Unspinning The Same-Sex Marriage Fiasco

January 16th, 2012

Stephen Harper tapdances with a cane and top hat.

On Thursday, an article in the Globe and Mail declared that Stephen Harper’s Conservatives had annulled over five thousand Canadian same-sex marriages issued to non-residents since 2005. Worldwide panic and probably cannibalism ensued, with the government rapidly trying to diffuse the situation, and the media using a mixture of government-fed information and political spin to make things supremely confusing for anyone hoping to understand exactly what happened in the first place.

So, what did happen?

Depending on which articles you read, the situation has been described as anything from a sneaky reversal of marriage policy followed by intense backpedaling (I’m looking at you, Globe and Mail), to a heroic government announcement granting foreign same-sex couples legal recognition for the first time (That’s you, National Post). The truth is a third option entirely, and is every bit as boring as you’d expect the details of international law to be.

To spare you an unwanted nap, here’s what I understand in the utmost of brevity: A couple from the UK got married in Canada and then later decided they wanted a divorce. When it comes to divorce and other matters of legal consequence, though, it turns out that Canadian law requires that the couple’s marriage be recognized in their country of citizenship. A lawyer with the Department of Justice, arguing on behalf of the government, thus declared that the couple’s same-sex marriage is not legally recognizable in this case, and was therefore never valid in the first place. This, he extended, means that virtually all other same-sex marriages issued to foreigners are likewise invalid.

A poo tempest followed.

Now, I’m not at all fond of being in the position of defending Stephen Harper’s Conservatives (I find most of their policies indefensible and the others generally pretty sucky), but I truly think this whole interpretation caught them off guard. I don’t believe that the Department of Justice lawyer was arguing based on explicit instruction from the PMO, nor do I think Harper is actively seeking to end same-sex marriage in Canada. (He still does his best to prevent other advances in equality and protection; equalizing the age of consent and adding protections for trans Canadians comes to mind, but I sincerely don’t think he wants to take away our right to marry.)

At any rate, despite what you may read, there was no policy change here—just a lawyer making a foolish argument. Rather than side with the lawyer’s interpretation, the government has stated that they will remedy the situation the same way I would: Explicitly clarify the law to recognize marriages in legal matters, no matter what the legality of those marriages are in the couple’s home country.

What I wouldn’t do, though, is then try to score extra political points by blaming this debacle on the previous Liberal government, which is exactly what the Conservative Justice Minister Rob Nicholson did in front of the media: “This is a legislative gap left by the Liberal government of the day when the law was changed in 2005,” he said. “The confusion and pain resulting from this gap is completely unfair to those who are affected.”

This legislative gap—which I doubt can accurately be described as such—existed long before same-sex marriage was even a reality in Canada. If the Tories had been in power in 2005 we simply wouldn’t have noticed because gays would not be able to marry—and since virtually all opposite-sex marriages are recognized abroad, no case to highlight this “gap” would ever have been brought forward. (Once Mr. Nicholson renounces the injustice demonstrated by the Tories in their previous attempts to prevent and then strip away our marriage rights, he may then comment on the unfairness of those affected by the government’s own lawyer’s interpretation.)

So, what should we take away from all this?

Something very encouraging, indeed.

Attempts to strip rights away from gay people will result in a demonstrated public outrage capable of severely threatening the government’s popularity. Despite some very loud voices of bigotry out there, support for equal rights and acceptance of gay people is the mainstream view in Canada. And that’s worth celebrating.