Alberta's Marriage Battle
By Rebecca Hudson

In the Canadian battle over marriage, Alberta is the last stand. “If we lose marriage in Alberta,” warns Michele Dow, “marriage in Canada is almost certainly lost.” Dow, an LDS mother of 5, is founder and leader of United Mothers, Fathers and Friends, an organization of 50,000 Canadians that lobby together in behalf of family values. Her warning is dire in light of the Alberta government’s Monday reversal of its previous promise to protect Albertans from judicial dismantling of society’s oldest institution.

Already, in Canada, the man-woman definition of marriage has been overturned by courts in seven of ten provinces and one of 3 territories. Each of those courts ruled that equality under the Charter of Rights and Freedoms required doing away with the opposite-sex requirement for marriage. But same-sex marriage activists have not yet appealed to the courts of Alberta, not because of a lack of interest, but because it would be futile. Alberta enacted a Defense of Marriage Act in 2000, complete with a clause that would uphold it “notwithstanding the Charter.”

The “notwithstanding clause” was included in the Canadian constitution for precisely such a scenario – to curb the judiciary’s creation of unintended rights under the Charter. But it has to be invoked every five years. The clause in Alberta’s DOMA expired March 22, and this Monday, Premier Ralph Klein announced that he would not be re-invoking the clause, contrary to his promise of two weeks earlier.

Premier Klein argues that Alberta doesn’t have the right to invoke the clause on marriage, because the constitution has assigned the definition of marriage to the federal, not the provincial sphere. If Parliament passes the federal government’s Bill C-38, marriage will be redefined as the union of two persons, nationwide, and there’s nothing Alberta can do about it. In such an event, the notwithstanding clause would not hold up in court. “I had to put my foot down today,” the Premier told reporters Monday. “You can't incorporate into a law something that is unlawful, something that simply cannot be enforced.”

Dow notes the fatal flaw in the Premier’s argument: Bill C-38 has not yet been passed by Parliament, and may never be. As long as the federal definition of marriage remains heterosexual, Alberta is well within its rights to invoke the notwithstanding clause in defense of DOMA.

“We should be taking the initiative and sending a clear message to Ottawa, not waiting for the federal government to dictate to us,” declares Paul Hinman, Member of the Legislative Assembly for Cardston. Mr. Hinman, also LDS, was instrumental in bringing about Premier Klein’s previous commitment to re-invoke the notwithstanding clause. The only successful candidate from the fledgling Alberta Alliance Party in last year’s election, he now wields more influence in the Alberta Legislature, as a caucus of one, than he ever expected. He’s free to pursue the agenda of his conscience, without having to okay it with caucus colleagues.

Not content to rely on a clause that could be invalidated by the federal government’s pending legislation, Mr. Hinman has urged the Alberta government to enact further legislation to protect marriage. While the definition of marriage belongs in the federal sphere, he notes that the solemnization of marriage belongs in the provincial sphere. Therefore, he has called on the Premier to enact legislation requiring that marriages be between a man and a woman in order to be solemnized in Alberta. If fortified by the notwithstanding clause, such legislation would effectively protect marriage in Alberta, whatever happens to its definition nation-wide. 

In mid-March, Mr. Hinman subjected Premier Klein and Justice Minister Ron Stevens to an intense grilling on their reluctance to renew the notwithstanding clause, despite Albertans’ strong support for traditional marriage and for government measures to protect it. Later that day,  Mr. Klein met with his Progressive Conservative caucus behind closed doors, and found that they overwhelmingly agreed with Mr. Hinman. So he committed to renew the clause, but delayed action on it, and changed his mind two weeks later.

The reversal leaves Alberta profoundly vulnerable to a court-ordered overthrow of traditional marriage. “If Bill C-38 doesn’t go through, activists will challenge the definition of marriage in the courts, and the same thing that’s happened in the other provinces will happen here,” Dow mourns. The only way to prevent that is to renew the notwithstanding clause, and to enact the legislation proposed by Mr. Hinman. To that end, Dow has set up a web-page at http://www.1clicklobbyist.ca/index.php?affid=52438 where Albertans can easily contact their local representatives and government leaders, urging them to immediately take the necessary steps to protect marriage in Alberta at least. She’s counting on a public outcry to prompt the Premier to reverse his position yet again. “It ain’t over ‘til the fat lady sings,” she quips, “and Premier Klein is not the fat lady.” 

Note: Readers in Ottawa are invited to participate in a March for Marriage, from the Supreme Court to Parliament Hill, this Saturday from 12:00 to 4:00pm. More information at http://www.march4marriage.ca/.