Can Alberta or another province or territory use the notwithstanding clause to prevent same-sex couples from marrying?
The Alberta Legislature passed a law in 2000 which purports to restrict marriage to opposite-sex couples only. The Preamble to that law declares that it is designed to maintain marriage “in its purity” and the law invokes the constitutional “notwithstanding” clause in an attempt to prevent judicial scrutiny of the legislation. The ‘notwithstanding’ clause in the Constitution allows governments to enact legislation that declares it shall have effect notwithstanding certain provisions of the Charter of Rights. This means that provisions like the equality guarantees in the Charter of Rights cannot be used to invalidate otherwise valid legislation. The ‘notwithstanding’ clause does not, however, empower a government to enact legislation which falls outside its constitutional jurisdiction. The Alberta legislation is almost certainly invalid, since the question of who can marry is one of exclusively federal jurisdiction. This question is one of the three Reference questions being asked of th