Wednesday, July 27, 2005

Alberta may invoke notwithstanding clause over same-sex marriage

The Justice Minister in the Province of Alberta has announced that he may ask their Legislature to invoke the Notwithstanding Clause to allow officials in the province from having to marry same-sex couples.

Alberta's stated goal in consideing this action is to protect officials, including religious officials, from being forced to perform same-sex marriages if it goes against their religious beliefs. Notwithstanding the moral issue of whether or not one supports same-sex marriages, this plan is foolhardy, and sets a horrible precedent for the legal system.

I can understand that religious officials should not be forced to take actions which go against their faith. That's part of the two way street which defines the separation of Church and State. However, this Act would allow government officials who are uncomfortable with same-sex marriage to refuse to perform such a ceremony. That sets a horrible precedent. Government officials must, by definition carry out the law of the land. They should not have the right to interpret it according to their own personal beliefs. It's a right they waive when they choose to work for the government.

A police officer cannot decide when to enforce the law based on personal beliefs. The law is the law, and they have to apply it fairly, and uniformly.

Setting a precedent wherein government officials are allowed apply the law uniquely based on personal beliefs is assinine. Opening the door to permitting any government official to refuse to carry out the law of the land based on their beliefs (which may change over time) is outrageous.

Can you imagine how many potential court cases could be brought by government officials who do not wish to enforce a particular law, and use this precedent to argue that doing so infringes on their personal beliefs? Most of these cases would be entirely without merit and thrown out, but they would be heard, and would uselessly cost taxpayer dollars to resolve. Quebec's use of the Notwithstanding Clause has brought forth numerous court challenges. Those cases were narrowly defined against a law that deprived Rights clearly set out in the Charter. Imagine the cases where the Rights being contemplated are not clearly defined?

I understand that public opinions on the same-sex issue in Alberta are more extreme than in other provinces, and that there is a difference of perspective on the issue right across the land from region to region. I have no issue with the differences of opinion, in fact I respect them. Those differences, and our Nation's tolerance thereof is what makes this a wonderful country to live in. The fact we are even able to debate the issue is extremely valuable.

I would hope that the Government in the Province of Alberta will allow cooler heads to prevail, and not make this socially divisive issue more of a lightening rod than it already is.

I believe that our governments must continue to recognize that religious officials must have the right to practice according their faith. It would be ludicruous to suggest that a Catholic Priest should marry a same-sex couple. That goes against Church teachings and fundamentals. It is also unlikely that a actively practicing Catholic would be in the situation wherein they would make such a request, for their personal beliefs would be completely in conflict with their faith.

I believe that our governments must remain outside the bedrooms, and religious halls of our people. It must ensure that our citizens have the right and ability to practice their faith according to their own beliefs, and to expect and respect the same in others. That respect will sometimes conflict with our own beliefs, but that's part of our choice to live in a free society.


In case you are wondering what the Notwithstanding Clause is, here's a very short explanation:

Many Countries have something similiar to the U.S. Bill of Rights. In most cases, these Bill of Rights do not allow any exceptions. Canada has a Charter of Rights and Freedoms, which does include an ability for the Provincial (State) or Federal (National) government to opt out, or to make an exception. This clause is known as the Notwithstanding Clause, and is section 33 of the Charter itself. The Charter also forced all Provinces to respect a standardized code. The Provinces which had pre-existing Acts were allowed to retain them, but they could only be applied to further extend Rights beyond the scope envisioned by the Charter, not to lmiit them beyond the scope of the Charter.

The notwithstanding clause allows the federal government or a provincial government to create legislation whcih overrides sections of the Charter that deal with freedom of expression, freedom of assembly, and freedom from unreasonable search and seizure. There are a number of other Rights defined in the Charter from which no government can opt out. These 'irrevocable' rights include democratic rights, freedom of movement, and the equality of men and women.

The notwithstanding clause, or ability to opt out, is temporary. Any such legislation automatically expires after five years, or can be repealed sooner. However, it can also be re-enacted indefinitely. It has been applied repeatedly in the Province of Quebec to defend Bill 101, which limits language related rights.