U.S. Gays Who Marry in Canada Face Hurdles

New York Times ^ | 6/20/03 | CHRISTOPHER MARQUIS

[kattracks]

ASHINGTON, June 18 — Gay Americans who visit Canada to marry may revel in their newfound status there, but they will come home to a confusing patchwork of overlapping jurisdictions and competing laws and are likely to face a struggle for recognition, legal experts say.

It is too soon to tell the legal implications here of Canada's decision to allow same-sex couples to wed, the experts said. But the ease of marrying in Canada — it has no residency requirement — is expected to lure numerous Americans seeking to sanctify their relationships or make a political statement.

When they return, they will find a landscape of legal battles and a federal government that has determined that marriage may only occur between a man and a woman.

"Couples who marry in Ontario and return to the United States seeking the same rights, responsibilities and obligations that heterosexual married couples receive should be aware that discriminatory laws in this country remain a problem," said Elizabeth Birch, executive director of the Human Rights Campaign, a gay advocacy group. "We will continue working to end marriage discrimination in this country."

Most experts predict that a newlywed gay couple will eventually seek to test the legality of their Canadian marriage, although no one knows the exact circumstances. It might, for example, be a couple in Texas seeking to adjust their immigration status through marriage.

Canadian visitors to the United States may also press the point. If one gay married partner driving to Florida is hurt in a car accident, does the other have a spouse's right to make medical decisions or file a wrongful death suit?

Some critics of same-sex marriage say that, regardless of the legal distinctions, Canada's move should be viewed as an assault on the traditional nuclear family and serve as a wake-up call to Americans.

"Marriage is the foundational institution of civilization," Ken Connor, president of the Family Research Council, said in a statement. Same-sex unions "devalue" the sanctity of marriage, he said.

"Unless the American people rise up to defend this indispensable institution, we could lose marriage in a very short time," Mr. Connor added. "What's happening in Canada is a warning to America."

Gay rights groups are advising their members not to force the issue in the United States until they can determine what kind of case would set the best legal precedent. In the meantime, Canadian-wed couples can expect a mixed reception in the United States, with some businesses and localities recognizing their union, and federal offices and a majority of states rejecting it.

Federal law is clear on same-sex marriages. In 1996, Congress approved the Defense of Marriage Act, which said that marriage applied only to persons of the opposite sex. For purposes of income taxes, Social Security, immigration and other federal activities, the Canadian marriage would not be recognized.

Still, marriage is an institution regulated by the states. The Constitution establishes that one state will recognize the public acts and rulings of another under the "full faith and credit" clause. Historically, people who have been married in one state have been treated as married in all.

But marriage in Canada leaves lawyers to seek other precedents. Generally, a principle of "comity" has applied with foreign countries, under which Americans recognize foreign marriages and may expect their own to be accepted abroad.

Thirty-seven states have their own versions of the Defense of Marriage Act. But those that do not include some large states like New York and Ohio, making them likely testing grounds for a challenge by advocates of gay marriage.

Some states, like California, send mixed signals. The state approved an initiative in 2000 that asserted, "Only marriage between a man and a woman is valid or recognized in California." But California has also been at the forefront of expanding domestic partners' rights.

Vermont, which already allows for civil unions, may be expected to embrace Canadian marriages. Hawaii and Connecticut, which allow benefits for nontraditional pairs, may also endorse the marriages, as may cities that now maintain registries for domestic partners. Legal challenges for civil marriage rights are pending in Massachusetts and New Jersey.

Some gay marriage advocates warn that couples should not be hasty in their decision to wed in Canada. While marrying is relatively easy, getting divorced is another matter, requiring a year's residency in the country.

"The trend is going to be a little bit of chaos for a while," said Jon W. Davidson, senior counsel at Lambda Legal, a lesbian and gay legal group. "It's very exciting. They're calling it the Canadian earthquake."

[MinuteGal]

Sometimes, I want to flee to a remote desert isle somewhere and bury my head in the sand till sanity returns to our country.

And what the hell is a "traditional nuclear family" when referring to a normal marital household? Are our "out-of-date" family units now considered radioactive or something by the gay propagandists?

(you can bet they are!)

Leni

[neb52]

The problem I have here is that these people are American Citizens and should not be allowed to marry outside of the country. Where you get your marriage license should be in the country where you are a citizen unless you are seeking to gain citizenship by proxy of marriage in another country. This would in effect be Canada imposing its laws on us, which the last time I checked we were two separate sovereign nations with our own set of laws. So if we do not recognize same-sex marriages then it is illegal or treated as unrecognize.

[goldstategop]

If the MFA amendment pending before Congress is added to the Constitution, gay marriage will never happen here.

[lentulusgracchus]

This would in effect be Canada imposing its laws on us, ...

More like the gay minority imposing their will on the 98% who aren't gay.

They've been trying to do this for years, suing in various state courts (Hawaii, Vermont) to get said courts to "recognize" the concept of homosexual marriage, in order to use the Full Faith and Credit Clause of the Constitution to ram homosexual marriage down the throats of the 99% who reject the idea.

Seven gets you two the Times author is a member in good standing of the gay-rights movement. He quoted someone from Lambda Legal Defense Fund, which has been the organization forum-shopping the United States for cases to support in which some gay couple has sued a county clerk demanding the issue of a marriage license.

[Caipirabob]

One more factor that works in the favor of families is that the sheer overwhelming amount of medical resources that must be devoted to the sick and infested gay community by far outstrips that which is distributed among real marraiges.

In the end, this is all about some homosexual getting his (*Your chosen description here*) medical benefits and other things common for a real marital relationship. As today's economy is going, the thought of suddenly exposing themselves to supporting massive medical costs is going to be the sole factor in the lack of support of this movement among corporations despite whatever their internal policies are.

[John Beresford Tipton]

"American Citizens and should not be allowed to marry outside of the country"

That's one of the nuttiest ideas I've see on FR in a long time,
and I must say it was up against some formidable competititon.

[nwrep]

The problem I have here is that these people are American Citizens and should not be allowed to marry outside of the country.

That is a really asinine statement. Completely uncalled for curtailing of liberties. A man and his woman should be allowed to get married anywhere on this earth, for crying out loud.

[Maria S]

A 4-year old niece was at our house last week, and a short news segment showed two gay men being "married" in Canada (I think that's where it was, anyway). She stopped playing, looked at me with her little fists at her waist, and said (I swear) "Tia Maria, why is them men playing wedding? Don't they knows boys can't get married?"

"And a little child shall lead them..."

[neb52]

Of course you should be able to marry anywhere, what I was referring to is where you get the license that makes you legally married. If you get the license outside your country then your marriage is legit based on that countries laws, which could conflict with the country you live in and hold citizenship in. That hasn't been a problem, other then laws that restrict people from getting married that are under a certain age. Would you condone an adult marrying a young teenager in another country that allows such and then coming back to say the US and saying tough you have to recognize it. Or do you think the government and other people should but out irregardless of the morality issue.

I am not stating that a law should be passed to restrict where you get your marriage license, its just my opinion of what is proper or not.

[albertabound]

Just a note of clarification, gays are allowed to wed in the Province of Ontario. Two gays who applied for a license in Alberta were just denied. The Canadian Parliament has yet to make a final ruling and there is much controversy over the Ontario Supreme Court decision.

[neb52]

In what direction do you think the Parliament with go?

[lentulusgracchus]

In the end, this is all about some homosexual getting his (*Your chosen description here*) medical benefits and other things common for a real marital relationship.

That's a very good point, and I hadn't given it much weight, though gays posting to Salon "TableTalk" had occasionally expressed something like it. But the argument was always couched in terms like, "You get your benefits, why shouldn't we get ours? -- this just proves that you're insensitive, and bigoted, and hateful. Gay marriage would be a stabilizing influence on gay liaisons which are going to happen anyway and are none of your business and how dare you sit 'smug in church' and judge us, when you haven't expunged the blot of your own bigoted refusal to reconcile, and blah blah blah!"

As today's economy is going, the thought of suddenly exposing themselves to supporting massive medical costs is going to be the sole factor in the lack of support of this movement among corporations despite whatever their internal policies are.

I take your point, but I demur. What I've seen instead is retention efforts in "gay Meccas" being driven toward competitive benefit grants, the classic case being cited by a gay poster on Salon as Disney, where the animation shop is a closed gay shop (oh? Closed shop, eh? Like theater? So who said straights had to be "gay-friendly" to keep a job in theater or at Disney?); and I also see evidence, as at Enron, of gay executives using their pull in the suite to get these benefits distributed companywide. Michael Kopper at Enron is a case in point: when the Houston Chronicle outed him (he'd involved his boyfriend in one of his fiddles), he was the No. 3 or No. 4 executive in the company, and he was the keeper of the dead bodies in F&A.

[goldstategop]

Parliament is going to sanction gay marriage and it will be upheld by Canada's Supreme Court.

[lentulusgracchus]

If the MFA amendment pending before Congress is added to the Constitution, gay marriage will never happen here.

They could still try another end-run using treaty law, if one of the entities with which the U.S. has signed international-law treaties begins licensing homosexuals to marry, or simply recognizing licenses like those issued by Ontario. Then Lambda could try to sue the U.S. under treaty law, citing treaty obligations and human-rights conventions.

It's a tossup whether USG would ever be bound to do something the People had rejected, because some foreign entity construed a human-rights treaty clause differently.

[RichInOC]

U.S. Gays Who Marry in Canada Face Hurdles

...like getting roped into playing drunken naked leapfrog at the reception?

[goldstategop]

That will work only if the U.S Constitution isn't amended to preclude gay marriage. If a definition that only a marriage between a man and a woman is valid under U.S law is part of the Constitution, the Constitutions prevails over a treaty. That's why's its so important to get it passed and ratified so the radical gays can't try that end-run here to invalidate the federal and state DOMAs overnight by getting some sympathetic state or federal judge to buy a treaty prevails over state or/and federal law argument.

[lentulusgracchus]

That will work only if the U.S Constitution isn't amended to preclude gay marriage.

I take your point, that the DOMA's are vulnerable. But I was trying to make the point that treaty law is the peer of the Constitution, or at least it has been asserted to be so, and that signing treaties is a quick and easy way to end-run the Constitution and trump e.g. labor law, environmental regulations, and so on -- hence GATT, NAFTA, and WTO.

[lentulusgracchus]

....treaty law is the peer of the Constitution, ....

This situation arises from the fact that the Constitution itself is a treaty, executed among the sovereign and free States in 1787, whose sovereignty and freedom were recognized severally by King George III in the Treaty of Paris in 1783.

[goldstategop]

Yes... exactly. The radical gays would hit a home run if they can get an international treaty drafted that would make gay marriage as legally valid and enforceable as heterosexual marriage regardless of the country. The only problem is the Vatican and Muslim countries would never go for it.