Manitoba Appeal Court upholds ruling that cost anti-gay marriage commissioner his certification
Rights of gay couples to civil ceremony trumps ex- commissioner's religious objections
An evangelical former marriage commissioner who said he would never perform ceremonies for same-sex couples has lost his appeal of a decision that stripped him of his certification.
Manitoba's highest court unanimously ruled against Kevin Kisilowsky, a self-described "Christian missionary evangelist" who ministers to gang-involved youth, bikers, prisoners and the homeless through the Bondslave Motorcycle Club.
Kisilowsky had claimed that the law requiring all marriage commissioners to perform same-sex marriages violated his charter right of religious freedom. He filed his case in September 2016, calling for the law to be struck down, but Court of Queen's Bench Justice Karen Simonsen rejected his argument.
"The positive effects of the Decision [to revoke Kisilowsky's certification] are significant. It was a rejection of discrimination against gays and lesbians and their right to marry in Manitoba," Simonsen wrote in her decision.
Kisilowsky appealed, but last month the Manitoba Court of Appeal upheld Simonsen's decision.
"[The] Decision constituted an infringement … that was more than trivial or insubstantial. Despite this, the Decision was reasonable," Justice Diana Cameron wrote in the ruling.
In rejecting Kisilowsky's original case, Simonsen pointed out that he could still perform marriages to whomever he wished by applying for temporary certification — which Kisilowsky has done — or by registering as a religious official.
Unlike priests, rabbis and other religious officials, marriage commissioners perform civil ceremonies only and must follow provincial guidelines.
Simonsen argued that the limits placed on Kisilowsky's religions freedoms were justified when weighed against the potential for discrimination against same-sex couples seeking to marry.
"If the applicant were allowed to refuse to do so, other marriage commissioners may follow suit … This difficulty could be compounded in remote or small communities where the number of marriage commissioners is small," she wrote.
Cameron wrote in her conclusion that she agreed with Simonsen's decision, that it balances the rights of Kisilowsky and same-sex couples. "The fundamental issue" concerns Kisilowsky's ability to marry whomever he chooses.
"He continues to be able to do that," Cameron wrote.
Kisilowsky, who applied to be registered as a marriage commissioner in 2003, claimed that Manitoba's Vital Statistics Agency told him he could be placed on a "private list" that would allow him to only perform Christian marriages.
The Province of Manitoba denied that such a list existed, although at the time there was a list of marriage commissioners who did not want their names to be made public. Kisilowsky's name was placed on that list.
In 2004, the Supreme Court of Canada declared that the federal legislation expanding the definition of marriage to include same-sex couples was consistent with the Charter of Rights and Freedoms.
Manitoba introduced a rule requiring all marriage commissioners perform same-sex marriages, and asking all those who objected to return their certificate. When Kisilowsky refused to do so, his certification was cancelled in 2005.