This hesitance is odd, on the face of it, since absolutely everyone seems to think the notwithstanding clause is a wonderful invention. It isn't only those opposed to the Charter in general or gay rights in particular, many of whom are urging the premier to invoke the clause to overturn the Supreme Court's recent ruling that gays and lesbians were entitled to equal protection under Alberta's anti-discrimination laws. Even some of the Charter's friends speak of it warmly, as a classic Canadian "compromise." The last time the Klein government proposed to use the clause, to deny victims of government forced-sterilization programs the right to sue for compensation, this was not held up as any defect of the clause, a living illustration of why it should not be in the constitution. Rather, it was protested, among those who did not actually approve of its invocation, that this was a misuse of the clause.

At least the Charter's foes have that much figured out. If a clause that expressly permits governments to override the Charter is not to be used to override the Charter, what is it to be used for?

That doesn't make the conservative groups leading the opposition to gay rights into models of consistency. Every last one of them would hotly deny that their opposition to the Supreme Court's ruling is rooted in any hostility to homosexuals. "Those of us who oppose this decision will be branded as homophobic," a press release from the Alberta Social Credit party complains -- this, after firmly declaring that "this decision will eventually legitimize pedophiles." But if it isn't homophobia that moves them, what is it? They cannot pretend that the Charter does not say that "every individual ... has the right to the equal protection and equal benefit of the law without discrimination." They cannot suggest that the Supreme Court does not have the job of interpreting the Charter, especially when it comes to deciding which sorts of discrimination, between the list of specific examples provided in the Charter and the theoretically limitless assortment of grounds that might be imagined, were intended to be proscribed.

And they cannot deny that, insofar as Alberta's Individual's Rights Protection Act prohibits discrimination against just about everyone else but homosexuals, it is itself discriminatory; that it is therefore in conflict with the Charter.

Now, a principled conservative might object to the very notion that the state should prevent private citizens from discriminating against each other. There is a long and honourable libertarian tradition devoted to upholding freedom of contract, meaning the freedom to hire or rent to anyone you like -- and its obverse, the freedom not to hire or rent to anyone you like.

But a principled conservative should be prepared to tolerate any sort of discrimination -- against blacks, women, Jews, or any other group -- and face the political consequences. That is, conservatives might argue for the abolition of the Individual's Rights Protection Act altogether. Instead, they want to be seen to be opposed to discrimination -- while at the same time discriminating against gays and lesbians.

Likewise, a principled conservative, aghast at the thought that the Charter of Rights might apply equally to homosexuals, might lead a movement to amend it to specifically exclude "sexual orientation." Or a principled conservative, concerned that the Charter has given too much power to the courts, might even argue for its abolition.

But the notwithstanding clause lets them off the hook. It's part of a fine old Canadian tradition, all right -- a tradition of rank hypocrisy. To the world we proclaim our devotion to the rights and freedoms it guarantees. But the moment we find that we have to live up to these find-sounding principles, at the slightest hardship or conflict with our dearly held prejudices, we balk.

Thanks to the notwithstanding clause, we get to have it both ways.

Sophisticated advocates of the notwithstanding clause claim this actually strengthens the Charter: by forcing governments to decide whether or not to respect the Supreme Court's rulings, it implicates them in the court's decisions. But that only works so long as public opinion leans the right way.

The moment a government finds a sufficiently unpopular minority to beat up, it will have no compunction in using the clause.

In which case, the Charter has achieved nothing. The whole point of the exercise was to tie ourselves to broad statements of principle, the better to fortify ourselves against the temptation to make exceptions of every example. The notwithstanding clause frees us of that constraint, and so makes hypocrites of us all.