Canadian Government Brief Threatens Validity of Foreign Marriages

In a startling development that could affect thousands of US same-sex couples, the government of Canadian Prime Minister Stephen Harper has argued that marriages by couples from jurisdictions where such unions would not be legal are not valid in Canada either.

According to the Globe and Mail, a Toronto daily newspaper, the federal Justice Department there took that position in response to a divorce filing by a lesbian couple, one of whom lived in Florida, the other in Britain at the time of their marriage in Toronto. Since the couple’s marriage would not be legal in either jurisdiction, a government lawyer argued, it was not a valid marriage in Canada either.

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 Canada's attorney general responded by suggesting that the government is 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 never been valid in the first place.

“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.”

In Halifax, Conservative Harper was asked about the filing by the CTV Television Network and 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.”

The prime minister’s response raised the question of how high up in the ranks of the federal Justice Department the filing had gone.

Attorney General Rob Nicholson went further than Harper is trying to tamp down any uproar from the Globe and Mail story.

“I want to be very clear that the government has no intention of reopening the debate on the definition of marriage,” he said. “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.”

That would appear to allude to the problem faced by the lesbian couple seeking divorce –– that they cannot legally end their marriage in either Florida or the UK and currently face the burden of living in Canada for a year to do so there. In their court action, the women sought a waiver from the residency requirement.

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.

Martha McCarthy, a Toronto attorney who represents the couple wishing to divorce and 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 Globe and Mail, “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.”

McCarthy’s law firm did not return a call seeking comment as of press time.

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 how seriously he takes the possibility that the court filing may 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. My hope is that the prime minister’s response indicates that.”

In a joint statement from Freedom to Marry, Lambda Legal, the Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights, and the American Civil Liberties Union, the nation's top public interest LGBT litigation firms and marriage equality advocates noted that the brief filed does not reflect any court ruling or decision by Canada's Parliament.

“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,” the groups stated.

After release of that statement, Wolfson, in an email message, said he had “spoken several times to my Canadian counterparts, who have heard from the government that this will be fixed.”

Noting he has worked with Canadian marriage equality advocates extensively in the past, he said if the government does seek to make the policy change the divorce filing points to, Freedom to Marry would provide any expertise his colleagues there request on the hardship it could pose not only for US same-sex couples who married in Canada, but also on employers and other institutions those couples are involved with.

When marriage equality first became legal in Massachusetts, that state had a law similar to the policy being argued by the Canadian government. Dating to 1913, and enacted to respect the statutes in other states forbidding interracial marriage, that law forbade out-of-state couples from marrying if their unions would not be legal where they lived. Republican Mitt Romney, who was governor at the time, fiercely defended that law, saying he did not want Massachusetts to become “the Las Vegas of gay marriage.”

Deval Patrick, the African-American Democrat and strong marriage equality supporter who succeeded Romney, moved quickly in 2007 to repeal the law.

In 2008, a marriage recognition case in Rochester established a statewide precedent that New York recognizes marriages by same-sex couples validly enacted in other jurisdictions. Though the full scope of the argument made by the Canadian government is not yet clear, it could well be that should Ottawa stick by the brief filed in the divorce case, even those New York couples who married in Canada prior to the enactment of marriage equality here would not be harmed.

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