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Demonstrators against gay marriage, adoption and procreation assistance gather in the streets of Paris on January 13. (BENOIT TESSIER/REUTERS)
Demonstrators against gay marriage, adoption and procreation assistance gather in the streets of Paris on January 13. (BENOIT TESSIER/REUTERS)

Globe editorial

Ottawa should stand up for gay marriage in international divorce cases Add to ...

Ottawa is failing to defend Canadian values of equality in marriage. The Canadian Department of Justice has argued in a Canadian courtroom that certain Canadians should be put in the back of the bus because that is how the world treats those Canadians.

A marriage’s validity depends on the law of the country in which the couple were wed, the justice department argues. That is the same principle the justice department cited last year in a different case. When it did so the first time, Justice Minister Rob Nicholson backed away publicly from the government’s arguments in court, and expressly committed the government to standing up for gay marriage. So what happened?

The new case involved two Canadian citizens who formed a civil partnership in the United Kingdom. The U.K. does not have gay marriage, but it deems civil partnership a parallel institution to marriage – “marriage in all but name,” as Ontario Superior Court Judge Ruth Mesbur describes it. It has all the same rights, all the same responsibilities. It even has the same rules for separation and divorce.

Yet when the two men moved back to Toronto from the U.K., and one sought a divorce, Canada argued the two were not legally married, and therefore could not receive a divorce in Ontario.

That is the same argument that Canada made – and Mr. Nicholson disavowed – in a separate case last January. In that case, two lesbians, one from England and one from Florida, had been married in Ontario. The Canadian justice department argued that, because their marriage wasn’t recognized back home, they weren’t legally married, and therefore couldn’t be divorced here.

Madam Justice Mesbur was right to rule that the two men should be treated as married under Canadian law, and therefore able to divorce here. Canada is not obliged to accept discrimination in other countries. The opposite should be true – it is obliged to defend constitutional rights in Canadian courtrooms. No principle of international law should ever trump Canadians’ right to sit anywhere they want on a Canadian bus. The Canadian justice department should argue for Canadian justice.

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