If you were to get married in Toronto, would the marriage be legal in a place like America, or offcially accepted under laws regarding marriages?
Nope, although maybe in Vermont or Hawaii. IANAL, but I know there’s a concept whereby all of the states have to honor the laws in other states to a certain degree. This is usually extended to other countries. So, for example, if you get married in Las Vegas you don’t have to get re-married when you get back in Michigan. This same thing is what used to make the Mexican divorce to popular (I think, if that wasn’t just a UL; I have no idea other than hearing about the famous Mexican divorce).
So, despite that, I think the U.S. federal government may have passed a law allowing the individual states to not recognize homosexual marriages. Living across the river from the province in question, I know my state has a “defense of marriage” act that will not recognize such unions.
And just to clarify, the ruling is Canadian, not just “Torontonian”. The ruling applies to the entire country.
To further clarify, three separate provincial courts have ruled that the prohibition of same-sex marriages was unconstitutional. The federal government has wisely decided not to appeal their verdicts but, instead, will introduce legislation to legalize same-sex marriages. Only Ralph Klein, Premier of Alberta, has threatened to use the notwithstanding clause to avoid recognizing same-sex unions. See Same-Sex Wedding Bells in Canada, for more info.
Related question: What about foreign nationals visiting the U.S.?
For example, two Americans marrying in Ontario would likely return home to find that their marriage is not recognized in their state of residence. Okay, fine - Defense of Marriage Act strikes again.
Now what about a Canadian couple visiting the U.S.? One gets hit by a bus, gets rushed to the hospital, would the hospital recognize the spousal rights of the same-sex spouse because they are both citizens of Canada who legally reside in Ontario where their marriage is legally recognized? Or is the DofM act a blanket thing that that covers anyone who sets foot in the state? (I suspect that the two Canadians’ marriage would not be recognized either, but I was just wondering.)
You are correct. The marriage would not be recognized if a state had specifically outlawed same-sex marriage.
Advice: If you are a same-sex, canadian, married couple, then you should still get powers of attorney drafted and executed beofre leaving the country.
To expand upon a previous clarification, the ruling is binding only on the province of Ontario. That province’s supreme court issued the ruling and that court has no authority to impose its ruling on other provinces. The supreme courts of British Columbia and Quebec have also issued decisions declaring the Canadian definition of marriage unconstitutional, but both stayed their rulings for two years to allow the Canadian government to change the law on its own.
So where marriage in Canada now stands is that it is legal and recognized in the province of Ontario only. Parliament will be http://www.salon.com/news/wire/2003/06/18/gay_marriage/index.html]considering a bill shortly to legalize SSM throughout the country, although Alberta has threatened to invoke the “Notwithstanding Clause” of the constitution to refuse to recognize such amrriages. It is an open question as to whether same-sex couples married today in Ontario would have their marriage recognized in another Canadian province.
Should an American couple marry in Ontario and return to the United States, it is highly unlikely that their home state would recognize the marriage and the federal government definitely would not. This is because of the egregiously misnamed “Defense of Marriage Act,” signed in the dead of night by Bill Clinton in 1996. DOMA explicitly defines “marriage” in federal law as a union of male and female, one each. DOMA further authorizes states to ignore any same-sex marriage performed in another jurisdiction. AFAIK there is no legal requirement that marriages performed in another country be recognized in the United States. The principle, called comity, is a custom. Marriages in violation of state or federal law or public policy are not recognized. What will have to happen, should a state refuse to recognize a SSM performed in Canada, is a lawsuit by the couple to try to force the state and/or the federal government to recognize it.
There is a great deal of concern in the gay legal community that a flood of litigation is going to stem from Canadian marriages which could lead to bad precedent being set in jurisdictions across the country.
My coding has sucked the last few days. Link
Otto, could you elaborate? What sort of litigation and bad precedents are people worrying about?
Oh, and a couple of nitpicks about the names and levels of the courts: the Ontario ruling (synopsis) was a decision of the Ontario Court of Appeal, which is the highest provincial court. The B.C. decision was from the B.C. Court of Appeal, the highest court in that province (not the B.C. Supreme Court, which is the superior trial court). The Quebec decision was from the Superior Court of Quebec, which is the trial court, not the appellate court.
I’m pretty sure that Alberta can’t use the Notwithstanding clause, because the definition of marriage is under federal jurisdiction, so if the federal government says that same-sex marriages are legitimate, the provinces have to acknowledge and register them.
My understanding is that Alberta could invoke the Notwithstanding clause in order to bypass a Supreme Court ruling on the issue (I may be wrong about that, though), but that it definitely cannot do anything whatsoever about federal legislation allowing same-sex marriage, any more than it could invoke the Notwithstanding clause to invalidate, say, the federal gun registry in Alberta (and trust me, if they coulda, they woulda).
Poor Ralphie. How will he explain to his constituents that his promises to defy this are all completely empty?
Oh, that’s not in question (I think common law couples should make sure they have power of attorney settled too, but that’s my inner lawyer speaking).
I was curious more for logistic/pragmatic reasons when dealing with foregin nationals. Thinking it would be messy. e.g./What if there was a tourist who had more than one wife (because his country allowed such) and he travelled with two of them. Would both his marriages be nullified upon arrival? Would he be arrested for bigamy beause he was violating U.S. laws by having two wives? That sort of thing.
That why I was wondering about whether or not the marriages of foreign nationals who are visiting the U.S. are adversly affected by U.S. policy. I assumed that the marriage would not be recognized, but it seems conceptually freaky to me (imagine visiting a hypothetical country where black and whites are not allowed to be married and a mixed race couple visits and is told “sorry, you’re not husband and wife.”) Kinda freaky that’s all.
Slate’s Explainer tackled this one yesterday. His answer here:
Whoa. I had no idea that was such a minefield down south…