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LGBT Legal Groups Say Not to Worry About Canadian Same-Sex Marriages Being Invalidated

Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry have released a joint statement in response to news earlier today that the Canadian government had served notice by way of a court case that thousands of same-sex marriages by foreigners in that country could be invalidated, news which has prompted an international outcry.

CanadaWrite the groups:

We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple's marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.

No one's marriage has been invalidated or is likely to be invalidated. The position taken by one government lawyer in a divorce is not itself precedential.  No court has accepted this view and there is no reason to believe that either Canada's courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.

Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, Canada's Parliament codified the equal right to marry for same-sex couples in 2005.

The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here in the United States: take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don't respect your legal relationship. There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense.

Canadian Government Says Thousands of Gay Marriages of Foreigners are Not Legal [tr]
Canadian PM Harper Won't Reopen Debate on Gay Marriage Over Govt. Plans to Invalidate Thousands of Them: VIDEO [tr]

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  1. finally.. some level headedness prevails....

    Posted by: NorthoftheBorder | Jan 12, 2012 6:10:01 PM

  2. Ah, I just linked to this in another thread.

    When this confusion and brouhaha passes, we'll still need level headedness to prevail (one day!) regarding marriage law in the US. The crazy legal hodgepodge on marriage equality in the US is nonsensical, where legally married gay couples in one state are not married in another, where the federal government won't recognize legal state marriages because of DOMA, where some states have marriage discrimination written into their constitutions. That's the real problem: until we have full federal marriage equality, sh*t like this will keep on happening in one form or another.

    Posted by: Ernie | Jan 12, 2012 6:32:03 PM

  3. Finally some level heads today. This was a tempest in a teapot. Lots of people got spazzy though, which was a good indication that this question will indeed never again be opened in Canada.

    And yes, anything but federal recognition of MARRIAGE (not civil unions) in the US is all that you should be fighting for. And put your back into it guys. Stop voting Republican as long as they keep using you as pawns to use hate to motivate the lower-middle class GOP voters who don't benefit from their fiscal policy (in Canada, we call such policy corruption). And don't let Obama off easy for taking things slowly. This is all or nothing.

    Paul (Canadian)

    Posted by: Paul | Jan 12, 2012 7:18:02 PM

  4. "there is no reason to believe that either Canada's courts or its Parliament would agree with this position"

    Only a non-Canadian would say this.

    These groups must be entirely unaware of the current Conservative majority, which has been in minority government from 2006, and got a majority in 2011. They've used that time to stack the courts, and the Senate (Senators are appointed).

    One of the hallmarks of the Conservative government is secrecy and stealth moves, primarily to bypass parliament, to do by other means what they could not do, or choose not to do, with parliament.

    Posted by: Randy | Jan 12, 2012 7:43:00 PM

  5. The Conservatives will not reopen the issue - mark my words - it would mean political destruction for them.

    Paul (A Canadian who never has or ever will vote Conservative BTW)

    Posted by: Paul | Jan 12, 2012 8:36:43 PM

  6. Ok so the whole thing is that you CAN'T get divorced unless you live here. Otherwise it still works. Welcome to the reality of Conservative Bashing. Can't bash liberal or NDP supporters here cause they are the minorities and you can get in trouble for that.

    Stephen (A Canadian who hasn't voted Conservative but still doesn't get the hate)

    Posted by: Stephen | Jan 12, 2012 8:45:07 PM

  7. Stephen, the controversy isn't about the residency requirement for divorce. Other places have such a requirement, including my home state (VT) in the US. The confusion today (and it's still a confusion; I just watched the national Canadian news from Montréal, and it was top story) is over whether the Canadian marriages of same-sex couples were ever legal anywhere, including Canada, if the couple's place of residence does not recognize same-sex marriages.

    Perhaps the intent of the federal lawyer's statement was not to say that these marriages are illegal even in Canada (lgbt legal groups are offering reassurances about this, as Andy posted), but that is how it's been widely interpreted today, including by major Canadian news outlets.

    Stephen Harper, in the clip I just watched, refused to directly answer the question but sidestepped it by saying he wouldn't reopen the marriage question. Clearly, it needs to be clarified what was meant, or the marriage question will remain open. A residency requirement is not crazy. Canada performing 1000s of marriages with no legal validity whatsoever would be crazy--it that's not the intent, Harper needs to say so immediately and stop the speculation. It's not about hate, it's about couples wondering if they were duped by the Canadian government. That would be a very big deal.

    Posted by: Ernie | Jan 12, 2012 9:24:03 PM

  8. Why the hell did so many American gays and lesbians come to Canada to get married in the first place?

    They should have checked with the laws of their relevant state's laws regarding marriage and divorce, and the solemnisation of marriage before they came to Canada.

    In order to get divorced in Canada, you must be a resident of this country for a minimum of twelve months.

    In order for your marriage to be 100% fully recognised as a valid marriage, it has to be accepted in the jurisdiction of which you are a primary resident. If not, than it may not be a totally recognised marriage in that foreign jurisdiction, though in Canada it would be recognised as a full marriage. But if foreigners are coming here, with no intention of living here, why should this case matter?

    Americans should fight their political battles in their own country, and stop using Canada as a leverage when it comes to issues, such as marriage and divorce and universal health care.

    And, if we redefine marriage to accept same sex couples, why stop their. Why not recognise the marriage of siblings or fathers-daughters, etc? Why not recognise polygamy? Why not redefine marriage so much that it is totally unrecognisable and meaningless.

    If gay and lesbian people came to Canada to get married, just to spite their own residual governments, without checking into the legal consequences, it is their fault for being in such a quandary.

    The definition of marriage should have remained as it was prior to 2004/05.....It wouldn't have created all of this hopeless grey areas of legal limbo.

    But, the GLBT community, through its so-called wisdom, wants to continue to pursue this matter. Why?

    Since the creation of time, we have had marriage defined as between a man and a woman. That's it.

    Social reengineers wanted it different, just like the great social democratic utopia that Europe is right now.

    Posted by: Sami in Vancouver | Jan 12, 2012 10:36:04 PM

  9. You are 100% correct Sami. I am a gay man in Vancouver, but same-sex marriage was a big mistake. Canadians never got to vote on such an important issue and many gays didn't want or ask for this "privilege".

    Posted by: david | Jan 12, 2012 10:46:30 PM

  10. "In order for your marriage to be 100% fully recognised as a valid marriage, it has to be accepted in the jurisdiction of which you are a primary resident. If not, than it may not be a totally recognised marriage in that foreign jurisdiction, though in Canada it would be recognised as a full marriage."

    Any couple should know that it would not be a fully recognized marriage at home, if their home did not recognize the marriages of same-sex couples. The wisdom of marrying in Canada--with the complications of divorce if you're not a resident--is open to debate, but the issue that created so much brouhaha today was precisely that the lawyer for the Canadian government said that divorce was unnecessary in this case because the marriage was NEVER LEGAL IN CANADA. So, no, Sami, you do not have it 100% correct, factually or grammatically.

    The quandary was not created by the married couples but by Harper's legal counsel. And, David, if you're really a gay man, why would you agree with an obvious homophobe, Sami, and his idiotic incest/polygamy argument? Weird.

    Posted by: Ernie | Jan 12, 2012 11:22:07 PM

  11. SAMI IN VANCOUVER, and DAVID are the same troll.

    SAMI/DAVID needs to the difference between "their" and "there".

    Posted by: Al | Jan 13, 2012 12:39:47 AM

  12. Herr Harper is a very controlling political wing nut that controls the Canadian Cabinet for HIS agenda. He is extremely right wing and a control freak. He creeps me out and I have never voted for him.
    He says one thing then changes the "Story" to suit his gains.

    His intent is on returning Canada to a Conservative right-wing society that Canadians left behind decades ago. He has never attended/supported a LGBT event in his entire career. He ranks right up there with some of the Republican Candidates looking for the leadership of that US political party.

    Posted by: Darrell | Jan 13, 2012 2:15:38 AM

  13. Al & Darrell,

    Why should Americans, and other foreigners, clog our courts and civil marriage commissioners with your marriages?

    Why fight your legal fights on our Canadian soil?

    That is the basis of my argument, and you both refuse to address the issue.

    So what if you live in a state that doesn't recognise same sex marriages; Get over it.

    The GLBT communities of North America are one of the most privileged in the world, and yet still want more.

    Marriage should have been left as it was prior to 2004/05. The socialistic elements of our legal system and academia has made a mockery out of marriage. Much of Europe, under a similar politic, is very much collapsing under the weight of a generous welfare state and policy of multiculturalism/multi-religionism.

    What's wrong with accepting same sex unions?

    To possibly recognise everything as marriage would render marriage a meaningless institution!

    Would you next advocate for incestuous marriages? How about polygamy? What about a 44 year old man marrying a 12 year old boy or girl or boy AND girl?

    By opening up the definition of marriage, would leave it open to further expansion, thus rendering it absolutely meaningless.

    And, typical of the left, always name calling and condemning.

    Is it any wonder why nothing can't get done with the present occupant of the White House not knowing what he's doing?

    If you live in a state where the majority of politicians and voters do not recognise same sex marriages, that must be respected....That's why the United States is a democracy. If you don't like your government's policies, and you cant change them, why don't you move someplace else?

    Posted by: Sami in Vancouver | Jan 13, 2012 3:54:16 AM

  14. @ Sami - First, you spouting inane Santorum arguments against civil marriage equality - and for that alone, STFU and get over it.

    Second, the United States isn't a democracy, it is a republic. And Article IV of the US Constitution "guarantee[s] to every State in this Union a republican form of Government". Before you start another batshit rant, that is small r republican - not big r Republican (the bigoted, homo-hating political machine).

    So grab your bus pass and head over to that beautiful public library you have in Vancouver and start reading.

    Posted by: MikeBoston | Jan 13, 2012 5:35:59 AM

  15. Welcome to ===

    Posted by: dsag | Jan 13, 2012 8:25:30 AM

  16. "If you don't like your government's policies, and you cant change them, why don't you move someplace else?"

    Umm, Sami, I think you need to turn that question around to the bigot in the mirror. Marriage law in Canada is never going to return to what it was prior to 2004. Canadian same-sex couples have full marriage equality and will continue to have it here, always. Maybe you should think about U-Hauling it out of Canada if you can't deal with it?

    As for the issue raised yesterday, you misunderstand the problem, so your comments on it don't apply.

    Posted by: Ernie | Jan 13, 2012 10:27:06 AM

  17. So, Tory haters, how about this?

    The Harper government will change the law to legally recognize the marriages of thousands of foreign gay couples, even if the laws of their home country do not.

    The legislative change will apply to all marriages performed in Canada regardless of the laws of the jurisdiction in which the couple live, Justice Minister Rob Nicholson announced Friday.

    “I want to make it very clear that, in our government’s view, these marriages should be valid,” Nicholson said at a news conference 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.”

    Posted by: AG | Jan 13, 2012 2:11:17 PM

  18. Mikeboston,

    Your inane distinction between democracy and republic proves the stupid arguments that the left continues to pursue.

    How's your President doing? How was the Occupy Boston movement doing?

    What about ethical oil that Alberta produces? Or would you rather that the United States stops the Keystone pipeline in order to continue to buy oil from homo-haters such as Iran and the Arab world?

    You live in one of the best countries in the world, but the American left (Michael Moore, Obama-supporters, etc) continue to be ashamed of that and hate it.

    Absolute and pure democracy, which you seem to espouse, is near anarchy and mob rule.

    The GLBT community has more than enough rights and privileges in America....What about acting out GLBT responsibilities? Instead of waiting for big government to do everything, or wave a magic wand and thanks to unicorn tears and fairy dust have gay marriage legalised!

    Just because the GLBT special interest groups were failures throughout most of the United States is no reason to force your socialistic-Obama styled big government agenda on your fellow citizens, let alone a foreign country.

    The GLBT Americans had no business getting married in Canada in the first place....We cannot afford to be the divorce court for the world, especially as economically disadvantaged that the United States (under Obama) is.

    Michael Moore clones are absolutely abhorrent!

    Posted by: Sami in Vancouver | Jan 13, 2012 4:29:41 PM

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