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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