REGINA, SK, July 20, 2009 (CCRL) – Justice Minister Don Morgan announced recently that the government would refer two versions of new legislation containing a religious exemption for marriage commissioners to the Saskatchewan Court of Appeal to rule on their constitutionality. At the same time, it will ensure that there are commissioners available to perform same-sex marriages.

The League has always supported freedom of religion and freedom of conscience for marriage commissioners within the tradition of reasonable accommodation. In all the cases of religious and conscientious objection by marriage commissioners of which we are aware, the ceremonies went ahead as planned, so there was no denial of service. However, in 2008, the Saskatchewan Human Rights Tribunal fined Orville Nichols, a Regina marriage commissioner $2,500, ruling he had violated the province’s human rights code by refusing to marry a gay couple for religious reasons.

On July 22, the Saskatchewan Court of Queen’s Bench denied Mr. Nichols’ appeal. Justice Janet McMurtry found that, when acting in his official capacity, Mr. Nichols has no right to claim a religious accommodation and, therefore, must marry same-sex couples.  It is not yet clear whether Mr. Nichols will appeal the decision to the Saskatchewan Court of Appeal.  (Nichols v. M.J. & Saskatchewan Human Rights Commission, 2009 SKQB 299).

The Saskatchewan Party government’s plan to introduce legislation allowing provincial marriage commissioners to refuse to perform same-sex marriages for religious reasons was both praised as a defense of religious freedoms and condemned as the institutionalizing of discrimination. The plan was introduced July 3.

Mr. Nichols’ case is under appeal to the Court of Queen’s Bench, with the judge reserving his decision, while two other marriage commissioners are also suing the government over the lack of a religious exemption. Commissioners in Manitoba and Newfoundland have filed complaints of religious discrimination with their provincial human rights tribunals.

Prince Albert lawyer Dale Blenner-Hassett, one of two lawyers representing the marriage commissioners suing the government, said the legislation will be a reasonable accommodation for both sides.

“It makes room for those who have religious convictions and it provides for them to be people of faith in the public service without being squashed on or forced to do things against their conscience while at the same time ensuring that those who have different views are accommodated as well,” he said in an interview.

Mr. Blenner-Hassett said he would have preferred the government simply introduce the legislation and expressed confidence it would be found constitutional.

Mr. Morgan said in an interview that the government wanted to bring forward legislation that will settle the issue that is currently before the courts.

But the move also fulfills the Saskatchewan Party’s original intentions to provide an exemption, he said. The party had opposed the legalization of gay marriage but Mr. Morgan said Friday same-sex individuals have a right to such civil marriage services.

“But we also have rights of people that have deeply held religious beliefs and if we can accommodate both sets of beliefs or both views within the Charter (of Rights and Freedoms) and within our administrative framework, that would be our preferred course,” said Mr. Morgan, who acknowledged the government is already not disciplining any marriage commissioners who won’t perform same-sex marriages.

One legislative option going before the court would see a grandfather clause providing a religious exemption from performing same-sex marriages for individuals who were commissioners at the time gay marriage was legalized in 2004, while the other would provide that religious exemption for all commissioners.

Mr. Morgan said Prince Edward Island is the only province that currently has legislation providing a religious exemption for marriage commissioners although other provinces do so on an informal basis.

Mr. Morgan said it will be up to the court how long it takes to make a decision on the legislation but it could easily be six to 12 months. It is thus virtually certain that a bill will not be introduced in the fall sitting of the legislature that begins in October, said the minister.

The government will await the court’s decision and commentary before deciding which of the legislative options to take, he said.

                                                                – With a report from The Regina Leader Post, July 4, 2009

– Commentary: Commissioners not lesser citizens.

– The League, the Canadian Catholic Bioethics Institute and the Archdiocese of Edmonton are co-hosting a symposium “Conscience and the Public Good” on Oct. 3 in Toronto, and Oct. 6 in Edmonton. Contact us for further information.