This is the second main point: as U of T law professor Brenda Cossman points out, the law of domicile (as it’s called) is actually an old international private law doctrine. It’s not novel. It wasn’t invented by Stephen Harper or any of his cronies.
Hers may not be a household name, but I just want to take a moment to point out the genius of Martha McCarthy. McCarthy is the lawyer for an international lesbian couple married in Toronto in 2005 who are trying to get divorced here, and, as of yesterday, McCarthy is one of the few people to strike fear into the heart of Prime Minister Stephen Harper.
Judging by yesterday’s events, she’s also a brilliant strategist. Here’s why.
The first thing you need to know is that yesterday’s gay marriage firestorm was not about a court decision. It was about the federal government’s filings. Now, this is a little technical, but the gist is: no judge has ruled in this matter. This is a bit unusual. What has been quoted in the media and elsewhere is a document prepared by federal government lawyers in response to a court case McCarthy and her clients started.
The filing is, admittedly, infuriating. In it, the feds argue that the lesbian couple need not seek a divorce because they were not, in fact, ever married. Their Canadian marriage licence is valid only if their home jurisdiction (the UK and Florida, respectively) recognizes their marriage, and their divorce application is only valid if they live in Canada for 12 months. But it’s no problem, the feds argue, because if they’re not married, they don’t need to get divorced.
And for most marriages most of the time, the law works. It’s not a barrier to, for example, Peter McKay and Nazanin Afshin-Jam getting married in Mexico. Because a straight couple can get married in Mexico and their straight marriage is recognized in Canada, there’s no problem whatsoever. They’re married in the eyes of Canada’s divorce courts, should they eventually need access to them. The problem for McCarthy’s clients arises not because of a deep failure of Canadian law, but because most of the planet isn’t hip to gay marriages. That, and because we have this old doctrine international law that was dreamed up long before the political landscape of gay marriage was ever forged.
So, what’s a devilishly clever lawyer to do?
Typically, lawyers are reluctant to speak with the press until a verdict is rendered. Well, what would have happened here? The court might have ruled in her favour. But it’s just as likely — probably more likely — that the court would have held that the law of domicile is a longstanding part of Canadian law, and the couple’s marriage was never valid. And then, when McCarthy complained publicly, Harper and the feds could have blamed the judge and wiped their hands clean of the issue. Their filings would have been buried, and probably no journalist would have gone any further. Not good.
Instead, she took a strong and public position early on, calling the feds’ filing ridiculous. She picked a fight when the opposition was the federal government, not the courts. The benefit of that choice is that politicians are swayed by public opinion, whereas courts are not supposed to be. She found exactly the right moment in the proceedings to go public. The feds look like Neanderthals.
And, you know, there’s nothing like gay marriage to whip otherwise politically uninformed people into a froth. Many of the mainstream media outlets and virtually everything I saw on social media couldn’t help but put the narrative together in a certain way: Harper and his socially conservative cronies are launching a collateral attack on gay marriage, a kind of “first they came for our international gay divorces” argument. This doesn’t have to be strictly speaking true for it to hold enormous emotional sway for many people. Naturally, the thing went viral.
The Conservatives, immediately aware that they were in land-mine territory, carefully walked the story back over the course of the day. By mid-afternoon, Justice Minister Rob Nicholson was saying that the feds were “looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”
That’s what McCarthy wants. That’s what, until yesterday, she thought she had to go through the courts to get, at tremendous personal and emotional cost to the divorcees. Now, Nicholson’s statement contains a dodge, and we’ll have to be careful to see how this unfolds. The dodge, of course, is that if the provinces were to simply stop issuing marriage licences to international gay couples, the issue would be dealt with in a way that’s consistent with Nicholson’s words, if not their spirit.
Leaving aside the technicalities, the real lesson here is that public outrage works. Harper and the feds’ lawyers got a taste of some pretty ugly stuff yesterday. Anxieties about Harper and social conservatives may have been dormant, but it was lurking in many people’s minds just below the surface. McCarthy found exactly the right moment — and the right issue — to tap into that anger, and, as we saw yesterday, outrage is a powerful thing.