Monday, January 16, 2012

Foot in mouth syndrome: What is Harper's real position on gay marriage?

Towards the end of last week, news emerged that the Harper Government was taking the position that thousands of same sex marriages in Canada may have never taken place because the institution was not valid in the home countries of the couples who took out marriage licenses here.    Therefore, a gay or lesbian couple who later decides to get a divorce cannot access our courts to dissolve something that "never really happened."   And this actually had me reeling.    No matter what one may think about the practice it is perfectly legal in Canada and we've collectively made a decision, through our elected representatives, to just move on.   Some time later, Team Harper appeared to backtrack slightly but nowhere near enough.

Here's what makes me angry about it:   This is the exact same excuse many Southern States used to try to stop interracial marriage.   They would not recognize any such marriages that had taken place out of state -- in clear violation of the "full faith and credit" clause of the Constitution.    Even mixed race couples who had clear roots in the North or West put themselves in peril when they travelled on vacation to the South.    Since "ignorance of the law is not an excuse" many well-intended couples were summarily banished and ordered never to come back again, "or else."   Eventually it was recognized that the heart wants what it wants, and that marriage should be as colour blind as public education or mass transit.   Which is as well as it should be.

To use an analogy -- and I realize I'm hyper-extending, but bear with me -- in Israel, many couples of all stripes get married civilly in Turkey or Cyprus.   In fact, make that most, somewhere like 80%.    Reason?   Because of the very strict norms imposed by the various religious heads -- the Chief Rabbinate for Jewish people, the Supreme Imam for Muslims, the Patriarch of Jerusalem for Catholics, and so forth.   A civil marriage can only be contracted in Israel if both can prove a lack of connection to any confessional group -- and that's not really easy.    Just one baptismal certificate for a Christian, for instance, and game over; you get married in that denomination in Israel, or not at all -- civil marriage is not an option.

This has proven problematic for those Jews from the former Soviet Union who took advantage of perestroika and immigrated en masse to Israel, and are in the opposite camp -- they want to get married under a chuppah.   Under the Law of Return, part of Israel's constitution, they gained immediate Israeli citizenship as soon as they cleared customs in Tel Aviv.   But because their parents and grandparents didn't practice Judaism (because they could not) the Chief Rabbi doesn't consider them to be Jewish.    Seriously.   So they have to take a trip out of the country to get their marriage contracted (or covenanted if your prefer).    Crazy but true.

So what of the marriages contracted out of country -- civil or religious?    Israel considers them to be perfectly valid.     There was some dispute as to validity for decades, but it was established beyond a doubt in 2006 by the country's courts.

I wrote a few years back about a lesbian couple who validated their marriage in a northern state then the relationship soured, one of the partners won custody of their daughter, and the other took the child to another state and was charged with spousal kidnapping.    The at fault party tried to invalidate the marriage by claiming her state of abode, Virginia, banned gay marriages in its state constitution.   The courts ruled against her saying that whatever the position of the voters on this one, the federal constitution overrode that and a same-sex custody order from out of state could and would be enforced even in states where the practice was outlawed.

I cannot for the life of me understand what the problem is at this time.    If this is an example of what to expect from the "hidden agenda" of Mr Harper I cannot imagine what he has planned next.   Splitting hairs on legal points is to be expected from all political parties, one would suppose.   But it does no good to the families who could be forced apart on a "technicality."


The Rat said...

You seem to have missed the point with your example. Israel accepts foreign marriages, so does Canada. What Canadian law (see Andrew Coyne's non-hysterical article) says is that people who get married in Canada to avoid laws prohibiting their marriage in their home jurisdiction do not have a valid marriage. The reason is simple enough. We in Canada do not accept all marriages from other countries, for example polygamous marriages. Coyne points out is is a dangerous precedent we are setting.

And the reason all this came about? Because Canada reasonably applies a 1 year residency requirement on persons wishing a divorce. Why should Canadian courts be the clearing house for foreign divorcees? Why should Canadian courts bear that financial and administrative burden? This was never about gay or straight, it was simply the hot button a lawyer pushed because her clients did not meet the residency requirements.

Fred from BC said...

Well said, Rat.

Our laws in this regard are no different than those of any other western nation and supported by as much precedent as any lawyer or judge could ever hope for. This was a non-issue right from the start, and only became a 'story' when our left-leaning news media decided to try and bash the Conservatives with it, and our Opposition parties just couldn't resist the temptation to run with it. They really should have checked their facts first, judging by how quickly this story completely disappeared once the truth came to light.