Marriage officials can't refuse gays: Sask. court

Saskatchewan's highest court rules that marriage commissioners who are public servants cannot refuse to marry same-sex couples.

Saskatchewan's highest court has ruled that marriage commissioners who are public servants cannot refuse to marry same-sex couples.

The decision by the Saskatchewan Court of Appeal rejects two proposals from the provincial government that would allow some or all marriage commissioners to refuse to perform a service involving gay or lesbian partners if it offended their religious beliefs.

The government proposed that marriage commissioners who were employed before the law changed in 2004 could refuse to perform the services. It also proposed a second option where all marriage commissioners could refuse.

But the court noted that marriage commissioners are appointed by the government to perform non-religious ceremonies and are the only option for some same-sex couples seeking to tie the knot.


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Lawyers appointed to argue that the proposals were constitutional said that if anyone was refused a marriage service, it would be easy to find another commissioner who would perform the same service. The court of appeal wasn't persuaded by that argument, saying that both government proposals were "contrary to fundamental principles of equality in a democratic society" and must be rejected.

"Both of the possible amendments offend the Canadian Charter of Rights and Freedoms. Either of them, if enacted, would violate the equality rights of gay and lesbian individuals," Justice Robert Richards said in the ruling, supported by justices John Klebuc, Ralph Ottenbreit, Gene Ann Smith and William Vancise.

Implications cited

Richards also expressed concern that if marriage commissioners were allowed to opt out of services, they might also do so because they object to interfaith marriages or interracial marriages.

While requiring marriage commissioners to perform same-sex services may curtail their religious rights somewhat, it's justified, Richards wrote.

"The Supreme Court has repeatedly confirmed that freedom of religion is not absolute and that, in appropriate cases, it is subject to limitation," he said. "This is clearly one of those situations where religious freedom must yield to the larger public interest."

In response to the decision, Saskatchewan Justice Minister Don Morgan said the government will consider the court's advice.

Given the "thoroughness" of the analysis, he won't be recommending an appeal, Morgan said in a news release.

The Opposition New Democrat's justice critic, Frank Quennell, had harsh words for the Saskatchewan Party. The  government has been wasting the province's money on legislation it should have known was unconstitutional, Quennell said.

The case has its roots in a 2004 Supreme Court of Canada decision affirming the validity of same-sex marriages.

That decision and subsequent legal changes led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriages, saying it was a violation of their personal religious beliefs.

One of those commissioners, Orville Nichols, had a human rights complaint filed against him by a same-sex couple. A tribunal under the Saskatchewan Human Rights Commission upheld the complaint.

Among those praising Monday's decision was the Saskatchewan Federation of Labour, one of the interveners in the case.

"This is a very important decision," Donna Smith, a member of the SFL's solidarity and pride committee, said in a release. "An important precedent has now been set that will help to deter discrimination against same-sex couples that wish to marry."