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Feldstein reflected on same-sex marriage in Canada, discussing a controversy that arose last year over a same-sex married lesbian couple who wanted a divorce. The marriage wasn’t considered valid, Feldstein said, noting that under the law, in order for a marriage to be valid, it had to be valid where the marriage took place and where the parties lived, which it wasn’t in this case. The lesbian couple had homes in the U.K. and Florida, neither of which permitted same-sex marriage when the couple wed.
Inadvertently, a technical loophole was exposed in Canadian law. Prime Minister Stephen Harper confirmed subsequently that not only were same-sex marriages valid in Canada, but that the Canadian government had no intention of re-opening the same-sex debate.
“The government made the argument that it was not valid because it had be valid in both jurisdictions and former Justice Minister Irwin Cotler disagreed and said it is valid in Canada and I agreed with his interpretation,” Feldstein said in an interview with AdvocateDaily.com. “The court never ruled on this issue as the government consented to the divorce and amended the legislation.”
For same-sex couples who come to Canada to divorce, Bill C-32 also fixed the requirement of living “separate and part for one year.” This provision has been waived by Bill C-32 for same-sex couples who come to Canada for the purpose of getting a divorce.
In the end, said Feldstein, it was determined a divorce would only be allowed if the couple consented and were married in Canada, and their home jurisdiction would not grant a divorce.
Skurka and Feldstein also talked about the two monumental decisions passed by the U.S. Supreme Court on June 26. The Defense of Marriage Act (DOMA, 1994), which defined marriage as between a man and a woman, was overturned by the Supreme Court in a 5-to-4 decision. Feldstein said this was an “overwhelming victory” for same-sex couples in the country.
“The court decided to treat same-sex couples in the same way as married couples, so they have equal rights under U.S. federal law. They can file a joint tax return, they can get marriage deductions, and they can get social security benefits and survivor benefits,” Feldstein told Skurka.
“I think it’s an overwhelming victory for them because now they’re not just considered married, they’re being treated as married under the law with some very real and significant benefits,” said Feldstein.
The same day, the U.S. Supreme Court also set aside the appeal of the Supreme Court of California to ban gay marriage in the state, again in a 5-to-4 decision; California has a population of 37 million. This paves the way for gay and lesbian marriages to resume almost immediately in the most populous U.S. state.
“The tide of public opinion seems to have turned in the U.S.,” said Feldstein.