Nice to see that the Harper Government has moved rapidly to resolve legal confusion over the issue of same-sex marriage. As reported in The Globe & Mail today: “All same sex marriages performed in Canada are legal and the law will be changed to ensure that divorce is readily available to non-residents who were married in the country, Justice Minister Rob Nicholson says.”
I wonder if all the indignant liberal folks appearing on TV and fulminating in blogs that have been asserting Harper and the Conservatives were nefariously plotting to undermine gay marriage by stealth utilizing the legal system will now admit they were being completely hysterical and apologize for their baseless allegations?
WARNING: Holding of breath in anticipation of the foregoing may result in fatal outcome.
If anything, Harper should be applauded for the way he and Rob Nicholson deftly handled this situation. After all, it wasn’t exactly something of their making. Moreover, it took a certain degree of moral fortitude for Harper to flatly reject the pleadings of “family values” Christian wingnuts like Charles (Hey, notice how the bogus “Dr.” isn’t used anymore?) McVety and his ilk to reopen the debate over SSM.
Perhaps now we’ll never have to hear of this ridiculous issue ever again. After all, practically everyone but the most insane, fanatically religious fringe of the right-wing is completely over it and could pretty much care less.
Red Tory v.3.0.3 
The Conservatives are still pretending that the “Legal option” put forth by the justice was a valid and that the fault all lies with the Liberals. Indeed, they are going so far as to suggest that it is only because of them that these marriages are valid today. This is chutzpah and gigantic scale.
The legal option was
1) unconstitutional on its face
2) Means that the government was guilty of fraud
3) That Canada does not recognize marriages of interracial couples that violated any Anti-miscegenation laws in their country of residence.
4) Did not recognize marriages that took place here and that other jurisdictions recognized.
5) Pretended that this law of domicile is hard and fast rule even though they are fully aware that plenty of jurisdictions that do not recognize legally wed same sex couples as anything more than room mates.
Koby: Yes, I read your blog posting. Thanks for re-stating its key points here.
I don’t agree with your interpretation. The statutes as currently written should have been amended with foresight by the previous government to address the inevitable ramifications of divorce, in which case, it would have forced the Justice Dept. of the day to recognize that some of the existing provisions of the legislation with respect to non-residents and their marital status vis-à-vis other jurisdictions was highly problematic, especially when it came to the formal nullification of same-sex unions.
So, in fact, the legal interpretation put forth by the Justice Dept. lawyers here does seem to have been technically correct under the circumstances… And now the Conservative government is vowing to set about fixing the anomalies.
Which is a good thing, right? So what’s the problem?
You are running two problems together.
1) There is the problem of same sex couples who were unable to divorce because they reside in a place that does not recognize their marriage license. That should have been addressed before and looks like it will be addresed now. Naturally, the Conservatives blamed the Liberals for this despite this problem existing for 6 years under their watch. Given this lastest attack, I am waiting for the Conservatives to trout out a picture of the last four Liberal PMs with the title the buck stops here. Blaming past Liberal government seem to be their idea of taking responsiblity.
2) There is the problem of the justice deparment running with a “legal option” that is patently absurd and Conservative government mainting that it is valid. What are this dim wits going to come up with next?
I’m not quite clear on this “legal option” thing without additional explanation as that sounds a bit nebulous, and, to be honest, not sure that I really care all that much to venture deep into the weeds on this issue.
As for the Conservatives blaming the Liberals… well, why not? Such is politics. Whatever. In fairness, it could be argued that an actual case was needed to arise in order for the legal eagles at the Justice Department to bring the contentious matter to light
Again, I really don’t see what the problem is here. The government has responded promptly in a reasonable manner and is vowing to rectify the situation. Sorry if that screws with your Manichean narrative, but until the Harper Conservatives demonstrate otherwise, I’m prepared to give them the benefit of the doubt and take them at their word.
As far as those couples are concerned, there is no problem anymore. Their marriages are valid and if the option of divorce is not available at home, Canada will offer it. All is good.
As for the other issue discussed, I am not implying for moment that there was a movement afoot to role back SSM in Canada. That ship has sailed. Anyone with any knowledge of Canadian politics realizes that it would political suicide for the Tories to reopen the debate. SSM is not at all like abortion; it is not going to stick around for a generation. It is a generational change and once it happens there is no turning back.
All that being said, the whole episode has me wondering what the hell is going on at the department of justice. This was an amazing bad legal position and if this is any indication of the quality of work being produced there, we are in trouble. Their legal option had everyone baffled. Canada looked ridiculous.
I’ll certainly agree with you that the way this situation was initially handled by the Dept. of Justice was fairly absurd and perplexing. That however isn’t uncommon when it comes to operations of the legal bureaucracy (here in Canada or anywhere else, for that matter).
But the expeditious way in which the matter now seems to have settled by the government (presumably to the satisfaction of all those directly affected) was though, at least I thought, quite impressive. That’s especially so when you compare their actions to those of other foreign governments; especially that of the United States, which has cravenly deferred the issue to the States, with predictable chaos, confusion and ongoing uncertainty even in the handful of jurisdictions that have passed SSM legislation after much bitter wrangling.
But there was nothing to act on. All they had to was admit that marriages are legal and everything should have fallen back into place and government could go on, as NDP said right out of the gate, to grant exceptions the residency requirement.
Instead we have the minister contradicting himself. He says on the one hand that marriages are legal and then goes on to say that the government needs to close “a gap” in the civil marriage act to insure that these marriages are legal. I do not know what to think. Are they going to pretend to change the law? I am getting a headache just thinking about it.
https://www.facebook.com/notes/kevin-kindred/why-nobody-gets-it-and-everyone-is-an-idiot-a-series-of-indeterminate-length/10150462308551080
This is only one example of why the whole thing is a tempest in a teapot. Every legal expert I’ve seen comment on this issue (other than political hacks who are trying desperately to spin it to make the Conservatives look bad) agrees that:
a) The Justice Department handles a huge number of cases, and it is absurd to say that the Conservatives should be held responsible for every argument raised in any case they handle. It’s ridiculous to think that the PMO was even aware that this case existed.
b) The lawyer’s position was absolutely correct, and applies equally to heterosexual marriages – it would be the same if two first cousins got married and moved to somewhere that doesn’t recognize cousin marriage, or they moved to a jurisdiction where they were considered to be below the age of consent.
Crying wolf over this issue – insisting that it’s a horrible conspiracy, or that the Conservatives’ handling of it is malicious when it has in fact been exemplary – only undermines the credibility of those who do so.
The position of the government lawyer was absolutely wrong and your example a red herring. Indeed, it would be one thing for the State of Texas to say that it would not recognize the marriage of a same sex couple living in Austin who got married in New York because the Texas State constitution forbids it. It would be quite another for Texas to claim that the marriage never took place and hence if the couple moved to New York they would not be married in the eyes of New York. It would be even stranger still for New York to agree.
Evidently you didn’t click through to the link.
The lawyer was absolutely correct. You may not agree and you may not like it, but your personal opinion does not trump established law.
Vancouverois: Perhaps Koby isn’t on Facebook. If so, here’s the article:
Same-Sex Marriages For Foreigners Edition
Let’s start with the caveat that I don’t really think you’re an idiot. (Well, not all of you. Not, you, specifically, the one reading this right now. You’re the one I like.) But I do think this is an issue that has gotten some terrible, uninformed media attention, and that’s resulted in a lot of misplaced outrage. So here are my thoughts.
What happened?
Well, if you ask the Globe & Mail, there was a bald-faced reversal of government policy in order to attack same-sex marriage. The government declared that same-sex marriages performed in Canada were no longer valid unless the couple came from a jurisdiction where same-sex marriage was also legally valid. This meant that thousands of foreign couples who got married in Canada were arbitrarily deprived of their rights. Dan Savage, opposition politicians, and approximately one bajillion other people called Stephen Harper a homophobe, and the government back-tracked into promising to pass some kind of law about this at some point.
OK but I didn’t ask the Globe & Mail, I asked you?
Something very different happened.
Fascinating. Please go on.
An American couple came to Canada in 2005 for the sole purpose of getting married. (Some people call these “tourist marriages,” which is a bit patronizing but makes the point.) Recently, they made the trip back, for the sole purpose of getting a divorce. This marriage never had any practical validity for them, as they live in a jurisdiction that didn’t recognize it. But presumably they took some comfort from the symbolic fact that they had gone through a marriage ceremony at one time in a place where same-sex marriage was actually valid.
A Department of Justice lawyer filed a brief in their case which pointed out two legal quirks:
-The Divorce Act requires you to be resident in Canada for a year before you can apply for a divorce. (This is actually a key element of the case that isn’t getting as much attention.)
-Canadian common law arguably doesn’t recognize “tourist marriages” which would be illegal in the couple’s actual home. (This is what people are talking about.)
The couple’s lawyer–a passionate longstanding advocate for LGBT rights who I respect a lot and also would not ever want to encounter in a dark alley–informed the media of the interesting and novel issue being raised in this case.
Subsequently, all hell broke loose.
Why do you have your back up about this?
I hate defending Stephen Harper. I FUCKING HATE DEFENDING STEPHEN HARPER. But I think a bunch of things went awry in the reporting of this case, and I think they went awry in a particularly troubling way. Here are some of the problems as i see them.
(1) Law is hard.
This is an argument about something lawyers call “private international law”. It’s the law of how various legal systems fit together. It’s not set out in statutes by governments, it’s developed as common law over centuries as judges try to figure out how to solve tricky problems. It’s also everyone’s least favourite class in law school because private international law is complicated as balls.
Private international law of marriage basically says that Canada will only recognize a “tourist” marriage (i.e. one where the couple actually has no connection to Canada) if the marriage would be valid in their home jurisdiction. That principle is called “domicile”. The law evolved that way because judges historically don’t like the idea of tourist marriages, and don’t want to encourage them. Like it or not, that’s what the law is and it’s been that way for hundreds of years.
The same principle applies to straight couples, though frankly there aren’t a tonne of countries restricting how straight couples can get married. But first cousin marriages are a good example. Legal in Canada (don’t knock it, John A. Macdonald married his first cousin) but not in some other jurisdictions. Same principles would apply.
Here’s another twist, just for fun. Each province can actually set its own rules about the process for getting married. In Nova Scotia, there is no residency requirement, only a basic waiting period. You can actually go through a legally valid wedding ceremony so long as you meet the requirements under Nova Scotia and Canadian law. But that legally valid ceremony might not result in a legally valid marriage, if you don’t otherwise have a real & substantial connection to Canada. Did I mention this was everyone’s least favourite class in law school?
(By the way, if you’ve read this far, congratulations. You now know more about the legal issues in this case than any journalist I’ve read or spoken to today.)
I’m not saying that the Department of Justice is definitely right here. It’s a complicated legal problem, and ultimately it will come down to how a judge decides to apply the common law to this new situation. But, there’s a decent chance that the DoJ lawyer is right on this one. (Don’t take my word for it–Brenda Cossman, one of the best legal experts we have on LGBT family law issues, basically agrees. I posted her interview.)
(2) Argument is not policy.
This is not a “reversal” of government policy. First, as I noted, the law has been this way for hundreds of years, so I don’t know where the reversal came from. But more importantly, this is not a government policy.
Reading the Globe & Mail article, and the bajillion subsequent comments, you’d think the PMO had issued a fiat annulling same-sex marriages for foreigners.
In reality, this is an argument put forth by the Department of Justice in a court case. It hasn’t even been decided by a judge yet. The DoJ makes dozens of arguments every day in courts across the country, arguing how federal law should apply to particular situations. While they are government employees, they don’t set government policy. Instead, they try to make the most correct legal argument in a case.
I have absolutely no hesitation believing that no politician ever gave direction as to how DoJ should argue this case. Theoretically they could, of course–after all, the government is the client. But realistically, most cases are handled at a non-political level. Treating this issue as if it were a policy of the Harper government is just grossly unfair.
It’s not just incorrect to pretend that a DoJ argument is government policy–it’s dangerous. The DOJ has to have some flexibility to present whatever legally sound arguments are relevant to the case. We don’t want politicians directing every government court case based on the politics of the day. But if the media treats every DOJ argument as government policy, it won’t be long before the DOJ only puts forward arguments that reflect approved government policy. And that’s a bad thing.
(3) Let’s not overstate the issue.
As far as I see it, this case only impacts couples who have no real life connection to Canada, who travel here solely for the symbolic act of getting married. They knew when they got married that it had no practical impact on their lives, because their lives were lived entirely outside of Canada.
For that kind of couple, the value of their Canadian marriage is entirely symbolic. This is tautologically true. If the question of marriage validity actually does have some practical meaning for the couple, then by definition this isn’t a “tourist marriage”. Either they have a real & substantial connection to Canada, or to some other place where their same-sex marriage is recognized, and therefore this case doesn’t apply to them.
Wait, aren’t you supposed to be some kind of queer activist? Are you saying this isn’t important?
Actually, I think this is an important issue.
If it turns out that the common law doesn’t recognize these marriages, I think we should change the law. The government can do that, and it should. It should because for almost a decade, Canada has been a beacon of hope for same-sex couples who want to marry. When we fought for same-sex marriage in Canada, we knew we were also fighting for those couples. The law on this may be hundreds of years old, but because of that, it doesn’t reflect Canada’s role as a leader in recognizing LGBT equality. We should change the law because, god damn it, symbolism is important.
(And if those symbolic marriages sometimes need to end in symbolic divorces, well by golly, we should allow that to happen too.)
But I don’t think it’s helpful to have false–dare I say, manufactured–outrage over this issue. I totally get why people are generally outraged at this government, and I am too. So I don’t really fault people for jumping on this issue. But I think underneath it all you have one side in a legal case, together with media and opposition politicians, who benefit from exploiting a “Homophobia in the Harper government” meme. I think the issue is being spun into something it’s not, in order to make headlines and score political points. And I don’t think that helps anyone solve any real world problems.
Dude.
I know, right? Apparently I have a lot to say about this. I promise, next post will be all Harper-bashing, all the time.
To my knowledge, there is not single jurisdiction outside of Canada that has made the argument. Every jurisdiction recognizes that these marriages as legal in Canada even if some of them do not recognize the legitimacy of them in their own jurisdictions. This is no trivial point. There were a number of States (e.g., New York) that decided to recognize couples who were married in Canada even the though SSM could not be performed in these States. In not one case did the opponents of SSM employ this argument.
As for the notion that that this is purely symbolic issue, that is flat wrong. Potentially, this has real consequences for a whole whack of people. Remember what matters is the legality of SSM in their home state when they were married. A large number of these couples live in States that have since adopted SSM, but did not recognize this form of marriage at the time they were married. The legal option would commit Canada to the farcical position that should any one of these couples move to Canada, Canada would not recognize them as being married even though they were “married” in Canada and both where they live now and Canada recognize SSM. Of course that is not the end of it. It would mean that Canada would be the only nation on earth not to recognize as legitimate the marriages of interracial South African couples who violated South Africa’s Anti-miscegenation laws prior to 1985 by marrying outside of South Africa.
Koby: It seems you’re strenuously over-thinking and then insistently continuing to flail away at what has now been effectively rendered a moot point by the Harper government.
It would mean that Canada would be the only nation on earth not to recognize as legitimate the marriages of interracial South African couples who violated South Africa’s Anti-miscegenation laws prior to 1985 by marrying outside of South Africa.
Not if the happy couple returned to South Africa right after the ceremony without ever establishing Canadian residency, it wouldn’t. All these hypothetical analogies we are seeing around the blogosphere about miscegenation and Saudi-Israeli marriages seem to miss the point that these people came directly from, and chose to go back to, their “homophobic” countries of residence. A better analogy would be if Canadian residents of Bountiful went to the Middle East on tourist visas to solemnize their polygamous marriages and then came right home. Would you be impressed with the argument that the Middle Eastern country retained some kind of legal custodial relationship with their marriage that had any bearing on their legal situation in Canada? Under international law, the jurisdiction of any state over marriage and divorce hangs on domicile and residence, not the politics of the marrying state.
Peter: What’s that I hear? Oh yes, it’s a slam-dunk alright.
“Under international law, the jurisdiction of any state over marriage and divorce hangs on domicile and residence, not the politics of the marrying state.”
Things are more complicated than that. — especially state side. On Feb. 1, 2008 New York ruled that unless the state legislature decides to explicitly “prohibit the recognition of same-sex marriages solemnized abroad,” then “such marriages are entitled to recognition in New York.” The case involved a New York couple who went to Ontario on vacation to marry. A New York court also ruled that New York had to grant a divorce to a New York same sex couple who married in Connecticut with the intent to evade New York law.
As to example in question, of course, Canada would not recognize the marriage, but I would be floored if Canada took a position on whether the marriage was legally binding in Saudi Arabia if the parties were to move there.
Koby, you aren’t getting it. The New York case dealt with New York residents who had gone to marry in Canada. The decision was that these New York residents had the right to a New York divorce, As residents of New York, they were subject to New York law and the jurisdiction of the New York Courts. The case in Toronto deals with the right of non-residents to an Ontario divorce.
Now think. Suppose that, instead of trying to divorce in New York, those New York residents had come back to Canada and sought a divorce on the grounds, argued in the case in Toronto, that Canada had jurisdiction to divorce them, because that’s where they married. If they were right and Canada had such jurisdication, then New York wouldn’t because no one can have two residencies in law (otherwise they would pay two full income taxes). Ergo, the New York case must be wrong. Or would you argue New York gay couples married in Canada shouldn’t qualify for a Canadian divorce because New York would divorce them, while English or Florida gay couples married in Canada should get a Canadian divorce because their home jurisdistions won’t divorce them? Does that make any sense? Are Canadian divorces now part of our foreign aid programme?
There were two New York cases. Both concerned new york residents. The first had to do with a couple that got married in Ontario. The second had to do with a couple that had gotten married in Connecticut and wanted a divorce. Of the two, the first was more important. The court ruled that even though New York did not recognize SSM (the ruling came down in 2008 and the couple got married in 2004) New York recognized the marriage between the two women and ruled that any New York same sex couple that got legally married to each other outside of New York would have their marriage recognized.
So your position is the New York was wrong as a matter of law international law. As the couple was married at a time when New York did not recognize SSM, their “marriage”, as matter of international law, never happened. As such, there was no marriage for the New York to recognize. The same holds true for the couple married in Connecticut. New York should not have granted this other couple a divorce because they, as matter of international law, were never married.
Who knew that marriages that never happened, as a matter of international law, could be so precedent setting in the US?
As for your example, God knows it would make infinitely more sense for a couple living outside of Canada to get divorced where they then in Canada and it would be be insane for Canada to encourage divorce forum shopping. However, that does not mean that in principle forum shopping could not exist. Indeed, it is because the possibility exists that Canada and virtually every jurisdiction, I can think, have have put in a residency clause into its divorce laws. A residency clause is not a built in feature of private international law.
The case at hand, by the way, is certainly not the right of foreign couples to seek a divorce in Canada. It is whether, as earlier posted claimed, “The lawyer’s position was absolutely correct”. Namely, same sex marriages conducted in Canada that were in conflict with marriage laws in the couples place of residence were never legally valid. I have maintained from the get go that this legal position is wrong.
“Or would you argue New York gay couples married in Canada shouldn’t qualify for a Canadian divorce because New York would divorce them, while English or Florida gay couples married in Canada should get a Canadian divorce because their home jurisdictions won’t divorce them?”
This is the government’s position.
You keep on talking about people being married or not married under international law. There is no international law about what constitutes a lawful marriage. If one country bans it altogether or another restricts it to mothers and sons and a third says only gays can marry, there is nothing in international law that speaks to the legitimacy of those laws. There is only international law about recognizing marriages celebrated in other countries, and very few countries have signed onto it. Almost all countries have unfettered jurisdiction over what constitutes a marriage, over residency requirements and over what foreign marriages they will recognize and when. Are you trying to make this some kind of a human rights issue that is governed by UN conventions or something?
“Almost all countries have unfettered jurisdiction over what constitutes a marriage, over residency requirements and over what foreign marriages they will recognize and when.”
Jesus Christ, that is my point. Remember, I said the following stance taken by the justice department lawyer in the charter challenge to Canada’s residency laws was wrong.
‘In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile — Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law.’
Vancouverois said this in response: “The lawyer’s position was absolutely correct” and cited facebook guy.
Face book guy:
“1) Law is hard.
This is an argument about something lawyers call “private international law”. It’s the law of how various legal systems fit together. It’s not set out in statutes by governments, it’s developed as common law over centuries as judges try to figure out how to solve tricky problems. It’s also everyone’s least favourite class in law school because private international law is complicated as balls.
Private international law of marriage basically says that Canada will only recognize a “tourist” marriage (i.e. one where the couple actually has no connection to Canada) if the marriage would be valid in their home jurisdiction. That principle is called “domicile”. The law evolved that way because judges historically don’t like the idea of tourist marriages, and don’t want to encourage them. Like it or not, that’s what the law is and it’s been that way for hundreds of years.”
I said no “private international law” certainly does rule out a foreign couple getting married if their domicile does not recognize the legitimacy of that form of marriage. As I said right at the beginning, it would be one thing for the State of Texas to say that it would not recognize the marriage of a same sex couple living in Austin who got married in New York because the Texas State constitution forbids it. It would be quite another for Texas to claim that the marriage never took place and hence if the couple moved to New York they would not be married in the eyes of New York. It would be even stranger still for New York to agree.
Reading these posts. Excellent arguments laid out by RT, Peter and the “facebook guy”.
Koby, you’re just plain wrong on this one. Sounds like kind of a mix up on how “international law” works. You’re probably looking for International Law Volume II, Section 20–that’s where the answer is!