Media Misunderstands Same-Sex Divorce Issue

Was there anyone naive enough not to realize that same-sex marriage would surely bring with it other legal complexities? Certainly, the first issue that came to my mind was “how do these couples get divorced?”

That question was initially answered in 2004 by a judge in Toronto who refused to grant a divorce to a lesbian couple on the basis that the Divorce Act only applied to spouses who were defined in the Divorce Act as either a man or a woman married to each other. The Canadian couple in question had married on June 18, 2003 but separated five days later, having lived together for 10 years before their nuptials.

Later in 2004 a higher Ontario court overruled the earlier decision and pronounced the first same-sex divorce in Canada and in the world.

The Court held that the definition of spouse in the Divorce Act was unconstitutional and discriminatory and ruled that the legislation must be read to include same-sex couples.

Fast forward to the most recent same-sex divorce dilemma which unfolded in Ontario this week. You may recall the influx of gays and lesbians to Canada to exchange marriage vows after same-sex marriage was legalized.

One of those couples recently sought a Canadian divorce in Ontario. The couple, who live in Florida and England, were met by an argument brought by lawyers from the Department of Justice, that their marriage was not valid in Canada unless it was also valid in Florida and England. Of course, we know that neither Florida or England have legalized same-sex marriage.

Their reaction? You’re telling us this now! But there was still more. Canada’s Divorce Act requires one of the spouses to reside in Canada for one year prior to the granting of a divorce. This would also be tricky for couples who only came to Canada to marry and never contemplated a year of residence in Canada to obtain a divorce.

The barrage of questions posed by the media swarm included whether the Department of Justice’s legal argument reflected government policy and had this policy been surreptitiously changed by the government to thwart the rights of foreign couples who married under Canada’s same-sex marriage laws?

Interesting questions but not the right ones to ask. The answer to the Department of Justice’s legal position is found in a complicated area of law referred to as “conflicts of law”, where rules involving foreign jurisdictions, foreign law and foreign litigants have been formulated to assist in resolving the thorny issues raised by inter-jurisdictional legal questions.

The short answer is that the legal position espoused by the Department of Justice has nothing to do with policy and everything to do with well-settled international law.

It should have been apparent to foreign couples marrying in Canada that their marriages were fraught with problems. The dismay expressed by the media and critics of the Harper government over this non-issue reinforces the notion that a little legal knowledge is a dangerous thing.

Lawdiva aka Georgialee Lang

Newt Gingrich Really Wants to Change Government Starting With Judiciary

Lagging in the Republican presidential race, candidate Newt Gingrich’s recent remarks about the judiciary can only be seen as a play for press.

Gingrich’s recent stump speeches include an admonition that if he was President he would “instruct the national security officials to ignore the Supreme Court on issues of national security.” His startling proposition leads inexorably to the possibility that as potential leader of the Executive branch of government he could also decide to ignore the Legislative branch, a step that would surely lead to anarchy.

Gingrich focuses on several recent court cases including the California court’s decision to overturn the results of Proposition 8, the “definition of marriage” referendum wherein eight million Californians voted against same-sex marriage.

He also highlights the “prayer” decision of federal Judge Biery of Texas who blocked a prayer at Medina Valley High School graduation ceremonies. Judge Biery cited a shopping list of court decisions that struck down religious activities, like prayer, for breaching the First Amendment which promises freedom of religion, speech, the press and the right to lawful assembly.

Judge Biery’s four-page Reasons include orders striking the words “Invocation” and “Benediction” from the ceremony program, to be replaced by “Opening Remarks” and “Closing Remarks”. Besides banning the prayer, the Court ruled that the words “prayer” and “amen” could not be mentioned, although a speaker could state his or her own personal beliefs so long as they were not proselytizing.

A higher Court overturned this decision, a perfect illustration of how the judicial branch operates.

On a recent “Face the Nation” appearance, Gingrich suggested that federal judges be subpoenaed to explain their decisions and remarked that subpoenas may have a “sobering effect on judges’ assessment of their powers”. To suggest that the United States abandon the rule of law and the independence of its judiciary is to turn judges into “puppets” of the government, joining countries like Russia, Iran and others whose systems of justice are rife with corruption.

He also articulated his response to stubborn judges: “All right, in the future the Court can meet, but it will have no clerks. By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law libraries either.”

Mr. Gingrich’s inflammatory proposals to change the function of the judiciary advances governance based on political preferences and denies the role of an independent bench as part of the constitutional balance of America.

No, he’s not kidding!

Lawdiva aka Georgialee Lang