Last week wasn’t a good one for gay-rights advocates.
In Maine, voters narrowly rejected their state’s same-sex marriage law by 53 per cent to 47 per cent. The result overturns legislation signed by Gov. John Baldacci last spring.
A vote for the law would have represented the first U.S. victory for same-sex marriage rights through a referendum rather than through the courts or legislatures.
But it’s worth pointing out that even here in Canada, while the debate on the issue has largely gone dormant, it was judges, and later politicians, who changed the laws. We never had a referendum here, so it’s hard to say if our legislation would have met the same result.
Indeed, at a time when Uganda considers a law that would impose the death penalty for what’s called aggravated homosexuality, it’s clear that gay-rights issues continue to simmer. Even here in Ontario, we haven’t settled everything.
As an article on page 13 of this week’s Law Times points out, the rights of gays and lesbians to divorce remain an issue.
That’s because gay couples from elsewhere who get married here often find themselves in legal limbo when they want to break up. In the United States, for example, jurisdictions that don’t recognize same-sex rights also won’t allow them to divorce.
But at the same time, if they want to come back to Ontario to end their marriage, the province requires at least one of them to have one year of residency here. As a result, many U.S. couples find themselves unwillingly joined together.
The issue may appear somewhat moot since their home state doesn’t accept their marriage anyway, but as Dallas attorney Peter Schulte points out, the inability to divorce nevertheless leaves them facing legal risks.
For example, if they choose to wed someone else, authorities could charge them with bigamy. As well, Ontario rules requiring one year of residency for a divorce seem odd given that the province doesn’t have a similar restriction on getting married here in the first place.
Kelly Jordan, a Toronto family lawyer, has thought about the possibility of a constitutional challenge of the provisions but says such a move is unlikely because she doesn’t believe the issue is a priority for the general public.
At the very least, then, the quandary shows that even here, legal rights for gays and lesbians remain a concern. The Maine vote, meanwhile, is also a good reminder of the wisdom of our own politicians’ decision not to put divisive rights issues such as same-sex marriage to a referendum.
Opponents will certainly say that’s undemocratic, but there is a quick answer to that charge: Canadians have the ability to turf politicians who voted for same-sex marriage in an election.
But for the moment, with the Conservatives holding a minority in Parliament and having taken a pass on overturning the 2005 law, voters have so far declined to do so.
- Glenn Kauth
