Canadian Marriage Test Case for U.S. Courts?
Joe Flannigan
A gay couple travelling from Canada to the U.S. was denied entry by a U.S. customs official unless they provided separate forms rather than using the "family form" at Toronto's Pearson Airport.
The story at the Canadian Broadcasting Corporation website is here
Should make an interesting legal case, if it comes about...
Timothy McDaniel
Joe Flannigan <joe_flann...@sympatico.ca> wrote:
>I know that for over a century there has been treaty between Canada
>and the United States which has a provision wherein each country
>recognizes the validity of marriages performed on the other's
>territory.
Anyone have a citation handy?
--
Tim McDaniel, tm...@panix.com; tm...@us.ibm.com is my work address
Brian Kane
>Joe Flannigan:
>>I know that for over a century there has been treaty
>>between Canada and the United States which has a
>>provision wherein each country recognizes the validity
>>of marriages performed on the other's territory.
>
>Anyone have a citation handy?
I haven't been able to find one anywhere. What's even
more suspicious: the Canadian lawyer for the marriage
project says that such a treaty has never existed, only
"long standing custom."
Anyhow, that's not the problem. The problem is the
loathsome US Defense of Marriage Act. Even if there had
been a Murrican-Canajun treaty, it would not have been
self-executing nor would it have superseded the US federal
idiocy.
--
Brian Kane (Washington, DC) | Sad-eyed baby I'm not that kind of girl
astroplace.com/brian.asp | When the dice stop rolling, there's no
>bri...@SPAMastroplace.com<| more to the game :::: Stephin Merritt
Michael Palmer
(Timothy McDaniel) wrote:
>In article <3F69E5CC...@sympatico.ca>,
>Joe Flannigan <joe_flann...@sympatico.ca> wrote:
>>I know that for over a century there has been treaty between Canada
>>and the United States which has a provision wherein each country
>>recognizes the validity of marriages performed on the other's
>>territory.
>
>Anyone have a citation handy?
No such treaty. See "Canado-American Treaties",
http://www.lexum.umontreal.ca/ca_us/index_en.html, which provides the
texts of all bilateral treaties between the United States of America
and Canada [or Great Britain, representing Canada] from 1783 to 1997.
--
Michael Palmer
Claremont, California
mpa...@panix.com
Joe Flannigan
Brian Kane wrote:
> the Canadian lawyer for the marriage
> project says that such a treaty has never existed, only
> "long standing custom."
This does get confusing...
Does this mean that one does not contravene bigamy laws providing one
marries one's 10 "wives" in 10 different countries? One can't be
convicted by dishonouring custom, surely.
So if a man is married for 20 years in Canada, and then moves to the
United States he can marry someone else there without the necessity of a
divorce?
Baffling...
Michael Palmer
You're misinterpreting Brian's use of the phrase "long standing
custom". He uses the term not to describe marriage customs, but to
describe different methods of "normalizing" or "recognizing" a
situation. In this case, the US can recognize a marriage performed in
another country either explicitly, through a treaty, or implicitly, by
"long-standing custom". The usual way is by custom: in fact I can't
find a single US treaty in force that mentions recognition of
marriage. The general principle is that the US recognizes as valid
any marriage performed abroad provided that (1) the marriage is valid
according to the lex loci of the country in which it was performed,
and (2) it is monogamous. Once within the United States a person must
observe the marriage laws of the state in which (s)he finds
him/herself, even if those laws are at odds with the marriage laws of
the country of origin (e.g., a Muslim in the US is not permitted to
have more than one wife, even if his country of origin allows him
more). The gender of the partners in a marriage performed abroad was
until quite recently a moot point, since no country recognized
same-sex marriages. Now that several other countries do recognize
same-sex marriages, how the US will consider these marriages becomes a
critical question.
Scott Safier
> You're misinterpreting Brian's use of the phrase "long standing
> custom". He uses the term not to describe marriage customs, but to
> describe different methods of "normalizing" or "recognizing" a
> situation. In this case, the US can recognize a marriage performed in
> another country either explicitly, through a treaty, or implicitly, by
> "long-standing custom". The usual way is by custom: in fact I can't
> find a single US treaty in force that mentions recognition of
> marriage. The general principle is that the US recognizes as valid
> any marriage performed abroad provided that (1) the marriage is valid
> according to the lex loci of the country in which it was performed,
> and (2) it is monogamous.
I believe the legal term is "comity" -- the informal and voluntary
recognition by courts of one jurisdiction of the laws and judicial
decisions of another. One key point is whether the people involved
fall under the 'jurisdiction' in question. Many state DOMAs are
evasion statutes. They have a clause that says if you are domiciled
(legal term) in that state, and leave the state to have a 'same-sex
marriage' (sic), that marriage is null and void. This is because,
even if you travel to another jurisdiction, because of your residence,
you really are only leaving to evade the laws that apply to you.
This is a big problem with the Mass. marriage case. Mass. has a law
that says that if a person travels from another state, the
Mass. marriage is only valid if it is also valid in their home state
(i.e. Mass. has a residency requirement for marriage).
> Once within the United States a person must
> observe the marriage laws of the state in which (s)he finds
> him/herself, even if those laws are at odds with the marriage laws of
> the country of origin (e.g., a Muslim in the US is not permitted to
> have more than one wife, even if his country of origin allows him
> more). The gender of the partners in a marriage performed abroad was
> until quite recently a moot point, since no country recognized
> same-sex marriages. Now that several other countries do recognize
> same-sex marriages, how the US will consider these marriages becomes a
> critical question.
You are confusing "status" with "benefits." The couple in question
has the status of marriage, regardless of where they are. However,
even if they have the status, U.S. Customs does not have to give them
the "benefit" of filling out only one form when they try and enter the
country. (This case is complicated, though, by the fact that the
couple was still *in*Canada* when the event took place (or so I've read)).
The situation, it seems to me, is analagous to filing a tax return. A
couple marries in Canada and moves back to the State of
Chao^h^h^halifornia. It's federal income tax time. They cannot file
as a married couple. Instead, they are told to file individual
returns, yet declare that they are either "married, filing separately"
or make their own box that says they are married.
Check out http://www.aclu.org/getequal/rela/canada.html
It's a very good reference.
--
Scott http://www.pink-triangle.org/scott
AOL IM: CorwinScot YahooIM: CycleMuscle
"Stand firm for what you believe in until or unless logic or experience prove
you wrong. Remember, when the emperor looks naked the emperor is naked. The
truth and a lie are not sort of the same thing. And there's no aspect, no
facet, no moment of life that can't be improved with pizza." -- Daria
Michael Palmer
<sc...@pink-triangle.NO.org.SPAM> wrote:
>Michael Palmer:
>> Once within the United States a person must
>> observe the marriage laws of the state in which (s)he finds
>> him/herself, even if those laws are at odds with the marriage laws of
>> the country of origin (e.g., a Muslim in the US is not permitted to
>> have more than one wife, even if his country of origin allows him
>> more). The gender of the partners in a marriage performed abroad was
>> until quite recently a moot point, since no country recognized
>> same-sex marriages. Now that several other countries do recognize
>> same-sex marriages, how the US will consider these marriages becomes a
>> critical question.
>
>You are confusing "status" with "benefits." The couple in question
>has the status of marriage, regardless of where they are.
Er, no(tm). If country A refuses to recognize marriages performed in
country B, couples married in country B arriving in country A will not
have the status of marriage in country A.
Scott Safier
that's now what the real lawyers are telling me. at least under the
english common-law, the status transfers. the benefits may not. See
the ACLU stuff. They are quite clear that the status is there.
Brad Macdonald
> YahooIM: CycleMuscle
obSocMotss: You wore the sun glasses to prove its case?
Brad
Eric Bohlman
news:slrnbmnb5j...@pong.telerama.com:
> that's now what the real lawyers are telling me. at least under the
> english common-law, the status transfers. the benefits may not. See
> the ACLU stuff. They are quite clear that the status is there.
So what happens if a Canadian-married same sex couple visits the US, and
one of them dies? Is the other partner recognized as "next of kin" for
purposes of releasing the body?
David Horne
> The gender of the partners in a marriage performed abroad was
> until quite recently a moot point, since no country recognized
> same-sex marriages. Now that several other countries do recognize
> same-sex marriages, how the US will consider these marriages becomes a
> critical question.
Certainly, but I think there could be a lot of wriggle room for the US
if they _didn't_ want to recognise same-sex marriages. Leaving aside
Canada for a moment, there are only two other countries (Netherlands and
Belgium) that have true marriage for same sex couples- meaning that the
laws and procedures for marriage are exactly the same. [Well, that's my
understanding anyway- maybe there are some minor differences there too.]
Most other countries that are increasing the rights for same-sex couples
are going for "partnership" legislation instead. Now, in some countries
this may very well mean that same-sex couples have, for all intents and
purposes, the same rights as straight married couples, but it won't be
the _same_ as marriage in law. Canada (when everything is sorted out)
may well have the largest impact on the US, given that they are
neighbours and there's a large amount of immigration, travel etc.
between the two countries.
Most EU countries do not recognise same-sex unions in other countries
either, but they are having to grapple with this issue now, and there
are moves afoot for EU-wide legislation to try and fix some of this.
David
--
David Horne- www.davidhorne.co.uk
davidhorne (at) davidhorne (dot) co (dot) uk
Ellen Evans
I don't know about the admittedly different Canadian situation, but in the
wake of Davis signing the dp bill yesterday, there are a lot of caveats
circulating about covering your bases should you leave California.
--
Ellen Evans 17 Across: The "her" of "Leave Her to Heaven"
je...@panix.com New York Times, 7/14/96
Get your Ellenwear at http://www.cafeshops.com/ellexia
All the cool kids are doing it.
Chris Ambidge
>> that's now what the real lawyers are telling me. at least under the
>> english common-law, the status transfers. the benefits may not. See
>> the ACLU stuff. They are quite clear that the status is there.
[eric]
>So what happens if a Canadian-married same sex couple visits the US, and
>one of them dies? Is the other partner recognized as "next of kin" for
>purposes of releasing the body?
friends of mine, a lesbian couple, have adopted a little
girl, who's now 4. The adoption is now final, and so they
all share the same family name, and the girl will be getting her
own passport in her new name. She is now legally their daughter.
However, before the final papers came through, they travelled
a number of times to the US as a family (it was a business trip
for one of the women, and she took her wife and daughter along
for a vacation when they were in Boston, or whatever the other
cities were). In that case, they had their own passports of course,
and documentation from the Childrens' Aid Society (whose ward
the child legally was during the one-year trial adoption) saying
very clearly that these two women were a family unit, and the
girl was their adopted daughter, and they had the permission of
the CAS to travel together out of the country. These papers
were presented to US Immigration who swallowed them without
question. They HAD to travel as a family, that was the only
way that the girl could enter the States. So clearly the
US Immigration people are not applying their rules (whatever they
are) consistently.
Maybe Kevin Varnell and Joe Bourassa would have been able to
get into the country if they had the same family name. Or if
they had a child in tow.`
ailuropoda melanoleuca torontonensis
remembering that an opposite-sex common law couple [ie who live together in
a spousal relationship, but who have not married each other] are considered
a couple a) after one year of cohabitation, or b) as soon as they have a
child together (which can be less than a year after they become a couple).
Scott Safier
> On Fri, 19 Sep 2003, Scott Safier wrote []:
>> YahooIM: CycleMuscle
>
> obSocMotss: You wore the sun glasses to prove its case?
While I've been away from here, I've been communing with RPJ and
others of our ilk, in a net.place where they actually like me :-P. For
some reason, they all use Yahoo! IM. To be one of the gang, I adopted
this handle there.
I just wish that M$ IM didn't have the best webcam facilities. Damn.
Scott Safier
> So what happens if a Canadian-married same sex couple visits the US, and
> one of them dies? Is the other partner recognized as "next of kin" for
> purposes of releasing the body?
It's hard to say because it hasn't happened yet. I'd certainly assume
that the Canadian embassy would support the notion that they are
next-of-kin. Cover your-basis is probably the best advice, because
even if *eventually* a court ruled you were next-of-kin, the hospital,
random homophobic state administrators, etc can always put of
roadblocks that you'd rather not fight.
States like Chao^h^h^halifornia (in 2005 and after) and Vermont
will/should recognize the next-of-kin relationship.
Ellen Evans
Scott Safier <sc...@pink-triangle.NO.org.SPAM> wrote:
[]
>I just wish that M$ IM didn't have the best webcam facilities. Damn.
iChat has the best webcam facilities.
John Whiteside
<je...@panix.com> wrote:
> >I just wish that M$ IM didn't have the best webcam facilities. Damn.
>
> iChat has the best webcam facilities.
Except that you can only use them to chat with other iChat users, I
believe.
Yahoo seems best all around because it is the only one (my sister who
has time to check this stuff out tells me) that works with Macs (other
than iChat of course).
Mike McKinley
>Brad Macdonald:
>
>
>>On Fri, 19 Sep 2003, Scott Safier wrote []:
>>
>>
>>>YahooIM: CycleMuscle
>>>
>>>
>>obSocMotss: You wore the sun glasses to prove its case?
>>
>>
>While I've been away from here, I've been communing with RPJ and
>others of our ilk, in a net.place where they actually like me :-P. For
>some reason, they all use Yahoo! IM. To be one of the gang, I adopted
>this handle there.
>I just wish that M$ IM didn't have the best webcam facilities. Damn.
>
>
>
*FAS*cinating!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!