The Globe and Mail breathlessly reported today that the Harper government had made an "about face" on the issue of gay marriage and was arguing in Federal Court that gay couples from foreign jurisdictions where same-sex marriage is not legal cannot be legally wed in Canada:
The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.First of all, let's look at the plaintiffs in this case, who were married in Canada but live in Florida and the UK. Florida does not recognize gay marriage, and the UK has civil partnerships for gay couples but not marriage. It seems self-evident to me that the "rights and legal status" of a Canadian marriage as outlined in Canadian law apply only if you live in Canada. Canada has no power to extend rights to non-citizens who are resident in a foreign jurisdiction that does not recognize the legality of their union. If a foreign couple from such a country wants legal recognition of their married status, they have to live in Canada.
But speaking in Halifax Thursday, the Prime Minister said the issue was not on the agenda for his majority Conservatives. “We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report.
The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married – a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.
The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.
Secondly, the couple is seeking a divorce in Canada, not a marriage. The Federal Divorce Act is crystal clear on who can divorce in this country:
3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.The goverment's hands are tied; they cannot hear a divorce case for a foreign same-sex couple (or a heterosexual couple, for that matter) unless at least one spouse has lived in the country for one year. This fact was pointed out to gay couples who flocked to Canada to get married when it became legal to do so here - in fact the CBC warned gay couples of the potential difficulty back in 2009:
Some same-sex couples from the U.S. who got married in Canada are running into trouble getting divorces, according to an Oregon lawyer.
Gay couples have been flocking to cities like Vancouver with its large gay community since same-sex marriage was first legalized in the summer of 2003.The truth is that same-sex Canadian marriages are NOT legally valid - if you live in a foreign jurisdiction that does not recognize gay marriage. This was true under the previous Liberal regime and is still true today. The Canadian government cannot compel sovereign foreign nations to recognize Canadian laws no matter how enlightened they may be.
Several of those couples have since approached Oregon lawyer Beth Allen looking for a divorce, but Oregon doesn't recognize gay marriage, or divorce, so they can't get a divorce there, she said.
As well, a residency requirement in Canada's Divorce Act requires one of the two married people to live in this country for a year before a divorce can be granted, and those U.S. states which recognize gay marriage also have residency requirements for divorce.
The news almost always comes as a shock for the couples, Allen told CBC New on Friday morning.
"It's really a horror story for those who went up there hoping for a lifetime of happiness, wanting to break up, and having an extra layer of trouble on that dissolution," said Allen.
Rain Henderson, a Vancouver lawyer and expert on matrimonial law, says marriage application forms should include a new warning for same-sex couples.
"It just talks about you can't marry your uncle, your aunt, your brother or sister kind of thing. It doesn't say be cautious, because you might not be able to get divorced," she said.
Henderson has this advice for gay Americans looking to marry here: "I would say not to do it, because it is, at this point in time, such a procedural bar."
The legend of Harper's "Hidden Agenda" refuses to die, though, and clowns like Bob Rae and Olivia Chow are doing back flips to point out that the Tories are now trying to turn back the clock on gay marriage. As reported by the Toronto Star, Rae sanctimoniously intoned that
Harper’s Conservative government was making a move to gut same-sex marriage rights 'by stealth'and Chow stated that
the Harper government was using a “back door way” to deny the marriages of thousands of gay couples who married in Canada and live abroad in states hostile to gay marriage.US advice columnist and gay rights advocate Dan Savage fears that his own marriage is in jeopardy and that
If same-sex marriage isn’t legal for foreigners in Canada, if our marriages aren’t valid in Canada, it’s possible that this move by Harper’s government means that couples like us — same-sex couples from WA (Washington state) who married in Canada — are no longer domestic partners under the law here in Washington state. What a headache.Take a tour through the comments in the Globe and Mail if you have the stomach for it. Here's one example:
What did you expect from Mr. Harper, the right-wing extremist and reactionary!! If he could, he would probably make homosexuality illegal and put women back into the kitchen (you know the old German saying that a woman's domain are "Kinder, Küche, Kirche" (children, kitchen, church). Harper and his so-called conservatives are more akin to the Fascists of 1930s Germany and Italy. They are certainly not interested in democracy, but in heavy-handedly imposing their views and philosophy on others, their constituents. They are also much too much influenced by the American Right, and will likely do anything to get and remain in their good graces.I hate to spoil a good hate-fest, but the hysterical left is way off base on this one. Harper was apparently unaware of the case now before the courts, and he and Justice Minister Nicholson immediately clarified the Government's position:
Stephen Harper said it was news to him and muttered he was not interested in re-opening the gay marriage debate.
Later Thursday, Nicholson released a written statement to clarify the government “has no intention of reopening the debate on the definition of marriage.”That's it, folks - show's over. Everyone move along now. No one is trying to make anyone's marriages retroactively illegal, and in fact the government is now apparently going to make divorce easier. That doesn't sound much like a hidden agenda to me, but I'll be the first person to admit it if I'm proven wrong.
“I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”
UPDATE: In the January 13 National Post:
A clever lawyer, not a hidden agenda
Same-sex union issue 'closed'
Andrew Coyne - "Shoddy reporting and cheap politics create a phony crisis":
You would never know from any of this that in fact there had been no change in policy: that the position advanced by the government lawyer was not new, but merely a statement of settled law. You would never know because neither the Globe nor anyone in the frothing mob it aroused bothered to ask a lawyer — other than the one contesting the case. Had they done so, they would have been told some version of the following:
Normally marriage law is relatively straightforward. Each country defines marriage for itself, and within its borders its citizens are bound by that definition. Where citizens of one country marry in another, however, responsibility is divided between the two, according to the set of common-law rules known as “conflict of laws.”
The “formal validity” of the marriage — that is, whether the vows were exchanged in the appropriate manner— is determined by the laws of the place where the marriage was performed. But the “essential validity” — that is, whether the couple were eligible to get married at all — is determined by the laws of each partner’s “ante-nuptial domicile,” the place they lived before they were married.
There’s no actual controversy on this point. It’s supported by reams of precedent. It’s not some invention of this government, or of Canada for that matter, but is part of the fabric of international law. Nor is it surprising: I’m basing this article in part on a piece by Jeffrey Talpis, professor of law at the University of Montreal, in the Lawyer’s Weekly of Sept. 22, 2006. It’s hard not to sympathize with those who were told when they came to Canada they were legally married. But the fault lies with those who misstated the law then, not those who correctly interpret it now.
STILL FURTHER UPDATE:
Jan. 14 editorial from the National Post: Hidden agenda hysterics:
So why the nervous breakdown? The most charitable answer is that Canada's left is genuinely fearful of an erosion of gay rights in this country. But these people can't all be that dumb. What's more probable is that most of them know the Tories have no desire to revisit the gay marriage issue, and are merely clinging to the notion that the Conservatives are homophobes to score political points.
It won't work, though. Both Paul Martin and Michael Ignatieff, when they led the Liberals, tried repeatedly to sow fears of Tory plans to ban abortions, revive capital punishment and discriminate against gays. None of it happened, and Canadians have shown an admirable resistance to being duped by such baseless claims. The Harper government's alleged homophobia is a cynical, slow-news-day media invention, and casts far more discredit on the government's hysterical critics than the government itself.