Why the same-sex divorce controversy matters

Last week, all within the span of 24 hours amongst a sea of hasty news stories and a roller coaster of emotions, 5,000 same-sex couples went from being married to unmarried to married again.

At issue was a federal court case in which a lesbian couple married in Toronto in 2005 was seeking a divorce. To their surprise, the Canadian Department of Justice argued that they could not seek a divorce under Canadian law since they weren’t really married. Because the women live in Florida and the United Kingdom – both jurisdictions where same-sex marriage is illegal – they could not have legally wed in their place of residence and Canada didn’t recognize their marriage.

It turns out that this whole debacle can be traced to a legislative opening in the Civil Marriage Act which prohibited the recognition of non-Canadian same-sex couples who came to this country to be considered married under Canadian law.

Early on Friday morning, about 24 hours after the case went public, Justice Minister Rob Nicholson assured Canadians that the Conservative government had every intention of changing the law so that those 5,000 couples had valid marriages. This remedy is absolutely the right decision in this case and grants the Harper government some credibility on the assertion that they “don’t want to reopen the marriage debate.”

But, the remedy and the case itself is not the point of this column. It is the ensuing reaction that I want to focus on. Much of the criticism mounted in the hours after the divorce debacle went public was directed at a Globe and Mail report that called the case a “reversal of policy” that “casted doubt” on the legal status of these couples’ marriages.

In actuality, it was a government lawyer advocating for the existing law, not advocating for a change in the law. The reaction of the media was somewhat out of place and there were definitely holes in the reporting. But, the tone of the criticism seemed to scorn the outrage expressed by progressive activists, seemingly making much ado about nothing. One columnist called it a “phony controversy,” essentially smoothing over the whole thing with a proverbial pat on the head.

In my view, there was only one thing that the media and concerned Canadians overreacted about: Harper’s motives and his involvement in this case. It’s clear now that this wasn’t an attempt by the Prime Minister to disallow same-sex marriage. This was misstated and I was among those who misstated it.
But, for everything else that was involved in this case, the reaction was 100 per cent justified and no one should apologize for their outrage and their indignation. There exists a loophole in the Civil Marriage Act which makes same-sex marriage fundamentally different from opposite-sex marriage: foreign same-sex couples cannot have a legal marriage in this country while opposite-sex couples can.

If not for the reaction and justifiable outrage that ensued when people were made aware of this stipulation, how would the law have been changed? If the case quietly made its way through the court system, do you honestly think that the Harper government would have taken this up on its own? As a government that has openly voted against protections for gay and transgendered discrimination (and often touted those votes to the social conservative base), I’m not putting much stake in them voluntarily taking up a pro-gay agenda.

Canadians became aware of this loophole because the couple’s lawyer made the media aware. And the law is now being changed because Canadians made enough of a stink about it that Harper realized he better act on it before he was crucified as the Prime Minister who brought down gay marriage.

One has to remember that the lesbian, gay, bisexual, transgendered and queer (LGBTQ) community walks on fragile ground every single day. Just six and a half years ago, before the Civil Marriage Act was passed, two people of the same sex who wished to declare their love for each other were denied that right.
Please forgive this community for not having full faith and trust in a man who put that law on trial just five years ago, coming 52 votes short of ripping up the marriage licenses of the 12,000 same-sex couples who married in Canada before that vote. Forgive them for being just a little bit edgy when any story arises about the sanctity of their marriage vows.

The need for solid reporting and the discussion of legal principles is of fundamental importance; I don’t dispute that for one second. But one also must recognize that these are peoples’ lives at stake. It is heartening to know that so many Canadians – gay and straight – found this court case so disturbing. It indicates that the wounds of the gay marriage debate a few years ago are still sore and stingy.

The divorce case is important. It’s not a contrived controversy or a useless overreaction. It’s further proof that while same-sex marriage exists in Canada, the road to full and entrenched equality is littered with hurdles and remnants of an archaic and discriminatory law. No one should be shunned for fighting against those obstacles. In fact, they are the heroes of this debate – the ones who fight with every fiber of their being to ensure a basic level of human dignity in this country.

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