Case commentaries provided by the Saskatchewan Courts]
January 10, 2011
Marriage Commissioners Reference, 2011 SKCA 3
The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”. The case concerns the constitutional validity of possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies.
In 2005, Parliament enacted a law redefining marriage to include same-sex unions. This led some marriage commissioners in Saskatchewan to refuse 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. Against this background, the provincial government requested the Court of Appeal’s opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995. Both would allow a commissioner to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. In its reasons for decision, the Court said either option, if enacted, would be unconstitutional because it would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights.
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.
For further information contact Lian Schwann, Q.C., Registrar of the Court of Appeal at (306) 787-5382.
