Last Updated: Friday - 09/24/2010
Week of December 27, 2004
Notwithstanding clause can save traditional marriage
By DEBORAH GYAPONG
Canadian Catholic News
Whether Parliament can save the traditional definition of marriage will depend on whether politicians are willing to invoke the notwithstanding clause, say lawyers who represented Christian groups in the marriage reference.
But they say there's enough ambiguity in the Supreme Court's decision and the law to give ammunition to both sides of the battle looming in Parliament once Justice Minister Irwin Cotler tables same-sex marriage legislation early next year.
"I've made it very clear I'm not going to invoke the notwithstanding clause," said Prime Minister Paul Martin while giving a year-end interview to the CBC Dec. 14.
Martin say 'no'
He told the CBC's Peter Mansbridge that all that would result from failure to pass the bill would be a patchwork of laws in Canada where six provinces and one territory recognize same sex marriage and the rest don't. He said the rest of the provinces would follow as court cases were brought forward. The promised legislation will bring about uniformity across Canada, he said.
The Conservative Party is arguing that Parliament can impose that uniformity through legislation that would protect traditional marriage.
While Martin was doing year-end interviews, Opposition Leader Stephen Harper unveiled amendments the Conservative Party would seek to the same-sex marriage legislation.
"The amendments will be threefold: to recognize clearly the traditional definition of marriage; to protect the rights and benefits of non-traditional unions and to provide substantive protection for religious freedom," Harper said in a news conference Dec. 14.
"These positions, in our judgment and according to any of the data I've seen, represent the clear and overwhelming consensus of Canadians, including those who vote Liberal," he said.
Asked what would happen to those same-sex couples who already have valid marriages in six provinces and one territory, Harper acknowledged that those marriages would be problematic, but the details could be worked out. He said that under the amendments, same-sex couples would have some sort of civil union, with all the rights of marriage without the name.
Harper told CCN Dec. 15 that the court had thrown marriage back to Parliament to decide by refusing to answer the fourth question in the marriage reference on whether the traditional definition of marriage is unconstitutional.
Harper said there's no need for the use of the notwithstanding clause.
The Liberal government disagrees.
"The traditional definition of marriage or the opposite sex requirement for marriage is unconstitutional," said Attorney General Irwin Cotler in a news conference that same day.
Who's right? According to Peter Lauwers, an attorney who represented the Ontario Conference of Catholic Bishops in the marriage reference, while Harper may be technically correct that the Supreme Court hasn't ruled on traditional marriage because it refused to answer the fourth question, "the answer from the court is a foregone conclusion."
Lauwers points to the court's Dec. 9 opinion, which says the proposed same-sex legislation "far from violating the charter, flows from it.
"This means that the feds are right when they say that it would take the invocation of the notwithstanding clause in section 33 of the charter to avoid another bitter round of litigation ending up in the Supreme Court," Lauwers wrote in an email interview Dec. 16.
As for Harper's suggestion of civil unions for gays, Lauwers said, that, in his opinion "a judicial finding under the charter that 'separate but equal' is discriminatory is virtually inevitable."
"This means that such a dual scheme would only work if the notwithstanding clause were invoked," he said.
"Why would the state have an interest in regulating close personal relationships at all unless it has to do with the family and having stable homes for children?"
- Janet Epp Buckingham
The same or different?
Janet Epp Buckingham, director of law and public policy for the Evangelical Fellowship of Canada, points out the court didn't rule on civil unions because that was not what was before them, and asks, "Are same-sex couples and opposite sex couples the same or different?
"If they are different, then it is justifiable to treat them differently. If they are the same, they have to be treated the same," she said.
"Why would the state have an interest in regulating close personal relationships at all unless it has to do with the family and having stable homes for children?" she said. She pointed out that children raised by their biological parents in stable homes have the best outcomes.
She said that the civil unions for same-sex relationships might work if the relationships are found to be different, and said there's a case coming up in Newfoundland which will examine this.
Lauwers points out that some have argued that the state's "getting out of the marriage business" may be preferable to the "legislated redefinition of marriage" if retaining the traditional definition proves impossible.
Buckingham said that the only way to protect traditional marriage is to enshrine the definition in the Constitution.
A group called Enshrine Marriage Canada has organized to bring this constitutional amendment about. Its web site is www.enshrinemarriage.com.
Copyright © 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009 -- Western Catholic Reporter
Our mission: To serve our readers by bringing the Gospel to bear on current issues in the Church and in secular culture through accurate news coverage and reflective commentary.