01/13/2012 01:09 EST | Updated 03/14/2012 05:12 EDT

Government's Gay-Marriage Gaffe


It is rare for a legal brief in a divorce case to receive much attention in the national and international news media. It is truly remarkable for one to create as much controversy as that submitted by federal lawyer Sean Gaudet in a case before a Toronto court.

For those who have not been following the story , the case involves two women who married in Canada but are not residents of the country. The Department of Justice, via Mr. Gaudet, is arguing that the divorce should not be granted. Mr. Gaudet's argument is two-fold. First, he contends that in order for a foreign couple to be granted a divorce by a Canadian court, the couple must have resided in Canada for at least a year. Second, he asserts that same-sex couples who married in Canada at a time when same-sex marriage was not legal in their home country were never really wed. Both arguments are deeply flawed.

The premise for Mr. Gaudet's first argument seems to be that if a marriage is performed in Canada, but not observed in the country where the couple spend all their time, the marriage may as well never have taken place; thus, rather than requiring long and expensive divorce proceedings, Canadian law should simply ignore the marriage.

There are a number of problems with this line of reasoning. The first is factual: Same-sex couples who marry in Canada have in fact been granted certain benefits in other countries, including the United States, as a result of their marriage. Since Canadian same-sex marriages have been recognized by other states, even though marriage was not an option for same-sex couples in those jurisdictions, Mr. Gaudet's assertion that the marriages are already meaningless falls flat.

The second problem is more philosophical: namely, why should there be a one-year residency requirement in the first place? After all, even if a couple's Canadian marriage is not respected in their home jurisdiction(s), there is always the possibility that the couple will return to Canada. If they do, they will be considered married for the duration of their time in the country.

Divorce law should recognize what common sense and society do. Moreover, since same-sex couples often cannot obtain a divorce in their home jurisdiction(s), the residency requirement seems to be particularly and unduly harsh for them.

In his second line of argumentation, Mr. Gaudet suggests that even if the couple had been resident in Canada, the marriage never even took effect under Canadian law. The reason: at the time, same-sex marriage was not legal in the couple's home jurisdictions. Of course, Canada also imposes restrictions on the type of marriages it accepts: arranged and forced marriages, for instance, are not recognized under Canadian law.

Canada rejects the legitimacy of such forms of marriage, just as other governments reject the legitimacy of same-sex marriage. But arranged marriages, including those involving unlucky Canadians, still have legal force in the countries that allow them -- and Canadian marriages, including those involving foreigners, should always be recognized in Canada.

Canada has already recognized the legitimacy of same-sex marriage, in both the courtroom and the legislature. It's downright silly for Canada to refuse to divorce a couple it agreed to marry on the grounds that the marriage never really happened. The fact that other countries discriminate should be an incentive for Canada to encourage liberty rather than restrict it.

Unless, of course, the government's position is that the couple should never have been married at all. This possibility is what has shocked and concerned gay rights advocates across Canada and abroad. It is of course easy to read conspiracy into coincidence, and the government may have played no part in designing the brief.

But now it must act swiftly so as to clarify its position. In doing so, it should seek to remedy some of the ridiculous inconsistencies that seem to plague Canadian matrimonial law.