Same-sex marriage in Alberta

Same-sex marriage in Alberta: The province of Alberta began granting marriage licenses to same-sex couples on July 20, 2005 upon the granting of Royal Assent to the Civil Marriage Act.

Alberta has historically been Canada's most conservative province on social and religious matters, although a EKOS/CBC poll in 2002 indicated that attitudes towards same-sex marriage may be more supportive in Alberta than they are in the provinces of Manitoba and Saskatchewan, both of which recognized same-sex marriage earlier.

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' 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, some have argued the definition of marriage which it includes 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. 

Federal Civil Marriage Act
On June 28, 2005, the Canadian House of Commons 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 licenses 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 licenses 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.