Why do gays insist on marriage?

Great Debates
161

Isn’t that an indication that, no matter what you call it, some other country might not think it was the same thing? Britain calls it a civil partnership even though Canada calls it same-sex marriage. So even if the US calls it same-sex marriage, that isn’t going to stop the Brits from calling it something else, and treating it differently.

[QUOTE=Bryan Ekers]
But why is it a Canadian court’s responsibility to parse the British legal definition of “civil union?”
[/QUOTE]
Presumably because that’s where the suit was filed. But my point is that questions about international divorce law are going to arise whether you call it civil union, gay marriage, or something else. Therefore, it does not seem that calling it something other than “marriage” is going to automatically cause, or prevent it from being, second-class - Britain (for instance) will treat it as a civil partnership even if it’s called marriage, as Canada seems to do.

Put it this way - the US passes a federal law tomorrow saying that gays can marry, that it is called “civil union”, and that it is subject to all the same rights and responsibilities as heterosexual marriage. How does that stop Canada (or the UK, or France, or whoever) from considering it different from whatever they call the same thing?

Regards,
Shodan

162

The error you are making is to assume same-sex marriage in Canada is different in any legal way from opposite-sex marriage. It is not. Marriage is marriage. Canada has no such thing as “same-sex marriage”—some of its marriages are same-sex, is all. The only irregular marriage recognized is common-law, which has its own rules by province but in all cases allows M-M, M-F, or F-F. The sex of the marrying parties is legally irrelevant.

Britain is the one that has innovated a new category which is equivalent to nothing in Canadian law. Britain decides that Canadian marriages meeting condition X are marriages, and those that do not are civil partnerships. In return, Canada decides that marriages meeting condition X are marriages (no polygamous 12-year-olds, as stated above). Civil Partnership, on the other hand, is explicitly not marriage and not quite the same as common-law, either.

Of course, I’m not a lawyer, and not super familiar with either system (having grown up in the US) so someone with more knowledge might need to correct.

163

Well, here’s a problem, right off the bat. If gays can marry, why not call it a “marriage”?

I don’t know, but I’m assuming if it is advantageous for one of the spouses to later claim “oh, it’s not a real marriage”, then they will certainly do so (if there’s enough of an advantage, and the breakup was sufficiently acrimonious, I can even picture hetero me doing so), forcing Canadian courts to make a decision to extend or not extend more rights than the couple could get in the U.S.

I’d like to point out that the issue at hand wasn’t just about recognition of a foreign civil union, but how to handle its dissolution. We have a well-established legal framework for handling divorces. The framework for handling the dissolution of what other countries vapidly insist on calling “civil unions” is not yet in place. They might say “yeah, sure, go ahead and treat it like you would a marriage, even though we don’t quite do so. I mean, our laws say we do, but we don’t.”

164

Many same-sex couples feel a desire to have society recognize their lifetime commitment to each other – just as many opposite-sex couples do.They have a desire to enjoy the security, protections, and cost savings which would flow from marriage, and the 400 or so state benefits automatically to married couples.Laws criminalizing same-sex behavior are falling. Human rights laws granting protection in accommodation and employment are being created. But barriers in all but one state prevent same-sex couples from marrying or entering into a civil union. The bar to marriage is the last major obstacle to fall before the concept of equal “liberty and justice for all” can be applied to persons of all sexual orientations.

165

There are currently six states and one district that have marriage equality: Massachusetts, New York, Iowa, New Hampshire, Vermont, Connecticutt and Washington, DC. And Maryland passed it but it has to survive a veto referendum before it takes effect.

In addition, Washington, Illinois and New Jersey all have civil union/domestic partnership laws.

166

His post was so disconnected from the thread that I assume he cut and pasted it from another place, presumably quite an old one.

167

This is the first I’ve heard of the Hincks and Gallardo case, so the following is pure speculation:

  1. The Principle of Comity: generally, countries accept the status that other countries have created. For whatever reason, the UK has explicitly chosen not to say that civil unions between same-sex couples are marriages. They are something different in UK law, even if they carry all the same rights. In Canadian law, there is a similar distinction; both Quebec and Nova Scotia have created civil unions. The argument from the federal government is presumably that it would not be appropriate for Canadian law to convert what is a civil union in the country where it was created into a marriage here in Canada, since that would be changing the legal status in a way that is not recognised by either British or Canadian law.

  2. There is a federalism issue. The federal government has exclusive power over the substantive law of marriage; that’s why same-sex marriages in Canada are based on the federal Civil Marriage Act. However, only the provinces can create civil unions; the federal Parliament cannot. (For the purposes of this discussion, please just accept my word on this point; the reason for this result is a bit convoluted, but if someone is really interested in division of powers minutia, I will deal with it.) Since only the provinces can create civil unions, there would be a real issue about converting a civil union (governed by provincial law) into a marriage (governed by federal law). This ties into the comity principle mentioned above - while Canada recognises legal relationships created under foreign law, it tries to fit them into the appropriate setting under our constitutional framework, and the term “civil unions” points towards provincial jurisdiction, not federal.

  3. In response to Shodan’s question: Yes, Canada has laws governing the break-up of couples that are not legally married - but they are provincial laws, not the federal Divorce Act. There can be differences between the two regimes. The federal Divorce Act is uniform across Canada, but each province can create its own regime for dealing with break-ups of non-married couples. Child support and spousal support are pretty uniform under provincial laws, but the big difference is in claims to property separation. Some provinces (like Saskatchewan, Manitoba, Quebec and Nova Scotia) will allow non-married couples to make claims for division of property accumulated during the relationship,* but other provinces, like Ontario, do not allow non-married couples to have property claims. So depending on where this couple lives, one of them may want to claim for a division of property accumulated during the relationship, but not be able to. I couldn’t tell from the linked article where they are?

  4. Even if there isn’t a property issue, there is the civil union itself. It’s easy for couples who have been living together to walk away from each other - there was no legal status between them, so there’s nothing that legally needs to be undone by the courts. However, the British civil union clearly has legal status in the UK; does it also have some legal status in Canada? Not clear, but given the principle of comity mentioned above, it may be that it does. If so, can they just pretend that it doesn’t exist? what if one of them wants to get married in the future? does a British civil union bar a marriage in Canada? what about end of life issues - if one of them dies, does the other have any inheritance rights? if one is sick, does the other have any powers or obligations to look after the sick member of the civil union? Lots of questions; I don’t know the answers, and it may be that they are wanting clarity that their legal relationship is over, on a going-forward basis, so none of these issues will arise in the future.

  5. Cost of going to Britain - given these concerns, one option might be to go back to Britain to have the civil union dissolved under British law - but that’s pretty expensive. It is an option, I would think.

As I mentioned at the outset, all of this is pretty speculative on my part, and not intended as legal advice to anyone. British-Civil-unioners-living-in-Canada-who-want-out should consult a British solicitor, and a Canadian solicitor, rather than random keystrokes on an internet message board.
*Again, there are some differences even between these four provinces; if someone wants more detail I will provide.

168

Plus, he just signed up and has made precisely one post; drive-by posting, I would think.

169

This is a good summary; I would just clarify one point, and that is that in Quebec and Nova Scotia, there are civil unions under provincial law, which may be the Canadian equivalent of the British civil partnership. However, since the other provinces do not have civil unions, the status of those civil unions outside of those two provinces is not clear. I’ve not done any research to see if there are any court cases that deal with this issue in Canada; since the Quebec and Nova Scotia laws have been around for about 10 years, I would think there may be some rulings by now.

170

It is according to the UK, since, as you mention,

IOW even though Canada calls it “marriage”, that doesn’t help.

[QUOTE=Bryan Ekers]

[Quote=Shodan]

Put it this way - the US passes a federal law tomorrow saying that gays can marry, that it is called “civil union”
[/quote]

Well, here’s a problem, right off the bat. If gays can marry, why not call it a “marriage”?
[/quote]

[quote]

The wording of my proposed statute is that civil unions have exactly the same rights as marriages. On what basis could somebody claim that they don’t have the same rights? And how does calling it marriage make any difference? We have already seen that the UK considers Canadian same-sex marriage to be a civil partnership even though Canadian law makes no such distinction. So the Canadians calling it marriage didn’t help.

How is the US calling it marriage instead of civil union, all the time making it screamingly clear that civil union has the same rights and responsibilities as marriage, going to stop any foreign country from deciding to treat it under their own laws?

AFAICT we can’t. We don’t have sovereignty over other countries, any more than Canada has sovereignty over the UK, or vice versa. We can only control what happens here.

So partners A and B show up in court (in the US).

Partner A: “I want a divorce”.

Partner B: “We were never married.”

The Court: “Were you in a civil union?”

Partner B: “That’s different from being married.”

The Court: “No, it isn’t. Find for the plaintiff.”

Regards,
Shodan

171

Has everyone forgotten about the six recently amended state constitutions and nineteen recently added state laws that make it pretty damn clear it don’t matter what ya call 'em, they’re against it?

For example,

CMC fnord!

172

I mentioned that the same people who are deadset against marriage equality have also proven that they don’t want civil unions available either. It’s not about the word, obviously, no matter how much they try to appear “civil” about it.

173

Just wanted to poke my head in to say this:

I’m proud of my Acadian heritage and have lived in SW Louisiana for my entire life, except for one term of enlistment. I believe strongly in Civil and Human rights and was a founding member and senator for McNeese State University’s first LGBT student organization. I’m also as active as I can be with Lake Charles Pride, a local organization that puts on an annual festival promoting equal rights for all. I don’t care whether civil unions or marriages are offered as valid by the state, but where one or both are available, they should be available to all couples.

Don’t take offense, Dopers. I don’t think many of you would make sweeping generalizations about Acadians being bigots. But, just in case . . .

174

Why shouldn’t they?

I’ve yet to read/hear one logical (i.e. one not stymied by religious bigotry) argument in defence of gay folks not being able to marry.

There appears to be far too much [unseemly] attention paid to which orifices are frequented in the bedroom whenever this question arises, and not enough on the stuff that matters.

175

It’s considered a marriage in Spain, but then, we’re weird that way.