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Politically Incorrect

Same sex marriage--notwithstanding the notwithstanding clause

by Arthur Weinreb

July 7, 2003

On June 10, the Ontario Court of Appeal struck down the definition of marriage, which until then had been the union of a man and a woman. Holding that the definition was discriminatory, the court effectively changed the definition to read the union of two persons. Courts in Quebec and British Columbia had previously made similar decisions, but what set the Ontario decision apart from the others was that the court did not grant the federal government any time to bring in legislation that would comply with the Charter of Rights. The new definition was made effective immediately, and within a couple of hours of the court’s pronouncement, an Ontario Superior Court Justice joined two men together in the bonds of holy (?) matrimony.

Since 1982, when Canada’s constitution became entrenched as the supreme law of the land, many Canadians have criticized the system whereby a few un-elected judges could impose their will over the intentions of the democratically elected Parliament and provincial legislatures. In an amusing little twist in the aftermath of the Ontario same sex decision, some Liberal MPs joined the chorus of critics, whining that the courts are rendering them impotent in their legislative function.

In recent years, courts throughout Canada have been expanding the rights of gays and lesbians. When that fact is coupled with the decisions of the Quebec and B.C. courts, the judgment of the Ontario Court of Appeal should not have come as a surprise to lawmakers. After the first two decisions gave the federal government time to amend their legislation, the governing Liberals did nothing. It is laughable that some Liberal MPs, who never get a say in legislation that is never drafted, suddenly got upset at the power of the courts. If the courts are truly governing, they are governing by default.

The drafters of the Charter of Rights purposely omitted "sexual orientation" from the list of equality rights that are enumerated under section 15. As recently as 1999, the House of Commons passed a resolution that reaffirmed the definition of marriage as being the union between a man and a woman, and there has been no indication that the intent of Parliament has changed in the last four years.

The government could have introduced legislation that kept the traditional definition of marriage and used the "notwithstanding clause." Section 33 of the Charter of Rights allows Parliament and the provincial legislatures to pass laws that expressly state that they operate notwithstanding the Charter. Although such legislation must be reviewed after a period of five years, there is no limit on how many times the legislation can be extended. Other than in the province of Quebec, Parliament and the provinces are reluctant to use it. Although the Charter would be rendered meaningless if the notwithstanding clause were routinely used, failing to use it at all defeats the purpose for which it was inserted into the Charter in the first place. Had Parliament wished to keep the definition of marriage that has existed for thousands of years, the use of the notwithstanding clause to accomplish that does not seem to be unreasonable.

After the Ontario Court of Appeal’s decision, the Chrétien government indicated that it would bring in legislation to adopt the court’s definition of marriage, and to provide that churches and other religious institutions can refuse to conduct same sex marriage ceremonies. That’s quite a magnanimous gesture from the littlest guy from Shawinigan, who has cited keeping God out of a 9/11-memorial service as one of his great accomplishments. It’s obvious that Chrétien is in favour of same sex marriage, and by allowing the court to make the decision he and his band of merry yes persons can have it both ways. He becomes a hero in the eyes of those in agreement with same sex marriages, while being allowed to deflect the critics by claiming that the decision was that of the courts.

The power of the courts in interpreting the constitution and the Charter of Rights allows the government to avoid making major decisions that are not popular in all circles. The courts are not usurping the functions of the democratically elected governments--Parliament is giving power to them. So let those unhappy Liberal MPs yip and yap and yelp--they have no one to blame but themselves.