Harper government reopens same-sex marriage issue, promises not to reopen it

By now, you’ve probably heard that the Harper government reversed its same-sex marriage policy this morning. In a test case launched by a lesbian couple seeking a divorce, a Department of Justice lawyer argued that their marriage isn’t legal in Canada because the couple couldn’t have legally married in England or Florida, where they reside.

Harper said this morning that he was “not aware of the details” of the legal decision. “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.”

Regardless of its origins, the decision calls the rights and equality of thousands of foreign same-sex couples into question. Non-Canadians who were married under our system don’t enjoy full legal rights in their home countries, but many of them do enjoy hard-won rights that depend on our legislation – and which they could lose if our legislation changes.

It’s true, for example, that same-sex couples can’t get married in the UK. However, the UK does recognize legal same-sex marriages performed in other countries. Two good friends of ours living in London – one a Canadian citizen, the other British – were married in Toronto this past summer, and they now enjoy full rights in UK because of it. In other words, you can’t get married in the UK if you’re a same-sex couple, but you can be married in the UK if you’ve legally gotten married somewhere else.

American sex advice columnist and gay rights activist Dan Savage, who emerged as a leading voice against the decision following a post on his blog, cites his home state of Washington as another example. “Right now, if I’m not mistaken,” he writes, “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.” Unfortunately, if marriages like Savage’s are no longer valid in Canada, then their status and rights as domestic partners could be in jeopardy.

It’s an interesting legal issue, to say the least. By recognizing same-sex marriages performed in Canada, and by giving their citizens corresponding rights and benefits, jurisdictions like the UK and Washington state have also given a foreign government the ability to strip those rights away. Savage and his husband can lose status and equal rights granted to them by their own government because of a change in Canada’s laws, and without their own state’s law having to change one iota.

Critics of the policy reversal – and there are many – ask what sort of regressive slippery slope we may have set in motion today. I’ve spoken to people today who wonder why we’re all so worried about the rights of foreigners, but I’ve spoken to many others who are rightly concerned about what the invalidation of one type of Canadian same-sex marriage could mean for the whole enterprise.

“I’d like to know,” Savage writes, “if a Jewish man was to marry a Saudi woman, which is illegal in Saudi Arabia, in Canada would it be a legally recognized marriage? Or is this a special right that we enjoy, this right to be discriminated that way?”

Harper says the decision caught him off guard, but plenty of people aren’t buying it. Former Toronto Mayor David Miller has said he’s certain that “this kind of decision would not happen without the Prime Minister being briefed.” Liberal leader Bob Rae agreed, claiming that it’s tough to believe Harper didn’t know about the case, “because my sense of that government is that he controls everything.”

Closer to home, my brother rightly noted that “if I was PM and changed the name of the government to the Jon Blair Government, I’d try and keep up with what it was up to.”

But Rae put it best when he said he has to “take the Prime Minister at his word when he says what he says.” It’s entirely possible that Harper was taken by surprise by the details of this case, and the question of how much he knew should take a back seat to the question of what he’s going to do next.

It’s too late to promise Canadians that the government won’t reopen the issue of same-sex marriage; this morning’s announcement threw the issue wide open. Maintaining Canada’s position on same-sex marriage now means taking action to clarify and reinforce our legislation, and it’s up to our government to make that commitment. They’ve started to dance around it by addressing the legality of same-sex divorce, but the question of same-sex marriage itself remains up in the air.

What do you think the government should do? How likely do you think they are to do it? Have I missed anything or made any mistakes above? Do feel free to share your thoughts in the comments.

Posted in Politics, Uncategorized

3 Responses to “Harper government reopens same-sex marriage issue, promises not to reopen it”

  1. Erin says:

    A lawyer friend of mine today told me that actually, this has nothing to do with same-sex marriage and only affects divorce and the issue of residence. As he explained it, there is a legal requirement of a 1 year residency in Ontario before a divorce can be granted. Since the couple was married in Canada and their marriage isn’t recognised in their home country, they must then be divorced in Canada, which is a problem because they don’t meet the residency requirement. I’d like to believe him that this is all sensationally blown out of proportion, but it doesn’t seem like it can be that simple (plus he’s a staunch Conservative so I’m not sure I trust him, frankly). Has anybody else heard anything along these lines?

  2. Matt says:

    Erin, it’s true that you can’t just cross the border and get divorced. Your friend is right about that, and the Ontario government’s been dealing with that issue for a while.

    But although today’s debate originated with a divorce case, it was the Department of Justice lawyer’s ruling that the 2005 marriage itself wasn’t valid that set things off.