CAN PROVINCES OPT OUT FEDERAL MARRIAGE LAWS?
INITIAL SPECULATION AND A FINAL NEGATIVE RULING
Comparison of Canadian and U.S. law:
We offer the following information, because over 90% of our web site visitors
are Americans. They might not be familiar with Canadian laws.
Distribution of powers: The U.S. Constitution and the Canadian Charter of Rights and
Freedoms define very different patterns in the U.S. and Canada with
respect to government structure, human rights, and the distribution of powers
among the federal governments, states and provinces.
In the U.S., states are given jurisdiction over marriage ceremonies and
registration. They decide who is
eligible to marry, who can perform the ceremony, how licenses are provided, etc.
As of 2003-JUN, a gay or lesbian couple can be "civil unionized" in
Vermont and receive a fraction of the rights and privileges that are
automatically given to married couples. In California and Hawaii, they can
register their partnership and pick up a few of those rights. In most of
the rest of the country, states do not recognize same-sex relationships; a
gay or lesbian couple are merely roommates.
In Canada, the powers are distributed among the federal government, the
provincial legislatures and the territorial legislatures. It is the federal
government, and occasionally the courts, which decide who is eligible to
Opting out of the constitution:
In the U.S., the federal constitution limits the powers of both the federal
government and state legislatures. They have no option but to follow the
Constitution. In fact, a senator or representative who violates the constitution
also violates her or his oath of office.
In Canada, any government -- Federal,
Provincial, or Territorial -- can exercise Section 33 of the Charter. This is
often referred to as the "not withstanding clause." It allows
a government to ignore of any of the sections of the Charter which deal
with fundamental freedoms of religion, speech, the press, free assembly
and association, and guarantees of equality.
"Developed in 1981, this clause provides a form of balancing
mechanism between the legislators and the courts in the unlikely event of
a court decision contrary to public interest. The purpose of an override
clause is to ensure that legislatures, rather than judges, have the final
say on important matters of public policy. The override power allows
Parliament and legislatures to repeal a court decision regarding
fundamental Charter rights such as freedom of expression, conscience,
association and assembly, the right to life, liberty and security of the
person, freedom from unreasonable search and seizure, arbitrary arrest or
detention, a number of other legal rights, and equality. " 5
To our knowledge, this loophole is unique in the world. The Charter
basically says that every person is guaranteed equality and freedom, but
that the Government of Canada or of any of the provinces or territories can withdraw these
at any time by simply passing restrictive legislation. The only
controls over this process are that:
The government involved would have to
declare that the legislation is in direct conflict with the Charter and,
They would have to renew the legislation every five years.
The framers of the Charter hoped that the media and the public
would be outraged at any opt-outs, would vociferously object, and might
well vote the politicians responsible out of office at the next election.
Charter was introduced in the early 1980's, former Liberal Prime Minister, Pierre
Trudeau called the "not withstanding" clause a tainted
compromise. Former Conservative Prime Minister Brian Mulroney said that it reduced the
worth of the Charter to that of a piece of scrap paper. More
details on the clause.
Who writes marriage legislation in Canada:
The authority to control marriage is divided:
The federal government has jurisdiction over the capacity to marry. It decides the
age of consent for spouses, who is prohibited from marrying because they are
too closely related, gender requirements, and similar matters.
The provincial and territorial governments have jurisdiction over the
procedures involved in marriages. They decide the details of marriage
licenses, how much they will cost, how soon they will expire if they are not
used. They define who is authorized to perform marriages; they maintain a
marriage register, etc.
Barbara Billingsley, a constitutional law specialist at the University of
Alberta, said in 2003 that: "It's never been decided in court -- is sexual
orientation an issue of procedure or of capacity? If it's an issue of capacity,
then the federal government has jurisdiction." 1 Julie Lloyd, a lawyer
specializing in gay rights cases in Alberta, was more definite. She said: "The province of Alberta
cannot unilaterally create its own definition of marriage any more than it can
create its own criminal code. For the province of Alberta to suggest they can
has no academic currency at all." 1
Probably a near consensus of Canadian constitutional experts would agree that
the decision of whether same-sex couples can marry is a matter of capacity, and
that a province or territory must follow whatever the federal marriage act
states. "While the notwithstanding clause does allow provincial governments
to shelter their laws from some key sections of the Charter, it cannot be used
to opt our of federal legislation. The statue on marriage falls squarely within
federal jurisdiction." 6
Federal or provincial opt outs:
There have been many references to the use of the notwithstanding clause to
prohibit same-sex marriages, either within a single province or nationally:
According to CBC News, on 2000-MAR-16, Alberta passed "...Bill
202 which says that the province will use the notwithstanding clause if a
court redefines marriage to include anything other than a man and a woman."
The Christian Heritage Party is a small Fundamentalist
Christian political party which has yet to elect a member to parliament.
In 2003-APR, they discussed their organization of a "national movement
to stop the legalization of same-sex unions in Canada." It takes the
form of a "petition urging Parliament to preserve and protect the
current definition of marriage as between one man and one woman." They
are "...pleading for Parliament to use all possible legislative and
administrative measures, including invoking the ...notwithstanding clause."
On 2003-JUN-10, the Ontario Court of Appeal ordered the
Government of Ontario to permit gays and lesbians to marry. In
response, Alberta Premier Ralph Kline announced that if same-sex marriages
were legalized across Canada, his government would invoke the
"not-withstanding" clause in
the Canadian constitution. He said: "If there is any move to sanctify
and legalize same-sex marriages, we will use the notwithstanding clause;
period; end of story." Alberta has been referred to as the buckle of Canada's
Bible Belt. Because of its large minority of conservative
Christians, most adults in the province have historically been opposed to
equal rights for gays and lesbians, including the right to marry.
Professor Nick Balla, a specialist in family law from Queen's
University at Kingston, ON joined with other interviewees on CBC
NewsWorld on JUN-11 to explain that Ralph Kline is mistaken. He stated
province cannot opt out of legislation which defines who is eligible to
marry. That is a federal responsibility. A province can only change laws which determine how the federal
marriage act is administered. 3
In 2003-MAY, when the federal government had released a discussion
paper on marriage, Member of Parliament Vic Toews said that there was no
need to hear further discussion on same-sex marriage. The federal
government had two options: to follow the equality provisions of the
Charter or Invoke Section 33 of the Charter -- the notwithstanding clause
-- and declare that same-sex couples are outside the protection of the
Charter. Referring to the parliamentary committee which traveled across
Canada seeking the public's opinion on same-sex marriage, he said: "We
don't have to go around hearing from Canadians if he's [the Prime
Minister} already determined where he's going to go and if he wants to
maintain the traditional concept of marriage. He has his remedy. Either we
go to the courts and ask them what they want, or Parliament speaks as it
did two or three years ago in an overwhelming vote of 216 to 55 to retain
the traditional definition of marriage." 4
Many religious and social conservatives recommendied that the
federal government appeal the 2003-JUN-10 decision
of the Ontario Court of Appeal to the Supreme Court of
Canada. That ruling ordered the province to permit same-sex marriages.
Following the decision, Roy Beyer, president of the Canadian Family
Action Coalition suggested that if the high court upholds the Appeal
Court decision, that the federal government should use the notwithstanding
clause to preserve the traditional male-female definition of marriage.
The federal government elected to not appeal the ruling.
Alberta Justice Minister Dave Hancock agrees: "That's what the
notwithstanding clause is there for. In circumstances where there's an
issue between the courts and Parliament, Parliament is the governing body
and has the accountability to the people and therefore has the opportunity
to, and right and obligation to, consider those things." 1
Barbara Billingsley suggests that a government passing a law that was
exempt from provisions of its own Charter of Rights would be rare
but not impossible. She said: "The charter does enable them to do it.
But then it becomes more of a political issue than a legal one." 1
In an interview on CBC TV Newsworld's Politics program, Justice
Minister Martin Cauchon said that Alberta may be forced to legally
recognize same-sex marriages. He said: "Based on the [Canadian]
Constitution, their [provincial] jurisdiction is as regards to the
celebration of marriage. Having said that, once you have a national
legislation as regard to that question of same-sex marriage, they will
have to recognize the national definition...So what could happen is that
people will go into another province to celebrate their marriage. They
will move back into Alberta, and I believe they won't have any choice but
to recognize those people are part of a legal union and...validly married
based on a national legislation." 7
The Supreme Court of Canada settles the matter:
On 2004-DEC-08, the Supreme Court of Canada settled the
speculation. They released its rulings
on the Federal Government's reference questions. They advised that the
federal government has the right to define who can marry. This terminates any
possibility that the Province of Alberta, or any other province or
territory, can implement the notwithstanding
clause to ban SSM within their boundaries. The justice minister of Alberta
accepted the ruling and admits that use of the notwithstanding clause is not
possible. More details.
"Calgary gay coupled [sic] married, but can't get marriage licence
in Alberta," Canoe.ca, 2003-JUN-12, at:
Chantal Hebert, "Opinion: Liberals dither on gay unions," The Toronto Star, 2003-JUN-13, Page A23.
Tonda MacCharles, "Divorcing gay couples have plenty to fight for.
Property rights now enter the mix, lawyers say. 'Means more business'
divorce specialists admit," The Toronto Star, 2003-JUN-23, Page A19