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| Province slams door on gay marriages | |
| Friday 19 March 1999 Darcy Henton, Calgary Herald The Alberta government plans to erect a fence to keep same-sex marriages out of the province, but a constitutional expert doubts it will ever get the post holes dug. After a four-hour meeting Thursday to discuss ways to keep homosexual rights out of provincial legislation, MLAs decided to invoke the controversial notwithstanding clause, if necessary, to opt out of any future law recognizing gay marriages. In announcing the so-called fences policy at Government House, Premier Ralph Klein said his caucus decided it isn't necessary to hold a referendum to canvass views on same-sex marriages. However a referendum will be held before the notwithstanding clause is used to override any other law. "That was a consensus and a clear decision of caucus and it was an absolute majority decision," he said before heading to his annual premier's dinner Thursday evening in Calgary. "We're trying to be as non-discriminatory as we possibly can, but at the same time define as best as we possibly can that 'moral compass.' " "The moral compass says 'no,' that people of the same sex ought not to be married. That's firm." However, Justice minister Jon Havelock said he wasn't sure if the clause could be invoked since the federal government has exclusive jurisdiction over marriage. He said he expects justice lawyers to come up with a definitive answer today or Monday. Constitutional expert Peter Russell said he doubted the province would be successful in fencing gay marriages out by using the notwithstanding clause since the clause only shields provincial law from court challenges. "On the face of it, it is hard to see how Alberta can use an override clause against federal legislation," said Russell, a retired University of Toronto political science professor. "I would be surprised if that's possible." He said the province can't enact its own law in an area that is federal jurisdiction. The province might be able to prevent gay couples from receiving provincial benefits, but it is Ottawa that defines what constitutes a married couple, Russell said. "You never know what's going to fly these days, it seems that everything (Ottawa) does is challengeable," Klein said in Calgary before the dinner. "We do the best we can as law makers in the province. What might or may happen down the road is something we'll have to deal with." Currently, federal law defines marriage as a union between male and female partners, but Alberta MLAs are fearful that could change. Klein established a committee to review the issue and recommend policy after the Supreme Court of Canada rewrote Alberta Human Rights law last week to include gays. Klein announced the government will prohibit schools from including in their curriculums, material promoting homosexual relationships, and will require school boards to divulge to parents the "nature and content" of sexual education materials. The government will take no position on whether spousal benefits from employers should be available to same-sex partners, and will consider establishing a registry that would entitle common-law and same-sex partners to the benefits available to married couples. On the issues of foster parenting and adoption, the provincial policy will state placements will be made on the basis of what is in the best interests of the child, even though the province does not support adoptions by gay or same-sex couples, Klein said. "The moral compass says adoption, unless it's in the best interest of the child, should not occur with same-sex couples," Klein said. Klein said the government would study a number of scenarios. "There are others worthy of consideration, and we have taken these under advisement." The fences policy was immediately slammed by gay-rights groups and opposition MLAs, and praised by pro-family groups, which had representatives on hand after the caucus met. "The charter was never intended to be used as a weapon, and if this government uses it as a weapon, I would say the world is watching," said Murray Billett, a spokesman for a gay and lesbian advocacy group. "I would like to think that this government and the people of Alberta will not ever, ever use it as a weapon against any minority group, whether it's based on religion, sexual orientation or based on race." Calgary Buffalo Liberal MLA Gary Dickson jumped on the government during question period, telling Havelock the new policy sounded "like tyranny of the majority, consolidated and institutionalized." New Democrat Raj Pannu said the notwithstanding clause should never be used to deny rights to minorities, and the majority should never be called to vote on minority rights. "That's a major problem in my view and potentially very dangerous." Pro-family advocate Roy Beyer, president of the Canada Family Action Coalition, called the policies "a step in the right direction," although he was concerned the province left a loophole that could allow gays to adopt children in private arrangements. "We feel satisfied that the government has taken the bold step to protect marriages and the family," he said. "The use of the notwithstanding clause would guarantee that we're going to see the court challenges beaten back." Beyer applauded the commitment to holding referendums before invoking the clause in other areas of law, saying it puts contentious issues into the hands of the people rather than having "a small group of judges driving the agenda in Canada." But the policies drew a mixed reaction from the more hawkish government MLAs, including some who said they didn't go far enough to support families and others who felt it should not be necessary to hold a referendum before invoking the clause. With a report from Rick Mofina Notwithstanding clause: Section 33(1) of the Canadian Constitution allows a province or Parliament to override the Canadian Charter of Rights in some cases. It has been invoked before: - Quebec, 1982-1988: The Parti Quebecois government invoked a blanket use of the notwithstanding clause, applying it to all acts passed between 1982 and 1985. - Saskatchewan 1984: The Tory government invoked it while legislating provincial employees back to work. - Quebec, 1986: The Liberal government invoked it in legislation amending the pension plans of teachers and other public-sector workers. - Quebec, 1986: The Liberal government invoked it in legislation dealing with "agricultural operations." - Quebec, 1986: The Liberal government invoked it in education legislation. - Quebec, 1988: The Liberal government invoked it to protect Bill 178, its French-language sign legislation. - Alberta, 1998: The Alberta government invoked it to restrict compensation it must pay to hundreds of victims of enforced sterilization between 1928 and 1972. |
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