Panel: Changes in Same-Sex Marriage Policy

by | January 14, 2012
filed under Can-Con, LGBT, Politics

Bear with us as we try something new here at Gender Focus: a contributors’ panel. Sometimes a story breaks and none of our contributors has the time to write a full post about it that day. Often, it’s also a story that can be better presented if considered from diverse perspectives. So the idea I had was that if something like this happens I can send out the story to the contributors to get multiple takes on it.

For our pilot test, I picked what ended up being one of the biggest stories of this week: the Canadian federal government’s position on same-sex marriages performed in Canada for people from other countries where same-sex marriage is not legal.

The thing is the story developed so fast that I feel like we kind of missed the boat. In case you weren’t following, on Thursday I first saw the story in the Globe and Mail with this headline: “Despite legal about-face, Harper has ‘no intention’ of reopening gay marriage.” From the article:

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.

This was seen as a dramatic reversal of government policy, but despite the fact that the NDP brought the issue up in the House last fall, Harper and the Conservatives insisted they had no idea there was any change:

“In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details,” Mr. Harper said. “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”

I sent out the call for responses to the Gender Focus list but by Friday, gay legal organizations were reassuring people that marriages were far from being invalidated. And after massive public international outcry, including from Dan Savage (who was married in Canada), the government announced it would change the law to ensure Canada would recognize all marriages and make it legal for non-resident same-sex couples to divorce in Canada:

“I want to make it very clear that, in our government’s view, these marriages should be valid,” Nicholson said in Toronto. “We will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

While the issue isn’t totally resolved, fortunately the initial panic is over and it seems like the outcry did the trick. Still, here are reflections on the entire situation from three of our Gender Focus contributors:


“News stories like this are more evidence that marriage is just a social construct. It has served a variety of different purposes, from procreation to establishing kinship to uniting countries. It was also fairly recently a tool of patriarchal oppression, but we’re gradually moving away from that. It’s not all about owning a woman or bearing sons to pass on your lineage anymore–people get married for romance and all sorts of complicated reasons.

“So because the function of marriage changes, the laws we build around it are slowly changing as well. I can own property now, even though I’m married–things like that. But because it’s such a gradual process, laws made to adapt to those changes can be unfair and arbitrary, like the complicated situation here. How can two people have a human right to share a legal commitment to each other (or, for that matter, to be taken seriously in the legal system) in some countries but not others? The short answer is that they already have those rights, and laws are just slow on keeping up with them. But technology (and a decreasing tolerance for this sort of crap) are speeding up the progress. It used to be illegal for black and white couples to marry; now that’s a backward and antiquated way of thinking. This isn’t good enough, but hopefully it will get there.”


“While I am not a family lawyer, I can see how there could be some legal foundation for the government’s first position (Department of Justice lawyers take instruction only from the federal government and its bodies). Before I explain what I mean by this, let me make it clear that I think this is a disgusting move by the Conservatives and I strongly oppose their position.

“Generally speaking, the law where the marriage took place (in this case, Toronto) determines the validity of the ceremony. However, the law of the parties’ domicile (in this case, Florida) determines the parties’ capacity to marry, which is required for a valid Canadian marriage. For Canadians, capacity is determined by a mix of provincial and federal law.  For example, for a valid marriage in BC, the parties must be of age (defined by BC); the parties must not be cousins or siblings (a federal requirement); neither party can be married to someone else at the time of the ceremony (both a BC and federal requirement); and the parties must be sane (have a basic understanding of what marriage is – a very low standard). 

“I had understood this distinction between the law where the marriage took place and the law of the parties’ domicile to mean that a same-sex marriage would be valid in Canada, but not necessarily so in foreign jurisdictions.  Meaning that there was no onus on Florida to recognize the parties’ marriage, but Canada would.

“As the article states, the initial position taken by the government, while it may have some legal foundation, represented a significant shift in policy. While there may be some legal support for the position, this is a debate instigated by the federal government. They have complete power to choose whether to recognize the marriage as valid, and are choosing not to. There is no supra-national law that requires the Canadian government to use foreign laws of capacity to determine the validity of their domestic marriages.” 


“I have to say that I am very glad of the media storm that has come after the Harper Conservatives announced that they would not “re-open or open” the issue of invalid marriage certificates of gay folks from other countries has been successful. The past few days of is an embarrassment, frankly, filled with right wing spin and finger pointing. It’s a huge step backwards for the progressive movement in policy and in human rights to even entertain the idea of not honouring the unions of gay couples from other countries who came to Canada to get married. I was personally amused by Harper throwing the Liberals under the bus and blaming them for this mess. Right. I just really hope this isn’t a flash-in-the-pan to distract us so the Conservatives can unleash some more wholesome right-wing family values on us in the coming months.”



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