This is the single most sensible post I have read on this subject.

I blush.

Isn't the point if they don't 'define a set of persons who are able to perform same-sex marriages and make sure there are enough of them throughout the province' and they are challenged on it they would use the clause?

Yes but that set need not be a sole singularity. If you look at Saskatchewan's statute, discussed a few weeks ago, you will see that it allows for sub-set commissioners for marriage, presumably based on religious affiliation. But that is an opening and an example. <p>Alberta can now choose to shield and carry the expense of those who the rest of us think are thoughtless and self-serving and a wee bit adrift of the good Lord's wishes for us all - as long as the Province otherwise makes the service reasonably available to all. If it does that, it is not in breach of the <i>Charter</i> and therefore would never come anywhere near the notwithstanding clause.

Michael takes a different view which, as he is personally affected by the potential of state sponsored discrimination concurrent with service provision, does give me pause. It reminds me of someone coming aboard me for using the word "tolerance" suggesting that they were sick of being tolerated.

Contrary to Flea, I thought it was rather bizarre Al, given your past statements on this issue, that you would suggest that a "Gay Only" (or conversely a "Straight Only") Wicket at the Marriage Licence Bureau in Alberta could somehow be "Charter Proof".

Yes, it was a fine line but not bizarre. The important thing for me that we all remember is that the state is an entity in itself against which we have rights and freedoms, not the individual staffers. There are right now certification of any number of discriminating marriers by the Canadian government. Ministers have to have be registered either directly or by the faith group they are associated with - check out any provincial Gazette for notices of such registrations. Those Ministers or mulahs are not required to be fair and available to all. Some jurisdictions allow civil marriage powers to similarly be only available to some, according to their culture or creed.<p>So is there something special about having a same-sex only marriage commissioner as opposed to, say, a registered Catholic priest? I don't see any as long as the service is widely available from the state. But I am open to argument...as opposed to mere labelling.

Except, of course, that the marriage commissioner is a Government created and appointed position, and the Catholic priest is not.

There would appear to be no discriminatory act in "permitting" certain ordained religious to perform a religious solemnation of marriage, which is also recognized by the State. But that will not prevent the argument from being made - that the state should not continue to bestow this "civil" power on those who would "discriminate"(see below).

But taking the state-created position of "marriage commissioner" and parsing it into "straight and gay", sounds like the disapproved "separate but equal" argument - if we are to accept what our PM has said: that this is somehow "a basic, fundamental human right". Once you start describing this issue in those terms, as I have pointed out before, that discription is meant to close off all debate. And that is the climate in which we find ourselves.

Your point Al (Catholic priest v. marriage commissioner), however, does raise another interesting propositon, which is: will we now see all religious striped of their civil marriage powers, in order to create "equality"(ie. if you wish to marry in the Catholic Church, fine, but you will also require a "civil" ceremony outside the Church for the marriage to be recognized by the state)? Is this where we are headed?

Of course not - but that sort of mongering is your gig not anyone else's.<p>You miss the point. No one can perform marriage except under statute - religious marriage is only marriage now because it is identified as ok under the law. Statutes already permit discrimination in provision of the services of marriage. There is nothing new and the role of a commissioner does not define or limit the obligation of the state.

The use of the notwithstanding clause is not required to maintain the traditional definition of marriage because the phrase "without discrimination" in Section 15(1) of the Charter refers back to "every individual", not to "the law". The law can, should, and does morally discriminate.

Every individual (without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability) is equal before and under the law (which can morally discriminate) and has the right to the equal protection and equal benefit of the law (which can morally discriminate).

The supreme law of Canada, the Constitution of Canada, states that "...Canada is founded upon principles that recognize the supremacy of God and the rule of law...". God is the exclusive ultimate legislative authority on the lawful definition of marriage in Canada. The laws of God on marriage are supreme in Canada.

Every individual is equal before and under God's law that "he that is married careth for ... how he may please [his] wife" and God's law that "she that is married careth for ... how she may please [her] husband" (1 Corinthians 7:33-34, KJV).

Every individual has the right to the equal protection and equal benefit of God's law that "he that is married careth for ... how he may please [his] wife" and of God's law that "she that is married careth for ... how she may please [her] husband".

I'm not missing the point - the "point" you make is a fallacy. The "test" is not that "... provision of services guaranteed by the Charter is only that the service is reasonably available"; rather, the "test" is that the provision of a PUBLIC service BY THE STATE be free from discrimination, period.

If "statutes already permit discrimination in provision of the services of marriage" you are refering to "religious" marriages, then you are wrong because that deals with a private provision of service by privately appointed clergy to members of a particular faith or belief. This is not the provision of a "public" or "state" service. The state may sanction such marriages, but it does not "provide" such religious marriages.

In addition, to refuse such religious marriages to the unfaithful, is not "discrimination" on the basis of "natural, personal characteristics or traits" but recognition of the requirement that the couple who wishes to marry within the church must choose to adhere to the faith. If they don't so choose, then they may not be allowed to marry within the church. How long do think a church would be able to perform state sanctioned religious marriages if they refused to marry someone based his or her on a "natural, personal characteristics or traits" such as the colour of one's skin?

Your model still supports the idea of "separate but equal". Surely, section 15(1) of the Charter guarantees more just "reasonable availabilty"; it quarantees equal access in all respects to public benefits. Your model would perpetuate "differential treatment" which still discriminates, by imposing a burden (seeking the "right" marriage commissioner) upon or withholding a benefit (the ability to choose any marriage commissioner) from gay couples in a manner which continues to reflect "..the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration" see Halpern (Ontario Court of Appeal)

In other words, your model would support the idea that there is still some justiciable reason in Canada now, for this continued "different" treatment of gay couples who wish to marry. All of the Courts, apparently, who have reviewed this issue, disagree with this model.

Hey, David Wozney! How's it going?

Remember me? We got in an argument over on my blog a few months ago about same sex marriage and the crown.

You tried to argue that the Queen, or her representative I suppose, wouldn't sign the marriage legislation because the Queen is, "the defender of the faith."

How did that work out for you?

You just do not know about what you are talking about. Section 4 of Ontario <i>Marriage Act</i>, for example, defines what is a marriage:<blockquote class="smalltext">No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.</blockquote>Nothing done not in accordance with the statute is a marriage. Even the form of the banns is defined by the statute:<blockquote class="smalltext">17. (1) Where a marriage is to be solemnized under the authority of the publication of banns, the intention to marry shall be proclaimed openly in an audible voice during divine service,<br>(a) where the parties are in the habit of attending worship at the same church, being within Canada, at that church; or<br>(b) where the parties are in the habit of attending worship in different churches, being within Canada, in each such church. </blockquote>Further, only registered and authenticated persons recognized by law are allowed to perform the ceremony. See section 20(1):<blockquote class="smalltext">No person shall solemnize a marriage unless he or she is authorized by or under section 24 or is registered under this section as a person authorized to solemnize marriage.</blockquote>The ultimate power to pull any person's right to perform marriage, religious or civil, is solely the Minister of government charged with the oversight of the <i>Marriage Act</i>:<blockquote class="smalltext">22.(1) Where it appears to the Minister that any person registered as authorized to solemnize marriage has ceased to possess the qualifications entitling him or her to be so registered, or for any other cause, the Minister may cancel the registration.</blockquote>In fact, the only marriage ceremony not covered and defined by the statute is a second marriage ceremony to still married people, according to s.1(2), but that is only because teh law says so. So there really is no such thing now as a purely "religious" marriage to be contrasted with a civil one as that is merely a marriage performed in a certain way that still complies with the statute. All marriages are made marriage only by the public law. You may blow and blow very hard on the preamble to <i>Charter</i> but that will not make the law change.<p>Under provincial marriage statutes there is massive equal but different treatment in both the form of ceremony and the presiding officer. Section 20(5) states:<blockquote class="smalltext">...every marriage solemnized according to the rites, usages and customs of the religious body is valid.</blockquote>If the law did not say that it would not be so. But it allows the faith groups to discriminate according to their customs. If the law did not say so, it would not be so. Further, the obligation to enforce the access to marriage it sthe obligation of the state so in the scheme of its entire oversight of marriage, it must allow each to be married as they wish as long as it is in accordance with the law. That right to access is the right of individuals against the province, not against individual staffers of the province. Each province may choose to organize its civil marriages as it wishes as long as there is equal provision of access to marriage - including separate opposite-sex only office as long as it is open the same number of hours and have as many nice chairs and nice plants as the any gendered partners office. As long as the service is identical and not implicitly superior, it is not against the <i>Charter</i>. <p>This may create unnecessary administrative expense but so does "religious marriage" and the registration and oversight of external marriage providers. In the end it will be seen as waste and ended when no one gives a hoot about the old cranky homophobes.<p>PS - is that this guy's name? Peterborough area?

Al says: "Each province may choose to organize its civil marriages as it wishes as long as there is equal provision of access to marriage including separate opposite-sex only office as long as it is open the same number of hours and have as many nice chairs and nice plants as the any gendered partners office. As long as the service is identical and not implicitly superior, it is not against the Charter."

Oh my, Al, did you really mean to say that? Does this not "perpetuate" the "stereotype" that gay marriage and opposite-sex marriage are somehow "different", to the extent of allowing the Provinces to set up "separate" gay and straight offices?

Alan,

Re: "is that this guy's name?"

My flippant post was in reference to the comment a few above this from the identified 'David Wozney.' He's the one reading God into the Charter and quoting 1 Corinthians. We had a run-in on my blog a few months ago and I couldn't pass-up the opportunity to be snarky having run into him here.

As for 'SayNay?' I have no idea who he is, but I'm enjoying reading your debate, and finding you much more convincing.

Let me say on Al's behalf, Matt, he "blushes".

The odd thing about you DW/SN is that you wish the Charter were that unreasonable that society would collapse under its weight so you lard your arguments with absurdity example. You seek to use it against itself. Commissioners do not have the right to protection...except perhaps if they can show discrimination in employment based on religious belief but that, too, would be solved by opposite sex only commissioners for marriage. Plus commissioners are appointees at pleasure in most provinces therefore have no rights of employment.<p>No, the beauty of the Charter will not be so moved. If you look at the 1999 case from the SCC called <i>Law</i> v. <i>Canada</i>, you will see a test for discrimination that has a three legged test which is neatly summarized at the outset of the ruling:<blockquote class="smalltext">...a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:<blockquote>A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?<p>B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and<p>C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?</blockquote></blockquote>All that I have written is based on the separate of the concepts of "differentiation" and "discrimination" - read the case and advise if you think that it is impossible to ever set up a system of a separate marriage commissioner for opposite-sex only couple...keeping in mind Saskatchewan does just that already for religious communities in its statute. As long as opposite sex only marriage commissioners are given equal status and funding and role as normal marriage commissioners, there is no issue.<p>...and Matt's praise was aimed at me grammarically, DW/NS.

First, Queen Elizabeth II participates in a highly-publicized coronation event during which the Archbishop of Canterbury states:

"And as Solomon was anointed king by Zadok the priest and Nathan the prophet, so be thou anointed, blessed, and consecrated Queen over the Peoples, whom the Lord thy God hath given thee to rule and govern, In the name of the Father, and of the Son, and of the Holy Ghost. Amen"

"...that by the assistance of his heavenly grace
you may govern and preserve the Peoples committed to your charge..."

"The Lord who hath made you Queen over these Peoples..."

Queen Elizabeth II promises to the utmost of her power to maintain the laws of God and the true profession of the Gospel, which laws of God are found in the New Testament King James Bible, referred to at her coronation as "the most valuable thing that this world affords".

For more than fifty years, Queen Elizabeth II supposedly maintains that marriage means a marriage between a man and a woman, consistent with the laws of God.

Then, all of a sudden, Queen Elizabeth II allegedly claims that the lawful definition of marriage for everyone in Canada is some definition contrary to the laws of God in the New Testament King James Bible!

Do you have problems having faith in and remaining loyal to someone who is not true to her word?

David,

The fact the Queen presumes that, "the Lord who hath made you Queen over these Peoples" is just the first of many problems I have with her.

As for her majesty's assest to the marriage act, what precedent, in the last 157 years since Canada achieved responsible government, made you think that the Queen would not sign the bill?

Matt, I am going to call you DJ Smokemaster Matt from now on!<p>DW/SN, our clan broke with the English Crown on a personal dispute after Charles II snubbed us officially. Do you think that what is mumbled over the tiara at shift change could have the slightest moral sway around here, not to mention as Matt points out the vacuity of your legal position? I am happy for you to have that point of view as we are all free to believe but it simply does not compel.<p>And, as a result, can we not go off on this tangent further please? I am quite content to debate the section 15 stuff which is on topic (being the status of opposite-sex only marriage commissioners) but the connection between the House of Windsor and the House of David and its effect on a modern democracy is a tad Masonic...and I ought to know.

Matt - you have not smoked out our mystery man SayNay [Ed.: <i>ou "DitNon" en Quebec</i>] as David has an IP in Alberta while SN is in the Peterborough area. <p>Now I want to know SN's views on the Masonic world view, too. Am I tempting fate by saying so?

I do not recall...<i><blockquote><font color="#C0C0C0" size="-6"><strike> having any preconceived notion as to whether Queen Elizabeth II would attempt to enact or would not attempt to enact Bill C-38. I am not a member of Queen Elizabeth II's Privy Council for Canada. In my dictionary, the first definition for "privy" states "private", and the second definition for "privy" states "hidden, secret, furtive". Queen Elizabeth II may have worked to enact Bill C-38. According to many, Queen Elizabeth II enacts Canadian legislation. Bill C-38 contains the text: "NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:" Canadians should have a Queen who will not fail in her job title, such as "Defender of the Faith". Canadians should have a Queen who will not break a coronation promise, such as to maintain the laws of God to the utmost of her power. Canadians should have a Queen who will not violate people's legitimate Charter rights, such as the Section 7 rights of the unborn child. A Queen, who will not fail in her job title, who will not break a coronation promise, and who will not violate Charter rights, could begin her job once Queen Elizabeth II is finished (for you, in your mind) her term of office. Queen Elizabeth II does not have a monopoly when it comes to being referred to as a servant of God. British Queens do not have a universal monopoly on the title "Queen". For example, some already recognize the "Virgin Mary" as "Queen of Heaven". Section 9 of the Constitution Act, 1867 states: "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen." What was the name of the Section 9 "Queen" after the reign of Queen Victoria and before the reign of Queen Elizabeth II?</strike></font></blockquote></i>

You are done. Supersmalled and struck and the post banished from active conversations. Pay some attention to editorial requests, please.

I must say (or naysay, as tcmb) that I do find it personally objectionable to be confused with this "Wacky" Wozney guy.

The more I learn the more I agree. I apologize.