Canadian Same-Sex Quandary

By Tyree, Benjamin P. | The Washington Times (Washington, DC), May 24, 1999 | Go to article overview

Canadian Same-Sex Quandary


Tyree, Benjamin P., The Washington Times (Washington, DC)


Thursday's decision by the Canadian Supreme Court declaring unconstitutional the laws of the Province of Ontario against same-sex spouses raises interesting legal questions for the United States.

If Canada - a nation with which we enjoy a particularly close relationship and long, porous border -restructures its laws to permit same-sex marriage, what will be the status of these unions in the eyes of American authorities?

In other words, if same-sex couples considered wed under Canadian law enter the United States to work or travel, will they be entitled to recognition of their legal arrangement? If one of them seeks to immigrate, will his gay spouse be entitled to the same consideration as a heterosexual spouse of another would-be immigrant? Is it certain the laws of the United States against such a preference will remain legally unassailable?

For that matter, if international travel, entertainment or accommodations are offered at a discount to married couples, would gay couples be equally entitled?

Normally, the marriages, divorces and contracts of a sovereign nation, unless specifically illegal under U.S. law, are recognized as legally binding, under the principal of comity. Hence the legality of the "quickie" Mexican divorce, though it may have occurred without the waiting periods usual under the laws of American states. However, polygamous marriages face a quandary in moving across borders. And there can be no enforceable contract of enslavement under the U.S. Constitution.

The wording of treaties and other legally binding international agreements can be crucial. Treaties with foreign entities and governments under the U.S. Constitution are the law of the land. And the Clinton administration has displayed a taste for treaties as a means of modifying U.S. legal fields, as in environmental protection. Close scrutiny of the fine print of international agreements may be in order for concerned observers of the Canadian move.

If Canadian same-sex marriages achieve some recognition under U.S. law, will the change in the Canadian marriage rules result in a Trojan-horse phenomenon for this issue in the United States? Or put differently, is the bullet dodged in Hawaii now proceeding at full-speed for its target?

The whole issue of same-sex conjugal relations is of course fraught with many questions revolving around not only property rights, but adoption rights, conferral of employment benefits upon a spouse, the right to speak for a partner no longer competent to exercise his or her own legal authority, and so forth. …

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