Are some marriages more equal than others?

Why federal lawyers are wrong to argue same-sex marriages by non-residents aren’t valid

Today’s news that government lawyers are arguing same-sex marriages performed in Canada are not valid if the couple resides in a jurisdiction that doesn’t recognize them has caused considerable controversy. It’s a case that pits established equality rights against the intricacies of Canadian family law and principles of international comity (i.e. recognizing other countries’ laws).

The legal issues involved are complex. While there is no residency requirement to get married in Canada, there is one for divorce (to get a divorce you must have lived in Canada for a year). For that reason the ability of non-resident, same-sex partners who get married in Canada to later obtain a divorce has been up in the air.

The difference here is that government lawyers do not simply want to deny a divorce because the couple does not meet the residency requirement. Instead, they argued that because Florida and the United Kingdom (the jurisdictions the couple comes from) do not recognize same-sex marriage, their marriage in Canada was never valid in the first place.

This argument is based on a well-established rule in Canadian family law. Marriages performed in Canada that involve non-residents tend to be governed by the rules of their home jurisdictions.

Having acknowledged that, the Charter of Rights and Freedoms is also implicated here. The Charter applies to everyone in Canada. Certain rights, like the right to vote, are granted explicitly to citizens. But most of the others—including equality rights— apply to everyone, be they citizens, permanent residents or foreign visitors.

Because of this universal application of the Charter, because Canadian courts have held that same-sex partners have the right to marry, and because we allow foreigners to marry in Canada, recognizing the marriages of foreign heterosexuals but not foreign gays and lesbians is a gross infringement of equality rights.

It’s true the Supreme Court has in the past held that comity principles can limit the Charter’s application in cases involving Canadian authorities’ actions when in foreign jurisdictions. But this case doesn’t involve the question of whether the Charter applies abroad; it’s about whether the Canadian government should recognize a marriage conducted in Canada. That marriage may be entirely symbolic for the people involved, given that it won’t be recognized in their home jurisdiction. But symbols matter. They’re the reason many equality advocates fought for same-sex marriage and did not want to stop at just “civil unions,” even if the latter included all the same benefits and privileges.

Others might question why Canada should be in the business of recognizing the marriages of non-citizen, non-residents and then have to deal with issues relating to divorce. This is a legitimate question, but it pertains to all marriages, not just same-sex ones. (It also makes this afternoon’s announcement by Justice Minister Rob Nicholson that the government is looking into how to make divorce possible for same-sex couples in this position a bit of a puzzle. The story has clearly put the Harper government into damage control, but I don’t think they’re looking to get rid of the residency requirement for divorce.)

The point is that the Charter applies here. Respect for the laws of other jurisdictions has limits. Either we recognize foreign marriages or we don’t. We cannot make unconstitutional distinctions based on the laws of other jurisdictions.

Emmett Macfarlane is a political scientist and Senior Instructor at the University of Victoria. You can follow him on Twitter @EmmMacfarlane




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Are some marriages more equal than others?

  1. Potentially Same sex couples would not be the only effected. It would also mean that
    inter racial couples from States with Anti-miscegenation laws, who married in
    Canada, are not, in fact, married under Canadian law. Remember the
    Anti-miscegenation laws in some US states existed up until 1967.

    • I don’t think the miscegenation example is valid. If the US initially denied the marriage but subsequently recognized it, surely Canada would recognize it too.

      A more topical example would be laws governing the level of kinship permitted between bride and groom. For example, if two first cousins get married in Canada and then move somewhere that doesn’t allow that.

  2. The Charter applies to the Divorce Act residency requirement, but I don’t see how the Charter can apply to a common-law rule.  It only binds state actions, and can’t change the common law rule that the law of the domicile is the law that determines essential invalidity.

    • Common law is crafted & applied by courts who are a branch of the state. Court is bound by the Charter as much as anyone else.

    • The Court will modify the common law in order to reflect “Charter values”.  This isn’t quite the same as subjecting the common law to Charter scrutiny, although it’s often difficult to tell the difference. 

      See e.g. Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 at paras 83-99
      M(A) v Ryan, [1997] 1 SCR 157 at para 30.
      RWDSU v Pepsi-Cola, 2002 SCC 8 at paras 21-22.

  3. “But most of the others—including equality rights— apply to everyone, be they citizens, permanent residents or foreign visitors.”

    I’ve yet to understand how equality rights have anything to do with same-sex marriage.  If the law in the UK is that anyone can marry someone of the opposite sex, where is the inequality?  Everyone has the same right: to marry someone of the opposite sex.  This right is held equally by all.

    “ That marriage may be entirely symbolic… But symbols matter. ”

    Precisely.  I guess we can finally lay to rest that oft-repeated cry “but how does my marriage to my same-sex partner affect anyone else?”.

    • Leaving aside the very real possiblity that “I’ve yet to understand…” really means “I have blinded myself with my own  sophistry in order to perpetuate a canard on myself and others”, granting identical rights is not always granting everyone the same right.  Forcing everyone into a mosque or chapel every weekend would not, for instance, create equality of religion. 

      As for symbols, there is indeed powerful symbolism, just as forcing a race to wear a yellow star is a powerful symbol.A state that offers gay marriage is a symbol of equality, one that does not creates a symbol of prejudice and evil. Pure, unholy evil.

      • Hmmm. If I understand you correctly, not recognizing same-sex marriage is the equivalent of forced religious observance, the Nazi Holocaust, and quite possibly Satan himself.

        On the other hand, it might just be the logical consequence of the belief that the government should stay out of the bedrooms of the nation unless there is some fundamental societal good to be obtained thereby.

        But yes, your hypothesis is much more fun, if by “fun” one means “villainizing those with whom I disagree”.

        • QED on the blinding oneself with sophistry  (on your part, to be clear), with a healthy dose of strawperson and reductio ad absurdum too boot.

          Colour me disapponted in the interntz once again.

          • Ah well, I only speak on behalf of the fool, you know. You can’t expect too much.

            Also, strawperson? Must even rhetorical scarecrows destined for public burning now be gender-inclusive? I feel so epersoncipated.

        • You conveniently ignored GFMD’s question.

          So I’ll repeat it in slightly different format in the (vain) hope that you might actually provide us with an answer as opposed to a sophistry.  

          If the law is “All people may worship Allah, no other form of worship is legal.” How is that different from “All people may marry someone of the opposite sex, no other form of marriage is legal?”

          Now, you can say it is no different and both are equally valid, which is fine, though some might think it oppressive.

          You can say they are no different and both are equally invalid, which is also fine, and the position that many here are arguing from.

          Or you can say that they are different and be a fool and a hypocrite.

          • I think the even better example is to think back to the days prior to the decriminalization of homosexuality.

            To paraphrase Gaunilon’s original question: “If the law is that anyone can have sex with someone of the opposite sex, where is the inequality?  Everyone has the same right: to have sex with someone of the opposite sex.  This right is held equally by all”.

            The fact that “everyone” has the right to do something that only a select number of people wish to do is not a justification for denying other people the right to do something else that THEY wish to do.  There may be other justifications for such a limit, but the example Gaunilon points to is ludicrous imho.  

            That every person has the equal right to be a vegetarian is no justification for banning the eating of meat.

          • “That every person has the equal right to be a vegetarian is no justification for banning the eating of meat. ”

            Correct, but neither would it be a violation of an “equality right”.  It would instead be a violation of the individual’s right to choose their menu. This would be analogous to outlawing same-sex sex, not refusing to formally recognize same-sex marriage.

          • I’m just not sure I agree. To me, saying “everyone has an equal right to marry someone of the opposite sex” is the equivalent of saying “everyone who’s a heterosexual can marry their partner”. I don’t see how that’s any less of a violation of equity rights than it would be to say “everyone who’s a man has the right to vote” or “everyone who’s white has the right to own property”.

            To frame the issue in terms of “everyone has an equal right to marry someone of the opposite sex” is to frame one’s sexuality as a choice, not an essential nature of one’s being, and I find that repugnant. It’s no better to say that everyone has an equal right to marry someone of the opposite sex than it would be to say that everyone has an equal right to marry someone of the same sex, or that everyone has an equal right to marry someone of the same religion.

            Would we seriously not consider a law that essentially said “Everyone has an equal right to marry a Christian” to be a violation of the equality rights of non-Christians? Are you saying that a Muslim or a Jew would have no case to challenge such a law on the basis that it violated their right to equal treatment under the law?

          • I’m just not sure I agree. To me, saying “everyone has an equal right to marry someone of the opposite sex” is the equivalent of saying “everyone who’s a heterosexual can marry their partner”. I don’t see how that’s any less of a violation of equality rights than it would be to say “everyone who’s a man has the right to vote” or “everyone who’s white has the right to own property”.

            To frame the issue in terms of “everyone has an equal right to marry someone of the opposite sex” is to frame one’s sexuality as a choice, not an essential nature of one’s being, and I find that repugnant. It’s no better to say that everyone has an equal right to marry someone of the opposite sex than it would be to say that everyone has an equal right to marry someone of the same sex, or that everyone has an equal right to marry someone of the same religion.

            Would we seriously not consider a law that essentially said “Everyone has an equal right to marry a Christian” to be a violation of the equality rights of non-Christians? Are you saying that a Muslim or a Jew would have no case to challenge such a law on the basis that it violated their right to equal treatment under the law?

          • This strikes me as a separate issue from “equality rights”, but let me attempt to answer your question anyway.

            Let me illustrate the difference as I see it. If the law forbade people from marrying whomever they please, that might be analogous to the law forbidding people from worshiping other gods, and thus your objection would be apt (although I might still disagree on the larger point for other reasons – but that is another discussion).

            However, that is not what the law did prior to 2005. What the law did was only formally recognize opposite-sex marriages, between already single people, from separate families. People were free to marry each other as they saw fit, without fear of prosecution (except for polygamy which for some reason is prosecuted – I don’t quite understand why).

            Just as the state is not required to recognize every sect as a religion, neither is it required to recognize every sexual relationship as a formal marriage. Why should it? It should only get involved in people’s sexual relationships if there is some pressing societal reason to do so. Where said sexual relationship may produce the next generation, and said generation is in need of a stable family where the father doesn’t leave without paying adequate support, the state’s involvement in the bedroom is justified. However for sexual relationships that have nothing to do with producing the next generation, the state has no business wasting everyone’s time and money getting involved. And doing so is not only wasteful, it also dilutes the importance of those relationships the state actually does have business getting involved in. Symbols matter.

            Now, I realize that you will doubtless condemn this honest attempt to answer your question as “sophistry”, and me as a fool (fair enough), and a hypocrite (possible), but perhaps there are other readers who will see what I’m getting at.

          • So the poster expects readers to believe no one has ever pointed out – in all the years gay marraige has been legal – that infertile couples are allowed to marry? What does he take us for?

          • So the responder expects readers to believe no one has ever pointed out – in all the years gay marriage has been legal – that infertility renders sex ineffective, but doesn’t change it into something that has absolutely no relation to reproduction? What does he take us for?

          • But weren’t the court cases started because gay people attempted to be married and were refused?  That’s how the state got involved, it was accused of discriminating.

          • Actually, it’s a fair attempt, it just fails because a marriage isn’t now, and never was, a license to have children. If that was truly the point, there never would have been any concern over interracial couples, and there would have been significant concern over elderly couples. Neither of these are true, so children have never been at the heart of marriage.

            This is even more obvious today, where heterosexual couples get married with full intentions to *never* have children, and some people have children together while never intending to be married.

            Symbols do matter, I’ll agree, but a marriage is simply a symbol of (hopefully) lifelong commitment to another. Basically a pledge to society that you will do what you can to support this person, and vice versa. And society recognizes that by treating married people differently from unmarried. Because of that, the situations are analogous, and if you are saying that the state has no business in the bedrooms, then they should get out of the marriage business altogether.. which I don’t disagree with.

          • What a couple intends, or is capable of, or what race they are, is not something the state should be delving into either. All that matters is whether the relationship is the sort that produces children. If it is, the state needs to get involved, regulate it, and make sure people are committed to taking responsibility for any children that could result.

            If marriage were “simply a symbol of (hopefully) lifelong commitment to another”, then why does the government need to sanction it? What business is it of the government or the rest of society if two people want to make a pledge to each other? Answer: none. (and why could they not be, for example, brother and sister or father and daughter if that’s all marriage is??)

            From here, your approach would be that “they [the state] should get out of the marriage business altogether.” And that is almost certainly what will eventually happen due to our current situation. However this will also mean that there will be no permanent commitment on the part of couples who do have children. Fine, right? Who cares about whether a kid’s parents stick around, right? Except, all the evidence suggests that kids who grow up without a stable family do worse across the board.

            On the other hand, if you agree that a stable family actually kind of does matter for kids, then it follows that the state needs to sanction the kind of union which produces kids and make sure it’s a long-term commitment. It also follows that the state should not be muddying the waters by sanctioning every “I really like that person” union that people ask for unless it is of this type. And finally, it follows that the state should not be allowing divorce/remarriage except where people’s health or safety are in jeopardy, but that is a separate discussion for another day.

            I will grant you this, however: we are only having this debate today because Canadian couples messed up heterosexual marriage so badly that few can even see what it is actually for. Given that, one has to sympathize with same-sex couples who point out, fairly enough, that heterosexual couples are so irresponsible with their marriages as to make them ludicrous. So what right do heterosexuals have to tell gays they can’t participate? It’s a fair point, but again, only because society has allowed sex to become a commodity for pleasure rather than something tied to responsibility.

          • Hint: It’s entirely possible for a homosexual couple to raise a child. So long as there are kids up for adoption, the physical ability to produce children is irrelevant. Otherwise, again, interracial couples wouldn’t be a problem, and couples where one or more are sterile would be.

            Your “it’s for the childruns!” argument falls flat on so many levels it’s pathetic.

          • You keep bringing up interracial couples as being a problem….but no one is saying they are. I realize it’s nice to paint everyone with whom you disagree as a racist, but most readers here will see through that tactic pretty quickly.

            I’ve addressed the sterility/intent objection above. And while adoption is certainly possible and better for kids than being orphaned, it’s not what a government should shoot for over and above having kids raised by their own parents in a stable family….which requires regulating/sanctioning the kind of relationships that produce children….which brings us back to the whole argument I laid out in good faith above.

            “Your “it’s for the childruns!” argument falls flat on so many levels it’s pathetic.

            Yep, I’m an illiterate rube who can’t string together a cogent argument and can’t spell. Well done – you pegged me!

            It was a good discussion while it lasted, even if it was only civil for one post/reply cycle. So I’ll thank you for that.

          • No one is saying they are now.. but they *were*, which, if your assertion that a marriage is somehow a licence to have kids (which it is not) were true, would not have happened.

            As for why I became hostile, it’s because you became obviously hypocritical.

            “The government shouldn’t be in the bedrooms, so that’s why sterility or intent doesn’t matter, but they should be in the bedrooms just enough to feel that it’s fine to sanction a marriage that can produce children, even if it can’t/won’t.”

            You’re a hypocrite. And I get angry at those. That you’re also a rube who can’t string a cogent argument together is irrelevant.

          • Gaunilon, your argument about the need for govt’s involvement in
            Marriage due to the importance of children and traditional family has
            always, IMO, been the most effective explanation the govt. could use if
            it chose to ban same-sex marriage.  

            The argument still fails for a variety of reasons:

            Your
            earlier point that ‘Everyone has the same right: to marry someone of
            the opposite sex’ makes no sense because sexual-orientation is protected
            under Sec. 15 on analogous grounds. The law can’t put restrictions on
            behavior based on sexual-orientation. 

            Marriage
            provides a variety of rights and protections (and penalties) like
            alimony, divorce, health and tax related.  These rights are not tied to
            having children. Child tax benefits are tied to children, gay couples
            can have children. Unless adoption is involved, child support payments
            are tied to birth parents, not marriage arrangements. This hasn’t
            changed.

            Your concept of ‘Marriage’ is not really promoted by
            the government and the penalty to same-sex couples would not be
            ‘minimal’. It would fail the Oakes test IMO. 

            Theoretically, I agree that some sort of law based on your points could
            be crafted to satisfy violation of Section 15 of the charter. But, it
            would be very limited. Similar to the right of churches to refuse
            same-sex marriages.

      • Leaving aside the very real possiblity that “I’ve yet to understand…” really means “I have blinded myself with my own sophistry in order to perpetuate a canard on myself and others”, granting identical rights is not always granting everyone the same right.

        Very good statement, +100500

        http://www.plagiarismdetect.com

    • “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

      • OMG THE STATE IS FORCING PEOPLE TO SLEEP UNDER BRIDGEs!!!!

      • What, exactly, is or was forbidden prior to same-sex marriage?

    • Gaunilon, your argument about the need for govt’s involvement in Marriage due to the importance of children and traditional family has always, IMO, been the most effective explanation the govt. could use if it chose to ban same-sex marriage.  

      The argument still fails for a variety of reasons:

      Your earlier point that ‘Everyone has the same right: to marry someone of the opposite sex’ makes no sense because sexual-orientation is protected under Sec. 15 on analogous grounds. The law can’t put restrictions on behavior based on sexual-orientation.  

      Same-sex couples can have children and families.

      Marriage provides a variety of rights and protections (and penalties) like alimony, divorce, health and tax related.  These rights are not tied to having children. Child tax benefits are tied to children, gay couples can have children. Unless adoption is involved, child support payments are tied to birth parents, not marriage arrangements. This hasn’t changed.

      Your concept of ‘Marriage’ is not really promoted by the government and the penalty to same-sex couples would not be ‘minimal’. It would fail the Oakes test IMO. 

      Theoretically, I agree that some sort of law based on your points could be crafted to satisfy violation of Section 15 of the charter. But, it would be very limited. Similar to the right of churches to refuse same-sex marriages.

    • Gaunilon, your argument about the need for govt’s involvement in Marriage due to the importance of children and traditional family has always, IMO, been the most effective explanation the govt. could use if it chose to ban same-sex marriage.  

      The argument still fails for a variety of reasons:

      Your earlier point that ‘Everyone has the same right: to marry someone of the opposite sex’ makes no sense because sexual-orientation is protected under Sec. 15 on analogous grounds. The law can’t put restrictions on behavior based on sexual-orientation.  

      Marriage provides a variety of rights and protections (and penalties) like alimony, divorce, health and tax related.  These rights are not tied to having children. Child tax benefits are tied to children, gay couples can have children. Unless adoption is involved, child support payments are tied to birth parents, not marriage arrangements. This hasn’t changed.

      Your concept of ‘Marriage’ is not really promoted by the government and the penalty to same-sex couples would not be ‘minimal’. It would fail the Oakes test IMO. 

      Theoretically, I agree that some sort of law based on your points could be crafted to satisfy violation of Section 15 of the charter. But, it would be very limited. Similar to the right of churches to refuse same-sex marriages.

    • Gaunilon, your argument about the need for govt’s involvement in Marriage due to the importance of children and traditional family has always, IMO, been the most effective explanation the govt. could use if it chose to ban same-sex marriage.  

      The argument still fails for a variety of reasons:

      Your earlier point that ‘Everyone has the same right: to marry someone of the opposite sex’ makes no sense because sexual-orientation is protected under Sec. 15 on analogous grounds. The law can’t put restrictions on behavior based on sexual-orientation.  

      Marriage provides a variety of rights and protections (and penalties) like alimony, divorce, health and tax related.  These rights are not tied to having children. Child tax benefits are tied to children, gay couples can have children. Unless adoption is involved, child support payments are tied to birth parents, not marriage arrangements. This hasn’t changed.

      Your concept of ‘Marriage’ is not really promoted by the government and the penalty to same-sex couples would not be ‘minimal’. It would fail the Oakes test IMO. 

      Theoretically, I agree that some sort of law based on your points could be crafted to satisfy violation of Section 15 of the charter. But, it would be very limited. Similar to the right of churches to refuse same-sex marriages.

  4. Certain rights, like the right to vote, are granted explicitly to citizens.

    I am a Canadian (and only a Canadian) ex-pat that is about to mark 5 years living outside of Canada. Although we pay taxes in Canada from property and investments there and have paid into the CPP for many years, the government has made it quite clear that we are not allowed to vote in federal elections.

    Even when you are allowed to vote (less than 5 years out of Canada and express intentions of returning) the logistics involved in voting make it an exercise in futility.

    I don’t think the Harper gov’t had a hand in crafting the legal defense of this test case – it’s really a case of unintended consequences. Pass a law to recognize same-sex marriage but forget about any divorce laws that may need amending?

    Sure, where do I sign?  This is just like that Kyoto deal. It makes me look good.

    That being said, I have no doubt that the Harper Government™ will marshall all the legal resources it can to defend it’s idealogical position.  That damn Charter of Rights and those federal courts just keep getting in the way, don’t they?

    • The right to vote, like all Charter rights, are subject to a “reasonable limits” clause. So while you’re right that even citizens have limits on their right to vote, not all limits are unconstitutional. But in that example, only a citizen could make a claim under section 3 to test that 5-year rule in court. With regard to other rights, non-citizens in Canada can and do make claims.

  5. this was done to flush the haters out of their closets. look at the comments and you see the REAL canada: ugly as a dog turd

  6. The U.S. apparently doesn’t recognize same-sex marriage conducted in Canada. But under “good faith” rules, it’s supposed to recognize marriages that are legal in the countries where they were performed. what’s up with that? Should I refuse to visit the U.S. until it recognizes our laws?

    • Ideally, yes. We need your tourism dollars here too. :)

    • Because of common law conflict of law principles, some US states do recognize same-sex marriages conducted in Canada.  New York and Maryland are examples and you might find this legal opinion helpful:  http://www.oag.state.md.us/Opinions/2010/95oag3.pdf .  While a state may not allow a couple to wed, that same state may, as a matter of law, recognize same-sex marriages legally performed in other jurisdictions. 

      In the subject case, the state is Florida.  Florida amended its constitution in 2008 to prohibit the recognition of same sex marriage, presumably to address the conflict of laws principle under which Florida would otherwise legally have to recognize a same sex marriage performed in a jurisdiction like Canada.

  7. The Webster’s definition of marriage is “the institution under which a man and a woman become legally united on a permanent basis”.  It seems though that our esteemed judges and Paul Martin have succeeded in not only changing the Charter, but the dictionary to their interpretation.  I and many other Canadians are sick and tired of judges twisting the Charter to mean anything they can conceive in their little minds.

    • Webster’s is a child’s dictionary, not a legal dictionary. Grow up.

  8. If you want the benefits of Canadian laws shouldn’t you live in Canada?   The couple knew that getting married in Canada would not change the legal status of the relationship where they lived.    A Canadian divorce order will not be recognised in the couple’s home country so any decisions would not be valid.  

  9. Of course, it turns out that the same sex couple at the beginning of this wants to change the residency rules regarding divorce.  They don’t want to live in Canada while waiting for divorce.  They want a quicky divorce as well as the quicky marriage.  As usual, someone who is NOT CANADIAN WANTS TO CHANGE THE LAW.

    • As…usual? Good lord, what universe do these anti-gay marriage types even live in? it certainly bears little resemblance to our own.


  10. because Canadian courts have held that same-sex partners have the right to marry”

    Well, yes, lower courts have held that, but when it went to the Supreme Court (the fourth question of the SCOC reference) they refused to rule on whether gay people have the right to marry, see http://en.wikipedia.org/wiki/Same-sex_marriage_in_Canada#Supreme_Court_Reference_re_Same-Sex_Marriage

    It’s entirely possible that the SCOC could rule that gay people do not in fact have a right to marry under the Charter.

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