Stephen Harper has made his position clear on the issue of same-sex marriage. He has said, time and time again, that upon becoming Prime Minister he would, "allow for a free-vote in the House of Commons on the issue." That is what he said. In my mind there's nothing ambiguous about that. Thus, his agenda is by no means hidden: he's opposed to same-sex marriages, and he would like to see them become a thing of the past.
Conversely, Prime Minister Paul Martin has, time and time again, insisted that there would be no way for Steven Harper to do this
without applying the notwithstanding clause to the case of same-sex marriage. I believe that this is true. I believe that any legislation disallowing gay marriages would eventually be challenged and found to be in violation of key provisions of the Charter of Rights and Freedoms, and that consequently, the only way to maintain such legislation would be to apply the notwithstanding measure. If someone knows another way to uphold such legislation in the likely event that the Supreme Court strikes it down, I would like to know to what that is. Or, if there is some other proposal out there that essentially reworks the legislation in such a way that avoids judicial scruity against Charter provisions, I would also like to know what that is.
Now, I do not feel as though I have very much at stake in this whole debate. Although I am a Liberal and I happen to support the Prime Minister's position on this, I am generally not motivated by this particular issue. This is in fact the first time I have ever written (or thought) about it at any length. I am not a gay man, nor am I a married one. I don't plan to get married any time soon, but, even if I were to get married tomorrow, I don't think I would be too discouraged to know that a gay couple somewhere was doing the same thing.
I do have a couple of logistical questions though.
Would a piece of Conservative legislation restricting gay-marriage be made to be retroactive? Would the 8,000 or so gay couples who've already been married in Canada be forced to get annulments or state-forced divorces? Or, would such legislation only apply to future cases? And, if it did only apply to future cases, how could the courts dismiss as precedents the existing marriages of more than 16,000 individuals? There also exists a logical paradox here. How could any law specifically designed to protect the sanctity of marriage at the same time actively promote the dissolution of marriages? To me, this question is a serious one. Laws cannot be so incongruous and paradoxical; if they are, then respect for the law is innevitably forsaken, and the law will have no force. In other words, if a law inherently violates itself, then the law will be of no consequence in the long run; if a law is irresolute and undermining of its original intent, then it will be not long for this world. Then again, I’m no lawyer, I’m just making this up as I go along.
But I think that if Steven Harper really feels that disallowing gay-marriage is more important than maintaining good optics (i.e. not utilizing the notwithstanding clause to impede the rights of a minority group) he should come out and say just that. If he believes, as Conservatives so often claim, that a national referendum would demonstrate that Canadians are opposed to same-sex marriage, then it shouldn't even be a political risk to do this. He should say something like: "Gay marriage is wrong. I believe that most Canadians believe that Gay marriage is wrong. We would consider every option available to defend the original definition of marriage, including using the notwithstanding clause to protect federal legislation banning same-sex marriage." That’s what he should say if he’s hell-bent on having his free-vote, otherwise such a vote would be an exercise in futility!
That’s what I think.