Monday, April 11, 2005
'Notwithstanding' called only way to halt same-sex unions
by Terry Weber

Conservative Leader Stephen Harper's efforts to halt same-sex marriage will be successful only if Ottawa invokes the notwithstanding clause of the constitution, a constitutional law expert argued Monday.

"The only way he can achieve that legal objective is declare what he wants to achieve, not withstanding the Charter," University of Ottawa law professor Martha Jackman said, following an press conference staged in Ottawa by groups at issue with the Opposition's position on gay marriage.

"That, I'm sure, he has been reluctant to propose because already there's a lot of concern in many parts of Canada about the social agenda in Canada."

On Tuesday, members of Parliament are to vote a motion by Mr. Harper that Parliament refuse to give second reading to a bill that would expand the definition of marriage to include two people of the same sex.

Already, courts in the majority of provinces have ruled that keeping people of the same sex from marrying violates their constitutional rights.

At a weekend rally, however, Mr. Harper told a crowd opposing same-sex marriage that 95 of 99 Conservative MPs back the traditional concept of marriage and promised that a Tory government would bring in legislation defining marriage as the union of one man and one woman.

"Undermining the traditional definition of marriage is an assault on the beliefs of all cultural and religious communities who have come to this country," Mr. Harper said.

However, Ms. Jackman said following Monday's press conference that a group of 130 Canadian legal experts - reflecting differing opinions on the underlying issue - have agreed that the only way stop the ball rolling at this point is to invoke the use of the notwithstanding clause.

Simply changing legislation to state that marriage be restricted to people of the opposite sex, Ms. Jackman said, would only put the ball back in the legal arena and result in inevitable constitutional challenges.

So far, she added, Parliament has never invoked the notwithstanding clause.

"It would be the first time, and the experience would be that the proposed use of the notwithstanding clause has proved to be extremely unpopular with the public, even in areas where there may not be a super high level of public support for the underlying rights claim," she said.

"Just the idea of overriding the Charter is extremely unpopular."

Separately, religious coalition with representatives from the Christian, Jewish, Hindu, Quaker and Muslim communities among others also spoke out in favour of same-sex unions, looking to draw attention to the diversity of views on the issue.

"We wanted to dispel the myth that if you are a person of faith, you must be opposed to same-sex marriage," Richard Chambers, a member of the United Church of Canada, said.

The group held a press conference in Toronto on Monday.

"Members of many of our communities are from racial and religious minority groups that themselves experience discrimination, and we understand that human rights as guaranteed in the Charter of Rights and Freedoms must extend to everyone, including gay men and lesbians," Tarek Fatah of the Muslim Canadian Congress said.

Over the weekend, groups on both sides of the issue spoke out at rallies across the country, with recent Liberal woes over the sponsorship scandal adding fire to opposition efforts to tie the issues together.

"Corruption is not a Canadian value. Marriage is a real Canadian value," Mr. Harper said to enthusiastic applause during a rally in Ottawa on Saturday.