Quotulatiousness

January 12, 2012

Federal government throws a wrench into the same-sex marriage debate

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 09:20

Updated below: I should retract my implication that this was a deliberate ploy by the federal government to re-open the same-sex marriage debate. It clearly is not, and was not any kind of political ploy — although at least one lawyer in the Justice department feels it should be. Original post:

Just when we thought the whole thing had been settled, Ottawa decides to toss their social conservative base a bone:

The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.

The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married — a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.

The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

This new development will certainly re-invigorate the debate about same-sex marriage — perhaps to head off a debate about polygamy (there are many Muslim families living in Canada with the husband having more than one wife, for example).

Update: Matt Gurney offers a more comprehensible account of the court case and the government’s response:

The legalities of the situation are complex. The unidentified couple, whose names are covered by a publication ban, returned to Canada to apply for a divorce after being married here seven years ago. They were not able to obtain said divorce because under the Divorce Act, applicants must be residents of Canada for at least 12 months. This couple does not, and seemingly never has, lived in Canada. They just chose to marry (and split up) here because it was not possible for them to do so in their home jurisdictions.

Uninterested in living in Canada for a year just to get divorced, the couple filed a Charter claim against the Ontario and federal governments, claiming that the residency requirement violated their Section 7 right to “life, liberty and security of the person” and their Section 15 right to equality under the law. These both seem to be spurious arguments — but rather than fight them on their own (lacking) merits, a government lawyer instead deployed this humdinger of a legal manoeuvre: They can’t get divorced because it turns out they were never married at all.

Done! Easy-peasy. Let’s break for lunch.

The government is arguing that since Florida and the U.K. — the home jurisdictions of the estranged couple — don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid. People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law. Weird, but true.

[. . .]

To be clear — the suggestion that these couples were never married under Canadian law, a suggestion advanced by a single government lawyer — is ridiculous. The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine. A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.

Update, 13 January: The government is actually responding quickly and correctly to the story:

Canada’s justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.

“Marriages performed in Canada that aren’t recognized in couple’s home jurisdiction will be recognized in Canada,” Justice Minister Rob Nicholson said Friday in Toronto.

“I want to be very clear that our government has no intention of reopening the debate on the definition of marriage,” he added.

[. . .]

“I want to make it clear that in our government’s view, these marriages are valid,” Nicholson said.

[. . .]

The Harper government went immediately into damage control and denied that they were looking into the issue.

“We’re not going to reopen that particular issue,” Prime Minister Stephen Harper told reporters Thursday.

May 23, 2011

The heterosexual wedding boycott

Filed under: Law, Politics, USA — Tags: , , — Nicholas @ 11:13

Rich Benjamin is engaged in a boycott of his friends’ heterosexual weddings because most states do not allow homosexual weddings. He thinks he’s being ideologically pure and striking a blow for equality. What he’s really doing is being an ass and alienating his friends without cause:

I picked up my jangling cellphone one recent Saturday to hear the elated voice of Zachary, my longtime buddy and college classmate. “I just proposed to Caroline,” Zach announced, inviting me to the wedding and angling to plot logistics. “So when are you flying in?”

“Oh, I’m not coming to your wedding,” I said.

It’s true. I’m boycotting all heterosexual weddings.

How utterly absurd to celebrate an institution that I am banned from in most of the country. It puzzles me, truth be told, that wedding invitations deluge me. Does a vegan frequent summer pig roasts? Do devout evangelicals crash couple-swapping parties? Do undocumented immigrants march in Minuteman rallies?

I know what he’s trying to do, but it’s hard to think of a more hurtful way of pointing out the inequality of gay and straight couples to people — one assumes because they’re close enough to him to invite him to their wedding — who are already on his side.

A poll last month showed Americans are split on same-sex marriage. A narrow majority, 51 percent, supports it, while 47 percent do not. Though Zach falls into that slim majority, he scolds me for being “peevish.” He says he resents me for blowing off his special day, for putting political beliefs ahead of our friendship and for punishing him for others’ deeds. But screaming zealots aren’t the only obstacles to equal marriage rights; the passivity of good people like Zach who tacitly fortify the inequality of this institution are also to blame.

They’re proof of a double standard: Even well-meaning heterosexuals often describe their own nuptials in deeply personal terms, above and beyond politics, but tend to dismiss same-sex marriage as a political cause, and gay people’s desire to marry as political maneuvering.

What many straight people consistently forget is that same-sex couples aren’t demanding marriage to make a political statement or to accrue “special rights.”

But you are using their marriage to make a political statement. Consistency? You make a point of explaining that you’re not an activist yet you scold Zach for his “passivity”?

May 6, 2011

Chris Selley on those new “orange posts”

Filed under: Cancon, Government, Politics — Tags: , , , , — Nicholas @ 12:13

The new NDP youth wing gets lots of fun poked at it (some of it here), but Chris Selley has hopes that they may force the House of Commons to revisit the worst aspects of parliamentary behaviour:

Look. It’s easy, and frankly appropriate, to laugh at the gaggle of orange poteaux — “posts,” as Quebecers call cipher candidates — soon heading to Ottawa to take their seats as New Democrat MPs (and to move into their very first apartments!). But whatever their shortcomings, it’s safe to assume they’re full to bursting with idealism and self-esteem. Many of them aren’t long out of high school. Try to bully them and by God, they’ll probably call the police.

There’s 57 new NDP MPs from Quebec — almost 20% of the House of Commons. They have a real opportunity to make a difference in the way Parliament conducts its business. Jack Layton himself has said he intends to officially oppose the government in a more dignified manner. And it’s hard to think of anyone in a better position to hold him to his word than, say, a 21-year-old student with $600,000 or so coming to him over the next four years, representing a riding he’s barely visited (if at all) and constituents who didn’t (and don’t, and may never) really give a damn who he is.

The complaints of ex-MPs detailed in the Samara report go far beyond Question Period. One ex-parliamentarian said he profoundly regretted toeing the party line on an emotional issue — almost certainly same-sex marriage, although it’s not specified — and recalled colleagues weeping as they voted against their consciences. Another tells of being tasked, very early in his career, with delivering a speech on the mountain pine beetle infestation in British Columbia, which he knew absolutely nothing about, on 20 minutes’ notice.

One of the weaknesses of our system is that there are not stronger supports for MPs voting freely rather than following the direction of the party whips. The constituents are not being represented if their MP is not allowed to vote in line with their preferences but instead has to subordinate their concerns to that of the party. SSM and the long gun registry are recent examples where the outcome was dictated by party leaders refusing to allow their MPs to vote freely.

It’s good that MPs recognize, at least in hindsight, that partisanship fries their brains and makes them act like monkeys. But hindsight isn’t good enough. Unless MPs grow some … uh, courage, when it actually matters — refusing orders to act foolishly or speechify on subjects they know nothing about, or to waste hours filling chairs on “house duty” when they could be out doing something useful, or to vote against their own or their constituents’ beliefs — this is never going to change.

November 26, 2010

Marni Soupcoff says get the government out of the marriage business

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 12:18

Although the column was prompted by the attention-whoring actions of a British couple, the basic principle still applies in Canada:

It really doesn’t make sense for the government to be divvying up rights and benefits based on the sexual orientation of its citizens. Yes, marriage has an undeniably rich history in our cultural and serves very useful societal purposes — I don’t buy into the arguments that marriage is dead. But it’s ultimately a moral and, in some cases, religious matter that should be sanctioned (or not) by a couple’s peer group, religious group and family. It’s not rightfully a spot for government to be sticking its nose, and the fact that it does so puts it in charge of decisions it has no business making — like who is fit to be called a married couple and who should get special tax treatment based on the status relationship.

The preferable scenario, and the one which would forestall lawsuits like the Goggin/Skarsholt one, would be for the government to remove itself from the marriage business altogether.

That would mean no more government-sanctioned civil unions or marriages or references thereto in the law. Yes, that would also mean massive revisions to the tax code, family law, criminal law — really reams and reams of laws from which the government would have to extricate its judgments about couples’ legal standing.

It would also nicely short-circuit the ongoing debate on polygamy (currently active in BC, but due in your local courtroom very soon too).

August 13, 2010

QotD: Same-sex marriage in California

Filed under: Law, Liberty, Quotations, USA — Tags: , , — Nicholas @ 08:57

Me, I’m no bleeding-heart small-D democrat. But to the opponents of gay marriage, and perhaps even to unpersuaded moderates, this might seem like sharp dealing. It is one thing for the judiciary to block the will of the majority: hey, welcome to the U.S.A., tenderfoot. This, however, is a case where the judiciary may not only end up obstructing the volonté générale, but elbowing it good and hard in the vitals. Somehow, in California, a majority vote against same-sex marriage will have led directly to the near-permanent entrenchment of same-sex marriage.

Colby Cosh, “Same-sex marriage in California: the trap closes?”, Maclean’s, 2010-08-13

August 11, 2010

Jonathan Rauch on overturning Proposition 8

Filed under: Law, Liberty, Politics — Tags: , , — Nicholas @ 12:08

Jonathan Rauch has concerns about the judicial decision that overturned California’s Prop. 8:

Last week, U.S. District Judge Vaughn Walker declared that California’s ban on same-sex marriage — and, by implication, any state’s ban — violates the U.S. Constitution. The case is on its way to appeal, where it may be overturned. Already, though, gay men and women across the country are celebrating unreservedly. I only wish I could join them.

That feels strange to say. After all, as a gay man, a leading proponent of gay marriage and half of a same-sex marriage myself (my partner and I got married in the District of Columbia in June), I find so much to celebrate. How could I not?

[. . .]

So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents — Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.

History will, I believe, vindicate Walker’s view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be.

June 26, 2010

Texas conservatives want to take you back

Filed under: Law, Liberty, Politics, USA — Tags: , , , , , , — Nicholas @ 11:06

Take you back to the middle of the last century, or even further:

Texas Republicans are a conservative lot. Still, it’s difficult to imagine mainstream GOP voters demanding their neighbors be jailed for engaging in a little hanky-panky behind closed doors.

Nevertheless, the state’s Republican party has voted on a platform by which their candidates will stand, and it includes the reinstatement of laws banning sodomy: otherwise known as oral and anal sex.

The party’s platform also seeks to make gay marriage a felony offense, which may be confusing to most given that the state does not sanction or recognize same sex marriages, meaning any such ceremony conducted does not bear the weight of law. Whether this means the GOP wants gay couples married in other states to be pursued through Texas as dangerous criminals, the party did not specify.

“We oppose the legalization of sodomy,” the platform states. “We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.”

Texas Republicans must be a much more sexually repressed bunch if all of this managed to pass muster with the party faithful. They also appear to be in an anti-immigrant frenzy, with measures custom-designed to alienate Spanish-speaking voters also passed as part of the platform.

April 20, 2010

If this doesn’t anger you, there’s something wrong with you

Filed under: Bureaucracy, Law, Liberty — Tags: , , , — Nicholas @ 12:19

Kate Kendell looks at how California’s inhumane and paternalistic Sonoma County government “legally” did horrible things to an elderly gay couple:

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.

Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.

What happened next is even more chilling.

These men had been married (legally or not) for twenty years, yet the bureaucratic solons of Sonoma County deliberately separated them, stole their joint property, and effectively incarcerated them both in different nursing homes.

The surviving partner has launched a legal action, and I hope his case is decided properly — and that the county and its employees are properly punished for their actions:

With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.

Update, 22 April: According to Radley Balko, Sonoma County has (finally) responded to the report, claiming that the injuries to Harold Scull were actually a result of domestic abuse:

The county says Scull filed a report to that effect, and that the abuse was documented by hospital workers. But the letter adds that no criminal charges were filed against Greene.

I’m not sure what to make of that. I’m not familiar with California law on the matter, but while a report of domestic abuse may be enough to keep Greene from visiting Scull in the hospital (and for that to be a sensible decision), without criminal charges, I don’t know how it allows the county to forcibly intern Greene in a nursing home and auction off all of his belongings. Then again, if the initial lawsuit neglected to mention the domestic abuse report, it’s possible that it also overstated or misstated the county’s actions with respect to Greene’s property and nursing home stay.

August 20, 2009

Testing their hypotheses

Filed under: Politics, USA — Tags: , — Nicholas @ 07:26

Steve Chapman looks at the opportunities to test all the reasons conservatives oppose gay marriage:

Opponents of same-sex marriage reject it on religious and moral grounds but also on practical ones. If we let homosexuals marry, they believe, a parade of horribles will follow — the weakening of marriage as an institution, children at increased risk of broken homes, the eventual legalization of polygamy, and who knows what all.

Well, guess what? We’re about to find out if they’re right. Unlike most public policy debates, this one is the subject of a gigantic experiment, which should definitively answer whether same-sex marriage will have a broad, destructive social impact.

Massachusetts, Connecticut, Iowa, Vermont, Maine, and New Hampshire have all decided to let gays wed. Most of the remaining 44 states, however, are not likely to follow suit anytime soon. So in the next few years, we will have a chance to compare social trends in the states permitting same-sex marriage against social trends in the others.

Oddly, he was unable to find many of the same outspoken critics who were willing to go on record as to the kind of dire consequences we should start to see in those six states, compared to the rest of the country. I did a bit of googling, and thought I’d found one, but it turned out to be something different:

Dr. Peter Venkman: This city is headed for a disaster of biblical proportions.
Mayor: What do you mean, “biblical”?
Dr Ray Stantz: What he means is Old Testament, Mr. Mayor, real wrath of God type stuff.
Dr. Peter Venkman: Exactly.
Dr Ray Stantz: Fire and brimstone coming down from the skies! Rivers and seas boiling!
Dr. Egon Spengler: Forty years of darkness! Earthquakes, volcanoes…
Winston Zeddemore: The dead rising from the grave!
Dr. Peter Venkman: Human sacrifice, dogs and cats living together… mass hysteria!

The above is not actually representative of what the critics of same-sex marriage actually said. It’s actually from a transcript of the last Climate Change conference . . .

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