Wednesday, May 19, 2010

Gay marriage refusal case tests rights

In 2005, around the time Parliament declared same-sex marriage legal, Orville Nichols, a civil marriage commissioner in Regina, was approached by a man who asked him to perform a wedding ceremony. He had been overseeing civil ceremonies for more than 20 years, so there was nothing unusual about the request.

But the man who approached Mr. Nichols, since identified in court documents as M.J., then added it would be a same-sex ceremony. Mr. Nichols refused, explaining his Christian beliefs forbade him from taking part in the marriage of two men.

M.J. found a willing commissioner to marry him and his partner, but still decided to bring Mr. Nichols before the Saskatchewan Human Rights Commission. Mr. Nichols was fined $2,500 in 2008 for violating M.J.'s rights. Mr. Nichols then brought his case to the Court of Queen's Bench, which rejected his appeal last year.

"I have nothing against gay people," he said from his home in Regina. "I have a nephew and niece who are gay. I don't hate them. I just don't want to take part in a same-sex service."

On Thursday, the Saskatchewan Court of Appeal in Regina will consider whether marriage commissioners are within their Charter rights to refuse to conduct ceremonies that offend their religious beliefs.

While some other provinces have allowed for exemptions since same-sex marriage became legal, this will be the first time that a court will evaluate if that refusal meets the standards of the Canadian Charter of Rights and Freedoms, so it could have ramifications for the rest of the country.

Saskatchewan's Attorney-General, Don Morgan, through a reference to the provincial Court of Appeal, has taken the unusual step of hiring two outside lawyers to argue both for and against the constitutionality of exemptions.

Mr. Morgan said if the court allows the exemptions, his government will introduce legislation; if the court decides that any exemption is unconstitutional, the matter will end there.

The court will also hear from interested parties,

intervenors, on both sides of the issue.

"Accommodations have to be made to respect both parties' rights but now and again we've seen circumstances where some rights conflict with other rights and sometimes rather directly," said Faye Sonier, legal counsel for the Evangelical Fellowship of Canada, who will argue for the exemptions. "The Supreme Court [ruled in another case 2001] that there is no hierarchy of rights. What we hope to do in this case is find a way to respect both parties' rights. That's what the Charter demands."

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, said her group decided to intervene against the exemptions. She called it a difficult decision given how many shades of grey there are in this case.

"We have come down in favour of reasonable accommodation of conscientious objection or religious views in other cases in the past," she said. "Except the crucial difference here is that this will help decide the nature of government and the right of all citizens to equally access non-religious services.

"I think there are higher obligations on government, which is to treat all citizens equally when providing services."

However, she said her group does not agree that civil servants must give up all religious rights. "We think that reasonable accommodation should be made when possible. But we just think in this case this accommodation takes too heavy a toll on equality.

"It's put into stark contrast when you switch out the grounds of discrimination. So if we go back to the 1950s and there were people who publicly declared that mixed marriages were contrary to religious doctrine. If we had a government that said, Yes, if this is your belief, you have the right to refuse to provide this service to mixed marriage couples when they come in ... I think most people would find it objectionable."

Ruth Ross, executive director and general legal counsel for the Ontario-based Christian Legal Fellowship, rejects the comparison to mixed marriages or racially based motivations.

"It's not the same thing because there is no inner malice here," said Ms. Ross. "This has nothing to do with malice or discrimination. It is about asking the marriage commissioner to participate and cooperate with something that is immoral and wrong. And the court is being asked to show tolerance toward religion as they would show tolerance in other situations."

Robert Reynolds, a Saskatoon lawyer hired by the government to argue against the exemptions, said when a marriage commissioner refuses to marry a gay couple, he is saying, "My religious right is paramount to your right to equality."

When a marriage commissioner refuses to work on a holy day, that is not discrimination because it applies to anyone who would ask to be married, he said.

"These people aren't by virtue of their religious belief visiting their conduct on someone because they're gay," he said. "On the other hand, when he says his calendar is free but won't marry a gay couple, that's visiting his religious belief onto somebody else and then it becomes discrimination."


  1. Good post, I had vaguely heard something about this, and am happy to read and know more.

    Is totally about discrimination - why should someone refuse to marry me, here in a country where that marriage is legal? Could they refuse to marry a black person? Or a Jewish person? Equality is equality...

  2. ...Of course they couldn't. But because the conservative Christians see Homosexuality as a "moral" failing, they feel justified in denying the same civil righths that they enjoy to GLBT people.

    This raises the whole question of the place religion has in government policies and civil rights. As with the abortion issue, the Christian Taliban have a sympathetic ear in Ottawa with the Harper government.


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