Ignoring the courts

Putting minority rights to majority votes

The judge bashing has begun. And the rightwing’s efforts to overrule the gains made by gay men and lesbians is now focussed on invoking the Constitution’s notwithstanding clause.

An Alberta politician plans to introduce a private member’s bill this spring that would prohibit same-sex marriage. He will include the clause that allows governments to opt out of the Canadian Charter Of Rights And Freedoms.

“Marriage, in our legal history, our philosophical history, in our religious traditions, has always been between one man and one woman,” Red Deer South MLA Victor Doerksen has said of his Bill 202. “That’s the best model for society’s advancement.”

Opting out is the new flashpoint in the struggle around gay rights.

In the aftermath of the Delwin Vriend ruling, in which the Supreme Court Of Canada held that Alberta had violated the charter by failing to protect gay men and lesbians from discrimination, that province has been strategizing about the use of the notwithstanding clause.

Social conservatives demanded that Premier Ralph Klein simply overrule the decision.

Klein’s government has now introduced a bill requiring that it hold a referendum before invoking the clause.

As if it’s not bad enough putting minority rights to majority votes, it gets worse. There’s one exception to the rule. No poll would be required if the province is defending marriage.

This increasing discussion about and potential use of the notwithstanding section of the Constitution may be a glimpse of the future of gay and lesbian rights. It is the most recent turn in the backlash against homo rights and judicial activism.

Legislatures, not courts, the rightwing says, should write the laws. And the notwithstanding clause is the newest darling – something that explicitly tells the courts to butt out, and allows politicians to discriminate as they see fit.

This should send chills up and down our spines. We have relied, almost exclusively, on the courts in the struggle for equality rights.

Courts, not legislatures, have struck down laws that discriminate against gay men and lesbians. Courts, not legislatures, have been the leaders in extending rights to same-sex relationships.

While a few governments have taken the plunge (British Columbia and Quebec), it was only after the writing was already on the walls. And Ontario made no bones about the fact that the Supreme Court made it do it.

Some might be tempted to write this scheme off to another of Alberta’s peculiarities. But you can bet that the Harris government, the Reform Party and other social conservatives are watching the Alberta debate unfold with eagle eyes. If Klein’s strategy works, they will be soon to follow.

Marriage may now seem like the final and obvious frontier for gay and lesbian rights – or at least treating same-sex couples the same as married couples. But the rules of the fight are changing. We can no longer assume that legal victories will translate into legislative ones.


Legal victories may translate into a notwithstanding backlash.

This doesn’t mean that we shouldn’t keep going to court. But it does mean that we need to recognize that there are limits to what the courts – whose own legitimacy is under attack – may be able to deliver. And it absolutely means that we are going to have to jealously guard against the use of the notwithstanding clause – any where and any time a government seeks to use it.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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