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Tuesday, January 11, 2011

Candian Court Rules against Religious Opt-Outs for Marriage Officials

By Killian Melloy -

An appeals court in Saskatchewan has issued its verdict about a proposed law that would allow government employees to cite their religious faith in refusing services to gays and lesbians.

The case dealt specifically with marriage commissioners seeking the legal right to refuse to preside over weddings for same-sex couples. A law to that effect had been proposed, and the Saskatchewan Court of Appeal was asked by the Saskatchewan government to consider whether the bill met constitutional muster. Arguments were made before the court in May, 2010, the Canadian Press reported. Two days of hearings explored the needs of gay and lesbian couples to be treated equally before the law, as well as rationales for allowing people with anti-gay religious outlooks to carry those beliefs into the workplace. Proponents of the proposal said that gay families could always go to someone willing to marry them. GLBT equality advocates argued that such a law would set a civil rights-damaging precedent that could lead to future curtailments for gays and lesbians.

A constitutional scholar, John Whyte, told the Canadian press, "The case is significant on the very issue itself," recalled the Vancouver Sun in a Jan. 9 article. "The case also opens the door--a much wider door--on the question of accommodation of religious needs." Added Whyte, "But it has some impact on the general question of accommodation of religious belief in public servants and public service generally. That’s what’s at stake here in a conceptual way, and so the case has that significance."

The government’s solicitation of an opinion from the high court marked the first time in two decades that lawmakers turned to the judiciary in deliberating potential legislation, the Vancouver Sun said.

The court ruled on Jan. 10 that such a law would not, in fact, be constitutional, and that marriage commissioners must, therefore, set aside private religious beliefs while on the job and answer their professional obligations.

The law was a response to earlier court findings that, under existing law, marriage commissioners may not refuse to serve gay and lesbian couples. Similar questions about balancing religious freedoms with ensuring that gays receive equal treatment before the law are pending in other provinces, but the court’s decision is binding only in Saskatchewan.

The provincial government had signaled that it wanted to find some compromise between those who wish to deny same-sex couples equal service on religious grounds, and the rights of all Canadian citizens to be treated equally before the law. "What we are trying to achieve is whether we can protect the rights of same-sex couples and also the rights of marriage commissioners without having to pick [one priority] over the other," Don Morgan, the province’s justice minister, had told the media prior to the court’s verdict, according to a Jan. 10 CBC News article.

The roots of the question go back to an incident in 2005, when a same-sex couple encountered faith-based discrimination at the hands of a government official. Orville Nichols, a Baptist and a marriage commissioner, refused to officiate for a gay couple; the couple complained to the Saskatchewan Human Rights Commission. A tribunal found three years ago that Nichols did not have the right to decline to offer equal service to the couple on the basis of their sexuality, because that was discrimination.

Nichols appealed to the Court of Queen’s Bench, which affirmed the original ruling a year later. A law was drafted that would allow marriage commissioners the right to opt out of presiding over same-sex weddings due to personal religious beliefs, but The Saskatchewan Court of Appeal--which is the province’s highest court--found that such a law would violate the nation’s constitution, reported Canadian newspaper the Globe and Mail on Jan. 10.

The website for the British Columbia Ministry of Health informs readers, "In BC, civil ceremonies are performed by marriage commissioners, who are appointed by the Chief Executive Officer of the Vital Statistics Agency." Couples wishing to marry may also choose a religious ceremony, which would be performed by "a religious representative who must be registered with the Vital Statistics Agency," the website explains.

Justice Minister Morgan told the media that there were no plans for the government to appeal to ruling.
Kilian Melloy reviews media, conducts interviews, and writes commentary for EDGEBoston, where he also serves as Assistant Arts Editor.

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