Measure marks first time ‘notwithstanding clause’ is used to override courts on a moral issue

By Tim Bloedow
The Interim

On March 15, the Alberta legislature passed Bill 202, the Marriage Amendment Act, by a vote of 32-15. The bill uses the constitution’s “notwithstanding clause” to override any future court decision granting homosexual couples the right to marry.

Introduced by Progressive Conservative MLA Victor Doerksen, the measure is seen by pro-family groups as a glimmer of hope in the face of the federal government’s capitulation to a homosexual activist agenda in Bill C-23, which gives same-sex couples all the rights and privileges of common-law couples. It is also significant because it marks the first time the notwithstanding clause has been used to protect a piece of “social conservative” legislation against judicial activism – and only the second time it has been used for any purpose outside of Québec.

Focus on the Family president Dr. Darrel Reid said at the time Bill 202 was debated that “this law is especially important in light of Parliament’s consideration of Bill C-23, which if passed, would strip marriage of any special status in Canadian society and opens the door to an eventual re-definition of marriage by our courts.” Bill C-23 is currently before the Senate.

The Alberta-based Canada Family Action Coalition (CFAC) also praised the bill. Executive director Brian Rushfeldt said “It is so gratifying to see our MLAs vote to reflect the will of the people in passing this positive legislation.”

CFAC explains that “the legislation enshrines in law that marriage will only be recognized between a man and woman in this province.” They add approvingly that the law’s commitment to use the notwithstanding clause if any court tries to order the province to change the Marriage Act is “official recognition of the constitutional powers of the real law-making body – our elected legislature. Courts will not be allowed to undermine or alter this provincial legislation now.”

If it is to remain in force, however, the notwithstanding clause must be renewed by the legislature every five years, so future pro-gay court decisions in Alberta would not be insignificant.

CFAC is treating Bill 202 as “a litmus test that indicates where MLAs [stand] on two key issues, marriage and use of notwithstanding clause of the Charter,” says Mr. Rushfeldt. A CFAC memo indicates that pro-family voters in the next election should remember the eight Tory MLAs who voted against the bill. They were: Justice Minister Dave Hancock, Rob Renner, Marry O’Neill, Gary Severtson, Marlene Graham, Dick Magnus, Guy Boutilier and Wayne Jacques.

Despite the positive nature of Bill 202, some people, including Janet Buckingham, a lawyer with the Evangelical Fellowship of Canada, see it as largely symbolic, because section 91 of the Constitution gives Ottawa power over marriage and divorce. The provinces have jurisdiction over the “solemnization of marriage,” but this is seen as primarily an issue of “how” marriage takes place, whereas the feds have the final say over who can be married.

Gwen Landolt, national vice-president of REAL Women of Canada and a lawyer by trade, concurs with this position, explaining that the provinces have jurisdiction only over the “formalities” of marriage, whereas the feds are responsible for determining who has the “capacity” to marry.

Even if it’s only symbolic, however, the impact of Bill 202 could be positive. Mrs. Buckingham said that she believes the message it sends to Ottawa is strong and that it probably “helped the federal government decide to adopt the marriage amendment to Bill C-23,” whereby they affirmed a heterosexual definition of marriage in the interpretation section of that piece of legislation.

The Alberta bill does not resolve the question of what Alberta should do about homosexual couples who might get “married” in other provinces in the future. Christian Heritage Party leader Ron Gray points out that section 94 of the Constitution gives Parliament the right to “make provision for the uniformity of all or any of the laws relative to property or civil rights,” thus giving it the power to order Alberta to recognize out-of-province marriages.

He added that if Alberta attempted to hold out against such an order, the Supreme Court of Canada could “read in” to the Constitution the right to homosexual “marriage” and then invoke section 52 of the Constitution, which reads in paragraph one: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of its inconsistency, of no force or effect.”

One way to solve the jurisdictional problem, of course, would be for all other Canadian jurisdictions to pass similar legislation. CFAC is among those organizations which hope that “other provinces [will] find the same wisdom and courage [as Alberta] to defend their constitutional authority on social and moral issues.”