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Don Morgan, Saskatchewan's minister of justice, is hoping proposed legislation dealing with marriage commissioners will win approval from the Court of Appeal. ((CBC))

Saskatchewan's Court of Appeal is scheduled to hear submissions Thursday and Friday on proposed legislation that would allow marriage commissioners in the province to decline to perform wedding ceremonies for gay couples.

The reference case is viewed by Saskatchewan's minister of justice as necessary, to clarify the law.

"There's two legal positions," Don Morgan said Wednesday. "One, the rights of the same-sex couple which are absolute. And there's also the right to religious freedom."

Morgan said the province wants guidance from the court.

"There is nothing in the Charter [of Rights] that indicates one of those should take priority over the other," Morgan said. So we're saying to the court we need to know with certainty which of those takes priority or is there an ability to accommodate both views?"

Saskatchewan has drafted two legislative options for the court to consider.

One proposal would see a special provision for marriage commissioners who were appointed before 2004 when the Court of Queen's Bench ruled that same-sex marriage was legal in Saskatchewan. The provision would allow those marriage commissioners not to perform same-sex marriages if it's against their religious beliefs.

The second option would create a religious exemption for all marriage commissioners.

Morgan said he hopes the court will approve one of the two forms of legislation, but also acknowledged the court could rule that both options are unconstitutional.

Gay couple refused service

The issue arose in 2005 when marriage commissioner Orville Nichols, a devout Baptist, told a gay couple he wouldn't marry them because it went against his religious beliefs.

A complaint was taken to the Saskatchewan Human Rights Commission and a tribunal of the commission ruled in May 2008 that Nichols discriminated against the couple.

It found that Nichols was acting as a public servant when he performed marriages and so was obligated to marry the men.

Nichols, who has been a marriage commissioner since 1983, was fined $2,500. He asked the Court of Queen's Bench to reverse the decision, but it upheld the tribunal's ruling last year.

Two other marriage commissioners are suing the Saskatchewan government, arguing they should be exempt from the legislation.

Morgan said the only province that has legislated an exemption is Prince Edward Island, but other provinces are doing it on an informal basis, by having lists with the names of those who will perform same-sex marriages.

He said he expects the decision in Saskatchewan to set a precedent for other provinces.

The government's proposal does have critics.

The opposition New Democrats say the legislative options could allow marriage commissioners to turn away more than just same-sex couples.

"Both pieces of proposed legislation are silent on the basis on which they can discriminate," said NDP justice critic Frank Quennell.

"So clearly, if the legislation was approved by the Court of Appeal and passed by the government of Saskatchewan, marriage commissioners could refuse to provide marriages to interracial couples or couples whose religions are different or to couples on the basis of sexual orientation as long as they claimed a religious motivation."

Saskatchewan has 326 marriage commissioners and 102 marriage licence issuers.

In the first few weeks following the 2004 court decision, eight marriage commissioners and two marriage licence issuers resigned, citing same-sex marriage as the reason for resignation, according to information provided by the government.

Morgan said some marriage commissioners might get out of the business if the appeal court decides both legislative options are unconstitutional, meaning they would have to perform same-sex marriages if asked.

"I suspect there may be some that would drop out because of it," said Morgan. "If that's the position they take, that's their right to do it and we'll recruit some more marriage commissioners if the need's there."