Canada DOJ triggers same-sex marriage scare

The Canadian Department of Justice told a court in Ontario this week that a lesbian couple from the U.S. and England who obtained a marriage license there in 2005 should not be granted a divorce now because they were not legally married in Canada.

The argument triggered a flood of news inquiries, aimed at determining whether the administration of Conservative Prime Minister Stephen Harper, who opposes same-sex marriage, might be trying to invalidate same-sex marriages through the courts.

But five of the U.S.’s top LGBT legal groups issued a statement Thursday evening saying they are not worried.

“No one’s marriage has been invalidated or is likely to be invalidated,” said the groups. “The position taken by one government lawyer in a divorce is not itself precedential. No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.”

Not everyone seems as confident.

Canadian Member of Parliament Olivia Chow told the Canadian Broadcast Company (CBC) that she thinks Prime Minister Harper “is hiding behind the law and using a back-door way” to invalidate same-sex marriages.

Another MP, Justin Trudeau, told CBC, “This is what we have been worried about with the Conservative majority for a long time, we’re going to see the erosion of gains….”

Liberal Party leader Bob Rae suggested Harper might be trying to defeat same-sex marriage through the courts now.

“I understand Mr. Harper said he didn’t know about [DOJ argument in the divorce case] and he doesn’t see every legal brief that goes before the courts,” Rae told reporters Thursday. But he added, “Of all the people in Canada who could actually make that argument, it’s a little hard for him to make the argument because my sense of that government is that he controls everything.”

At a press conference on Thursday morning, Prime Minister Harper said he was unfamiliar with the divorce case in question and that he had “no intention of further re-opening or opening this issue.”

The divorce case in question involves a woman who resided in Florida and one who resided in England at the time they acquired a marriage license in Canada in 2005. Their names have not been released. But according to the National Post, a newspaper in Ontario, the women sought a divorce in 2009, but were told Canadian law requires that at least one of them live a year in Canada to obtain the divorce. The women challenged the residency requirement, but in court, the Canadian DOJ pulled out a new twist. It argued that he women could not obtain a divorce because they were never legally married in Canada.

“The government is arguing that since Florida and the U.K.—the home jurisdictions of the estranged couple—don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid,” reported the National Post. “People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law.”

Six states in the United States recognize same-sex marriages, but the federal Defense of Marriage Act (DOMA) prohibits the federal government from doing so.

The reaction in the U.S. and Canada has been fierce.

“The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine,” said National Post columnist Matt Gurney. “A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.”

But, in fact, many jurisdictions do have this requirement. When Massachusetts began issuing marriage licenses in 2004, the state supreme court ruled that only couples from states that did not bar same-sex marriage could obtain licenses in Massachusetts. And Vermont, after it passed its historic civil union law, required that to dissolve a civil union, a couple had to reside in Vermont for at least a year.

Same-sex couples began obtaining marriage licenses in some provinces of Canada in 2003, and, in 2004 under Prime Minister Paul Martin, same-sex couples could marry anywhere in the country. When Stephen Harper became prime minister in 2005, he initially tried to overturn that marriage equality law but failed.

According to CBC television, about 5,000 couples have come from other countries to marry in Canada.

Peter Freiberg, a U.S. journalist who married his same-sex partner, legal activist Joe Tom Easley, in Toronto in 2003, said he was “very surprised” at the news.

“The parliament voted and [Harper] just dropped the issue,” said Freiberg. Frieberg said he and Easley did consider obtaining an additional marriage license in California in 2008, when it was possible to do so.

“But Lambda advises against that,” said Freiberg. “They advised very strongly against it because, if anything should ever come up in court, it looks frivolous to go around and get married in different places, and the Canadian license is as good as any other license.”

In its statement Thursday night, Lambda and the four other groups noted that “Canada’s Parliament codified the equal right to marry for same-sex couples in 2005.”

“The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here in the United States: take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don’t respect your legal relationship,” said the statement. “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 statement was issued by Lambda Legal, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders, the Freedom to Marry, and the ACLU.

Evan Wolfson, head of the national Freedom to Marry group, noted that Canada’s Minister of Justice, Rob Nicholson, seemed to be “back-pedaling” already on the divorce case argument. In a statement released Thursday, Nicholson said, “I want to be very clear that the Government has no intention of reopening the debate on the definition of marriage. 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.”

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