Same-sex marriage in Alberta
Encyclopedia
Same-sex marriage in Alberta has been available since July 20, 2005, upon the granting of Royal Assent
to the federal Civil Marriage Act
.
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 only effective for 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 has now 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 tell him they want it.
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 only be permitted to recognize 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 is that a challenge in Court to refuse to marry same-sex couples has no chance, and wasting taxpayers' money to fight it would be "giving false hope." Klein said, "much to our chagrin," the Alberta government will issue marriage licenses to same-sex couples when the bill receives 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 means that an Alberta marriage commissioner who refuses to solemnize same-sex marriages would not be liable for dismissal on those grounds — in most of the other provinces, marriage commissioners face automatic dismissal if they refuse to solemnize a same-sex marriage.
and Saskatchewan
, both of which had recognized same-sex marriage earlier.
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.
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
to the federal Civil Marriage Act
Civil Marriage Act
The Civil Marriage Act was legislation legalizing same-sex marriage across Canada...
.
Amendment to the Provincial Marriage Act
The position of Premier Ralph Klein and the 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.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
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
' Notwithstanding Clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
. This insulated the Marriage Act from any legal challenge based on violation of Charter rights, including the section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
equality guarantees. Under the terms of the Notwithstanding Clause, such a declaration is only effective for 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
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
, and therefore invalid. The Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, 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
Ron Stevens
Ron Stevens, Q.C. is a Canadian politician. He was a member of the current Legislative Assembly of Alberta representing the constituency of Calgary-Glenmore as a Progressive Conservative until his resignation on May 15, 2009...
, conceded that the Bill 202 amendments to the Marriage Act would likely be struck down as unconstitutional on account of its encroachment into what has now been explicitly ruled a matter of federal jurisdiction.
During the 2004 provincial election campaign
Alberta general election, 2004
The Alberta general election of 2004 was the twenty-sixth general election for the province of Alberta, Canada. It was held on November 22, 2004 to elect members of the Legislative Assembly of Alberta....
, Klein softened his stand somewhat, saying that he would accept same-sex marriage if Albertans tell him they want it.
Federal Civil Marriage Act
On June 28, 2005, the Canadian House of CommonsCanadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
passed Bill C-38, an act which defines Canadian civil marriage as a union between "two persons." The bill received royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
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
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
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 only be permitted to recognize 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 is that a challenge in Court to refuse to marry same-sex couples has no chance, and wasting taxpayers' money to fight it would be "giving false hope." Klein said, "much to our chagrin," the Alberta government will issue marriage licenses to same-sex couples when the bill receives 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 means that an Alberta marriage commissioner who refuses to solemnize same-sex marriages would not be liable for dismissal on those grounds — in most of the other provinces, marriage commissioners face automatic dismissal if they refuse to solemnize a same-sex marriage.
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 ManitobaSame-sex marriage in Manitoba
Same-sex marriage in Manitoba began on September 16, 2004, when Manitoba became the fifth jurisdiction in Canada to legalize same-sex marriage, after the provinces of Ontario, British Columbia, and Quebec, and Yukon Territory....
and Saskatchewan
Same-sex marriage in Saskatchewan
Saskatchewan has recognized same-sex marriage, as of November 5, 2004.On September 27, 2004, Saskatchewan Justice Minister Frank Quennell told CBC News that neither he nor the province will take a stand on the issue of same-sex marriage....
, both of which had recognized same-sex marriage earlier.
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.