REGINA — Saskatchewan’s top court has said marriage commissioners cannot use religion to say “no” to nuptials for same-sex couples.
The Appeal Court had been asked by the government to rule on a proposed provincial law that would have allowed commissioners to cite religious grounds in refusing to marry gays or lesbians.
The appeal panel’s unanimous decision released Monday said the law would be unconstitutional and would amount to discrimination.
The head of the Gay and Lesbian Community of Regina welcomed the court outcome.
“This has been going on for years and years and years that there’s one battle after another,” said president Cory Oxelgren.
“I guess it was a sigh of relief. I’m not surprised. I wasn’t surprised at the ruling. I was sort of surprised that it was unanimous. I assumed that it might be a win for us, but I didn’t think it would be complete and that made me feel good.”
The court was asked to consider two options: allowing all marriage commissioners the right to refuse same-sex couples or including a “grandfathering option” that would allow commissioners appointed before November 2004 to say no.
The court said both would be out of line with the Charter of Rights and Freedoms because they would violate the equality rights of gay and lesbians.
“The historical marginalization and mistreatment of gay and lesbian individuals is well known,” Justice Robert Richards wrote on behalf of three of the five judges. “They have been able to recently claim the right to marry only after travelling a very difficult and contentious road.”
The federal government passed legislation in the summer of 2005 allowing same-sex marriages.
“Accordingly, putting gays and lesbians in a situation where a marriage commissioner can refuse to provide his or her services solely because of their sexual orientation would clearly be a retrograde step — a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions,” the justice wrote.
Richards rejected suggestions that the number of gay marriages would be small and those affected could simply seek out someone else to perform the ceremony. That would overlook the impact a refusal would have on gay or lesbian couples, he noted.
“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,’” wrote Richards.
“Being told, ‘I won’t help you because you are gay/lesbian but someone else will,’ is no different.”
The two other judges came to the same conclusion as the majority, but made different points in reaching their decision. Justice Gene Ann Smith said the religious objection was secondary.
“These marriage commissioners are not themselves compelled to engage in the sexual activity they consider objectionable. Their objection is that it is sinful for others to engage in such activity,” wrote Smith.
“It is therefore arguable that the interference with the right of marriage commissioners to act in accordance with their religious belief ... is trivial or insubstantial, in that it is interference that does not threaten actual religious beliefs or conduct.”
The proposed law was crafted after a conflict arose when commissioner Orville Nichols, a devout Baptist, refused to marry a gay couple in 2005.
The two men laid a discrimination complaint with the Saskatchewan Human Rights Commission. The case went before the human rights tribunal, which ruled in 2008 that Nichols discriminated against the couple. It found that as a public servant he was obligated to marry them once they approached him.
Nichols, who has been a marriage commissioner for almost 30 years, was fined $2,500.
He asked the Court of Queen’s Bench to reverse the decision, but it upheld the tribunal’s ruling. A further appeal is still before the Saskatchewan Court of Appeal.
Nichols was not available for comment Monday, but another marriage commissioner who had intervener status, said he was disappointed.
“We’re not asking for a whole lot,” said Larry Bjerland of Rose Valley, Sask. “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 may give up his role over the ruling.
“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.”
Lawyer Tom Schuck, who intervened on behalf of the Christian Legal Fellowship, said the ruling discriminates against Christian people.
“There’s a lot more sympathy for people with same-sex attractions than there is for the Christians that get fired because they won’t do what they consider is immoral,” said Schuck.
Schuck said he’s also concerned about the impact the decision could have on other people working for the province.
“Most of these marriage commissioners were essentially doing a public service. They weren’t getting paid a whole lot. But it has enormous wider implications because it completely dismisses the importance of religious freedom and the tolerance of religious people and the respect for the conscience of people.”
But Monday’s decision was a relief to Jeremy Braun, who plans to marry his partner in December 2012.
Braun, 25, said the case has been a distraction during what is supposed to be an exciting time.
“We are planning to get married and so to just know that there was this huge kink, that some people could very well have a commissioner that doesn’t want to do it, was kind of hurtful,” said Braun.
Currently in Saskatchewan a couple seeks out a marriage commissioner from a list posted on a government website. The couple calls the commissioner directly to perform a service.
Justice Minister Don Morgan said the government will take some time to review the decision and decide how to proceed.
“This is a very thorough review by five judges, rather than the usual three,” said Morgan. “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.”
Morgan said the province could still consider moving to a system like the one in Ontario where couples go to a central office instead of contacting an individual commissioner. Commissioners who don’t want to perform same-sex ceremonies can be accommodated “behind the scenes” and couples don’t risk being denied services.
The Appeal Court did not rule on whether such a system “would ultimately pass full constitutional muster.”