The Saskatchewan Court of Appeal has ruled that provincial marriage commissioners may not refuse to perform same-sex marriages, despite their religious beliefs:
In its decision, the Appeal Court said that accommodating commissioners’ religious convictions does not justify discriminating against same-sex couples who want to tie the knot.
Five judges on the bench at Saskatchewan’s Court of Appeal have been considering the case since it heard arguments on the proposed law last May.
That’s when the provincial government sought advice on two versions of its proposed law — one that would allow all of the province’s approximately 370 commissioners to refuse to wed couples on religious grounds, and another that would only allow the exemption for those who held the job before gay marriage was legalized in 2004.
In the ruling issued Monday, the court said the effect of both options runs counter to Canada’s Charter of Rights and Freedoms.
“Either of them, if enacted, would violate the equality rights of gay and lesbian individuals. This violation would not be reasonable and justifiable within the meaning of s. 1 of the Charter. As a result, if put in place, either option would be unconstitutional and of no force or effect.”
In its decision, the court notes that marriage commissioners offer the only option for any individuals who want to marry in a non-religious ceremony.
“Many gay and lesbian couples will not have access to the institution of marriage unless they are able to call on a marriage commissioner to perform the required ceremony,” the decision stated.
Detractors had argued that no rights would be violated because the proposed law compelled anyone refusing to perform a same-sex civil wedding to refer the couple to another commissioner who will.
But the court did not find that argument persuasive, observing there were no provisions to guarantee a minimum number of commissioners, accessible throughout the province, who would be willing to marry same-sex couples.
“It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer ‘I won’t help you because you are black (or Asian or First Nations) but someone else will’,” Justice Robert Richards wrote.
“Being told ‘I won’t help you because you are gay/lesbian but someone else will’ is no different.”
Sask. Justice Minister Don Morgan said the government will review the decision but added he did not think he would appeal.
Decision here. I support same-sex marriage, and I would agree that new marriage commissioners have no business taking the job if they won’t perform such ceremonies.
That said, I’d still like to see the Supreme Court of Canada hear the issue. Not just to clear up any controversy which may exist elsewhere in the country, but also because I think a fair case can be made for a grandfather clause. Same-sex marriage went from loony fringe concept to established right in near-record time, and part of me would like to see the previous generation, overtaken by this remarkable social change, be allowed to finish out its term.