Stonewall is dead. The equal rights activists of the past were true soldiers: protests, riots, flags and parades – anything to bring attention to the cause. Without them, it is unlikely that equal rights for gays and lesbians would be where they are today. Prior to 1990, Canadians and Americans used the same public approach to lobbying. But as 1990 wore on, it became increasingly clear in Canada that despite growing support in public opinion polls, some would argue near 50%, for same-sex marriage, politicians – even the gay-friendly ones – were unwilling to bring forward equal marriage legislation. Mail campaigns and protests had no effect. Gay Pride Parades would not sway. There was no politician willing to make any significant changes – because the status quo was comfortable and harmless.

In Canada and the United States alike, politicians alike bash the courts – calling them agents of social engineering, or claiming that they “create” the law as they see fit. But cry as they will, politicians still follow the will of the courts, claiming they have no choice but to follow the judgments. Although politicians won’t admit this, they need the courts. It’s a Virginia Two-Step: 1. Court makes decision the politician should have made; 2. Politician criticizes Court and wins brownie-points; 3. Both Court and politician win.

Canadian equal rights activists began to recognize this trend, and in late 1990 and early 2000s, Canadian activists moved their efforts from lobbying and protesting, to litigating. The results were astonishing. Appeal courts in province after province began to strike down discriminatory marriage laws. By 2005, courts representing 90% of Canadians had declared marriage between a man and a woman to the exclusion of all others to be no more.

The United States can learn an important lesson from the Canadian approach to fighting for equal rights for same-sex couples. While American politicians banter endlessly about democracy and the supremacy of Congress, politicians are unfortunately inherently risk-averse who prefer to do nothing (which offends no one) over doing something (which is bound to offend someone). Politicians need a good scapegoat in order to do the right thing – and the right thing is often turning to the courts to do a politician’s job for them. Activists in the United States can use this inherent weakness of politicians to better the cause: give politicians a good excuse to do nothing, and let the courts do the work.

In a sense, Canada has given equal rights activists in the United States a roadmap to equality. Our approval of same-sex marriage, and the fact that society has not fallen apart, will provide supporters and detractors alike with solid examples of how love, in all its forms, can co-exist in a pluralistic society. And our case law will provide American courts with the legal reasoning to prove it.

This is not to say that activists can sit back and let things happen.

For many gays and lesbians in the world, it may seem that Canada’s recognition of equal rights for same-sex marriage arrived effortlessly by itself. But success came at the expense of much time and effort and activists who not only worked hard, but worked smart.

It’s that simple: Drop the flags, abandon the protests, join a PAC, raise some money, hire some good lawyers, and get litigating. See Canada for instructions.

Kent Glowinski is a lawyer in Ottawa, Ontario, Canada. He is the author of the book Narcissistic Personality Disorder, found at www.narcissism.ca

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