July 29, 2005

U.S. can't recognize Canadian gay marriages, says judge

by Anthony Glassman

Tacoma, Washington--The federal Defense of Marriage Act bars recognition of Canadian same-sex marriages, a federal bankruptcy judge ruled on August 17.

The case is one of the first involving U.S. recognition of the marriages. It was brought by Lee Kandu, who wed her partner Ann Kandu in August 2003 in British Columbia after high courts in that province and Ontario ruled in favor of same-sex marriage.

Shortly after being married, the two women were both diagnosed with cancer, and their bills began accumulating. The two had already merged their finances years earlier, and filed a bankruptcy petition in which Lee listed Ann as her spouse and co-debtor.

Ann Kandu has since died, but the joint bankruptcy went forward because of the joined assets and debts.

Recognizing legal acts like marriages from other countries, called �comity,� is traditional but not required, U.S. Bankruptcy Judge Paul B. Snyder said.

The government argued that the bankruptcy code limits joint filings to spouses, and that �spouse� must be defined in line with the 1996 federal act, also called DOMA. Snyder found this argument convincing.

Lee Kandu, who may lose her home with the denial of the bankruptcy, argued that denying her petition violates the Fifth and Tenth Amendments of the United States Constitution.

The Tenth Amendment gives powers to the states that are not specifically spelled out as belonging to the federal government in the Constitution. Marriage is among these.

However, Snyder ruled that the federal government has legitimate interest in defining marriage, and pointed out that Washington state also has DOMA legislation, rendering her argument moot.

The Fifth Amendment states that no one can be deprived of �life, liberty, or property without due process of law.�

She argued that the Lawrence v. Texas case, in which the Supreme Court in 2003 struck down state sodomy laws, and the 1996 Romer v. Evans case striking a Colorado amendment banning gay and lesbian equal rights laws, as establishing full constitutional rights for gay men and lesbians.

Snyder, however, pointed out that the Lawrence ruling specifically stated that it did not apply to same-sex marriage, and that other cases, including ones on Florida�s ban on gay adoptions and an Alabama law banning sex toys, ruled that Lawrence was not relevant.

Snyder also said that, as a bankruptcy judge, he did not have jurisdiction to decide constitutional rights.

Canada�s national same-sex marriage law took effect July 20, although many provinces have been granting the marriages for several years. Residency is not required and there is no waiting period, except in Qu�bec. Many U.S. lesbian and gay couples have married in Canada and returned home.

Canadian Foreign Affairs Minister Pierre Pettigrew last week released a statement urging caution for married Canadian gay and lesbian couples traveling abroad.

�We cannot take for granted that rights that are recognized in Canada will be recognized or accepted abroad,� he said. �Whether visiting or moving to another country, Canadians should always take the time to learn about the laws of the country for which they are destined before leaving home.�

The statement was issued to announce updates to the Foreign Affairs Canada web site outlining issues that may be faced by same-sex couples.

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