Court: Refusing same-sex marriage violates constitution
CTV.ca News Staff
Published Monday, January 10, 2011 6:12PM EST
Saskatchewan's top court has decided that proposed legislation allowing provincial marriage commissioners to refuse to perform same-sex weddings on religious grounds violates the constitution.
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.
"This is a very thorough review by five judges, rather than the usual three," Morgan said. "They examined the issue in depth and that is reflected in the detail of their advice.
"Given the thoroughness of the analysis, I am not recommending that the government appeal."
Marriage commissioner Larry Bjerland, of Rose Valley, Sask., said he was disappointed by the decision from the appeal court.
"We're not asking for a whole lot," he said. "All we're asking for are the same rights that anyone else has -- and that's to refuse to do work. If the work is contrary to what your religious beliefs are, then you shouldn't be forced into doing it."
Bjerland said he will consider his options, but may end up giving up his role.
"I'll have to find out what the alternative is. If they're going to suggest penalizing me by fining me or something of that nature, definitely I'll quit."
The issue stems from 2005, when devout Baptist commissioner Orville Nichols refused to marry a same-sex couple because it ran counter to his religious beliefs.
Nichols, who first became a marriage commissioner in 1983, launched his own complaint with the Saskatchewan Human Rights Commission against the province's Department of Justice.
The commission subsequently ruled that, as a Saskatchewan marriage commissioner, Nichols was acting as a public servant and therefore obligated to provide civil wedding services.
Nichols unsuccessfully petitioned Saskatchewan's highest trial court to reverse the decision.
Because it is a reference case, the Court of Appeal's judgment isn't legally binding.
With files from The Canadian Press