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Wednesday, January 12, 2011

Canadian court nixes religious exemptions for marriage clerks who oppose same-sex marriage

By Nan Hunter -

The Court of Appeal for Saskatchewan, the province’s highest court, has ruled that marriage commissioners who are public employees cannot refuse to marry same-sex couples. The decision - In the Matter of Marriage Commissioners Appointed Under The Marriage Act -held that two exemptions proposed by the government to allow marriage commissioners to refuse to perform a service involving gay or lesbian partners if it offended their religious beliefs violated the Canadian Charter of Rights and Freedoms.
The government had sought a declaratory ruling as to the validity of two possible amendments to the Marriage Act (which allows same-sex marriage). The first amendment would have permitted commissioners who were employed before the law changed in 2004 to refuse to perform the services. The second proposed amendment would have created a religious exemption for all marriage commissioners regardless of when they had been hired.
Justice Robert Richards, on behalf of a unanimous court, found that both government proposals were "contrary to fundamental principles of equality in a democratic society...Both of the possible amendments offend the Canadian Charter of Rights and Freedoms. Either of them, if enacted, would violate the equality rights of gay and lesbian individuals."
In Saskatchewan, which is directly north of Montana and North Dakota, marriage commissioners are the only individuals other than clergy members who can officiate at marriages. The court noted that because many faiths refuse to marry same-sex couples, these government employees may be the only option realistically available to gay couples who want to marry.
The court of appeal wasn't persuaded by the argument that gay couples who were refused service by one commissioner on religious grounds could easily find another who would perform the ceremony:
First, and most importantly, this submission overlooks, or inappropriately discounts,  the importance of the impact on gay or lesbian couples of being told by  a marriage commissioner that he or  she will not solemnize a same-sex union.  As can be easily understood, such effects can be expected to be very significant and genuinely offensive.  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” or “I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different… 
[I]f more than a very few commissioners  do opt out of solemnizing same-sex marriages, it might well be more difficult than has been suggested for a gay or lesbian couple to find  someone to marry  them.  They might be forced to make numerous calls and face numerous rejections before locating a commissioner who is prepared to assist them.
My third concern about the arguments aimed at minimizing the impact of the amendments is that they take no account of geography.  The material filed with the Court suggests marriage commissioners are appointed with a view to ensuring that people in all areas of the Province have a commissioner or commissioners reasonably close at hand. It seems obvious that, if commissioners can opt out of the obligation to perform same-sex marriages, a situation might quickly emerge where gay and lesbian couples (particularly in northern and rural areas or smaller centres) would have to travel some distance to find a commissioner willing to perform a marriage ceremony…
In the circumstances at issue here, marriage commissioners have to make a choice.  They can either perform same-sex marriages or they can leave their offices…
The Supreme Court has repeatedly confirmed that freedom of religion is not absolute and that, in appropriate cases, it is subject to limitation. This is clearly one of those situations where religious freedom must yield to the larger public interest.
Saskatchewan Justice Minister Don Morgan said that given the "thoroughness" of the analysis, he would not be recommending an appeal to the Canadian Supreme Court.

for more from Nan visit Hunter for Justice.


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