We are family

Scott is in a tizzy over the tale of a Canadian gay couple denied entry into the US by Customs.

I understand the moral outrage, and think it is a stupid-ass policy. That being said, it was both a legal and proper thing for the Customs agents involved to do.

Two gay Canadian men who are legally wed in Ontario say they were refused entry into the United States today after a U.S. customs official at the airport wouldn’t accept their customs clearance form declaring themselves a family. Kevin Bourassa and Joe Varnell say they abandoned their trip to Georgia when the customs official at Pearson International Airport rejected their family customs declaration form, insisting that they fill out separate forms as single people.
After complaining to a customs supervisor, Bourassa said the couple was told that they wouldn’t be allowed into the United States as a family because the country doesn’t recognize same-sex marriages.
“When we realized we weren’t going to be allowed into the country, we had to make a real hard decision,” Bourassa, claiming a violation of human rights, said in an interview from the couple’s Toronto home.
“We could have filled out separate forms, but how much of your dignity do you want to have chipped away? We feel we had an affront to our dignity, so we decided to go back home.”

Which was certainly their prerogative to do, and more power to them for doing so.

But …

First off, the couple was not, as the headline implies, denied entry into the US because they were gay, or because they were married in Canada. They were not allowed to declare themselves a “family” or a married couple, to US Customs officials; because they would not declare in the fashion that Customs determined was the legal requirement, they were not allowed to proceed. It’s a subtle difference, perhaps, but it makes all the difference in this case.

The fact is, gay marriage is not legal in the US. In fact, under US law (DOMA, if not explicitly in Customs regulations), marriage between same-sex couples are not recognized as such, by definition.

So it is reasonable, if deplorable, that Customs would not allow such a couple to identify themselves on a formal piece of documentation as a married family. That they are recognized as married in Ontario is meaningless to US law; they are not defined as married in the US, by the US government, and it is to the US government that they are making the declaration on their Customs form.

And, yes, it is stupid, and unfair, and did I mention stupid? But calling on the Customs folks involved to be fired is as ridiculous as saying that police that arrest someone for a stupid or unfair law should be fired. No, the law should be changed.

Now, the only legalistic caveat I can see here would be to find out how more prominent dignitaries from other lands wiith marriage customs laws that are different from our own are handled. For example, if a male dignitary from a land where polygamy is legal (say, Saudi Arabia, or certain African nations) were to arrive with a number of his female wives in tow, what would be the Customs policy on what sort of form they needed to fill out? Certainly marriages 2-thru-N would not be legal within the US, and, by that same token, should not be recognized by Customs.

If such folks are, in fact, allowed to enter the country filling out a single “family” custom form, then there’s an illegal and unethical double-standard being drawn here. (It’s possible, of course, that most, or even all such cases are dealt with through diplomatic channels, bypassing the question.)

Of course, this also is an indication why federalizing marriage law (which DOMA did, and proposed Constitutional Amendments would do as well) is a bad idea. Even with in the US, there are differeing standards, state-to-state, of what constitutes a legal marriage, both procedural and existential. What’s the legal age of marriage? Varies from state to state (and should Customs officials block “family” declarations if one or the other partner was below the lowest age of consent in the US when the wedding took place?) Ditto on consanguinity laws (should Customs establish what level of consanguinity is involved in a marriage before allowing a “family” declaration?).

Expect this sort of thing to get a lot more press in the future. And, sooner or later, it’s going to raise a lot bigger stink than this incident did. And remember that as well when middle-of-the-road DOMA defenders grant that gay civil unions or simple contractual relationships are “just as good” as formal married status. They’re not, for reasons just like this.

UPDATE: Arrgh. I forgot me pirate accent on this one. Ah, well, this pirate declares that DOMA (signed into law by that scurvy dog, Bill Clinton back in ’96) is a bucket o’ bilge water, and we ought to keelhaul the lubberly crew that passed it. So far as this pirate’s concerned, the poor fellows above were family, and by rights ought to have been treated as such, but for the cravenly creatures, both Donkeys and Elephants, that put such a law on the books.