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Harper says two different things on Notwithstanding clause

What's Harper's real plan on same-sex marriage?

Stephen Harper has come clean at long last, saying that he will never use the notwithstanding clause to stop same-sex marriage. It was an issue he spent the 2004 election dodging, but dealt with head-on during the French-language leaders’ debate during this past campaign.

But that doesn’t mean he is waving the white flag on same-sex marriage. He has a plan.

Even he can’t deny that same-sex marriage is now the law of the land, not only through most provincial courts of appeal in Canada, but also through a majority vote in Parliament. But Harper started this winter election campaign with a promise that he would introduce a motion to roll back the clocks and redefine marriage as being only between a woman and a man and put it up for a free vote.

Up until early January Harper’s last word on doing this was if his rollback is challenged in court — as it inevitably will be — he would not have to use the Charter Of Rights And Freedoms’ so-called notwithstanding clause, the clause that governments are obliged to use if they want to override Charter rights. The legislation would just stand… somehow.

Legal types across the country have said that he can’t do that. Courts in eight provinces have said that the opposite-sex definition of marriage violates the Charter. The Supreme Court has never directly answered the question, but the writing is all over the wall. It’s a legal no-brainer. If and when the issue ever comes before them, the Supremes will say that a marriage law that doesn’t include same-sex couples is unconstitutional.

So, in order to make the opposite-sex definition of marriage legal, a government would have to use the notwithstanding clause.

Harper has now confirmed that he won’t do it.

Good. It means that any effort to reintroduce opposite-sex marriage will ultimately fail. But that is not going to stop Harper from trying. He is still going to try to reintroduce traditional marriage, which means that we are all going to back to court. It means more time and money — including a hefty amount of taxpayers’ money — will be spent on a initiative that is doomed to fail.

Then what’s the point of Harper’s promises?

Harper is trying very hard to sound moderate. He is fighting back hard against his image as a rightwing hardliner. He is trying to show Canadians that he really isn’t that scary.

But if he really was a moderate, he wouldn’t be planning to reintroduce the traditional definition of marriage. Moderate with one hand, reactionary with the other? Pretty much. Harper is trying to do two things at one time. He won an election by showing that he is a reasonable guy. But he’s also tried to appease his religious right constituency by standing up for traditional marriage and condemning gay folks.

Harper’s position on same-sex marriage is not just a waste of taxpayers’ money better spent on, say, childcare. Nor is it just about politicians trying to have their cake and eat it, too. They all do that. What’s really disturbing is that it’s proof that he is still in bed with the far right of his party.

The very far right. The far religious right. The folks who don’t like us. The folks who don’t like anyone who isn’t just like them. The folks who don’t like reproductive rights or sex education, to say nothing of sex itself.

Don’t be fooled by his efforts to cozy up to less rightwing voters, to pretend he’ll play by the rules of the constitution. Stephen Harper is still a scary guy.