Until his recent rediscovery of health care as the fight of his life—this week—Paul Martin had been hammering hard at a number of the body politic’s most sensitive nerve endings: abortion, gay marriage, the Charter of Rights and the notwithstanding clause. This seemed to stall the Conservative advance for a time, and so was a prominent part of the Prime Minister’s attacks on Stephen Harper during the debates—where it fell flat. Indeed, the more he pressed these points, the less persuasive he became. To me, at least.

This is odd, since on most of these issues I would be more naturally disposed to the Liberal position, at least as that has traditionally been understood. Readers will know I am strongly in favour of extending the benefits and responsibilities of marriage to homosexual couples. I have written often in defence of the Charter of Rights, and have attacked the notwithstanding clause at least as often.

Why, then, do I find the Prime Minister so unpersuasive on this? Why has he failed to sway my vote? Three reasons, in the main. One, because he has overstated his case, raising exaggerated fears of what the Conservatives might do in office. Two, because he has appeared intolerant of opposing views on issues on which reasonable people are divided. And three, because his own positions on these issues, where these can be deciphered, do not accord with the absolutist rhetoric he has adopted for the purposes of election.

I am in favour of gay marriage. I am in favour of it, not merely because the courts have decreed it must be so—in fact, the Supreme Court has yet to rule—but as a matter of principle. Mr. Martin, to judge from his public statements, rather accepts it as a matter of Charter jurisprudence, than supports it on its merits. That is a perfectly honourable position. It is not, as some of his opponents charge, “hiding behind the Charter.” It is subjecting his own personal preferences to the rule of law, as we are all obliged to do.

But that is what makes his attempts to demonize Harper—and by extension, those who share his views—so hard to take. Those of us who favour gay marriage must recognize that society is genuinely and deeply divided on this subject. As it should be: This is a radical innovation, which we would be just the third or fourth country in the world to undertake. (Though those who see this as a badge of Canadian distinctiveness may be disappointed to note it is already the law in some parts of the U.S.) It stands in opposition, what is more, to the teachings of all of the world’s great religions. Reason leads me to believe it just; but a little humility is in order.

And if the other side should prevail? If Parliament were to decide, as Mr. Harper would prefer, that the traditional definition of marriage should be the law? That would be a shame, and it would be wrong: a denial of the equal rights and equal dignity of homosexuals. But it would not be the end of the world. The right it would be denying to gays and lesbians is a right they do not yet enjoy.

But is Parliament competent to legislate in this matter? Never mind the courts, or the Charter, some would say. The rights of minorities can never be subject to the dictates of the majority, period. But of course they can: they are. Rights may exist in the abstract as a matter of natural law, but they exist here on Earth because majorities decide they should. It was indeed the majority, through their representatives, that passed the Charter of Rights into law.

So while the Parliament would be wrong, in my opinion, to legislate against gay marriage, it clearly has the right to do so—so long as in so doing it does not itself violate the law, that is to say the Charter. Mr. Harper is not “hiding behind Parliament” to suggest that it should, in the first instance, be up to Parliament to decide, any more than Mr. Martin was “hiding behind the Charter” to insist that, in the end, Parliament must conform to the highest law in the land, as interpreted by the highest court in the land—whom Parliament assigned the task.

But is Parliament so strictly bound? Is the notwithstanding clause, as Mr. Harper argues, not itself part of the Charter? Yes it is. And yes, again, Parliament has the right to invoke it to override the Court, should it come to that. But it would still be wrong to do so. The whole purpose of passing the Charter was precisely to bind Parliament, to force it to act within certain limits, to give meaning to the phrase “limited government.” If all that we had meant to do was to issue a bunch of fine-sounding statements that had no force or effect in law, or none beyond that of any ordinary piece of legislation, we would have stuck with the Diefenbaker Bill of Rights.

So I would oppose any use of the notwithstanding clause, not least in the matter of gay marriage. Is that reason to vote against Mr. Harper? It would be, if there were evidence that he intended to use the clause willy-nilly. But there is none. He has not specifically vowed to do so in any event, and has only raised it as a possibility in two cases: gay marriage and child pornography (which is one more case than Mr. Martin has raised). Even there, it is not clear he would need to—we don’t know what law Parliament would pass in a free vote on any of these issues, and we don’t know whether that law could not be drafted in such a way as to achieve Parliament’s aims without running afoul of the Charter. (And yes, that includes abortion: there is no definitive Court ruling setting out an absolute right to abort a fetus, Morgentaler notwithstanding.)

It is even less clear that he would. This is the Harper, after all, of Harper v. Canada (Attorney-General), the recent court case challenging the federal ban on advocacy advertising during elections. On what grounds was the law challenged? Why, the Charter of course.