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 Court debates if marriage commissioners can say 'I don't' to same-sex couples
Saskatchewan's top court has reserved decision on legislation that would allow marriage commissioners to say "I won't" to same-sex couples who want to say "I do."
The Court of Appeal heard final submissions Friday on the case that pits same-sex couples' rights against those of marriage commissioners. If the legislation is upheld, it would allow commissioners to refuse to marry gays if it's against their religious beliefs.
Janice Gill, a lawyer for the Saskatchewan Human Rights Commission, told the court that the proposal doesn't deny same-sex couples the right to marry, but would put another hurdle unfairly in their path.
"The interference in this case would be a legislative measure, so it is actually government saying in these particular circumstances, where these two rights come into conflict, we prefer the rights of the marriage commissioners," she said.
Currently in Saskatchewan a couple seek out a marriage commissioner from a list posted on a government website. The couple calls the commissioner directly to perform a service.
The conflict arose in 2005 when commissioner Orville Nichols, a devout Baptist, told a gay couple he wouldn't marry them because it went against his religious beliefs.
The case went before the Saskatchewan Human Rights Tribunal, which ruled in 2008 that Nichols discriminated against the couple. It found that Nichols was acting as a public servant when performing marriages and so was obligated to marry the men.
Nichols, who has been a marriage commissioner for 27 years, was fined $2,500. He asked Court of Queen's Bench to reverse the decision, but it upheld the tribunal's ruling.
Lawyer Michael Megaw, who was appointed by the Saskatchewan government to argue in favour of the legislation, argued Thursday that marriage commissioners are entitled to their religious beliefs. He questioned if it would be truly discriminatory for same-sex couples to have to phone another commissioner to perform the service.
Megaw argued the legislation is constitutional, but he also acknowledged Friday that the system of finding a marriage commissioner needs to be improved so that couples don't face rejection.
"In order for the government to be onside with its minimal impairment requirements under Section 1 (of the charter), it must design a system frankly that is better than the system that they have in place," he said.
One suggestion heard during submissions Thursday and Friday was for a system where couples would submit a form requesting a marriage commissioner and one would be sent to perform their ceremony.
Egale Canada, which advocates for gays and lesbians, said same-sex couples wouldn't face rejection in such a system and marriage commissioners could also be accommodated.
But the group also said the proposed legislation as it stands is discriminatory and would significantly erode equality rights in order to prioritize the religious freedom of marriage commissioners. The issue is about offering a government service for a secular marriage to everyone, Egale lawyer Cynthia Petersen said.
"It's not enough to say, 'Well, if this marriage commissioner won't marry you, you'll be able to find someone else in the province who will marry you and eventually you'll be able to get married,'", she said.
"We're not saying that the right to marry is being interfered with, it's the right to equality that's being infringed."
Lawyer Scott Kennedy, who made submissions on behalf of the Evangelical Fellowship of Canada, said outside court that most provinces accommodate marriage commissioners one way or another.
"To this point, Saskatchewan has been out of step with the majority," he said.
"This may be an impetus, depending on the outcome of this, for other provinces to follow that lead (with legislation). We're hoping that it does because we think it'll settle a lot of issues and balance religious rights and same-sex rights across the country in an accommodating way."
The court did not say when it would issue its written decision.
(2010-05-16/ Winnipeg free press)
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