Cornellian: Per EV’s point, I’m not quite sure of this but I don’t think Canadian law has ever had civil unions.It’s marriage or nothing.

Canada’s history with recognition of same-sex couples is a bit convoluted.

Literally speaking, only Quebec had “civil unions” (it still has them). Some other provinces had vaguely similar provisions, albeit with different names. And some incidents of marriage had been generally available for some time before the various marriage rulings came down (and the Government acquiesced).

Given the words in the pleadings, this seems to be a literal marriage (indeed it was solemnized just six weeks after the Ontario court’s Halpern decision).

Under the common definition of those words, they would not be applicable in a same sex union.

Some statutes may use a broader “spouse” terminology. That is not the case here.

Of course, the deficiency could be remedied by a statute providing for a specified adoption of a specific designation in the act of union. Currently that would not be popular or common.

It is true that the term “husband” could be given an “extensive” meaning, but “wife” is generally limited and not subject to extension

Gabriel Malor: Rather, the government would merely have to show that there is a rational basis (or whatever amorphous standard the Court adopted in Lawrence) for treating opposite-sex spouses different than same-sex spouses. So long as such a rational basis exists (and is not motivated by animus contra Romer, the Courts would not have to extend the evidentiary privilege to opposite-sex couples.

You’re telling me that the comments on the House and Senate floor during the 1996 debate on DOMA, including “God created Adam and Even, not Adam and Steve”, were not evidence of animus against GLBT people?

Daniel:
Daniel says:
It seems to me that things are getting very complicated when you have a federal system of laws where one level of the system recognizes 2 people as being married and another level does not recognize the marriage. Is there another kind of marriage where this is the case?

You’d think there would be issues with folks from countries where polygamous marriages are recoginzed. If a guy with two wives comes to the US, which one is he married to? Can he pick which one? Can they pick? Both? Neither?

I am a High School Government Teacher and these questions have been coming up more and more frequently when we discuss the federal system. I have my opinions, but I try not to bring them in to my class. I ask that my students explain their position on an issue such as this, then I ask them to research and make convincing arguments against their beliefs. It is my belief that an intelligent person should know and be able to make convincing arguments on all sides of the issues that face our nation. Anyhow, all thoughts will be appreciated.

Oren: Bored Lawyer, is that compatible with Rule 501?

It actually is a Circuit split. One court summarized it as follows:

The various circuit courts that have had the opportunity to interpret the meaning and effect of this rule [Rule 501] have taken divergent approaches. Some have held that any time federal and state claims are present in the same lawsuit, the federal law of privilege should apply to the entire lawsuit. E.g. Virmani v. Novant Health Inc., 259 F.3d 284, 287 n.3 (4th Cir. 2001); Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992); Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir. 1982). Cf. von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987) (applying the federal law of privilege in part based on the premise that Congress intended federal privilege law to apply to all pendent state law claims, but noting that the evidence sought in the case before it was relevant to both the federal and the state claims).

Others have taken a more nuanced approach, applying state privilege law to evidentiary materials that are related to pendent state claims, so long as they are unrelated to any federal claims. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (Reavley, J., sitting by designation)(applying state law to privilege issues that were relevant to state causes of action in a case in which federal claims were also present). Cf. Pearson v. Miller, 211 F.3d 57, 66 n.8 (3d Cir. 2000) (applying federal privilege law because the discovery materials at issue were related to both state and federal claims, but expressly leaving open the possibility that state privilege law would apply if the materials were only relevant to the state claims).

Garza v. Scott & White Mem. Hosp., 234 F.R.D. 617, 625 (W.D. Tex. 2005) The Garza court adopted the second approach, although it distinguished cases where the evidence is relevance to both federal and state claims (federal privilege applies) and evidence relevant only to state claims.

But, I have a better one: The road to Hades is paved with principles.

I rather like that one.

Randy: Reading the entire post has made me a little too woozy to reply. All those issues! Wouldn’t it be simpler just to allow SSM so that everyone has the same rights?Oh, right…….silly me.

Hah! You sleazy satanist, we kow what you are after. Simplicity is the devil’s handmaiden.
(or…something like that)

That provision would be unconstitutional only if the federal courts conclude that there’s a constitutional right to same-sex marriage on equal terms with opposite-sex marriage

I think you’re suggesting too much. The courts don’t have to conclude that the constitutional right to same-sex marriage is “on equal terms” with opposite sex marriage. (Actually, given the phrasing, I’m not sure what your suggesting.)

Rather, the government would merely have to show that there is a rational basis (or whatever amorphous standard the Court adopted in Lawrence) for treating opposite-sex spouses different than same-sex spouses. So long as such a rational basis exists (and is not motivated by animus contra Romer, the Courts would not have to extend the evidentiary privilege to opposite-sex couples.

The distinction, I think is that the courts don’t have to rule on the constitutional right to same-sex marriage, as you appear to suggest. Rather, they only have to rule on the constitutional right to equal protection of the law.

Randy: Reading the entire post has made me a little too woozy to reply. All those issues! Wouldn’t it be simpler just to allow SSM so that everyone has the same rights?Oh, right…….silly me.

slacker.

Oh, right…….silly me.

Wikipedia

As for “marriage or nothing”, at least Quebec still recognizes common-law marriage, so you have to go out of your way to achieve nothingness…

Wikipedia

Per EV’s point, I’m not quite sure of this but I don’t think Canadian law has ever had civil unions. It’s marriage or nothing.

“Marriage or nothing” isn’t entirely correct, but you are right that Canada does not have, and never has had, civil unions.

Beyond being impractical, this seems to be a meaningless distinction since all of the violations might flow from the same predicate act.