying while keeping separate property under Quebec law, a regime that provided the benefits of the equitable separate estate with none of the complications. As Lori Chambers concludes, “the legislators borrowed selectively from the other jurisdictions, adapting their ideas to fit the perceived needs of the Upper Canadian community.”Footnote ²⁵ Later reforms tended to imitate the English Married Women's Property Act 1882, but the initial breaches in the doctrine of coverture had been inspired by United States innovations, and to a more limited extent, by French and Quebec law.Footnote ²⁶

Another United States innovation along these lines that spread to Canada was homestead protection law.Footnote ²⁷ This law, which mimicked common law dower but also went well beyond it, protected the family homestead from creditors, required the wife's consent to its inter vivos disposition, and directed that it be passed on to the widow and/or children after a husband's death. The first such example occurred in the colony of Vancouver Island in 1865 and the law was reenacted and amplified the following year after the island united with the mainland colony to form British Columbia. Although the desire to insulate families from economic distress was a major concern, so also was the desire to attract United States immigrants with capital. Given the existence of generous homestead exemptions in neighboring states, it was argued that “similar advantages” would have to be provided if British Columbia were to retain United States immigrants.Footnote ²⁸ This notion, that Canadian law in the economic field should mirror the incentive structure of United States law, or at least not be too alienating to a United States audience, is one that resonates throughout Canadian legal history, far beyond the field of family relations.

Inheritance too quickly departed from English norms, with primogeniture abolished everywhere by the mid-nineteenth century, whereas dower, essentially abolished in England by the Dower Act 1833, was not only maintained but expanded in the eastern provinces.Footnote ²⁹ In the western provinces, where the English Act of 1833 was received, a statutory form of dower was reinstated in the form of homestead laws, as noted earlier.

In these three areas, then, all concerning property and the family, Canadians largely preferred solutions that emanated from the United States. It seems tempting to attribute legal developments here to the socioeconomic similarities between Canada and the United States, particularly the more widespread and diffuse pattern of land ownership and more equal gender relations in the exploitation of the land. Indeed Lawrence Friedman has argued that this difference between the Old World and the New World was precisely the impetus to family property reform in the United StatesFootnote ³⁰ But whereas socioeconomic structure may well have provided the motivation for reforms that departed from the English inheritance, their particular shape and direction was also influenced by a legal culture in which pluralism played a significant role. Canadians looked to the United States for models, but as Chambers points out, there was selective borrowing from a variety of jurisdictions.

The picture becomes more complicated, however, when we turn to the core features of family law— divorce, custody, and legitimacy. Here we find a marked reluctance by Canadians to adopt United States reforms. Although the Maritime provinces had adopted judicial divorce almost a century before it was available in England, the number of divorces successfully obtained was extremely small, certainly no greater than the numbers in those provinces that relied on legislative divorce. In Nova Scotia, for example, only thirty-four divorces are known to have been granted between 1750 and 1890.Footnote ³¹ In 1901 the total number of divorces obtained in all of Canada was exactly eleven. Meanwhile, 55,000 divorces were granted in the United States in 1900. The United States population was fourteen times larger than Canada's at the time, but its divorce rate was 5000 times higher.Footnote ³² In the field of custody law, judicial and later legislative cutting down of the father's common law rights began as early as 1809 in the United States, whereas legislative changes came much later in Canada and were only reluctantly implemented by the judiciary until late in the nineteenth century, and in some provinces, much later yet, as we have seen with the New Brunswick example.Footnote ³³ Relaxation of legal strictures against illegitimate offspring in the United States, meanwhile, began as early as 1785 in Virginia, and by 1886 thirty-nine states and territories had granted them the right to share in their mothers’ estates; in Canada such changes would not begin to arrive until the 1920s and 30s.Footnote ³⁴

Canada was also reluctant to adopt the anti-miscegenation laws that proliferated across the United States in the nineteenth and early twentieth centuries. These laws prohibited marriages not just between blacks and whites, which might be thought to be a particular United States preoccupation because of the heritage of slavery, but between Native Americans and whites, and between whites and a variety of Asian and Pacific peoples.Footnote ³⁵ Although such laws inspired some degree of support in Canada and legislators were lobbied to adopt them, none were ever passed.Footnote ³⁶

Peggy Pascoe's analysis of the anti-miscegenation laws suggests indirectly the factors that were at work in Canada. She points out that the main impetus to anti-miscegenation laws in the United States was the end of slavery and the need to shore up white supremacy by removing the patina of respectability provided to black–white unions by marriage. Intimate unions between blacks and whites would continue of course, but would remain stigmatized as concubinage or worse. Such laws contained an important contradiction, however, in that they necessarily curtailed the right of white men to choose their marriage partners. Only a countervailing consideration of overriding importance, the shoring up of white privilege itself, could justify this incursion on the “natural” right of the white male.Footnote ³⁷ Seen in this light, the Canadian experience is not evidence of an enlightened stance on interracial marriage but rather a confirmation of male privilege consistent with the otherwise patriarchal nature of nineteenth-century Canadian family law.Footnote ³⁸ The “price” of this upholding of male privilege was that non-white males might, in theory, choose marriage partners of other races without seeing their unions legally stigmatized. Without the same history of slavery and its abolition, there was no particular reason for Canadian law to curb marriages between whites and blacks, or indeed between those of any other races.Footnote ³⁹ Native American–white marriages had been accepted for so long that there was little desire to proscribe them. The one place where one might have expected to see such laws emerge was in British Columbia, where a whole battery of discriminatory laws against the Chinese and Japanese were passed; but even there disapproval of white–Asian intermarriage was left to the social realm and never given legal imprimatur.Footnote ⁴⁰

To explain these differences between the United States and Canada we turn explicitly to comparative legal history, which can not only suggest why Canada adopted some family law reforms and not others, but also provide insight into the jurisdiction being used for comparison, the United States. Consider three of the main explanations that have been advanced as crucial to the making of United States family law after the Revolution. Michael Grossberg argues for the centrality of the Revolution in shaping what he calls a “republican” family law, one marked by an increasing emphasis on contractualism and the autonomy of family members, a reconfiguration of authority in the family, an intensification of intimate relations centered on the home, and a sharper division of gender roles, with virtuous women reigning at home while combative men fought it out in the marketplace.Footnote ⁴¹ Lawrence Friedman, meanwhile, has seen economic factors, especially widespread landholding, as the main stimulus to changes in family law. With the New World having much larger numbers of smallholders than had the Old World, the need to clarify title to property during marriage and after divorce was much more pressing.Footnote ⁴² Peggy Pascoe, for her part, asserts that family law, or at least marriage law, was shaped principally by the imperative of race: United States society needed to mark out the legitimate white family as the only respectable and valued form of family life.Footnote ⁴³

Grossberg's concept of the republican family is indirectly supported by the wide variation in core family law principles as between the United States and Canada. Given the broad similarity in family life and family structure in the two societies, it is hard to explain the legal differences just mentioned without reference to some larger ideological or political variable, such as the impact of the Revolution in the United States and the absence of one in Canada. However, the notion of the republican family seems to have little explanatory power with regard to the adoption of married women's property laws, which crossed the border to Canada with relative ease, where a decidedly non-republican family ethos reigned in the legal sphere. Nor can Friedman's suggestion that widespread property-holding drove changes in divorce law in the United States be correct, because Canada had very similar patterns of landholding but a very different experience regarding divorce. The Canadian experience with divorce was, as we have suggested, arguably shaped by non-revolutionary principles. The fundamentally conservative familial ideals held by both Anglo and French Canadians formed an almost impregnable barrier to divorce reform.Footnote ⁴⁴ For Anglo-Canadians, an enduring self-perception of their fundamental “Britishness” inspired loyalty to an imagined ideal that was being abandoned in Britain itself, whereas French-Canadians did not dissent strongly from the position of their clerical leaders with regard to the indissoluble character of marriage. Something this powerful was needed to overcome the legal pluralist tradition that seems to have marked other areas of reform. Yet legal culture probably mattered in the lack of racial proscriptions in Canada. Pascoe's interpretation of United States anti-miscegenation law as being aimed at shoring up white privilege after the abolition of slavery may well be correct, and if so would apply in reverse in Canada—no slavery, no need to find an alternative. But there may well also be another factor rooted in legal culture—the British ideology of the rule of law, which stressed formal equality under the law, even though “in the shadow of the law” many white Canadians found other ways to discourage interracial unions.Footnote ⁴⁵

Moral Visions and Economic Realities in Late Twentieth-Century Family Law

The later twentieth century presents a similar kaleidoscope of similarities and contrasts across national borders. The great trend of the postwar period has been the rise in no-fault divorce throughout the developed world, such that the divorce laws of many nations resemble each other very closely. So too with the abolition of patriarchal and paternal authority: marriage is now seen as a partnership of equals, and the best interests of any children are to be the key legal consideration if custody arrangements cannot be agreed upon in case of marriage dissolution. This change was perhaps most marked in Quebec, where the French-inspired patriarchal family enshrined in the Civil Code of Lower Canada of 1866 was rapidly discarded in favour of a looser Scandivanian-inspired community of autonomous individuals in reforms of the 1960s and 70s.Footnote ⁴⁶ Gender neutrality has become de rigueur in the drafting of all family-related legislation, and distinctions between legitimate and illegitimate children are now forbidden by international law as well as most national laws. The interracial marriage prohibitions contained in United States law have disappeared in the wake of the Supreme Court's decision in Loving v. Virginia in 1967, although two states only got around to repealing constitutional provisions on the subject in 1999 (South Carolina) and 2000 (Alabama).Footnote ⁴⁷ The position of different nations on recognition of relationships functionally similar to marriage reveals more diversity, with some mandating spousal-like status after a certain period of cohabitation, others maintaining a strictly hands-off position, and others somewhere in between. But the moral economy of the marriage-based family, as revealed in law, no longer displays the transnational variety within Western society that it did in the nineteenth century, subject only to the hot-button issue of same-sex marriage, to which we will return in a moment.Footnote ⁴⁸

Curiously enough, the area of family law in which there now appears to be the most diversity between nations relates to property division and support upon divorce. England and most of the states of the United States employ a system of judicial discretion (called “equitable distribution” in the United States) with regard to sharing of assets post-divorce. A small minority of states have laws that are founded upon a presumption of equal sharing, but the rest do not, and a majority of even the “community property” states actually practice equitable distribution rather than equal distribution. The authors of a recent overview declare that “[i]n the final analysis, judicial discretion is the hallmark of equitable distribution,” and observe that the issue of “whether equal division is the most equitable . . . is far from resolved and perhaps never will be.”Footnote ⁴⁹ In Canada, by contrast, when the Married Women's Property Acts were being replaced with new family law legislation in the late 1970s, no province opted for a divisional regime based upon judicial discretion; all adopted a model combining separate property during marriage with a deferred communal pool of family or matrimonial assets, or a sharing of their increase (or decrease) in value over the course of the marriage. There is a strong presumption of equal sharing that will seldom vary; hence there is very little room for judicial discretion.Footnote ⁵⁰

In some ways this is the obverse of what one might expect between the United States and Canada—one would expect the United States, with its strong rights tradition, to be attracted to what is now the Canadian model, whereas one might have thought that Canada, where concepts of need rather than entitlement have traditionally been more important, would have been more enamoured of judicial discretion in post-divorce property division.Footnote ⁵¹ However, the availability of the Quebec model of partnership of acquests, essentially a deferred community property model adopted there in 1970, seems to have been quite influential when reforms to matrimonial property law were being debated elsewhere in Canada in the mid-1970s. The Ontario Law Reform Commission observed in its 1974 Report on Family Property Law that the Quebec reform “combines the best features of the systems of separation of property and community property without attracting the disadvantages of either, . . . thereby allowing a degree of equality that is unattainable under present Ontario law.”Footnote ⁵² That observation of course assumes that equality is the goal of property division on marriage breakdown, whereas in the United States the importance of basing division on the parties’ respective contributions has continued to structure the exercise of judicial discretion.Footnote ⁵³

Turning to same-sex marriage, it should be clear that the existence of laws permitting it in Canada and several European countries will be highly relevant to the unfolding of the debate in those countries where it is not yet allowed. Yet some scholarly commentary still takes place within an exclusively national silo. Nancy Cott's fine book Public Vows: A History of Marriage and the Nation, is one such example.Footnote ⁵⁴ Writing in the late 1990s, Cott did not predict one way or the other whether same-sex marriage would be allowed in the future, but seemed to accept that the 1996 federal Defence of Marriage Act would be conclusive in preventing any further spread of same-sex marriage at the state level. In fairness to her, at the time of writing no country had yet permitted same-sex marriage—the Netherlands was the first to do so in 2001—but the momentum for change internationally was clearly underway. Cott's discussion nonetheless takes place entirely at the national level. The existence of Canada as a marriage haven for gay and lesbian couples since 2003, along with legislative developments in Europe, will ultimately exert some influence on the direction of judicial and legislative change in the United States. We began with the story of Lorna Parsons, and in the short term, in the 1920s, the decisions of people like her to seek a divorce in the United States could be seen as a welcome safety valve by Canadian legislators, relaxing the pressure to alter Canadian law, and the United States could continue to be portrayed in Canada as a frivolous, hedonistic society uncommitted to preserving the family. But over the longer term, the presence of the United States model, along with a variety of other social and legal changes, helped to undermine the Canadian devotion to strict divorce laws. One might hypothesize a similar development with regard to same-sex marriage. Although the availability of “same-sex marriage havens” outside the United States may function to preserve the status quo in the short term, they may weaken the will to retain that status quo over the long term.

Foreign models can never exercise conclusive influence over developments within a particular nation, but their existence can help shape national discourses. Even the United States Supreme Court, traditionally highly resistant to recognizing legal developments outside the country, has begun to shift its position recently.Footnote ⁵⁵ In Lawrence v. Texas in 2003,Footnote ⁵⁶ the Supreme Court overturned its 1986 decision in Bowers v. Hardwick with regard to the constitutionality of state sodomy laws dealing with conduct between consenting adults. In Bowers Chief Justice Burger had noted that “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.”Footnote ⁵⁷ In Lawrence Justice Kennedy observed that Chief Justice Burger's sweeping statements were incorrect even at the time, citing the venerable Wolfenden Report,Footnote ⁵⁸ the decriminalization of most homosexual acts in Britain in 1967, and the decision of the European Court of Human Rights in Dudgeon v. U.K. in 1981 overturning Northern Ireland's sodomy law.Footnote ⁵⁹ The claim put forward by Bowers, and by extension Lawrence, said Justice Kennedy, could not be said to be “insubstantial in our Western civilization.”Footnote ⁶⁰