The Court of Appeal for Saskatchewan made a landmark ruling on January 10, 2011

Do government officials have the right to refuse services to the public if it would require them to act in contravention of their religious beliefs?

In a landmark ruling on January 10, 2011 the Court of Appeal in Saskatchewan said no to the question.

The Government of Saskatchewan referred to the Court the issue of whether marriage commissioners, appointed under a provincial statute, could refuse to marry same sex couples because to do would cause the commissioners to act in violation of their personal religious beliefs.

The legislative enactments about marriage commissioners in both Saskatchewan and BC are relatively spare. The Saskatchewan legislation provides that the persons qualified to solemnize marriage include “a marriage commissioner appointed by the minister”. The BC legislation, the Marriage Act, s. 32, provides “the minister may appoint marriage commissioners necessary for carrying out this Act”.

The reference to the Court included two proposed legislative amendments; the Court was asked for an opinion on the constitutional validity of the amendments. The first amendment would have allowed any commissioner appointed before November 5, 2004 to decline to perform the ceremony on the basis of personal religious beliefs. The alternative amendment would have allowed every commissioner to decline to perform the ceremony if it would be contrary to his religious beliefs.

In the first part of its analysis, the Court found that the amendments would have had the effect of drawing a distinction based on sexual orientation.

The court suggested that the effect of being refused by a marriage commissioner could be expected to be very significant and genuinely offensive. As well, there was nothing in the amendments to ensure that there would be marriage commissioners who would provide the services to same sex couples. Such couples might face multiple refusals and in northern and rural areas might not be able to find marriage commissioners at all.

The court went on to find that the proposed amendments would infringe on a commissioner’s right to freedom of religion if a commissioner was obliged to perform a ceremony contrary to his or her religious beliefs.

The court saw the ultimate issue as “managing the intersection of the freedom of religion of marriage commissioners on the one hand, and the equality rights of gay and lesbian individuals on the other”.
In trying to balance the different rights the Court took the view that the proposed legislation was the accommodation of the s.2 (a) Charter freedoms of commissioners by relieving them of the obligation to perform marriage ceremonies in circumstances where doing so would be contrary to their religious beliefs. The next question was whether the objective was of sufficient importance to warrant limitation of Charter rights; the court held that it was of sufficient importance.

The final test was whether the deleterious effects of the impugned law were proportionate to the public benefit conferred by law.

The court looked at the salutary effect of the proposed amendments; it would allow marriage commissioners to avoid acting in situations which would offend their religious beliefs. However, the freedom of religion interests accommodated by the proposals did not lie at the heart of the s.2(a) right, that is, they did not in any way concern the freedom of the commissioners to hold religious beliefs or to worship as they wished. The proposals only dealt with the ability of the commissioners to act on their beliefs in the world at large.

The court then looked at the deleterious effects of the legislation. It would be a step backwards in the difficult fight for the right to same sex marriage if the people empowered by the province to solemnize such unions shunned same sex couples. Same sex couples and other members of society would be hurt or offended by the notion that a government official could deny services to same sex couples.
Most importantly the deleterious effect of the legislation would be to undermine a fundamental aspect of our system of government.

In our tradition, the apparatus of the state serves everyone equally without providing better, poorer or different services to one individual compared to another by making distinctions on the basis of factors like race, religion or gender…. Persons who voluntarily choose to assume an office, like that of marriage commissioner, cannot expect to directly shape the office’s intersection with the public so as to make it conform with their religious or other beliefs.

The court held that neither legislative option curtailed equality rights in a way that was justifiable. Freedom of religion was not an absolute right and with respect to the proposed legislation this was one of the situations where religious freedom must yield to the larger public interest.

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