TORONTO, ON June 4, 2008 – The Catholic Civil Rights League has expressed disappointment with the decision of the Saskatchewan Human Rights Tribunal to fine a provincial marriage commissioner for declining to perform a “marriage” ceremony for two men.
The pair filed the human rights complaint against the commissioner, Orville Nichols, despite the fact that he referred them to a commissioner who would perform the ceremony and the wedding went ahead.
“We find it unfortunate that Mr. Nichols’ timely referral of the request to another commissioner was not found to be sufficient accommodation, especially since the wedding went ahead as planned,” said League President Phil Horgan.
The Saskatchewan Human Rights Tribunal has fined Mr. Nichols $2,500 after finding he discriminated against the couple when he declined to perform the ceremony. He has performed nearly 2,000 marriages since 1983. Mr. Nichols is considering an appeal of the decision, announced in late May.
Section 3.1 of the Civil Marriage Act (Bill C-38) is instructive as it applies to federal law to safeguard the rights, benefits, and privileges of same-sex marriage “dissenters”, such as Mr. Nicholls (but not apparently to Susan Comstock), and extends beyond mere protection for “clergy” or “religious officials” as proposed initially in the draft bill that was referred to the Supreme Court of Canada.
The provision states: “For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom [Emphasis added].
As the League noted when Bill C-38 was passed, however, the solemnization of marriages is a provincial responsibility.
Protection of conscientious freedom on this question continues to vary provincially. According to a 2006 article in the Canadian Bar Review, the following provinces have recognized modest accommodation of conscience and religious rights with respect to marriage commissioners, or their equivalents: B.C., Alberta, PEI, and New Bruswick (pending legislative approval).
The following provinces have not accommodated conscientious rights of marriage commissioners or their equivalents, but have not as yet mandated performance of civil ceremonies: Ontario, Quebec, Nova Scotia. Ontario did pass legislation to recognize “sacred space” of religious communities to be exempted from having to be used for same sex ceremonies.
The following have mandated commissioners to perform ceremonies, without any accommodation of conscience: Newfoundland, Manitoba, Saskatchewan.
Published articles and Canadian census figures suggest low levels of interest in marriage among homosexuals. In Canada, as in the few other jurisdictions that permit homosexual unions, they comprise 0.1 percent of all marriages.