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Gay marriage firestorm shows that outrage works


Gay marriage firestorm shows that outrage works

Lawyer catches Conservatives with their pants down
Hers may not be a household name, but I just want to take a moment to point out the genius of Martha McCarthy. McCarthy is the lawyer for an international lesbian couple married in Toronto in 2005 who are trying to get divorced here, and, as of yesterday, McCarthy is one of the few people to strike fear into the heart of Prime Minister Stephen Harper.
Judging by yesterday’s events, she’s also a brilliant strategist. Here’s why.
The first thing you need to know is that yesterday’s gay marriage firestorm was not about a court decision. It was about the federal government’s filings. Now, this is a little technical, but the gist is: no judge has ruled in this matter. This is a bit unusual. What has been quoted in the media and elsewhere is a document prepared by federal government lawyers in response to a court case McCarthy and her clients started.
The filing is, admittedly, infuriating. In it, the feds argue that the lesbian couple need not seek a divorce because they were not, in fact, ever married. Their Canadian marriage licence is valid only if their home jurisdiction (the UK and Florida, respectively) recognizes their marriage, and their divorce application is only valid if  they live in Canada for 12 months. But it's no problem, the feds argue, because if they're not married, they don't need to get divorced.

This is the second main point: as U of T law professor Brenda Cossman points out, the law of domicile (as it’s called) is actually an old international private law doctrine. It’s not novel. It wasn’t invented by Stephen Harper or any of his cronies.
And for most marriages most of the time, the law works. It’s not a barrier to, for example, Peter McKay and Nazanin Afshin-Jam getting married in Mexico. Because a straight couple can get married in Mexico and their straight marriage is recognized in Canada, there’s no problem whatsoever. They’re married in the eyes of Canada’s divorce courts, should they eventually need access to them. The problem for McCarthy’s clients arises not because of a deep failure of Canadian law, but because most of the planet isn’t hip to gay marriages. That, and because we have this old doctrine international law that was dreamed up long before the political landscape of gay marriage was ever forged.
So, what’s a devilishly clever lawyer to do?
Typically, lawyers are reluctant to speak with the press until a verdict is rendered. Well, what would have happened here? The court might have ruled in her favour. But it’s just as likely — probably more likely — that the court would have held that the law of domicile is a longstanding part of Canadian law, and the couple’s marriage was never valid. And then, when McCarthy complained publicly, Harper and the feds could have blamed the judge and wiped their hands clean of the issue. Their filings would have been buried, and probably no journalist would have gone any further. Not good.
Instead, she took a strong and public position early on, calling the feds’ filing ridiculous. She picked a fight when the opposition was the federal government, not the courts. The benefit of that choice is that politicians are swayed by public opinion, whereas courts are not supposed to be. She found exactly the right moment in the proceedings to go public. The feds look like Neanderthals.
And, you know, there’s nothing like gay marriage to whip otherwise politically uninformed people into a froth. Many of the mainstream media outlets and virtually everything I saw on social media couldn’t help but put the narrative together in a certain way: Harper and his socially conservative cronies are launching a collateral attack on gay marriage, a kind of “first they came for our international gay divorces” argument. This doesn’t have to be strictly speaking true for it to hold enormous emotional sway for many people. Naturally, the thing went viral.
The Conservatives, immediately aware that they were in land-mine territory, carefully walked the story back over the course of the day. By mid-afternoon, Justice Minister Rob Nicholson was saying that the feds were “looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”
That’s what McCarthy wants. That’s what, until yesterday, she thought she had to go through the courts to get, at tremendous personal and emotional cost to the divorcees. Now, Nicholson’s statement contains a dodge, and we’ll have to be careful to see how this unfolds. The dodge, of course, is that if the provinces were to simply stop issuing marriage licences to international gay couples, the issue would be dealt with in a way that’s consistent with Nicholson’s words, if not their spirit.
Leaving aside the technicalities, the real lesson here is that public outrage works. Harper and the feds’ lawyers got a taste of some pretty ugly stuff yesterday. Anxieties about Harper and social conservatives may have been dormant, but it was lurking in many people’s minds just below the surface. McCarthy found exactly the right moment — and the right issue — to tap into that anger, and, as we saw yesterday, outrage is a powerful thing.
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No, outrage doesn't always work
No, outrage doesn't always work. It depends on how powerful you are. Yes, it worked for gays and lesbians on Thursday and Friday when Prime Minister Harper and Justice Minister Nicholson went out of their way to overrule previous actions by a low level bureaucrat in the federal Department of Justice on the issue of same sex marriages in Canada involving citizens of other countries. In contrast, outrage didn't work for the trans community in December and January when Xtra editor Danny Glenright and Xtra reporter Rob Salerno made statements that deeply offended the trans community. At least Harper and Nicholson acted on a same day/next day basis to correct the problem.
The Liberal Party started no mess
Non-residents have ALWAYS been able to legally marry in Canada, and divorcing in Canada has ALWAYS had a residence requirement. None of that changed an iota by the legalization of same-sex marriage. And Mike, if the only issue was not having people flocking to Canada for divorces, all the government lawyers had to do was to point to the provision in the Divorce Act that sets out a residency requirement, and argue (probably quite easily) that nothing about that offends the Charter. The claim that the marriages were not valid in Canada in the first place was COMPLETELY gratuitous insofar as this case was concerned, and yes, it definitely smells like the government was attempting to chip away at same-sex marriage rights. Just because there is no apparent path from this argument to banning same-sex marriage between Canadian residents, doesn't mean that the government would not have been very happy to ban a portion of same-sex marriages (such as those between non-residents) if they were given the chance.
Canada's Constitution trumps international law
In Canada, our Constitution is the supreme law of the land, not any international doctrine or treaty. A Canadian government simply can NOT use a foreign government's willingness to discriminate as a reason for Canadian governments to discriminate. This affects far more than just same-sex couples. If this fiasco eliminates the residency requirement for divorce, great. But we should be very wary of Conservatives opening up the Marriage Act. This was the goal all long, believe it.
Do not blame Harper for this one
It was the Liberal Party who did start this mess. Also most likely the current government did not realize this until this case. If the Liberals or the NDP were in power they would have done the same since all of those foreign marriages were not even legal anyway. Oh yes! just blame Harper.
One more thing
The ''strategy'' the scum-bag lawyer used was only employed because she probably knew that her foreign, non-citizen, nonresident clients had no chance of succeeding in their case. It had nothing to do with gay rights or equality. Canadian gay marriage was never an issue and was never under threat. It was simply our governments attempt to keep a flood of costly foreign divorces from entering the country. We are talking about foreign people being ignorant of our laws and then being so entitled to think that our system should change for them. I question this woman's legal ethics and I seriously question GLBT activism in Canada when it seems like GLBT activists will so easily throw away our laws and rights to accommodate people who don't live here. Clearly Canada and Canadians are not the priority to the movement anymore. That makes me very worried.
Excellent summary of the issues, tactics and implications!
Scumbag lawyer
All of these foreigners should have read the fine print and studied Canadian marriage/divorce laws more closely before coming here to get ''married''. If they had they would have known that many of them would not have their marriages recognized. Now these Americans have gall to sue (yes they are suing) and try to change our laws? Who the hell do they think they are? They have no charter rights in this country. Why am I and all other Canadians expect to accommodate a bunch of people who don't live here? I am appalled by how this was hijacked by Mcarthy. Who cares if these people are gay! We should be standing up and saying, ''no these people have no right to change our laws and our country when they got into this mess because of their own fault.
Pretty sure residency only applies to divorce
I'm pretty sure the one year residency requirement only applies to divorce and not marriage. Everyone was quick to point out, after Ontario legalized same sex marriage, the the province had no residency requirement for marriage...and nobody said anything about that applying only if the couple's marriage would be legal in their home territory. As I understand it, the reason we have a residency requirement for divorce and not marriage was to keep Canada from becoming a Vegas-like destination for people who wanted quickie divorces.
Canada was warned...
Well we did say that Harper had a sinister agenda, and no one believed us...
Excellent article, but...
Thanks for this fuller explanation of yesterday's schmozzle. But why is Xtra using the term "gay" marriage? That's a mainstream misnomer that I would not expect to be used in the queer press.


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