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Canadians for Equal Marriage
Legal Experts Question Harper Motion on Equal Marriage – What About Notwithstanding? – Will Marriages Be Annulled?
April 11, 2005
Ottawa—On Tuesday, April 12, 2005, Parliament will vote on a motion by Stephen Harper that Parliament “declines to give second reading to Bill C-38” because “the Bill fails to define marriage as the union of one man and one woman.” The effect of the motion is to delay the second reading vote.
Constitutional law experts today questioned Stephen Harper about tying his motion to a call for Parliament to take away civil marriage from same-sex couples.
“Stephen Harper’s motion is based on the disingenuous assertion that Parliament can take away civil marriage from same-sex couples without using the notwithstanding clause,” said Martha Jackman, a constitutional law professor at the University of Ottawa. “The truth is, there is only one way for Mr. Harper to accomplish his selective rights goal: invoke the notwithstanding clause.”
“There is consensus in the courts and in the legal community,” said Bonnie Diamond, Executive Director of NAWL. “When confronted by over 100 top law professors on this issue, Mr. Harper refused to name even a single legal expert who agrees with him. It’s time for him to come clean on the notwithstanding clause.”
“Taking away civil marriage rights without using the notwithstanding clause will only guarantee that same sex marriage ends up back before the courts for years to come,” said Hugo Cyr, constitutional law professor at the Université du Québec à Montréal. “Mr. Harper’s position is surprising for someone who has constantly defended the preeminence of Parliament.”
At the Conservative caucus meeting in Victoria in January, Stephen Harper met with a married lesbian couple. They asked if he intended to take away their marriage licence and he refused to answer. On February 21, Conservative MP Rob Moore was asked if Stephen Harper’s plan includes taking away lawfully issued marriage licences from same-sex couples. Mr. Moore blamed the Liberals for allowing the licences to be issued in the first place.
“What does Mr. Harper’s motion mean for the thousands of same-sex couples who are already legally married?” asked Joanne St. Lewis, constitutional law professor at the University of Ottawa. “Does Mr. Harper plan to take away their marriage licences and annul their marriages?”
A letter to Stephen Harper signed by over 130 law professors from across Canada states that the consensus of constitutional law experts is that the Charter requires same-sex couples to be permitted access to civil marriage. It calls on Mr. Harper to be honest about the need to invoke the notwithstanding clause to take away that Charter right. (see http://www.law.utoronto.ca/samesexletter.html for full letter and signatories)
The National Association of Women and the Law (NAWL) is a Canadian non-profit organization that has worked to improve the legal status of women in Canada through law reform since 1974.
CAUT is the national voice of 48,000 teachers, librarians, researchers and other academic professionals committed to improving the quality and accessibility of post-secondary education in Canada.
Hugo Cyr, law professor, U.Q.A.M., 514-987-3000 x 8319,
Martha Jackman, law professor, U. of Ottawa, 613-562-5800 x 3299
Joanne St. Lewis, law professor, U. of Ottawa, 613-562-5800 x3311
James Turk, Executive Director, CAUT, 613-820-2270 x322
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