Mr. Harper has said that, if the Conservatives form the next government, he will give MPs a free vote on whether to change the 2005 law that recognized same-sex marriage. Most provincial courts had already ruled that denying same-sex marriage is unconstitutional because it unreasonably violates the equality rights of gays and lesbians under the Charter of Rights. Mr. Harper has pledged not to use the notwithstanding clause to override those equality rights. Thus, the law he envisions would be struck down by the courts. He has dismissed this contradiction by saying the Supreme Court of Canada would respect Parliament’s will (though the courts are bound by Parliament to uphold the Charter) and by insisting that the constitutional opinion on this subject is divided.
It is not divided, bar a rogue or two that Mr. Harper may have found to console him. “It appears to be your intention,” the open letter says, “to pass a law that you know is almost certainly unconstitutional and then leave it to the courts to clean up the mess.” If the Conservatives wish to do the right thing, they will abandon their ill-advised attempt to turn back time on a welcome, inclusive law. Failing that, as the experts advise, Mr. Harper should promise to refer a draft version of any bill to the Supreme Court for its opinion before placing the legislation before Parliament.
Click here to see the Law Professors’ letter.