Premier Ralph Klein of Alberta is doing his best to stir up some real opposition to the same sex marriage legislation, by recommending the use of the dreaded notwithstanding clause in order to maintain the common law definition of marriage. The thought of invoking this provision of our constitution is viewed with great horror by the liberal elites in Upper Canada, where Castle Mad is situated.
Their repugnance is utter nonsense. The use of the notwithstanding clause would simply allow parliament to determine the definition of marriage and not the judiciary. What in heaven's name is wrong with that?
Prime Minister Paul Martin, having recently decided that from now on his Catholicism will take second place to his Liberalism, has countered that he will not use the notwithstanding clause to take away rights, i.e., in this case the "right" of homosexuals to marry. This makes for a very impressive sound bite, which allows Mr. Martin to sound as though he is taking a principled stand on the issue.
What right are we talking about? Well, the right of people of the same sex to marry one another. When did that become a right? It wasn't a right for the past three thousand years. Well, when the Liberal Government refused to appeal the Ontario Court of Appeal ruling. So the Ontario Court of Appeal says its a right. So Paul Martin, is defending a right. See the strategy.
Stephen Harper is floundering in attempting to counter it.
The use of the notwithstanding clause, properly understood, would not remove a "right" from anyone. The clause merely allows our elected and accountable parliament, and not the unelected and unaccountable judiciary, to determine whether same sex marriage is in fact a "right."
Our constitution gives parliament and not the courts the final say. It is parliament that is the consitutional court of final jurisdiction. But this consitutional principle will not survive if our parliamentarians and the people accept the canard that the courts are the only legitimate interpreters of the Charter of Rights and Freedoms. And this has become the common view.
I say that if we continue to accept this view, promulgated and sustained as it is by the liberal elites in Canada, than we will have subjected ourselves to the rule of a new Family Compact.
Mr. Martin's refusal to invoke the notwithstanding clause presupposes that a constitutional right has been established and parliament would be extinguishing it if it uses the clause. This is a lie. An effective lie, but a lie nevertheless.
The Supreme Court of Canada itself recognized in its ruling on the reference that the definition of marriage, "... is within the exclusive legislative competence of Parliament." So it is.
Justices of the Supreme Court are fond of defending their judicial activism by suggesting that the courts are engaged in a dialogue with the executive and legislative branches of government. What the dialogue really is, however, is a one way conversation where judges dictate to the elected representatives of the people who are to take careful note of the judges' monologues and act in accordance with them.
I suggest to you that members of the House of Commons are every bit as much the guardians of the constitution as is the judiciary. In fact, as it is parliamentarians who are elected, it is they who are vested with the moral legitimacy to determine the basic structure of civil society.
As such, parliamentarians must not shirk from participating in this legal dialogue and when it is appropriate they must point out that it is they, and not the judges who are elected and accountable and it is they, and not the judges, who in the end are best placed to determine our civil rights.
Failing that, we will have ceased to be (as our American cousins are so fond of saying) a government of, and by, the people. We will have entered the age of the divine right of judges. The new Family Compact.