Canada Reaffirms Legality of All Same-Sex Marriage

Stephen Harper's Conservative government backs off court filing questioning foreign couples' vows

In a dramatic turnaround that happened in scarcely more than 24 hours, the government of Canadian Prime Minister Stephen Harper has repudiated a Justice Department brief that had threatened the validity of thousands of marriages by US same-sex couples there.

“Marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada,” Justice Minister Rob Nicholson said in Toronto on January 13, according to the CTV Television Network. “I want to be very clear that our government has no intention of reopening the debate on the definition of marriage.”

One day before, an international uproar broke out over a story in the Globe and Mail of Toronto that a Justice Department filing –– in the divorce case of a lesbian couple from outside Canada who married there –– argued that their marriage had never been valid.

“In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles –– Florida and the United Kingdom,” wrote Sean Gaudet, the Justice Department attorney. “As a result, their marriage is not legally valid under Canadian law.”

The newspaper reported that more than 5,000 of the 15,000 same-sex marriages that have taken place in Canada since 2003 involved foreign couples, presumably the bulk of them from the United States.

Within hours of the Globe and Mail story, both the prime minister and Nicholson began to back-pedal, stating the government was not aiming to curtail the rights of any couples married there.

Foreign couples who married in Canada already faced the hurdle of having to reside in that nation for a year prior to obtaining a divorce –– which, according to the Globe and Mail, the couple in question, who are not identified by name, had not done –– but the government attorney took the further position that their marriage had not been valid in the first place.

The couple sought a waiver of the residency requirement in order to end their marriage. Far from curbing the rights of foreign same-sex couples to marry, Harper’s Conservative government now appears prepared to ease the burden on same-sex couples from outside Canada who wish to divorce but cannot do so at home because their marriage is not recognized there. Nicholson blamed the former Liberal government for not addressing that “legislative gap,” CTV reported.

The original Globe and Mail story hinted at the storm about to erupt in response to the Justice Department filing. Martha McCarthy, the couple’s Toronto attorney who was active in the marriage equality push there, noted that Ontario tried to dodge the divorce question by kicking the case up to the federal level, and told the newspaper, “It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue, or doing anything pro-active about it. All the while, they were handing out licenses to perform marriages across the country to non-resident people.”

Evan Wolfson, who heads up Freedom to Marry in New York, told the Globe and Mail, “One of the benefits that marriage gives to families is security and clarity. They don't have to deal with a tangle of uncertainty. If the Canadian government is serious about trying to cast doubt on people's marriages, it not only insults their dignity and hurts them personally, but it raises all sorts of complex legal and economic questions for everyone who deals with them –– employers, businesses, banks, and on and on.”

Asked hours later how seriously he took the possibility that the court filing might in fact reflect Harper's desire to curb marriage by foreign same-sex couples, Wolfson told Gay City News, “I am not going to assume this is some cleverly thought-out conspiracy to push back on marriage rights when it very well may be just a blunder that the government will have to figure out how to resolve.”

Then alluding to comments Harper made in Halifax appearing to back off the filing, Wolfson added, “My hope is that the prime minister’s response indicates that.”

Asked by CTV about the Globe and Mail story, Harper responded, “We have no intention further of opening or reopening this issue. This, I gather, is a case before the courts where Canadian lawyers have taken particular positions based on the law. But I will be asking officials to provide me more details with this particular case.”

That answer was the first hint that the brief may not have been vetted at senior levels in the federal Justice Department.

Shortly after the prime minister’s comments, Nicholson went further in trying to tamp down the uproar .

“I want to be very clear that the government has no intention of reopening the debate on the definition of marriage,” he said, a comment he repeated the following day. “This case today involved the fact that, under current law, some marriages performed in Canada could not be dissolved in Canada. I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”

Longtime New York gay activist Brendan Fay, who married his husband, Thomas Moulton, in Toronto in 2003, co-founded Civil Marriage Trail, an organization that helped US couples who wished to marry in Canada. He recalled an event in Toronto the following year in which a number of same-sex US couples married in the presence of that city’s mayor.

The Liberal government’s minister of foreign affairs, also on hand, told the group that with many in the US angry at Canada over its refusal to participate in the invasion of Iraq, it was heartening to see Americans traveling there to celebrate the equal rights offered above the 49th parallel.

Recognizing the uncertainty and anxiety the Globe and Mail story was creating among US couples who married in Canada, a group of leading marriage equality advocates and litigation groups released a joint statement late on January 12 stating, “There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense.”

Shortly after that, Wolfson, who had signed on to the joint statement, said in an email message to Gay City News that he had “spoken several times to my Canadian counterparts, who have heard from the government that this will be fixed.”

The following day, the Harper government formally committed to that fix.

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