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The same-sex marriage matter

Ideas

The same-sex marriage matter

Why nobody gets it and everyone is an idiot
Kevin Kindred is a Halifax lawyer and queer activist. This piece appeared originally on his Facebook page. He kindly allowed us to reproduce it here.

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 that has resulted in a lot of misplaced outrage.
 
What happened?
 
Well, if you ask The Globe and 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 The government declared that same-sex marriages performed in Canada were no longer valid unless the couple comes from a jurisdiction where same-sex marriage is also legally valid. This meant 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 and Mail, I asked you?
 
Something very different happened.
 
Fascinating. Please go on.
 
A US 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 divorced. This marriage never had any practical validity for them, as they live in a jurisdiction that doesn’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 is actually valid.
 
A Department of Justice lawyer filed a brief in their case that pointed out two legal quirks. Firstly, 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.) Secondly, Canadian common law arguably doesn’t recognize tourist marriages that 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 but 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 only recognizes a "tourist" marriage (one where the couple actually has no connection to Canada) if the marriage will 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 has been 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. The 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 and 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 and 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 and 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.
 
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Gay/Lesbian discrimination in Israeli marriage law
*** HI MATT ***

Here is an article from Haaretz.com newspaper in Israel about some Gay and Lesbian discrimination in Israeli marriage law. You may want to check it out...

www.haaretz.com/print-edition/opinion/shameful-discrimination-in-israel-1.408256
Outrage leads to immediate action
While I do understand and agree that this whole thing was blown way out of proportion, I can't wholly accept that it is a bad thing. The one thing that was needed was a change in the law as written and implemented. If it had all been done quietly then it would just have been one more small quirk to b dealt with some other time or not at all. As is, it is being addressed with full attention and priority. It isn't nice, it isn't polite but it gets results. Let's face it, this is just a matter of using the Conservative's Standard Operating Procedures against them.
Missing the Point?
Isn't the heat the federal government is getting over this a little off the mark? From what I recall, the choice of law rule that is adopted (ie, antenuptial domicile) is a matter of provincial jurisdiction, not federal.
More misplaced outrage, part 2
When the Tories later introduce the promised marriage amendments in Parliament, I hope the NDP and the Liberals will scrutinize the bill to ensure that that there are no more gaps for foreign same-sex couples that Parliament can fix. For those gaps that Parliament can't fix (e.g., problems enforcing Canadian law in the foreign jurisdiction where the couple actually resides, family law matters governed by provincial law, etc.), I think Parliament should require any Canadian official or clergy who marries a foreign same-sex couple to first provide the couple with a risk disclosure statement (with wording prescribed by the government and posted in downloadable format on the Internet). That risk disclosure statement would warn the couple that (1) their marriage may not be recognized in their home country, (2) they will have to return to Canada for a divorce, (3) they may have trouble enforcing Canadian law and court orders relating to their marriage or any future divorce in their home country and (4) they should consult a lawyer in their home country on what measures they can take to ensure that issues of child custody, property division and support payments are dealt with in an orderly manner in the event their marriage fails (e.g., entering into a domestic contract on these matters that would be enforceable in their home country). Such a risk disclosure statement would help prevent any misplaced outrage in the future.
More misplaced outrage, part 1
In the words of the Xtra columnist above, "this is an issue that has gotten some terrible, uninformed media attention that has resulted in a lot of misplaced outrage". After the Globe published its story on Thursday morning, the Prime Minister and the Minister of Justice made statements that day and on Friday to quickly deal with the issue and show that the government had no ill will towards gay and lesbian people. To diffuse the controversy, the government promised to amend federal legislation to expressly recognize the marriages of foreign gay and lesbian couples, even if the laws of their home country do not. See http://news.nationalpost.com/2012/01/13/same-sex-marriages-declared-legal-and-valid-by-justice-minister-rob-nicholson/
While I realize that many LGBT activists hate Tories, hate does not appear to be warranted in this situation.
''Our'' hard won rights?
I hate sound like a broken record but, what ''rights'' do these people have under Canadian law? They are not (for the most part) Canadian citizens or even residents. I honestly think that without that lawyers, alarmist media spin, that this couple would have been SOL. Besides Even if we acknowledge their marriages/divorces we have no way of enforcing any of those rulings or rights in these people home states again this couple is SOL. Also what about our sovereignty as a nation? Am I the only one is concerned about how easily a pair of foreign tourists can alter Canadian law? If these people really wanted to benefit from Canadian laws and rights they should have immigrated to Canada. It's not like any of this was new either. I remember the lawyers and GLBT activists in Canada waning these tourists many years ago when gay marriage was first made legal that their marriages might not be valid and that they would have troubles in the event of a divorce.
NDP claim Harper knew about this since Oct 2010
In a article on the NDP website I take this quote from Randall Garrison [“This isn’t something that happened over night, this has been going on for months now,” said Randall Garrison, the New Democrat critic for LGBT Issues. “It was a government lawyer that was once again trying to use a loophole in the current law to erode the rights of these families. It is hard to believe that no one in Cabinet knew about this as I had asked the Minister of Justice about this problem in the House of Commons last October.” ]

If this is true and should it be recorded in HOC documentation. Harper and the Justice Minister are once again lying through their teeth. Indeed had this not gone public, one of our hard fought rights and freedom would be eroded.

Defend him if you think you must, be Harper and the DOJ minister are not as innocent as they would have you believe.
When the Department of Justice would intervene
Rich, according to the court documents that Xtra posted at http://www.xtra.ca/public/National/UPDATE_Minister_to_change_law_to_allow_foreign_samesex_divorces-11361.aspx, Martha McCarthy's foreign clients were challenging the constitutional validity of the one year residency requirement set out in Canada's Divorce Act. It's not unusual for the federal Department of Justice to intervene in a court proceeding where a private party attacks the constitutional validity of a provision of a federal statute. That's part of the Department's job and that's why court rules require a party to give formal notice to the Attorney General when they launch a court proceeding with a constitutional challenge. In a parliamentary system like Canada's, Parliament would want a cabinet department to be informed when a private party was seeking to strike down a law that Parliament made.
agree with Suzy
Can anyone name another instance where federal lawyers have intervened in a divorce case? I honestly don't know but I cannot imagine why they would feel compelled to intervene in any divorce case like they have in this one, at least without Harper instructing them to do so. Like also printed in the G&M and seen with Harper's maternal health aid plan for poor nations Harper may not be forcing his social conservative beliefs on Canadians but he is exporting them by forcing them on others in return for much needed aid. Considering what a control freak Harper is and his attack on the HR of non-Canadians I find it very hard to believe that Harper didn't instruct federal lawyers to intervene in this divorce case. If the lawyer hadn't gone public and with the feds lawyer's arguments being legally correct Harper's lawyer would have prevailed and the judge would have had no choice but to rule that their marriage wasn't valid because it wasn't valid in their home state effectively nullifying all same-sex marriages where the couples live in discriminatory states. When the outrage inevitably hit after the judge had ruled Harper could wash his hands of it by pointing to the independence of the courts. Such a ruling, while legally valid would only stand until there was a Charter case brought to challenge it, but with no more Charter challenge program it would have to wait until someone wealthy enough came along to pay for the lawyers in such a long drawn out court fight. In the meantime the lives of thousands of same-sex couples would be thrown into utter chaos giving much pleasure to Harper and his socially backwards followers who see any harm done to LGBTQ people in any way possible as a victory for them and their religion. By going public early with Harper's lawyer's arguments the outrage came too early for Harper to wash his hands of it and it was dumped in his lap where it belongs. We can't afford to be naive about Harper, he's not like other PMs, nothing is too low for
Riddle me this
The law of domicile refers, of course, to the domicile of the people getting married and the laws of that jurisdiction.

Suppose we have two ex-pat male Canadians who have taken up residence in the Sunshine State. They go back to Canada to get married, and then return to their home in Florida.

As Canadian citizens, wedded in Canada under a legal Canadian process, are they not actually married?

What about a Saudi and an Israeli--a straight couple. Must our laws take a back seat to Saudi law, despite all of our wonderful Charter guarantees, which apply equally well to citizens and non-citizens in the country?

You are writing about the principle of comity, but surely that principle has limited application.

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