Courts would quickly strike down any federal legislation allowing public officials to refuse to perform same-sex marriages as a violation of the Charter of Rights and an intrusion into provincial affairs, constitutional experts said yesterday.
The idea of such a law provoked political warnings from wary provinces who said it was unnecessary, along with cries of outrage from advocacy groups and criticism from opposition MPs who said it would legalize discrimination and could even encourage hate crimes.
"I think it's just political posturing," said Brenda Cossman, a family law professor at the University of Toronto. "It's perfectly clear here that they do not have the constitutional authority to do this."
The Globe and Mail reported yesterday that the federal Justice Department was preparing measures that could be introduced should the government's bid to reopen the same-sex marriage debate be rejected as expected.
The previous Liberal government legalized same-sex marriage in 2005 and Prime Minister Stephen Harper has promised a vote this fall on whether to revisit the issue.
Government sources told The Globe one option is a Defence of Religions Act that would allow officials to refuse to perform same-sex marriages and protect the rights of people who criticize homosexual behaviour or refuse to do business with gay-rights organizations.
Mr. Harper told the House of Commons yesterday the matter was "speculation," and said, "I have not seen such a law."
However, neither he nor any other minister denied that such options are being prepared.
Prof. Cossman called the idea of allowing public officials to refuse to perform same-sex marriage a violation of provincial jurisdiction "in the most blatant and obvious way," and said any such bill would be struck down soon after it was passed.
It has long been established that while the federal government defines who can and cannot marry, the provinces deal with the machinery of marriage, from licences to officiants, she said.
Sujit Choudhry, a constitutional law professor at the University of Toronto, said Ottawa does not have the authority to grant provincial officials a religious exemption. "At first blush, that would seem to me to be a constitutional problem."
A spokesman for the Manitoba government also said the plan to allow public officials to refuse to perform same-sex marriages treads into provincial responsibility.
Ontario Attorney-General Michael Bryant questioned whether the measure was needed in his province. He said that provincial legislation authorizing same-sex marriages entrenches freedom of religion and that this is buttressed by provisions in the Human Rights Code.
Of the 2,000 same-sex marriages performed in Ontario, there has not been a single incident in which a public official has protested that his or her freedom of religion or freedom of conscience had been violated, Mr. Bryant said in an interview.
But Bart Johnson, spokesman for Alberta Justice, said the Progressive Conservative government, which has long opposed same-sex marriage, is reviewing whether it should draft its own legislation to protect these people from human-rights complaints or legal persecution.
The issue dominated debate on Parliament Hill yesterday.
Bloc Québécois MP Réal Ménard, who is gay, accused the government during Question Period of attempting to "legalize discrimination."
"Does the Minister of Justice realize that under the pretext of protecting freedom of religion and freedom of expression, liberties that are already protected by the Canadian Charter of Rights and Freedoms, what he's proposing is to authorize religious groups to discriminate without worry?"
Liberal MP Marlene Jennings attacked the notion as unnecessary given the protections in the Charter of Rights and Freedoms for religion and freedom of speech.
"The only usefulness that I would see of this piece of legislation would be to create a protection for hate speech, which is not constitutional," she said.
While the motion to reopen the same-sex marriage debate is expected to be defeated by opposition MPs supported by a few Conservatives, there is a solid core of Conservative MPs and social conservatives who want some protection for those who are uncomfortable with the issue.
Advocacy groups on both sides of the debate are cautiously waiting to see what exactly is put on the table.
Gilles Marchildon, executive director of gay-rights organization Egale Canada, said he was deeply concerned that Canadians were being misled by the fledgling debate.
"Religious freedom is protected already. It seems obvious they're pandering to a very narrow religious base and further delaying dealing with the issue of same-sex marriage," Mr. Marchildon said.
Joseph Ben-Ami, executive director of the Institute for Canadian Values, said the question of same-sex marriages and who should be required to perform them should be open to review and public debate.
Jill Mahoney