Press Release

Friday, December 16, 2005

Law Professors Say Re-Opening Marriage Issue Now Pointless

Ottawa—Constitutional experts reiterate that for Parliament to follow Stephen Harper’s plan to eliminate the right of same sex couples to marry would require the use the Charter’s notwithstanding clause. Now that Mr. Harper has ruled out use of the notwithstanding clause, he has no legal way to exclude same-sex couples from civil marriage.

“The Charter requires that marriage be equally available to couples without discrimination on the basis of sexual orientation”, says University of Toronto law professor Brenda Cossman. “Rolling back the clock and re-defining marriage as the union of a man and a woman is unconstitutional. Now that the use of the notwithstanding clause has been ruled out, all Mr. Harper can do is drag Canadians through the courts for a few years. It’s an exercise in futility.”

In January 2005, 134 law professors from across Canada released an open letter to Stephen Harper in which they challenged Mr. Harper’s legal position. These professors stated unequivocally that excluding gays and lesbians from civil marriage would violate the Charter’s equality rights guarantee, and require the notwithstanding clause. (See http://www.law.utoronto.ca/samesexletter.html, with full text below.)

The letter noted that courts in British Columbia, Saskatchewan, Manitoba, Newfoundland, Ontario, Quebec, Nova Scotia and the Yukon were unanimously of the view that a definition of marriage that excludes same-sex couples is unconstitutional. Since then, a New Brunswick decision brings the total to nine provinces and territories.

Parliament changed the definition of marriage to comply with the Charter by adopting the Civil Marriage Act, which received Royal Assent on July 20, 2005.

“Right now we have a law that works well and is fully consistent with the Charter,” says UQAM law professor Hugo Cyr. “Stephen Harper’s proposed legislation would drag us through the courts again and would without a doubt be declared unconstitutional. There’s simply no point in opening this up again.”

“We have released our letter again so that Canadians understand the law and understand that Stephen Harper is disregarding the Constitution and disrespecting clear court decisions on this issue when he says he doesn’t have to resort to the notwithstanding clause,” says University of Manitoba law professor Karen Busby.

Open Letter to The Hon. Stephen Harper
from Law Professors Regarding Same-Sex Marriage

The Hon. Stephen Harper
Leader of the Opposition

Dear Mr. Harper,

The federal government has made it clear that it intends to introduce legislation in the House of Commons to extend to same-sex couples the right to marry. You have indicated that you oppose this legislation, and intend to propose amendments to limit the definition of marriage to only opposite sex couples. You also stated that it would not be legally necessary to use the Charter’s notwithstanding clause to protect a statutory definition of marriage that excludes same sex couples. As law professors, we strenuously disagree. You must be completely honest with Canadians about the unconstitutionality of your proposal, which will only guarantee that same sex marriage ends up back before the courts as opposed to being resolved by Parliament. Your position is surprising for someone who has constantly defended the preeminence of Parliament.

Even though the Supreme Court of Canada did not address this issue in the recent same-sex marriage reference, courts in British Columbia, Saskatchewan, Manitoba, Newfoundland, Ontario, Quebec, Nova Scotia and the Yukon are now unanimously of the view that a definition of marriage that excludes same-sex couples is unconstitutional. The consensus of constitutional experts is that these decisions are correct. You must explain to Canadians how your plan to entrench the traditional definition of marriage will pass constitutional muster. The truth is, there is only one way to accomplish your goal: invoke the notwithstanding clause. Premier Klein has been honest with Canadians on this subject. You must be completely candid with Canadians as well.

If Parliament were to adopt your proposal and define marriage to exclude same sex couples, this legislation would very quickly end up in court, and be struck down as unconstitutional. However, the Charter allows Parliament to have the last word on many issues of fundamental rights, through the notwithstanding clause. Frankly, we do not think this is an appropriate case for the use of this extraordinary provision. However, if you believe that same-sex couples should be prohibited from getting married, you should propose legislative amendments that include a notwithstanding provision.

The fact that you want Parliament to enact clearly unconstitutional legislation and adopt the traditional definition of marriage without using the notwithstanding clause leads us to suspect that you are playing politics with the Supreme Court and the Charter. The use of the notwithstanding clause would have to be justified to Canadians, who overwhelmingly support the Charter. Not using the notwithstanding clause therefore protects opponents of same sex marriage from political controversy. And if the Supreme Court judgment struck down the opposite sex definition of marriage, opponents of same sex marriage would blame the Court for challenging Parliament’s will.

In short, those who oppose same sex marriage without supporting the use of the notwithstanding clause are shifting political accountability from themselves to the Supreme Court. Rather than ending the Supreme Court’s involvement, it would further embroil the Court in this issue. You should either invoke the use of the notwithstanding clause, and justify this decision to Canadians, or concede that same-sex marriage is now part of Canada’s legal landscape. If you intend to override Canadians’ constitutional rights, you at least owe it to them to say this openly and directly. Canadians deserve better.

Sincerely,

Professor Sujit Choudhry, Faculty of Law, University of Toronto
Professor Jean-François Gaudreault-DesBiens, Faculty of Law, University of Toronto
Professor Wendy Adams, Faculty of Law, McGill University
Professor Sharryn Aiken, Faculty of Law, Queen’s University
Professor Jennifer Bankier, Faculty of Law, Dalhousie University
Professor Benjamin Alarie, Faculty of Law, University of Toronto
Professor Reem Bahdi, Faculty of Law, University of Windsor
Professeur André Bélanger, Faculté de droit, Université Laval
Professor D. G. Bell, Faculty of Law, University of New Brunswick
Professeure Marie-Claire Belleau, Faculté de droit, Université Laval
Professor Benjamin Berger, Faculty of Law, University of Victoria
Professor Jeff Berryman, Faculty of Law, University of Windsor
Professor W. A. Bogart, Faculty of Law, University of Windsor
Professeur Thierry Bourgoignie, Département des sciences juridiques, UQAM
Professor Susan Boyd, Faculty of Law, University of British Columbia
Professor Kim Brooks, Faculty of Law, University of British Columbia
Professor Jutta Brunnée, Faculty of Law, University of Toronto
Professor Karen Busby, Faculty of Law, University of Manitoba
Professor Gillian Calder, Faculty of Law, University of Victoria
Professor Angela Campbell, Faculty of Law, McGill University
Professor Timothy Caulfield, Faculty of Law, University of Alberta
Professor Aloke Chatterjee, Faculty of Law, University of New Brunswick
Professor Rebecca Cook, Faculty of Law, University of Toronto
Professor Brenda Cossman, Faculty of Law, University of Toronto
Professeure Gisèle Côté-Harper, Faculté de droit, Université Laval
Professor Steve Coughlan, Faculty of Law, Dalhousie University
Professor Carys Craig, Osgoode Hall Law School, York University
Professeur Francois Crépeau, Faculté de droit, Université de Montréal
Professor Robert J. Currie, Faculty of Law, Dalhousie University
Professeur Hugo Cyr, Faculté de science politique et de droit, UQAM.
Dean Ronald Daniels, Faculty of Law, University of Toronto
Professor T. Brettel Dawson, Department of Law, Carleton University
Professor Maneesha Deckha, Faculty of Law, University of Victoria
Professeure Édith Deleury, Faculté de droit, Université Laval
Professor Thomas J. Denholm, Faculty of Law, University of Windsor
Professor Richard Devlin, Faculty of Law, Dalhousie University
Professor Aaron Dhir, Faculty of Law, University of Windsor
Professor Bernard Dickens, Faculty of Law, University of Toronto
Professor Meinhard Doelle, Faculty of Law, Dalhousie University
Professor Susan Drummond, Osgoode Hall Law School, York University
Professeur Nicole Duplé, Faculté de droit, Université Laval
Professor David G. Duff, Faculty of Law, University of Toronto
Professor David Dyzenhaus, Faculty of Law, University of Toronto
Professor Lisa Karen Fainstein, Faculty of Law, University of Manitoba
Professor Angela Fernandez, Faculty of Law, University of Toronto
Professor M. Michelle Gallant, Faculty of Law, University of Manitoba
Professor Daphne Gilbert, Faculty of Law, University of Ottawa
Professor Joan Gilmour, Osgoode Hall Law School, York University
Professeure Michelle Giroux, Faculté de droit, Section de droit civil, Université d’Ottawa
Professor Myron Gochnauer, Faculty of Law, University of New Brunswick
Professor Randal Graham, Faculty of Law, University of Western Ontario
Professor Leslie Green, Osgoode Hall Law School, York University
Professor Donna Greschner, College of Law, University of Saskatchewan
Professeure Sylvette Guillemard, Faculté de droit, Université Laval
Professeure Paule Halley, Faculté de droit, Université Laval
Professor Winifred Holland, Faculty of Law, University of Western Ontario
Dean Patricia Hughes, Faculty of Law, University of Calgary
Professor Allan Hutchinson, Osgoode Hall Law School, York University
Professor Frederick Innis, Faculty of Law, University of Manitoba
Professeur Pierre Issalys, Faculté de droit, Université Laval
Professor Martha Jackman, Faculty of Law, University of Ottawa
Professor Richard Janda, Faculty of Law, McGill University
Professor Rebecca Johnson, Faculty of Law, University of Victoria
Professor Darlene Johnston, Faculty of Law, University of Toronto
Professor Larissa Katz, Faculty of Law, Queen’s University
Professeur Pierre-Claude Lafond, Science politique et droit, UQAM
Professeur Christelle Landheer-Cieslak, Faculté de droit, Université Laval
Professeure Louise Langevin, Faculté de droit, Université Laval
Professeur André Lareau, Faculté de droit, Université Laval
Professeure Sophie Lavallée, Faculté de droit, Université Laval
Professeure Nicole LaViolette, Common Law, Université d’Ottawa
Professeur Sébastien Lebel-Grenier, Faculté de droit, Université de Sherbrooke
Doyen Pierre Lemieux, Faculté de droit, Université Laval
Professor Trudo Lemmens, Faculty of Law, University of Toronto
Professeure Katherine Lippel, Faculté de science politique et de droit, UQAM
Professor Jennifer Llewellyn, Faculty of Law, Dalhousie University
Professor A. Wayne MacKay, Faculty of Law, Dalhousie University
Professor Patrick Macklem, Faculty of Law, University of Toronto
Professor Audrey Macklin, Faculty of Law, University of Toronto
Professor Kathleen Mahoney, Faculty of Law, University of Calgary
Professor Carissima Mathen, Faculty of Law, University of New Brunswick
Professor Brian M. Mazer, Faculty of Law, University of Windsor
Professor Heather McLeod-Kilmurray, Faculty of Law, University of Ottawa
Professor Kent McNeil, Osgoode Hall Law School, York University
Professor Errol Mendes, Faculty of Law, University of Ottawa
Professor Armand de Mestral, Faculty of Law, McGill University
Professor Sophia Reibetanz Moreau, Faculty of Law, University of Toronto
Professor Mayo Moran, Faculty of Law, University of Toronto
Professeur Christine Morin, Faculté de droit, Université Laval
Professor Ronalda Murphy, Faculty of Law, Dalhousie University
Professor Roxanne Mykitiuk, Osgoode Hall Law School, York University
Professor Jennifer Nedelsky, Faculty of Law, University of Toronto
Professor Ken Norman, College of Law, University of Saskatchewan
Professeur Geneviève Parent, Faculté de droit, Université Laval
Professor Debra Parkes, Faculty of Law, University of Manitoba
Professor Karen Pearlston, Faculty of Law, University of New Brunswick
Professor Steven Penney, Faculty of Law, University of New Brunswick
Professor Lisa Philipps, Osgoode Hall Law School, York University
Dr. Jo-Anne Pickel, Department of Law, Carleton University
Professor Sukanya Pillay, Faculty of Law, University of Windsor
Professor Michael Pratt, Faculty of Law, Queen’s University
Doyen Daniel Proulx, Faculté de droit, Université de Sherbrooke
Professor René Provost, Faculty of Law, McGill University
Professor Melanie Randall, Faculty of Law, University of New Brunswick
Professor Denise Réaume, Faculty of Law, University of Toronto
Professor Arthur Ripstein, Faculty of Law, University of Toronto
Professor Annie Rochette, Faculty of Law, University of British Columbia
Professor Carol Rogerson, Faculty of Law, University of Toronto
Professeure Louise Rolland, Faculté de droit, Université de Montréal
Professeur Alain Roy, Faculté de droit, Université de Montréal
Professor Bruce Ryder, Osgoode Hall Law School, York University
Professor Teresa Scassa, Faculty of Law, Dalhousie University
Professor David Schneiderman, Faculty of Law, University of Toronto
Professor Jennifer Schulz, Faculty of Law, University of Manitoba
Professor Martha Shaffer, Faculty of Law, University of Toronto
Professor Colleen Sheppard, Faculty of Law, McGill University
Professor Barney Sneiderman, Faculty of Law, University of Manitoba
Professor Daniel Soberman, Faculty of Law, Queen’s University
Professor Lorne Sossin, Faculty of Law, University of Toronto
Professor Hamish Stewart, Faculty of Law, University of Toronto
Professor James Stribopoulos, Faculty of Law, University of Alberta
Professor David Tanovich, Faculty of Law, University of Windsor
Professor Myra J. Tawfik, Faculty of Law, University of Windsor
Professor Lorna Turnbull, Faculty of Law, University of Manitoba
Professor Marcia Valiante, Faculty of Law, University of Windsor
Professeur Jean-Pierre Villaggi, Faculté de science politique et de droit, UQAM
Professor Rose Voyvodic, Faculty of Law, University of Windsor
Professor Rosemary Cairns Way, Faculty of Law, University of Ottawa
Professor Michelle Williams, Faculty of Law, Dalhousie University
Professor John A. Yogis, Faculty of Law, Dalhousie University
Professor Claire Young, Faculty of Law, University of British Columbia
Professor Margot Young, Faculty of Law, University of British Columbia
Professor Frederick Zemans, Osgoode Hall Law School, York University

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada