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Reality Check

Notwithstanding notwithstanding By Robert Sheppard, CBC.ca Reality Check Team | Dec. 20, 2005 | More Reality Check

So what is Stephen Harper's position on gay marriage?

The simple answer is he doesn't much like it. He wants the definition returned to its traditional meaning – between a man and a woman – with gay partnerships confined to what are called civil unions. These would recognize the legal, economic and parental rights of same-sex partners but would not imbue the relationship with the larger, historical and religious meaning of marriage. This is the route Britain has just taken, albeit in a much simpler legislative jurisdiction. It is also a view shared by many if not most Canadians though not, importantly, by the country's courts. They have ruled that only the full meaning of marriage can be applied to gay unions if there is to be no discrimination.

If he becomes prime minister, Harper wants to restore the traditional definition of marriage by having another free vote in Parliament on the definition, similar to that which enshrined gay marriage in June 2005.

When he recommitted himself to this during the kickoff to the current election, the Conservative leader was coy about whether he would resort to the controversial notwithstanding clause to get around the Charter of Rights and Freedoms. But in the midst of the French debate on Dec. 15 – almost as a throwaway – Harper pledged directly not to use the notwithstanding clause "on this issue," something he reconfirmed the following day.

The pledge clearly caught his opponents off guard and led to �

The slanging match

Paul Martin, Jack Layton and Gilles Duceppe all suggested Harper was either being disingenuous or na�ve by trying to get around the court rulings without the notwithstanding clause. Martin said he would never, as PM, resort to the notwithstanding clause. Duceppe wondered aloud why anyone would want to reopen such a divisive issue – "We already had a vote on that" – overlooking for the moment his support for a third referendum vote in Quebec.

Also wading in: 133 law deans and professors sent an open letter to Harper saying there was no way he could honestly hope to change the definition of marriage without resorting to the notwithstanding clause. That's the opinion of the federal Department of Justice [http://canada.justice.gc.ca/en/fs/ssm/] and, it appears, Vic Toews, Harper's justice critic. Two years ago, he called it the appropriate tool for reasserting the supremacy of Parliament when courts become pressured into fashionable issues like gay marriage.

The legislative reality

Harper's free vote would be a little different than the last one in that it would not require cabinet ministers to toe the party line. Still, it would have to pass what would probably be a minority Parliament full of Bloc, Liberal and NDP opponents, many of whom voted in favour of the new definition just last June.

Even more of a long-shot, it would have to pass a Liberal-dominated Senate that voted 46 to 22 for the earlier bill, and views itself as a great defender of the Trudeau-era charter.

The same reality would apply to the notwithstanding clause. A feature of the 1982 Constitution, it allows a legislature to override several guarantees in the charter, including the equality rights section, but only for a period of five years.

The legal reality

Even if Harper is able to get this next Parliament to pass a new definition – the old one – of marriage, that would not, in itself, change the law of the land. That's because appeal courts in eight provinces and the Yukon have declared legal and constitutional the marriage of two people, regardless of their sex. A new definition would set up a conflict that would have to be relitigated, this time all the way up to the Supreme Court.

Also problematic would be the creation of civil unions for gay couples. Under our system, the federal government can only legislate the definition of marriage, while the provinces are responsible for what constitutes a civil union. A declaration in favour of traditional marriage by Ottawa may lead to some or all provinces creating civil unions.

But these, too, would surely be litigated, and appeal courts in B.C., Ontario and Quebec in particular have been clear in the view that nothing short of full marriage would satisfy the charter's equality provisions.

Harper also acknowledges that the 3,000 or so gay couples who have already married in Canada would not lose that distinction. In the future this could lead to at least three classes of married citizens.

So what's the game plan here?

If this is to be a real test of social conservative values, then the strategy here would seem to be: produce a declaration by Parliament on the definition of marriage – an expression of the will of the people – and basically dare the courts to take this on. (In the high-profile reference case, the Supreme Court of Canada did not specifically rule out the constitutionality of traditional marriage, nor did it overrule lower court decisions. It merely said the Liberal proposal to include same-sex couples was constitutional and "flows" from the charter.)

On the other hand, the promise to reopen the issue could simply be a convenient nod to Harper's rural base, and the many new Canadians from conservative cultures he went courting during the summer.

By rejecting the notwithstanding clause, all he is promising is to bring the matter back to the Commons for a free vote and if there is not enough support for this he would consider the matter closed. Maybe this is his, slightly convoluted, way of moving on.

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