May 30, 2014

Decision Released in Marriage Commissioner Reference

Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3 (CanLII)
The Saskatchewan Court of Appeal has just released its decision in a reference from the provincial government, In the Matter of Marriage Commissioners Appointed Under the Marriage Act, 1995.
This reference resulted from the enactment of the federal Civil Marriage Act in 2005 which redefined marriage to include same-sex unions. The Saskatchewan government asked the Court of Appeal whether a legislative amendment to allow marriage commissioners to refuse to perform same-sex marriage ceremonies would be constitutional. In a nutshell, the court said no, holding that to do so would violate the equality rights of gays and lesbians in a manner that couldn't be justified on Charter grounds. This is the summary released by the Court of Appeal:
"The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
"The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis."