REGINA — The Saskatchewan Court of Appeal is to release its opinion Monday on the thorny issue of what to do when a marriage commissioner says “I don’t” to gay couples seeking wedding services.
Five judges of the province’s top court have been mulling over 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.
“The case is significant on the very issue itself,” noted John Whyte, a constitutional expert and former provincial deputy justice minister, in a recent interview. “The case also opens the door — a much wider door — on the question of accommodation of religious needs.”
He suspects that if the court allows for accommodation of the marriage commissioners’ religious views, the decision will likely try to narrow the application to that specific situation.
“But it has some impact on the general question of accommodation of religious belief in public servants and public service generally. That’s what’s at stake here in a conceptual way, and so the case has that significance,” Whyte added.
The court was asked to wade into the contentious legal territory by the provincial government, seeking advice on two versions of a proposed law.
It’s the first time in 20 years the province has used the Constitutional Questions Act to seek an opinion from the Saskatchewan Court of Appeal, the last being in 1990 on electoral boundaries.
Whyte explained that reference cases are advisory, so the province isn’t technically legally bound to follow the court’s advice. But he noted that from a more practical standpoint, such advice is often followed.
“I would be very surprised if the government didn’t just go along with the court’s decision,” Whyte said.
The government asked the court to consider two draft bills: One allowing all marriage commissioners to refuse to perform civil marriage ceremonies that are contrary to their religious beliefs, and another that would grant the exemption only to those commissioners who held office when gay marriage was legalized in November 2004.
The Saskatchewan Party government is on record supporting a law that would accommodate marriage commissioners’ religious beliefs. However, Justice Minister Don Morgan told reporters in May, prior to the hearing, that if the court found both draft bills unconstitutional, the government would tell marriage commissioners they are obliged to perform same-sex marriages. There are some 300 marriage commissioners in Saskatchewan.
The government appointed Regina lawyer Mike Megaw to argue in favour of the draft laws and Saskatoon lawyer Reynold Robertson to argue against their constitutionality. In addition, 10 lawyers representing 18 groups and individuals — including the Saskatchewan Human Rights Commission, churches, unions, gay rights activists, and three marriage commissioners — were granted intervener status, so they too could give their position.
With the issue considered by five judges, a split by the court is possible.
If the court finds the proposed laws constitutional, Whyte suspects the judges will offer some suggestions about accommodating the marriage commissioners’ religious beliefs while still preventing insult to gay couples.
The issue came to the fore in 2008 when a Saskatchewan Human Rights Tribunal found longtime Regina marriage commissioner Orville Nichols violated the province’s human rights code by refusing to marry a gay couple.
Several other provinces are wrestling with the same issue. Although the Saskatchewan court’s decision could have some “persuasive impact,” it wouldn’t have any legal effect in the other provinces, Whyte said.
Read more: http://www.leaderpost.com/life/Sask+Appeal+Court+reveal+opinion+refusing+couples/4083419/story.html#ixzz1Abb3vQdu
