Category Archives: Civil Rights

Same-Sex Canadian Marriages in Jeopardy? Not Yet.

This morning, reports from Canada caused a ripple of anxiety throughout the United States when a Canadian government attorney put forth the position that Canadian marriages of same-sex couples from places where same-sex marriage is not legal would not be considered valid in Canada, either. The issue arose when a lesbian couple sought a divorce in Canada. Neither of them lived in Canada when they married–one was from Britain and the other from Florida–and the government attorney argued that because the marriage would not be legal in either of those places, it is not legal in Canada, either, and therefore the women could not get a divorce.

Anyone who married in Canada and lives in a non-recognition state should take a deep breath, because your marriage is valid and likely to remain so. As stated in a press release issued by a consortium of LGBT legal groups today, “The position taken by one government lawyer in a divorce is not itself precedential. No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before or during the eight years that same-sex couples have had the freedom to marry in Canada.”

Moreover, Prime Minister Steven Harper insists that his government does not wish to reopen the debate over same-sex marriage, and he was apparently unaware of the argument made by the government attorney. However, the government is also intervening in an Ontario case by arguing that two Canadian men who entered into a same-sex civil partnership in the UK, a status which is legally equivalent to marriage, also can’t get a divorce in Canada because they are not legally married there.

Not having marriage equality sure does make things complicated. There will surely be more information forthcoming on this story, but for now, if you have a Canadian marriage, you are still married.

Heartbreaking Will Contest for Widow of Chicago Lesbian

The National Center for Lesbian Rights has a new client, Jennifer Tobits. Jennifer’s case is tragic, symbolic, and legally significant. It’s tragic in its human dimensions–a grieving widow is forced to contend with her late partner’s homophobic and heartless family and their efforts to erase her legal marriage. It’s symbolic in its demonstration of why same-sex couples need legal protections and how DOMA is still being used to challenge our legal relationships–and in a way, of how the more things change, the more they stay the same. (Remember Sharon Kowalski and Karen Thompson, anyone? That was more than 20 years ago.) And it’s legally significant in that it requires a court to decide whether DOMA applies to a private company as well as whether the couple’s Canadian marriage will be recognized in Illinois. Read this great post by Professor Nan Hunter about the legal details, and this blog by Kate Kendell providing some context for the case.

Same-Sex Marriage in New York, Just in Time for Pride Weekend

The annual LGBT Pride Celebration in New York City will be a festive one this year in the wake of Friday’s passage of a same-sex marriage bill in the Empire State.  New York, the country’s most populous state, joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia in offering full marriage equality to same-sex couples. New York’s  addition to this list doubles the number of American citizens living in marriage equality states.

Governor Mario Cuomo called New York “a beacon for social justice” after succeeding at bringing together Republican donors and reluctant lawmakers to gather the votes needed to pass the bill in a Republican-controlled Senate, ending up with a 33-29 vote.  A number of Republican lawmakers changed their votes from the last time New York voted on this issue in 2009, including state senator Roy McDonald, who resisted pressure from his party and did what he called, in a strong statement, “the right thing.”

New York has no residency requirement to get a marriage license . New Yorkers, and any same-sex couple traveling to New York, can marry there beginning July 24. That’s less than a month from now, so good luck to the wedding planners.

USCIS Hold Ends As Quickly As It Began

Just two days ago, I blogged about an announcement from the U.S. Citizenship and Immigration Services (USCIS) that it would put on hold decisions about cases involving same-sex binational couples–a seeming big step away from the discriminatory policies based on the Defense of Marriage Act (DOMA) that have previously dominated the agency’s decision-making. Here’s an informative Daily Beast story about the hold.

It didn’t exactly seem too good to be true–that status would be reserved for an actual repeal of DOMA. However, the hold was apparently too good for something, and it has already been lifted. USCIS announced on March 30, 2011, through press secretary Christopher S. Bentley, that, “The guidance we were awaiting … was received last night, so the hold is over,” and “we’re back to adjudicating cases as we always have.” Bentley went on to say that USCIS would continue to “enforce the law,” in other words refuse to recognize same-sex marriages for purposes of approving green card applications.

Is this the last word on the subject? Not necessarily. With the Justice Department’s new position that DOMA is unconstitutional, plans by members of Congress to seek repeal of DOMA, and various cases challenging DOMA winding their way through the U.S. court system, it’s likely that the Supreme Court will rule on DOMA’s constitutionality within the next few years–which will of course affect green card applications for married same-sex partners.