The Constitution's 'not-withstanding' clause may be the tool of last resort for those opposed to same-sex marriage.

When the Supreme Court said the federal government's proposed same-sex marriage legislation passed constitutional muster, some opponents of the bill, including Alberta's Premier Ralph Klein, initially called for a referendum on the issue.

But critics of the referendum approach say that's not how you deal with human rights issues in a constitutional democracy such as Canada.

"It's very hard to suggest that the way to move on any given controversial issue of this sort is to take a vote, add up the numbers and see who wins," Chris Axworthy, a University of Saskatchewan law professor and former justice minister in the provincial NDP government, told CTV.ca.

"Minority rights by their nature are not going to be supported by the majority."

Even Peter MacKay, the deputy leader of the federal Conservative Party, poured cold water on the idea of a referendum.

"At a pivotal point in time, it's anything but helpful for Mr. Klein to be pushing for a referendum on the (same-sex marriage) issue," he told The Globe and Mail.

Interestingly, one group opposed to same-sex marriages isn't really hot for a referendum either.

"We just want Canadians to have a really good debate," Focus on the Family Canada's Anna Marie White told CTV.ca.

Her group interprets the Dec. 9 ruling as showing this should be dealt as a public policy rather than a human rights issue.

The fourth question

White points to the Supreme Court's decision to decline to answer the fourth question posed in the federal government's reference. That question asked whether the current opposite-sex requirement was unconstitutional.

In a news release, the group wrote: "The Court found that while Parliament has the power to redefine marriage, it is not compelled to do so.

"Surely the Court would have ruled differently if traditional marriage was an attack on someone's basic human rights," said Terence Rolston, its president.

"We think that's the most salient point in this decision," White said. "The Charter does not compel that this current definition be changed."

Conservative Leader Stephen Harper would agree. He painted the court's decision not to answer the question as evidence that Parliament should reign supreme on this issue.

"While the court did indicate that the federal government has the jurisdiction to change the definition of marriage, it's encouraging that they didn't indicate any constitutional obligation to do so," Harper said in a news release.

In a Dec. 14 commentary published in The Globe and Mail, Harper added: "It has clearly left the matter up to Parliament to decide."

At a Dec. 14 news conference, Harper said his party would move amendments to ensure the legislation maintains the traditional definition of marriage, to protect the rights of what he calls "non-traditional unions" and to protect the religious freedoms of those faiths opposed to same-sex marriage.

However, he didn't mention if he would recommend using the notwithstanding clause to make that happen -- the constitutional tool that allows a government to pass a law even if it violates the Constitution.

Brenda Cossman, a University of Toronto law professor, told CTV.ca the traditional definition has been found to be unconstitutional by other courts.

"It would only be viable if it was passed with the not-withstanding clause," she said.

Justice Minister Irwin Cotler challenged Harper during his Dec. 14 news conference to say if he would use the notwithstanding clause. Harper told Newsnet afterwards that he disagreed with Cotler's legal analysis.

Cotler said last week the court essentially affirmed the decisions handed down by lower courts in seven jurisdictions that ruled that the traditional definition of marriage is unconstitutional.

Those included B.C. and Ontario Courts of Appeal, which found in 2003 that denying marriage to same-sex couples was a violation of those individuals' equality rights under the Charter of Rights and Freedoms.

"Now it's up to us to assume the responsibilities as a government, and happily we've got the Supreme Court's support to assume that responsibility," Cotler said.

Axworthy -- who ran unsuccessfully for the federal Liberals in the 2004 election -- endorsed Cotler's interpretation on both the court's reason for not answering the fourth question and the necessity of using the not-withstanding clause if one wanted to uphold the traditional definition of marriage.

The reference was conducted to see whether proposed new legislation legalizing same-sex marriage would pass constitutional muster. Now it has.

A rights issue

Douglas Elliott is a Toronto lawyer who has been actively involved in this issue, having presented arguments in the Supreme Court supporting gay marriage. He definitely sees this as a rights issue.

"The whole idea of constitutional rights was to protect you against what Edmund Burke (an 18th Century British political philosopher) called the tyranny of the majority," he told CTV.ca.

"We believe that sometimes as a society, the majority is wrong. Just because something was done with the popular will doesn't make it right."

Human rights such as equality before the law are seen as inalienable. "So if they aren't granted by the majority, they can't be taken away by the majority either," he said.

When it comes to the opinion of the Conservative Party or Focus on the Family about the court and the fourth question, Elliott said the court made it clear the new definition "flows from the Charter, which I think gives you a hint at what they would have said."

Elliott also pointed out that the Supreme Court said it was "desirable that there be uniformity. They didn't say Parliament should solve the problem of uniformity by repealing those lower-court decisions."

Elliott believes what the court said was Parliament should complete the job of modernizing the marriage definition, "and I don't disagree with that."

With a vote likely in late January, Canadians can expect a passionate debate and a close outcome.

If the Liberal initiative fails and the Tory amendments pass, Cossman said it will create a huge problem because same-sex marriage is now the law in six provinces and one territory.

And without the use of the not-withstanding clause, the reaffirmed law of traditional marriage will eventually end up back in front of the Supreme Court -- where it would again be struck down, Cossman said.

"The law on this is a no-brainer," she observed.

Unfortunately, "there's an incredible gap between the law on same-sex marriage and the politics of same-sex marriage."