Conservative Bill To Close Loophole In Canadian Same Sex Marriage Law Creates “Double-Standard;” Attorney General Eric Holder Announces Department Of Justice Will Not Defend Challenge To Defense Of Marriage Act Brought By Members Of Military, Second Suspect In Atlanta Gang Gay Bashing Surrenders To Police

The Conservatives have introduced a bill that would allow same-sex marriages of foreigners performed in Canada to be dissolved in Canada. While gay advocacy groups are hailing it as a victory, the legislation proposed Friday would create one set of divorce rules for Canadian couples and another for those foreign same sex couples married in Canada. As far as the government is concerned, the amendments to the Civil Marriage Act tabled by Justice Minister Rob Nicholson would fix the legal loophole that surfaced after a Globe and Mail report on a high-profile court case involving a lesbian couple seeking a divorce in Ontario. “Recently it came to light that there was an anomaly in our civil marriage laws,” Mr. Nicholson said in a statement. “We are fixing the anomaly in the law.” The amendments to the Civil Marriage Act state that a couple’s marriage can be dissolved in Canada if they have separated, and been living for at least one year, in a state that does not recognize the validity of their marriage. But some critics, such as Michael Cochrane, a prominent Toronto-based family lawyer, said the proposed legislation is riddled with “pretzel logic” that creates a “double standard.” Normally, couples can obtain a divorce in Canada for three reasons: cruelty, adultery and separation for a year. For foreign same sex couples, the bill says that separation is the only grounds for divorce. Julie Di Mambro, the minister’s press secretary, said in an e-mail that the distinction was necessary. “Canadian courts would not be best placed to hear evidence of events that happened in another country, which would be needed in cases of allegations of adultery or abuse,” she wrote. The legislation also requires the divorce application to be made jointly by both partners. If it’s made by one person only, the individual has to get consent or, failing that, obtain a court order from their home jurisdiction that states their spouse is either unreasonably withholding consent, mentally disabled or cannot be found. “The government is making a presumption that person could get that sort of an order from a court in a country that doesn’t recognize their marriage and is hostile to same-sex couples,” Mr. Cochrane said. “It’s really making these couples jump through a lot of legal hurdles just to get a divorce.” Cochrane said that while he didn’t see the government’s actions as “inherently hostile” to foreign same-sex couples, the legislation would effectively stop Canada from becoming a fly-in “tourist divorce destination.” Same sex marriage was recognized by the courts in Canada in 2004 and, a year later, the Liberal government of prime minister Paul Martin enshrined it in law. In the case that prompted the widespread furor, the two women, who can’t be named under a court order, were wed in Toronto in 2005 but were told they weren’t legally married because their marriage wasn’t recognized in their Florida or United Kingdom homes. The Department of Justice also said couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. LGBT advocacy groups and politicians criticized the Department of Justice’s position, which appeared to backtrack from recognizing the validity of same sex marriages. “It really wasn’t necessary to step in and talk about the validity of these same-sex marriages. That argument should never have been made,” said Martha McCarthy, the lawyer for the lesbian couple at the centre of the media storm. Lawyers like Ms. McCarthy and Mr. Cochrane say the legal community was aware for several years that the loophole existed, and both the Liberal and Conservative governments should have fixed it earlier. Ms. McCarthy now wants to know if the government will expedite the legislation through Parliament, but the minister’s office only said the government would act “swiftly” without going into specifics. “The worst-case scenario for us now is that there will be significant delay in our case while they go through the motions,” Ms. McCarthy said. If passed, the amendments will be applied retroactively, allowing Ms. McCarthy’s clients to move ahead with their divorce proceedings. The process for ending these marriages does not, however, address issues such as property, child or spousal support, which remain subject to laws in the local jurisdiction where the couple lives.

Attorney General Eric Holder sent House Speaker John Boehner a letter Friday to inform him that the Department of Justice will not defend the Defense of Marriage Act in a challenge brought by current and former active duty members of the United States military. In the lawsuit, the litigants seek various federal benefits for their same sex spouses — medical and dental insurance, basic housing allowances, visitation rights in military hospitals and survivor benefits. ABC News reports that the decision is consistent with a letter Holder sent last February announcing that the executive branch had determined DOMA is unconstitutional as applied to same-sex couples legally married under state law. At the time Boehner had hired outside counsel to defend the federal statute that defines marriage as between a man and a woman. Holder explains in the current letter that the plaintiffs in the case are challenging DOMA and additional statutory provisions that might affect the eligibility of same-sex couples for military and veterans’ benefits. He says that DOJ supports Congress’ having a “full and fair” opportunity to defend the law. The House of Representatives has already hired lawyer Paul Clement to defend DOMA in other challenges brought against the law.

A second man connected to the videotaped beating of a gay 20-year-old Atlanta man is in police custody. Dorian Moragne turned himself in to Atlanta police custody late Friday afternoon with his attorney close by. According to police, he will be charged with robbery and aggravated assault. “It’s really important, despite what you may have seen on TV, or on YouTube, that everyone has a presumption of innocence … that cloaks them until and unless a jury of their peers finds them guilty beyond a reasonable doubt,” attorney Jay Abt told The Atlanta Journal-Constitution before his client surrendered to police. Moragne, 19, is one of three men police have been seeking in the beating of Brandon White, since video footage of the February 4 incident appeared on the internet. His surrender makes him the second suspect in police custody. Christopher Cain, 21, was arrested on February 11. Cain, who was being held in the Fulton County jail, is charged with aggravated assault, participation in a criminal street gang, robbery by force and burglary. Police are still seeking a third man who has not been identified. The incident happened in southeast Atlanta’s Pittsburgh community. Video footage showed three men punching, kicking and even pummelling White with an abandoned car tire while shouting anti-gay slurs and the name of their gang, “1029 Jack City.” The gang derives its name from address members frequent – and where the incident occurred – 1029 McDaniels Street. The video, along with community and lesbian, gay, bisexual and transgender activists, alerted local and federal officials to the incident and gave Pittsburgh residents and business owners a rallying point against crime and violence in what they saw as a problem out of control. The FBI joined with Atlanta police to track down the suspects, and federal authorities began investigating the incident as a hate crime. But Moragne’s attorney cautioned people not to rush to judge his client. “Mr. Moragne isn’t guilty of a hate crime,” Abt said. “He is a young man who has the potential of being a good person in the future. He has no feeling of hate for anyone, regardless of age, race, religion or sexual orientation.” The investigation is ongoing.