Canada’s Same-Sex Marriage Law Will Change American Views

With royal assent to Bill C-38, Canada became the fourth nation in the world to legally recognize same-sex marriages, along with the Netherlands, Belgium and Spain, which itself gave such recognition a few weeks ago. However, in most provinces of Canada, local law had already done so. Hold-out jurisdictions Alberta, Prince Edward Island, Nunavut and the Northwest Territories must now acknowledge same-sex unions as having the same rights as traditional couples in accordance with the Canadian Charter of Rights and Freedoms. And now, the Americans have to deal with it.

While the red-state, blue-state non-sense will keep America addled about a contractual arrangement that customarily happens between a man and a woman (and even more traditionally according to anthropologists, between two families using a man and a woman as a symbol of their alliance), the same-sex marriage in Canada will become as popular as the Mexican divorce did some years ago and for the same reasons. The implication is that resistance to gay-marriage in the US will erode simply because there will be so many legally wed gay and lesbian couples in the US who went to Canada for the week-end.

It is customary international law for one nation to recognize the marriages, divorces, adoptions and wills executed in other countries. Largely, this is a matter of convenience. When a couple from a foreign land show up to get a visa at the US embassy, they bring their local marriage certificate. The Department of State hasn’t got time or manpower to check it out, nor does it make sense to require an American wedding. If a married couple decide that waiting for a California divorce takes too long, a quick trip to Haiti can get it done in a week-end. Child custody and property to one side, why should California or the US government care? If couples choose to adopt a baby under Chinese law to raise in the US, the American government only fusses about the immigration status of the child, not about the adoption itself.

Yet there are occasions when that just ain’t so. The US Immigration website says, “the validity of a marriage is determined by the law of the place where the marriage was performed, and legal eligibility of both parties to the marriage.” But “Certain marriages that are valid and recognized in the place where they were performed are ineligible for availing US immigration benefits: Polygamous marriages are not recognized under the US immigration laws even if they were legally contracted in countries where polygamy is accepted.” Fair enough, a Muslim with four wives legally married in Saudi Arabia can bring all four to America, but they get their own tourist visas, and a green card is virtually impossible for three of the four ladies in question.

But what happens when two American citizens of the same sex are legally wed in Vancouver, and they come back to the US? Situations where this couple is not legally treated as married will result in law suits, and these will wind up at the Supreme Court. Should Mr. Bush succeed in pushing the court farther to the right with Judge Roberts, it is conceivable that the court will decide that same-sex unions will not be recognized as marriage. Then again, there will be thousands of US couples with Canadian marriages which may be more convenient to recognize in practice as legal marriages for purposes like hospital visits, inheritance, adoption and so on.

Social change is often not the result of some earth shattering court decision but rather the law suddenly just catches up with practice. Interracial marriages in Alabama were unconstitutional in that state until a year or so ago, but no one was going to blow a house sale or a debt recovery over it. Forbidding people the convenience of a marriage when they can go to their lawyer and, with more time, effort and money, achieve the same contractual rights is impractical and nonsensical. And in due time, American law with catch up to Canada’s, as they both catch up to reality.


© Copyright 2005 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.
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