by Dan Savage
on Thu, Jan 12, 2012 at 7:42 AM
After issuing thousands of marriage licenses to same-sex couples from United States and other nations where same-sex marriage is not yet legal—marriage licenses that did not come with a disclaimer or an asterisk—Canada's conservative government has now decided that those marriages—marriages like mine—are not legally valid. Not even in Canada:
The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.... The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married – a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside....
The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo. The two women—professionals in the their early 30s—cannot be identified under a court order. But Martha McCarthy, a prominent Toronto lawyer who represents them, said the government’s about-face is astonishing. “It is scandalous,” she said in an interview. “It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity. 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,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.”
These women, married in Canada, were trying to get a divorce in Canada. This they may not do, says Canada's conservative government, because—surprise!—these women are not and never were married. Not even in Canada. Prime Minister Stephen Harper's comments this morning are hilarious:
“We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report.
Sorry, motherfucker, but this "issue"—the civil equality of gays and lesbians—is wide open now and your fucking government opened it. The debate over same-sex marriage and the civil equality of gays and lesbians has been returned to the frontpages of Canada's newspapers and a renewed debate over same-sex marriage will dominate Canadian television and radio news programs. And Canada's religious conservatives will doubtless complain—loud and long—about their precious children having to hear about homosexuality every time they turn on the news. Stephen Harper's government reopened this issue, not the gays, and Stephen Harper's government deserves the blame. There will be lawsuits, time and money will be wasted, oceans of ink and pixels will be spilled, before this issue—the full civil equality of gays and lesbians—winds up before the Supreme Court of Canada. I'm confident that justice will prevail—God bless the Canadian Charter of Rights and Freedoms—but the decision to reopen this issue is going to be one massive distraction for the Canadian government.
Gays and lesbians inside and outside of Canada are going to make sure of it.
Now if you'll excuse me I need to go wake up my husband and tell him we got divorced last night.
Mr. Harper’s advisers must know that a huge political controversy has landed in their lap. Soon after The Globe and Mail published the story, the Twitterverse exploded, with more observant posters asking if this meant that couples of different races couldn’t marry in Canada, or women couldn’t get a driver’s licence, if their native land forbade such things.... [This] issue will dominate news conferences, political talk shows and – vastly more important – water coolers unless and until the Conservatives deal with it. If Mr. Harper wanted to launch a culture war through the back door, he has succeeded. If he was as surprised as everyone else by the lawyer’s opinion, then he will need to deal with the matter—and deal with it soon.
UPDATE 2: Did Canada's conservative government make this decision? Or was it a rogue lawyer? Says Wandering Soul in comments:
I think you misunderstand, Dan. This was one lawyer who claimed this, not the official stance of the government. Harper's quote—“We have no intention of further re-opening or opening this issue”—is in context of him wanting to figure out why this happened, as he has no intention of re-opening the issue. I'm not at all a Harper fan, but I think this will turn out to just be a misstep by an out of line lawyer.
The Globe and Mail indicates that Harper seemed caught off guard by questions about his own government's claim that the same-sex marriages of foreigners are not valid in Canada. Maybe Harper will announce later today that it was all a big misunderstanding. In the meantime, the issue is exploding not just all over the Twitterverse, but all over Canadian and international media. One day the haters are going to realize that the only way to make this "issue" go away—the issue being fact of our existence—is to grant us our full civil equality. We are determined to make discriminating against us a bigger pain the ass than tolerating our civil equality ever could be.
UPDATE 3: I've got a calls in... but... there are potentially serious consequences for same-sex couples in Washington state who married in Canada. Right now, if I'm not mistaken, Washington state recognizes same-sex marriages performed in states and countries where same-sex marriage is legal—but Washington treats these couples (me and Terry included) as domestic partners under WA state law. Washington's DP law grants same-sex couples all the rights and responsibilities of marriage that the state controls. So... if same-sex marriage isn't legal for foreigners in Canada, if our marriages aren't valid in Canada, it's possible that this move by Harper's government means that couples like us—same-sex couples from WA who married in Canada—are no longer domestic partners under the law here in Washington state.
What a headache.
UPDATE 4: This isn't the only action Harper's government has taken to undermine marriage equality in Canada. G&M op-ed:
After provinces began legalizing same-sex marriage in 2003, Toronto and other Canadian cities enjoyed something of a gay marriage tourism boom: Couples who couldn’t tie the knot at home got married here. They knew their home state might not recognize these unions. Rules for determining the validity of marriages from one place to another are complicated. Same-sex marriage, which some places recognize but others don’t, makes it more complicated yet. But Canadian principles of equality support the view that Canada should recognize the marriages of couples married in Canada.
Instead, the federal government is intervening in a divorce case to state the view that gay couples aren’t validly married in Canada unless they could be married in their home jurisdiction. Government lawyers haven’t presented this view in the past. Why do so now?
The other case concerns the way Canadian authorities treat same-sex unions performed abroad. Britain legislated for gay equality by creating the civil partnership. It says a civil partnership is equal to marriage. The Ontario government makes no opposition. But at taxpayers’ expense, the federal government is intervening in legal proceedings to oppose recognition of the civil partnership formalized by a Canadian citizen in Britain. This action undermines British efforts to recognize the equality of same-sex relationships.
In both cases, we shouldn’t let the technicalities distract us from matters of principle. A government proud that Canada’s Parliament has granted equal marriage rights to gay men and lesbians would stand behind such marriages, however other countries saw them. And a government supportive of equality would affirm other countries’ efforts to recognize gay relationships.
The federal government will consider changing the law to ensure non-residents married in Canada can obtain divorces, Justice Minister Rob Nicholson said Thursday afternoon.
Wading into a controversy that has quickly blown into an international cause célèbre, Mr. Nicholson made assurances the government “has no intention of reopening the debate on the definition of marriage.” He said that under the current laws, the marriage in the case at the centre of the controversy cannot be dissolved in Canada in spite of the fact that the couple was wed in Toronto in 2005. “I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada,” Mr. Nicholson said.
Mr. Nicholson's statement gave immediate hope to married same-sex couples who are seeking a divorce but appeared to have no prospect of obtaining a one in Canada. However, it left one central question unanswered: Does the government consider their marriages to be legal, or not?
The following is a joint statement from Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry:
We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple's marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.
No one's marriage has been invalidated or is likely to be invalidated. 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.
Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, 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. 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.