Same-sex marriage in Alberta

Same-sex marriage in Alberta has been available since July 20, 2005, upon the granting of Royal Assent to the federal Civil Marriage Act.[1]

Amendment to the provincial Marriage Act

The position of Premier Ralph Klein and the Progressive Conservative government had been to attempt to block same-sex marriages in Alberta should a court case require it or federal legislation pass it nationwide.[2]

On March 16, 2000, the provincial government passed Bill 202, which amended the provincial Marriage Act to include an opposite-sex-only definition of marriage. The bill also invoked the Canadian Charter of Rights and Freedoms' Notwithstanding Clause. This insulated the Marriage Act from any legal challenge based on violation of Charter rights, including the Section 15 equality guarantees. Under the terms of the Notwithstanding Clause, such a declaration is effective for only five years after it comes into force. For the Marriage Act, this period expired on March 23, 2005. Premier Klein sent mixed messages about whether it would be renewed; ultimately, it was not.

While the Act could not have been challenged under the Charter, the definition of marriage is outside the power of the provincial government, or ultra vires, and therefore invalid. The Constitution Act, 1867, is universally interpreted as giving provinces jurisdiction over only the solemnization of marriage, while all other aspects, including capacity to marry, are under federal jurisdiction. At the time Bill 202 was passed, Justice Minister David Hancock did not support it, saying, "In terms of legal effect, I'm convinced it doesn't have any." Hancock subsequently stated that he believes the act to be constitutionally valid and that Alberta will attempt to uphold it. Following the December 9, 2004 Supreme Court response to the federal reference of same-sex marriage, Hancock's successor, Ron Stevens, conceded that the Bill 202 amendments to the Marriage Act would likely be struck down as unconstitutional on account of its encroachment into what had by then been explicitly ruled a matter of federal jurisdiction.

During the 2004 provincial election campaign, Klein softened his stand somewhat, saying that he would accept same-sex marriage if Albertans told him they want it.

Federal Civil Marriage Act

On June 28, 2005, the Canadian House of Commons passed Bill C-38, an act which defines Canadian civil marriage as a union between "two persons." The bill received royal assent a few weeks later. Klein responded by saying that the Alberta government might opt to stop solemnizing marriages entirely, suggesting that in its place, the government would issue civil union licences to both opposite-sex and same-sex couples. Religious groups could still solemnize opposite-sex unions as marriages if they chose, but any civil ceremony would be permitted to recognize only a civil union. The Alberta government also considered continuing to issue marriage licences to opposite-sex couples only in court, on the grounds that the federal government's legislation encroached on the provincial government's jurisdiction over the solemnization of marriage.

On July 12, 2005, Klein conceded that the advice given to him by legal experts was that a challenge in Court to refuse to marry same-sex couples had no chance, and wasting taxpayers' money to fight it would be "giving false hope." Klein said, "much to our chagrin," the Alberta government would issue marriage licences to same-sex couples when the bill received royal assent. Klein also said that the Alberta government would enact provincial legislation to protect religious and civil officials who do not wish to perform a same-sex marriage. This would have meant that an Alberta marriage commissioner who refused to solemnize same-sex marriages would not be liable for dismissal on those grounds.[3] However, no such legislation was passed, indicative of the "sea change" in attitudes towards same-sex marriage in Alberta.[4] (See also Same-sex marriage in Saskatchewan, where courts have twice struck down attempts to exempt marriage commissioners from performing same-sex weddings.)

Public opinion

An EKOS/CBC poll in 2002 indicated that attitudes towards same-sex marriage were more supportive in Alberta than they were in the provinces of Manitoba and Saskatchewan, both of which had recognized same-sex marriage earlier.[5]

An October 2011 poll conducted by the Citizen Society Research Lab at Lethbridge College found that 72.1% of Albertans supported same-sex marriage, while 27.9% opposed it.[6][7]

References

  1. ↑ "Debate about SSM in Alberta". Kingston: Ontario Consultants on Religious Tolerance. 21 January 2005. Retrieved 10 March 2011.
  2. ↑ "Bound by Law". The Economist. 11 November 2004. Retrieved 10 March 2011.
  3. ↑ "Alberta backs down on same-sex marriage". CTV. 13 July 2005. Retrieved 10 March 2011.
  4. ↑ Fortney, Valerie. "'A sea change' in attitudes toward Alberta gay marriages," Calgary Herald, 20 September 2012, accessed 6 October 2013.
  5. ↑ "Canadian Public Opinion Polls 1996 - 2002". Kingston: Ontario Consultants on Religious Tolerance. 12 February 2005. Retrieved 10 March 2011.
  6. ↑ Albertans’ Opinion Structure on Six Policy Issues
  7. ↑ Is Alberta shifting left?

External links