The same-sex marriage matter

Kevin Kindred is a Halifax lawyer and queer activist. This piece appeared originally on his Facebook page. He kindly allowed us to reproduce it here.

Let’s start with the caveat that I don’t really think you’re an idiot. Well, not all of you. Not, you, specifically, the one reading this right now. You’re the one I like. But I do think this is an issue that has gotten some terrible, uninformed media attention that has resulted in a lot of misplaced outrage.

What happened?

Well, if you ask The Globe and Mail, there was a bald-faced reversal of government policy in order to attack same-sex marriage. The government declared that same-sex marriages performed in Canada were no longer valid unless the couple comes from a jurisdiction where same-sex marriage is also legally valid. This meant thousands of foreign couples who got married in Canada were arbitrarily deprived of their rights. Dan Savage, opposition politicians and approximately one bajillion other people called Stephen Harper a homophobe, and the government back-tracked into promising to pass some kind of law about this at some point.

OK, but I didn’t ask The Globe and Mail, I asked you?

Something very different happened.

Fascinating. Please go on.

A US couple came to Canada in 2005 for the sole purpose of getting married. (Some people call these “tourist marriages,” which is a bit patronizing but makes the point.) Recently, they made the trip back, for the sole purpose of getting divorced. This marriage never had any practical validity for them, as they live in a jurisdiction that doesn’t recognize it. But presumably they took some comfort from the symbolic fact that they had gone through a marriage ceremony at one time in a place where same-sex marriage is actually valid.

A Department of Justice lawyer filed a brief in their case that pointed out two legal quirks. Firstly, the Divorce Act requires you to be resident in Canada for a year before you can apply for a divorce. (This is actually a key element of the case that isn’t getting as much attention.) Secondly, Canadian common law arguably doesn’t recognize tourist marriages that would be illegal in the couple’s actual home. This is what people are talking about.

The couple’s lawyer – a passionate longstanding advocate for LGBT rights who I respect a lot but would not ever want to encounter in a dark alley – informed the media of the interesting and novel issue being raised in this case.

Subsequently, all hell broke loose.

Why do you have your back up about this?

I hate defending Stephen Harper. I FUCKING HATE DEFENDING STEPHEN HARPER. But I think a bunch of things went awry in the reporting of this case, and I think they went awry in a particularly troubling way. Here are some of the problems as I see them.

‎(1) Law is hard.

This is an argument about something lawyers call “private international law.” It’s the law of how various legal systems fit together. It’s not set out in statutes by governments, it’s developed as common law over centuries as judges try to figure out how to solve tricky problems. It’s also everyone’s least favourite class in law school because private international law is complicated as balls.

Private international law of marriage basically says that Canada only recognizes a “tourist” marriage (one where the couple actually has no connection to Canada) if the marriage will be valid in their home jurisdiction. That principle is called “domicile.” The law evolved that way because judges historically don’t like the idea of tourist marriages, and don’t want to encourage them. Like it or not, that’s what the law is and has been for hundreds of years.

The same principle applies to straight couples, though frankly there aren’t a tonne of countries restricting how straight couples can get married. But first-cousin marriages are a good example: legal in Canada (don’t knock it, John A Macdonald married his first cousin) but not in some other jurisdictions. The same principles would apply.

Here’s another twist, just for fun: Each province can actually set its own rules about the process for getting married. In Nova Scotia, there is no residency requirement, only a basic waiting period. You can actually go through a legally valid wedding ceremony so long as you meet the requirements under Nova Scotia and Canadian law. But that legally valid ceremony might not result in a legally valid marriage, if you don’t otherwise have a real and substantial connection to Canada. Did I mention this was everyone’s least favourite class in law school?

(By the way, if you’ve read this far, congratulations. You now know more about the legal issues in this case than any journalist I’ve read or spoken to today.)

I’m not saying that the Department of Justice is definitely right here. It’s a complicated legal problem, and ultimately it will come down to how a judge decides to apply the common law to this new situation. But, there’s a decent chance that the DoJ lawyer is right on this one. Don’t take my word for it – Brenda Cossman, one of the best legal experts we have on LGBT family law issues, basically agrees. I posted her interview.

(2) Argument is not policy.

‎This is not a “reversal” of government policy. First, as I noted, the law has been this way for hundreds of years, so I don’t know where the reversal came from. But more importantly, this is not a government policy.

Reading The Globe and Mail article, and the bajillion subsequent comments, you’d think the PMO had issued a fiat annulling same-sex marriages for foreigners.

In reality, this is an argument put forth by the Department of Justice in a court case. It hasn’t even been decided by a judge yet. The DoJ makes dozens of arguments every day in courts across the country, arguing how federal law should apply to particular situations. While they are government employees, they don’t set government policy. Instead, they try to make the most correct legal argument in a case.

I have absolutely no hesitation believing that no politician ever gave direction as to how DoJ should argue this case. Theoretically they could, of course – after all, the government is the client. But realistically, most cases are handled at a non-political level. Treating this issue as if it were a policy of the Harper government is just grossly unfair.

It’s not just incorrect to pretend that a DoJ argument is government policy – it’s dangerous. The DoJ has to have some flexibility to present whatever legally sound arguments are relevant to the case. We don’t want politicians directing every government court case based on the politics of the day. But if the media treats every DoJ argument as government policy, it won’t be long before the DoJ only puts forward arguments that reflect approved government policy. And that’s a bad thing.

(3) Let’s not overstate the issue.

As far as I see it, this case only impacts couples who have no real-life connection to Canada, who travel here solely for the symbolic act of getting married. They knew when they got married that it had no practical impact on their lives, because their lives were lived entirely outside of Canada.

For that kind of couple, the value of their Canadian marriage is entirely symbolic. This is tautologically true. If the question of marriage validity actually does have some practical meaning for the couple, then by definition this isn’t a tourist marriage. Either they have a real and substantial connection to Canada, or to some other place where their same-sex marriage is recognized, and therefore this case doesn’t apply to them.

Wait, aren’t you supposed to be some kind of queer activist? Are you saying this isn’t important?

Actually, I think this is an important issue.

If it turns out that the common law doesn’t recognize these marriages, I think we should change the law. The government can do that, and it should. It should because for almost a decade, Canada has been a beacon of hope for same-sex couples who want to marry. When we fought for same-sex marriage in Canada, we knew we were also fighting for those couples. The law on this may be hundreds of years old, but because of that, it doesn’t reflect Canada’s role as a leader in recognizing LGBT equality. We should change the law because, god damn it, symbolism is important.

(And if those symbolic marriages sometimes need to end in symbolic divorces, well by golly, we should allow that to happen too.)

But I don’t think it’s helpful to have false – dare I say, manufactured – outrage over this issue. I totally get why people are generally outraged at this government, and I am too. So I don’t really fault people for jumping on this issue. But I think underneath it all you have one side in a legal case, together with media and opposition politicians, who benefit from exploiting a “Homophobia in the Harper government” meme. I think the issue is being spun into something it’s not, in order to make headlines and score political points. And I don’t think that helps anyone solve any real world problems.

Dude.

I know, right? Apparently I have a lot to say about this. I promise, next post will be all Harper-bashing, all the time.