Bill C-38: what do we do now?

Now that the federal Liberals have passed Bill C-38, which redefines marriage, the provinces of Canada will have to adjust their provincial marriage acts to address the reality.

While Parliament has the power to define marriage under Canada’s Constitution Act, the provinces have exclusive jurisdiction to “solemnize” it, including licensing those who will preside over wedding ceremonies. That has given politicians in Canada’s most politically conservative province, Alberta, some ideas about bucking Paul Martin’s new definition of marriage.

Alberta Justice Minister Ron Stevens said, at the end of July, that the province would pass legislation to protect marriage commissioners from having to perform homosexual “weddings” in violation of their consciences or religious beliefs, and protect churches from having to host related activities. “We will do what we feel is necessary in that regard to protect the marriage commissioners and their religious beliefs,” he said.

The province would also use the Section 33 “notwithstanding” clause, if it becomes necessary to defend the new Alberta law from homosexual activists in the courts. “If, in fact, that does require the notwithstanding clause, it is our intention to use it, but we haven’t made the decision on whether that’s necessary yet,” Stevens indicated.

Alberta’s actions toward protecting civil rights are surely welcome in light of the firing of marriage commissioners in other provinces who have stated their objections to the homosexual agenda. Yet, social conservative Alberta MLA Ted Morton, a former political science professor at the University of Calgary, says the move is not nearly enough. “Just because Paul Martin has embarked on a dangerous experiment in social engineering does not mean that we have to mindlessly follow along,” he says.

Morton, a leading contender for the premier’s job once Ralph Klein retires, says, “However socially destructive and undemocratic C-38 may be, it is now the law of the land and will be enforced by the courts.” As such, he believes there are three options for the province to pursue. First is a comprehensive civil rights protection bill, which will protect not only clergy and churches, but a broad range of individuals and institutions, including schools and teachers that will otherwise be forced to propagate the homosexual agenda.

Second, he says the province should consider removing itself from the marriage “business” altogether and instead move to a “civil unions” model, which would deny homosexuals marriage “rights” in Alberta. “If same-sex ‘marriage’ is not Alberta’s official state policy, the public school – like the government – couldn’t take sides. Just as the state cannot coerce acceptance of religious belief, so it could not coerce acceptance of sexual conduct,” he says.

Third, he says Alberta should lead the nation in proposing a constitutional amendment to enshrine the traditional definition of marriage in law and overturn C-38. He suggests a province-wide referendum would be useful in determining the will of Albertans. However, Dr. Morton points out, “An amendment is a long-term solution, as it would need endorsement by six other provinces plus Ottawa.”

Gwen Landolt, national vice-president of REAL Women, agrees that individual provinces can do a great deal to mitigate the effects C-38 will have on society.

She tells The Interim that MLA Morton’s first proposal is a smart step. “It’s solid legal thinking. Under the Constitution Act, all civil rights fall under provincial jurisdiction. The Supreme Court reaffirmed that in the reference decision on marriage last December. Freedom of religion, conscience and expression are all matters of provincial jurisdiction,” she says

It makes sense for Alberta to avoid using the notwithstanding clause if all possible, Landolt says. The clause must be renewed every five years to remain in effect, and future governments may not be inclined to continue offering civil protections.

Yet, using the clause may be necessary to protect the law from biased courts. “Federal Justice Minister Irwin Cotler has recently appointed a half-dozen failed federal Liberal candidates to the Alberta Court of Queen’s Bench as judges.”

Despite her agreement with MLA Morton’s civil protections proposal, Landolt strongly disagrees with the idea of abolishing marriage in favour of civil unions. “That is not the appropriate way to address the problem and it would give homosexuals exactly what they want, which is the abolition of family. Despite the fact that the inclusion of homosexuals has diminished the institution, legal marriage continues to provide protection for women, children and families.”

She says, “If we abolish marriage, we lose the purpose of marriage, which is the procreation of children. Marriage carries on the human race. Marriage ties past generations to future generations. If we lose marriage, we lose our culture.”

Landolt is skeptical about the near-term chances of passing a constitutional amendment. She says, “It’s not likely to happen because of the hurdles built into the process. Plus, if you open up the Constitution, then thousands of other issues come forward. It’s why we’d like to see a federal election happen first, and then we’ll revisit the question of amending the Constitution.”