TESTING THE LAW. Saskatchewan justice minister Don Morgan, shown above. Activists argue that marriage commissioners are public officials, and therefore, personal religious beliefs shouldn't matter.
Saskatchewan gay activists have slammed the provincial government's plans to allow marriage commissioners to refuse to marry same-sex couples.
The conservative Saskatchewan Party government announced Jul 3 that they will submit two pieces of legislation to the Court of Appeals. Justice minister Don Morgan says he wants the court's opinion on whether the legislation stands up to the Charter of Rights and Freedoms.
"We've given the Court of Appeals two suggested options: one that we grandfather the existing marriage commissioners that are reluctant to perform a same-sex marriage, and the other would be to create a religious exemption for those and future marriage commissioners," Morgan says.
The issue of whether marriage commissioners, who are appointed by the government, can refuse to perform marriage ceremonies for same-sex couples has been the subject of human rights tribunals and court cases since Saskatchewan allowed same-sex couples to obtain a marriage license in 2004.
In 2008 a Saskatchewan Human Rights Tribunal ruled that Regina marriage commissioner Orville Nichols had violated the human rights of two Regina gay men when he refused to marry them in 2005. That
tribunal fined Nichols $2,500.
Nichols appealed that decision to the Court of Queen's Bench, which has yet to make a ruling in the case.
Marriage commissioners Bruce Goertzen and Larry Bjerland have also filed suit against the government, arguing that they should have the right to refuse service to same-sex couples because it goes against their religious beliefs.
During Nichols' human rights tribunal hearing in 2005, the Saskatchewan Justice Department argued against allowing marriage commissioners to refuse to marry same-sex couples. The province was led by an NDP government at the time.
"Allowing individual marriage commissioners to refuse their services based on religious objections to a marriage would undercut the basic purpose of the civil marriage ceremony," a justice department lawyer argued. "The entire point of a civil marriage is that a couple does not have to satisfy the religious requirements of the official performing the marriage."
Reaction to Morgan's decision has been swift with many suggesting the effort is nothing more than an attempt to placate the Saskatchewan Party's hard-core traditional supporters. In a scathing editorial the Saskatoon Star-Phoenix called Morgan a coward for going the court route and for attempting to bargain away the rights of one group to placate another.
"This matter is not a question of gay rights but rather a question about the extent of religious rights," says Nathan Seckinger, executive director of Regina's GBLUR Centre for Sexuality and Gender Diversity. "Civil marriage is not a religious practice but rather a legal contract. Therefore to allow government officials the right to refuse to solemnize same-sex civil marriages is to allow them the religious right to refuse to uphold the law."
Kelly Ries, co-chair of the Saskatoon Diversity Network, said he thought the issue had been settled when gay marriage was legalized in 2004. "Marriage commissioners were established to perform civil marriages," he says. "They are public officials. They do not get to pick and choose which parts of the public they will or will not serve."
Former NDP justice minister Frank Quennell expressed his doubts that the Court of Appeal "will say that you can discriminate in providing what the courts have said is a public service that should be provided to people."
"I don't think it's sending a positive message about the government's willingness to accept the rights of minorities as set out in the charter," says Quennell.
Prince Albert lawyer Dale Blenner-Hassett, who represents the two marriage commissioners suing the provincial government, says the legislation would accommodate both sides of the issue adding that he would have preferred that the government had simply introduced the legislation having faith that it was constitutional.
"It makes room for those who have religious convictions and it provides for them to be people of faith in the public service without being squashed on or forced to do things against their conscience, while at the same time ensuring that those who have different views are accommodated as well," says Blenner-Hassett.
It's expected that the court will take up to a year to issue a ruling.