Same-sex marriages (SSM) in Canada
2012: Federal conservatives renew
then stage a speedy retreat.
2012-JAN: Federal Conservatives attack same-sex marriage:
During mid-2005, federal bill C-38 was signed into law and same-sex marriage (SSM) became available across Canada, except for Prince Edward Island (PEI) whose government chose to ignore the federal law. Threatened with a lawsuit by a lesbian couple, the PEI government quickly complied. From then until the end of 2011, about 15,000 same-sex couples were married uneventfully.
The first bump in the road occurred in 2006-DEC when the Federal Conservative Party in Ottawa attempted to reopen debate on SSM with the goal of preventing future SSM and perhaps to forcibly divorce couples who were already married. That initiative was quickly defeated by a vote in the House of Commons.
Following the 2006 elections, after many years of dominance by the Liberal party, control of the federal government switched to the Conservative Party of Canada. Since a great deal of support of the Conservatives comes from evangelical Christians, we anticipated that Prime Minister Harper would start to change many of the unique features of the Canadian culture with which many evangelicals disagree. We expected the government to:
We were surprised when none of our predictions came to pass during the 39th parliament elected in 2006 and subsequent parliament elected in 2008.
However, at the 41st election in 2011-MAY, the Conservative Party finally had achieved majority control of both the House of Commons and the Senate. During 2011-JAN -- less than a year after the election -- the government made its first moves to dismantle the health care system and limit same-sex marriage.
The federal government suddenly took the position that all same-sex marriages solemnized in Canada by visitors from jurisdictions that do not allow same-sex couples to marry are not actually valid. A lesbian couple known only as "L" and"M" were the first to be affected by the government's new stance. They had come from England and Florida to Canada during 2005. They purchased a marriage license, were married, obtained a marriage certificate, and left Canada to return to thier home in Florida.
Unfortunately, the marriage was not successful. In 2011, they returned to Canada and applied for a divorce. They are believed to be the first of the 5,000 to have done so. A government lawyer took the position in court that "L" and "M's" marriage never was valid and therefore they could not obtain a divorce.
Outrage, both nationally and internationally, was strong and almost instantaneous. The Harper government immediately made a hasty retreat.
Centuries of history of couples who came to Canada to marry because they were not allowed to marry at home:
Since 2004, approximately 5,000 same-sex couples have come to Canada from other countries in order to get married. Their main reason was that they were unable to marry in their country of residence. Many came from New York State or a few other American states which did not allow same-sex marriage for their citizens, but which did recognize such marriages if they were legally obtained elsewhere. This flow of visitors largely dried up in mid-2011 when New York State legalized SSM.
These thousands of loving, committed same-sex couples who sought recognition of their relationship were following a well-trodden path:
- In the early 19th century, the "underground railroad" were created to help black slaves in the U.S. escape to other countries where human slavery had been abolished. Estimates of the number of slaves who had escaped to Canada by 1850 range from 6,000 to 30,000. 1 Many of them would have been in loving, committed relationships and many of the couples must have wanted to marry in Canada, even though they were unable to marry in the U.S. slave states from where they had migrated.
- Many U.S. states passed miscegenation laws that prohibited interracial couples from marrying. These started in Maryland during the 1660's and ended suddenly with a ruling of the U.S. Supreme Court in 1967. The case was ironically named "Loving v. Virginia." (A year later, Virginia stacked an extra layer of irony by adopting the state motto: "Virginia is for lovers.") There must have been thousands or tens of thousands of interracial couples who came to Canada on or before 1967, in order to marry.
- During the dark days of Apartheid in South Africa which ended in 1994 with free elections, interracial couples were not allowed to marry. Some probably came to Canada to be married.
- As a general rule within Islam, a Muslim woman is not allowed to marry a non-Muslim man. This is because men are viewed within Islam as having a position of authority in marriage and a Muslim must not be "ruled" by a non-Muslim. Since most predominately Muslim states do not observe the separation of religion from government, this practice is often integrated into the law of the land. Again, some interfaith couples whose marriage is forbidden must have come to Canada and been married.
- In Israel, a large portion of the population, including non-orthodox Jews, is unable to marry in their own country. They are required to leave Israel, travel to another country -- perhaps with the wedding party and guests -- get married there, return to Israel, and register their marriage. Many go to Cyprus, but some have probably come to Canada to be married.
To date, we have been unable to find any evidence that these groups of loving, committed couples were not allowed to marry in Canada or that the government later considered their marriages to be invalid.
It seems that the Justice Department in 2012-JAN invented a special rule that applies only to same-sex couples. It is a rule that seems to have no precedence in Canada and violates centuries of tradition.
The federal government attempts to nullify 5,000 same-sex marriages:
The lesbian couple mentioned above had come to Canada from England and Florida in 2005, married, and then left the country to live as a married couple in Florida. They are now in their early 30's. Unfortunately, their marriage did not work out and so they decided to seek a divorce. They appear to be the only same-sex married couple from among the 5,000 to date who have sought a divorce. They cannot obtain one from England or Florida because these jurisdictions do not recognize their marriage. So, they returned to Canada.
According to The Mark news, Sean Gaudet, a federal lawyer in the Justice Department argued in court:
"... that because their home jurisdictions don't recognize gay marriage, their marriage wasn't legal in the first place. Hence, they shouldn't be allowed to get divorced. The lawyer also claimed that any couples seeking a divorce in Canada would have to live in Canada for a year before their wish could be granted." 2
With the thousands of precedences of ex-slaves, interracial couples, and citizens of Israel whom we believe were able to travel to Canada, marry there and have their marriages recognized, it is difficult to understand how the Justice Department can suddenly treat same-sex couples differently. We suspect, but cannot prove, that it was simply motivated by animus towards lesbians, gays, bisexuals, and transgender people (LGBT) by the Justice Department either with or without instructions from the Harper Government.
"In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles -– Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law." 3
This argument placed the validity of the marriages of the other approximately 5,000 same-sex couples in doubt.
Prime Minister Harper appeared to be genuinely surprised by the development. He said on JAN-12:
"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."
The Globe and Mail, Canada's national newspaper, commented:
"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." 3
The couple's lawyer is Martha McCarthy. She played a major role in the court battles that led to the legalization of same-sex marriage across Canada. She said that the government’s about-face is:
"... scandalous. It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity." 3
Referring to the actions of the Governments of Ontario and Canada, she said:
"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. All the while, they were handing out licenses to perform marriages across the country to non-resident people." 3
She commented that the action by the Federal Government threatens to convert Canada from a nation that extends equal rights to persons of all sexual orientations to a nation that actively discriminates against them.
This topic continues in Part 2
"SSM" means "same-sex marriage"
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Underground Railroad," Wikipedia, as of 2012-JAN-14, at: http://en.wikipedia.org/
- "Feds: Canadian Marriages of Foreign Same-Sex Couples Aren't Valid," The Mark News, 2012-JAN-15, at: http://www.themarknews.com/
- Kirk Makin, "Despite legal about-face, Harper has ‘no intention’ of reopening gay marriage," The Globe and Mail, 2012-JAN-12, at: http://www.theglobeandmail.com/
Copyright 2012 to 2013 by Ontario
Consultants on Religious Tolerance
Latest update: 2013-JUN-19
Author: B.A. Robinson