I read these headlines, and am so glad that Quebec forever tainted the notwithstanding clause by using it to suppress the rights of English speaking people, because it meant that Harper, couldn’t use it against gays and lesbians on the marriage issue.
When Canada’s Constitution and Charter of Rights came into being in the early 1980’s, the provinces, in order to obtain their agreement to the new federal arrangement and the delegation of federal and provincial/territorial authorities were created – there was a mechanism by which the state could block court ordered legislative changes to the constitution and charter – a sort of cover for errors or omissions to allow the government not to change anything.
The Notwithstanding Clause.
This would have allowed, in the 1980’s for example, if gay marriage had been taken to court then and won at the Supreme Court that denying gay marriage was inconsistent with the Charter of Rights – because most Canadians opposed gay people, never mind gay marriage, at the time – the Federal government could have invoked the Notwithstanding Clause (ie notwithstanding that gays are included in the charter, we’ve historically discriminated and since community standards are discrimination, we’re going to leave it as it is).
This clause has only been invoked on one occasion in the late 1980’s by the Province of Quebec, who passed a law stating that all signage on stores had to be in French, and if English was going to appear, it had to be second and in a smaller font size.
This law was not constitutional and was a violation of the Charter of Rights with respect to official languages.
Quebec lost at court and they invoked the Notwithstanding clause and enacted an illegal law.
This outraged most Canadians as the first clash of rights and unfairness was confirmed the law of the land.
Fortunately, but the time that gay marriage made it’s way to the supreme court, after other discriminatory or exclusionary laws were challenged and thrown out – even Canadians who were against gays being allowed to marry, did not support the use of the notwithstanding clause to block gay marriage.
Quebec tainted a fail safe clause for what they deemed the greater good – french supremacy over English.
And gays were able to marry and churches were given a fail safe of being protected from lawsuits – the right to religion was preserved so that the religious people could be able to continue to discriminate as they have historical done – but gay people could be able to be married by civil marriage commissioners or any churches willing to be inclusive.
Everyone won with respect to gay marriage by not invoking the clause.
But, everyone lost when the clause was invoked and created inequality between the official languages.