LA LOI SUR LE MARIAGE CIVIL ET LA CLAUSE DEROGATOIRE

Abstract

In this article, the author submits that using the notwithstanding clause to « immunize » a law restricting marriage to opposite-sex couples is neither necessary from a legal standpoint nor timely from a political standpoint. He first argues that the constitutionality of a law does not depend on its form or on the empirical nature of the acts it regulates, but on the reasons that justify it. The laws endorsing heterosexual marriage were invalidated by the courts because they fundamentally rested on illegitimate considerations, notably conservative legal moralism and religious perfectionism. A new law on the same issue could be founded on distinct and legitimate considerations. The author examines the nature of these other considerations, focussing on the interpretation that should be given to the « symbolic » argument founded on the intrinsic value of natural procreation. Secondly, the use of the notwithstanding clause does not appear timely. Not only would citizens be deprived of an informed legal debate on the constitutionality of such a law, they would also be deprived of a substantial democratic debate on the arguments in favour or against competing definitions of marriage. In fact, in such a case, the debate might well focus on the legitimacy of using the notwithstanding clause.