Equal Marriage for Same-Sex Couples: The Alliance Motion

Q. What will the motion say?

Alliance leaders say the motion will be the same as that introduced by the Reform party in 1999, which stated that: “marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.”

Q. What does “take all necessary steps” mean?

Since the courts have stated that excluding same-sex couples from civil marriage is an unconstitutional violation of their equality rights under the Charter, the only way to maintain the opposite-sex restriction on marriage is to invoke the notwithstanding clause. Thus if Parliament is to “take all necessary steps,” it will be required to invoke the notwithstanding clause.

Q. What’s the difference between voting for the Alliance motion and voting against the government’s proposed legislation?

Voting for the Alliance motion means voting to use the notwithstanding clause. Voting against the proposed legislation does not invoke the notwithstanding clause, rather it leaves the law unchanged.

Q. What is the effect of invoking the notwithstanding clause?

Parliament has never before invoked the notwithstanding clause. That is because Canadians believe that Parliament must always act in accordance with the Constitution. Using the notwithstanding clause to override any Charter guarantee, means that Parliament will override the rights and freedoms of some Canadians, thereby depriving them of the Constitutional protection afforded to other Canadians.

Parliament should not set the dangerous precedent of invoking the notwithstanding clause lightly. If one group of Canadians can be excluded from Charter protection, what is to prevent other groups from suffering a similar fate?

Invoking the notwithstanding clause is not a permanent solution. Rather, its effect lasts for five years, after which, Charter protection is reinstated. If Parliament wants to continue to violate Charter rights and freedoms, it must pass a new law to re-invoke the notwithstanding clause.

Q. What do Canadians think?

Of the 88% of Canadians who have heard of the Charter, 92% think it is a good thing and only 4% think it is a bad thing (Environics, 2002).

72% of Canadians associate the Charter most with protecting the rights of ALL Canadians. Only 1% associate the Charter most with protecting the rights of gays and lesbians (Ipsos-Reid, 2002).

67% of Canadians do not support using the notwithstanding clause to override a Supreme Court decision giving same-sex couples the right to marry. Only 28% support doing so (Environics, 2002).

Of those opposed to allowing same-sex couples to marry, 44% oppose using the notwithstanding clause and 51% support doing so (Environics, 2002).

Q. Can I vote against the Alliance motion, even if I do not intend to vote for the government’s legislation?

Yes. It is an entirely consistent position. Supporting the Charter generally and supporting the right of all Canadians, including same-sex couples, to marry in a civil ceremony are two different things. You can support the former and not the latter, in which case you must choose which is more important.

Q. What if I voted for the Reform motion in 1999? How can I explain voting against a similar motion now?

The 1999 Reform motion was introduced while Parliament was considering recognizing same-sex couples as common-law partners. Marriage recognition was not on the table. The motion was introduced and voted on in a single day. There was no opportunity for due consideration of the issue and the ramifications.

Many MPs have stated that since 1999 they have explored the pros and cons of equal marriage for same-sex couples, and have come to the conclusion that it is the right thing to do and that it really doesn’t impact heterosexuals.

The change in context means that although the motion may be worded the same as 1999, the meaning is different. In 1999, courts had not yet ruled that excluding same-sex couples from civil marriage is unconstitutional. Back then, taking “all necessary steps” simply meant opposing equal marriage in court. Today, it means invoking the notwithstanding clause. Supporting the Alliance motion is far more threatening to our Charter today than it was in 1999.

The Notwithstanding Clause: It’s the Wrong Thing to Do

Egale Canada ©2010

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