Yesterday The Globe and Mail reported the Harper government declared all same-sex foreign marriages invalid. Several media outlets, including OpenFile Halifax, picked up the story amidst the media frenzy. That story turned out to be factually inaccurate. OpenFile regrets this massive oversight.

Late last night, Halifax lawyer and LGBT activist Kevin Kindred felt compelled to respond to the media frenzy. In
a public Facebook note, which has since been shared almost 500 times, he wrote:

“I hate defending Stephen Harper. I FUCKING HATE DEFENDING STEPHEN HARPER. But I think a bunch of things went awry in the reporting of this case, and I think they went awry in a particularly troubling way.”

When OpenFile reached Kindred for comment today, he told us the real story.

Two women, who were married in Canada but weren’t residents of Canada, wanted a divorce, so they filed the necessary legal documents. Lawyer Sean Gaudet, representing the government of Canada, filed a legal brief in the case, which you can read here. The brief is Gaudet’s argued position on the law. The brief is not itself law.

Gaudet argued the couple wasn’t legally married in the first place because England and Florida, where the two women live, don’t recognize gay marriage. And Canada’s Divorce Act states that all married couples must live in Canada for at least a year before they can divorce.

The two women didn’t live in Canada for a year before seeking a divorce. They visited Canada to get married. Their union was what Kindred calls a “tourist marriage.”

Kindred says Gaudet’s argument has no particular legal significance.

“It’s an argument that someone is making about the law,” Kindred said over the phone today. “The fact that the government is making it is significant, but it’s an argument that’s going before a judge. The judge is going to decide whether the government is making the better argument or the other side is.”

However, Kindred notes that one aspect of the current law could be seen as unfair to same-sex couples who travel to Canada for the sole purpose of getting married. These marriage tourists can’t enjoy the symbolic aspect of marriage where they’re from, so they come to Canada.

In his note, Kindred writes:

“If it turns out that the common law doesn't recognize these marriages, I think we should change the law. The government can do that, and it should. It should because for almost a decade, Canada has been a beacon of hope for same-sex couples who want to marry. When we fought for same-sex marriage in Canada, we knew we were also fighting for those couples. The law on this may be hundreds of years old, but because of that, it doesn't reflect Canada's role as a leader in recognizing LGBT equality. We should change the law because, god damn it, symbolism is important.”

Since the inaccurate news exploded yesterday, Justice Minister Rob Nicholson has said the federal government wants to clarify the law so that these “tourist marriages” can have true legal significance.

"I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada," Nicholson said.