Stephen Harper notwithstanding

If federal Conservative Leader Stephen Harper imagines that he is deftly handling the question of same-sex marriage, he is fooling himself. His position is so untenable that 134 law professors sent him a letter this week reminding him how the law works.

Mr. Harper insists that Parliament can ban gay marriage without invoking the notwithstanding clause. He said so last June: "If Parliament expresses its views clearly on this . . . then I am quite certain that the Supreme Court will understand that and respect Parliament's competency to deal with such a matter." He said it again on Monday, dismissing decisions by courts in most provinces that the traditional definition of marriage is unconstitutional. "We have a long history of introducing legislation contrary to lower-court decisions," he said.

What is going through his head? Perhaps he fears being perceived as a hypocrite if he advocates using the notwithstanding clause to override Charter rights, since he defended those rights when he led the National Citizens' Coalition. In 2001, after an Alberta court agreed with him that the federal law restricting third-party election spending unreasonably violated the Charter, Mr. Harper said the court had "restored an important right for all Canadians and dealt a stunning defeat to those in the political establishment."

Or perhaps he is worried that, if he used the heavy artillery of the notwithstanding clause to override the rulings of several provincial courts and exempt the law from the Charter, the Conservative Party would alienate potential supporters who aren't comfortable with social conservatism. The Reform Party and its successor, the Canadian Alliance, had trouble making the electoral advances they hoped for in Ontario because of the social-conservatism tag.

Whatever his motives, Mr. Harper is disingenuous when he says the Supreme Court of Canada wouldn't intervene if Parliament adopted a clear law restricting marriage to a man and a woman. It is the judiciary's job to interpret and enforce the Charter of Rights. Parliament and the provincial legislatures gave them that job a quarter of a century ago when they collectively entrenched the Charter in the Constitution. The only reason the Supreme Court hasn't ruled on the existing definition of marriage is that nobody has given it a law to pronounce upon. All the Liberal government did was refer a few questions to it. The court said that if the government truly wanted the top court to issue a binding ruling, it should have appealed one of the provincial judgments that made gay marriage legal in those provinces.

If Parliament were to pass a law prohibiting gay marriage, as Mr. Harper proposes, somebody would challenge that law in court the next day. Odds are, given the solid reasons of the lower courts, that the Supreme Court would strike down the law on similar grounds and that same-sex marriage would be legal nationwide. The only way Parliament can prevent that is to invoke the notwithstanding clause and renew it every five years. This newspaper does not believe the clause should be used in this case, but Mr. Harper is free to argue, as Cardinal Aloysius Ambrozic did last week, that it's the right way to go.

Instead, Mr. Harper builds castles in the air. He ducks and weaves. He talks of a slippery slope toward the legalization of "polygamy and who knows what else," mixing the apples of equality rights with the oranges of religious freedoms. He takes out advertisements saying the Conservatives would preserve the traditional definition of marriage even as he resists the instrument, the notwithstanding clause, that would accomplish that goal.

Last June, just before the election, Mr. Harper refused to disown or apologize for a Conservative press release headlined "Paul Martin Supports Child Pornography?" He showed poor judgment, but the hope was that it was a misstep and that he would grow into the job of party leader. His unyielding insistence on ignoring the complementary roles of the courts and Parliament, and the obligations of both in the Charter age, suggests his judgment remains in question.