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Defining and Redefining Marriage
While Bill C-38 would die with an election call, more is needed to retain the traditional definition of marriage.

The fate of Bill C-38, the bill to change the definition of marriage, is fatally tied to an election call. Quite literally, if an election is called before Bill C-38 passes, it will "die on the Order Paper."

The bill is, at this moment, being considered by a special committee, aptly named the Legislative Committee on Bill C-38. The committee has been stacked by the Liberals, Bloc Quebecois and NDP with members in favour of Bill C-38. These members are trying to push this bill through committee at breakneck speed. The four Conservative committee members are opposed to Bill C-38 but they are in the minority. The committee is holding 2 hour hearings four days a week.

Back in the House of Commons, the vote on the federal budget is scheduled for Thursday, May 19. If the budget passes, it will be an indication of "confidence" (in the political sense) in the government and we will not see an election until at least the Fall. If the budget does not pass, it is an indication of "non-confidence." Prime Minister Martin will pay the traditional visit to the Governor General and ask for a general election.

OK, enough about Parliamentary procedure. What happens if Bill C-38 dies on the Order Paper? Unfortunately, it will not really change anything. The status quo remains.

What is the status quo? Marriage has been redefined by the courts in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland (although that is on appeal), and the Yukon. It has been challenged in New Brunswick. For the majority of Canadians, then, marriage has been redefined already. The province of Ontario has already passed legislation giving effect to the change in the definition of marriage.

So, what are the options? They are pretty much as they have always been. The federal Parliament can pass legislation to define marriage as being between a man and a woman (although this would be challenged immediately as offending the Charter). They could use the notwithstanding clause (see s. 28) but that must be renewed every five years. They could try to pass legislation that defines marriage as being between a man and a woman and instituting some form of civil union for same-sex couples. The ultimate solution is to enshrine a constitutional amendment. While this solution seems difficult given Canada's history of constitutional amendment (think Meech Lake and Charlottetown Accords), we must remember that the constitution has been amended for Newfoundland and Quebec with regard to education rights.

In the end, if Bill C-38 dies with an election, we will be back where we were before the bill was introduced—except with marriage now redefined in even more provinces than before.

To retain the traditional definition of marriage in Canada will require significant political will, whatever the outcome of Thursday's budget vote, and in more than just the federal Parliament. It will take provincial co-operation and legislation as well. This means that the definition of marriage will be an election issue not only in the next federal election, but likely also in provincial elections.

This issue is not yet decided, and it is not over—the dialogue continues at many levels. We must continue to pray and to speak on this issue, defending marriage.

Janet Epp Buckingham is director of Law and Public Policy and general legal counsel for the Evangelical Fellowship of Canada in Ottawa.




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