The institution of gay marriage has emerged in stronger shape than ever from the confusion sown by the Canadian Justice Department in a Toronto courtroom this week.
The Conservative government defended that institution – promptly and unequivocally. As a result, same-sex marriage cannot be diminished or sent to the back of the bus by this party or that party. It is the law of Canada, from here on to be staunchly defended by the government of Canada. (Including the Justice Department.)
Justice Minister Rob Nicholson did the right and necessary thing in making absolutely clear that gay marriages of foreigners in Canada are legal – including the thousands already married here, and those who may marry in the future. Also important, he said he understood the pain and confusion that have been caused. And he will not let legal technicalities, even long-standing legal principles, whether residency requirements or the “law of domicile,” stand in the way.
The message, then, is not that gay marriage has to fit into the pre-existing framework of laws, but that the legal framework has to be made to fit gay marriage.
The Justice Department, for reasons still obscure, did not understand this when it argued, in a lesbian divorce case, that the marriage itself did not exist because in the places the two women came from (Florida and England), gay marriage was not legal. Although Mr. Nicholson blamed a “legislative gap” left by Liberal prime minister Paul Martin, who rewrote the Civil Marriage Act to include same-sex marriage, the Justice Department’s response to that gap was grossly unfair and, in its effect, discriminatory. (The department, not Mr. Martin, caused the pain and confusion.)
Of course, gay marriage didn’t fit the existing international framework. Most countries have never contemplated gay marriage. Some observers in the legal community actually argued that the “law of domicile” (the legal capacity to marry in the place one lives) and one-year residency requirements for divorce treat heterosexuals and homosexuals equally. Mr. Nicholson, thankfully, did not ignore the real-world context that made nonsense of this mechanistic view of equality.
In Canada, more sturdily than ever after this topsy-turvy week, gay marriage is the law of the land.