Homosexual activists yesterday advised American couples against rushing to take advantage of recent Canadian court decisions legalizing same-sex “marriages.”
“Couples should absolutely not race across the border just to set up lawsuits; the wrong cases could set us back for years,” a coalition of five key groups said in a joint advisory to Americans planning to join the march to the altar that centers so far in Toronto.
With rare exceptions, courts universally recognize marriages that are valid where they were performed — a concept called “lex loci contractus.”
But state courts in the United States could decide “the Canadian marriage is so offensive to the public policy of that state that it’s not going to be recognized,” said Toronto lawyer Douglas Elliott, victorious lead counsel in the case that legalized same-sex “marriage” there. “The marriage of a Canadian couple is more likely to be recognized than an American couple that came to Canada to get around restrictions in the United States.”
Such couples would also face the untested Defense of Marriage Act, signed into law by President Clinton in 1996. That law defines marriage as “a legal union between one man and one woman,” and requires that any federal law or agency dealing with marriage use that definition.
U.S. and Canadian officials yesterday said they know of no treaty that requires states to honor Canadian marriage licenses, although they always have done so, and that fact could produce a challenge under the equal-protection clause of the Constitution’s 14th Amendment.
“It’s not a question of a test case. It’s not a chess game. These people now are legally married. They are married. Their marriages may be discriminated against when they come to the United States,” said Evan Wolfson, of New York, executive director of Freedom to Marry, one of the five coalition groups.
Others seeking what they call “marriage equality” are Gay & Lesbian Advocates and Defenders in Boston, Lambda Legal Defense and Education Fund in New York, National Center for Lesbian Rights in San Francisco, and the ACLU Lesbian & Gay Rights Project in New York.
Bill Estey, of Metropolitan Community Churches in Toronto, was taking telephone appointments yesterday for weddings — at a $300 fee, not including the $110 wedding license — one day after Canada’s Cabinet approved a policy that Prime Minister Jean Chretien said “legally recognizes the union of same-sex couples.”
“We have done quite a number, and I have three American couples at the moment,” said Mr. Estey, who said he has no idea what legal frontiers those nuptials will encounter.
“All we have said to the American people who call is, we will marry them here, but they need to check with their lawyers in the state in which they live,” Mr. Estey said, indicating surprise that callers seem unworried about legal points on immigration, taxes or inheritance rights.
“What they say is they will come up here and be legally married and deal with those legal questions at home.”
It is unlikely to be an easy task, Mr. Elliott said. “They’re going to have a fight. But you’ve got some really clever lawyers and some organizations in the United States who will help them.”
There are other early decisions to make until new license applications are printed. Since applicants’ sex is not requested, couples must decide who is the bride and who is the groom. The male couple and female couple whose Jan. 14, 2001, unions produced the Canadian test case tossed a coin to decide who was what, Mr. Elliott said.
“They may use gender-neutral terms such as Spouse 1 and Spouse 2, but some people use the terms husband and wife, or bride and groom,” Mr. Elliott said yesterday.
The Canadian government’s decision comes on the heels of the June 10 ruling by the Ontario Court of Appeal that refusal to register same-sex unions violates a section of the Canadian Charter of Rights and Freedoms.
Ceremonies began immediately and, as of yesterday, the Ontario provincial government had issued 89 licenses to same-sex couples in Toronto alone: 49 to male couples and 40 to female couples.
“Finally, there is something more interesting coming from Canada than cold fronts,” Mr. Elliott said in a telephone interview from his Toronto office.
He cautioned Americans against jumping into a situation where no residency is required to get married, but a year’s residency is required to divorce.
“It’s a legal relationship and might be hard to undo. See a lawyer at home first. It is conceivable that a person married here might not be able to get divorced in either country,” Mr. Elliott said.