Canadian Prime Minister Stephen Harper served notice earlier today in Halifax that the 5,000 same-sex couples from abroad who have been married in Canada since it became legal in 2004 are not legally married after all.
The notice is a result of a test case in the Ontario Superior Court in which a Department of Justice lawyer told a lesbian couple seeking a divorce that they were never married in the first place, because gay marriage isn’t legal in England or Florida, where they normally live. The lawyer claims that divorce is only an option for people who have lived in Canada for a year or more, and who have a valid marriage in the first place.
According to the couple’s lawyer, Martha McCarthy,
“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 proactive about it.”
The divorce application itself reads, in part,
“At no time were they advised by either the provincial or federal governments that their marriage was not valid. In addition to the emotional distress caused to the joint applicants, they specifically incurred legal and travel costs associated with a marriage that was promoted by the provincial and federal governments, and which is now being denied. […]
Without this, they cannot move on from this chapter in their lives. It is legally and procedurally unfair for a government to grant the right to marry, to perform such marriages, and then leave the Joint Applicants with absolutely no remedy.”
The Ontario Superior Court is expected to rule on the divorce proceedings next month. The couple has asked to either be allowed to divorce, or for any provision preventing it to be struck down.
Unsurprisingly, the notice has already been the subject of a lot of outrage, both nationally and internationally. David Miller, the former mayor of Toronto and a law professor at York University, told the Globe and Mail that he is “saddened and, as a Canadian who does a lot of work abroad, I’m very embarrassed.”
Kathy Heggemeier, who lives in Virginia and married her partner of 28 years in Toronto a few years ago, said she is “pretty mad at Canada and at Mr. Harper,” and that, “I’m angry but more than anything I’m sad because what I see is another craven politician going after a minority.”
On the Stranger, Dan Savage, who got gay-married in Vancouver in 2005, wrote,
“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.”
However, Harper has said that, despite his policy-reversing statement on same-sex marriage, he is not actually re-opening the issue of same-sex marriage. At a press conference in Halifax this morning, he said, “We have no intention of further re-opening or opening this issue.” Also (winningly), “in terms of the specifics of the story this morning, I will admit to you that I am not aware of the details. This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking officials to provide me more details.”
This confidence-inspiring surety is, no doubt, a comfort to the 5,000 foreign same-sex couples who wed in Canada and whose rights, legal status, tax status, employment benefits, and immigration status are now uncertain. Provinces began legalizing same-sex marriage in 2003. It became effectively legal in Canada in 2004, and became a law in 2005. Since then, over 15,000 same-sex marriages have taken place, about one third of which involve couples from outside Canada. While determining how marriage translates internationally is usually difficult, determining what happens with same-sex marriages is an entirely different level of complicated. However, Canada still recognizes Canadian marriages, and should continue to do so.
Not supporting same-sex marriages, and, by extension, same-sex equality, is not only discriminatory, disrespectful, and dumb, but also contradicts a government policy mandate.
Before the 2006 election, Harper campaigned on having a free vote for MPs to decide whether or not to re-open discussion of same-sex marriage. The vote resulted in 175 to 123 against. At the time, Harper said that he would “accept the democratic result of the people’s representatives” and didn’t see re-opening the issue in the future.
He also says he isn’t re-opening the issue now. Except, oh wait, he is. It is entirely possible that the controversy is the result of a single Department of Justice lawyer going a little homophobic and Harper not really knowing what’s going on, which is bad enough. But it’s also possible that the move signals a reversal of policy and opinion, which is unacceptable. In either case, Harper needs to say something more constructive than “I am not aware of the details.” And he needs to say it soon.