TORONTO, January 10, 2011 – The Catholic Civil Rights League today expressed concern that the Saskatchewan Court of Appeal has rejected two proposals to provide religious and conscientious freedom to the province’s civil marriage commissioners in the matter of same sex marriage.
The provincial government asked the court to consider two draft bills: One allowing all marriage commissioners to refuse to perform civil marriage ceremonies which are contrary to their religious beliefs; and another that would grant the exemption only to those commissioners who held office when same sex marriage was legalized in November 2004.
“The League intervened in numerous court cases to argue against the change in the definition of marriage, including the Supreme Court reference, and one of our concerns was the eroding effect the change would have on the religious and conscientious rights of marriage commissioners,” said League President Phil Horgan. “This decision detracts from the provisions of the federal Civil Marriage Act, the federal law which ultimately was passed in 2005, to implement same sex “marriage” across the country.”
The 2005 law contains a provision, which was intended to address this situation in respect of the federal ability to re-define marriage: “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.” (s.3.1)
The court in its decision released today said both of the proposed laws would be unconstitutional. If enacted, such a law would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights, the court said.
In reaching this decision, the League notes the Court of Appeal has adopted a significant restriction on a robust understanding of freedom of conscience and religion, and has rejected the duty on the Province to accommodate marriage commissioners who sought to exercise their conscientious rights.
The court stated 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. But religious faith calls for more than merely “believing” and “going to church”. The court by its effort to aggrandize equal rights over conscientious freedoms has diverted from the notion of reasonable accommodation of such faith claims in the workplace.
The reality of these competing rights, in this case the right to access a service from a government official, and the right of religious and conscientious freedom of the marriage commissioners, was “balanced” by ignoring the latter. In 2009, 0.4 per cent of marriages solemnized in Saskatchewan were to same-sex partners. Most provinces and territories have arranged for accommodation of religious and conscientious beliefs of civil marriage commissioners either in practice or by legislation.
Five judges of Saskatchewan’s top court have been considering the constitutional question since May. Two days were spent hearing legal arguments examining the religious rights of marriage commissioners and the equality rights of same-sex couples.
Following the passage of the Civil Marriage Act in 2005 redefining marriage to be available to “two persons”, rather than between a man and a woman, several marriage commissioners in Saskatchewan refused to solemnize such marriages on religious grounds. As a result, there were various proceedings under The Saskatchewan Human Rights Code and a civil action in the Court of Queen’s Bench.
Case summary from the Law Society of Saskatchewan
The Catholic Civil Rights League (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. CCRL was founded in 1985 as an independent lay organization and has chapters across Canada. The Catholic Civil Rights League is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information: Joanne McGarry, Executive Director, 416-466-8244; firstname.lastname@example.org