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Same-sex marriges (SSM) in Canada

Concerning the freedom of religious
groups to discriminate against SSM

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Quotation:

bullet"I'll eat my clerical shirt if you can show me one example in the last 50 years of a provincial jurisdiction ever taking a clergyman to court because he refused to marry somebody." Ref. Garth Bulmer, Anglican priest of St. John's parish in Ottawa, ON, 2005-FEB-01. 16
bullet"I think most legal experts recognize that the courts will not force the [religious] institution itself to perform same-sex marriages...the real issue is the broader ramifications...What we are seeing is a consistent pattern by courts and human rights commissions that whenever equality rights and religious rights collide, equality rights trump." Vic Toews, Conservative member of parliament and justice critic. 16

What is the issue?

In many of the world's democracies, a wall of separation exists between church and state. In the U.S., this is enforced by the First Amendment of the federal Constitution. In Canada, it has been an evolving cultural tradition.

Normally, the governments and organized religions live in separate worlds.

bulletSome life events are purely secular in nature: e.g. when a baby is born, its birth is registered with the state or province.
bulletIf a child or adult is baptized in a church, the ritual is purely religious in nature. There is no secular significance to the act as far as the state is concerned.

But marriage is different. Involvement by the church and state can be entwined:

bulletMarriage normally requires that the couple purchase a marriage license from the government.
bulletIn some political jurisdictions, the couple can arrange for the "reading of the banns." This is a repeated announcement made during church services before the marriage is to take place. A license is not required.
bulletThe couple can elect to be married in a civil ceremony by a judge or commissioner authorized to perform weddings.
bulletThe couple can elect to have a religious wedding, if they meet any additional requirements that a chaplain, imam, minister, pastor, priest, priestess, or rabbi might establish.
bulletThe civil or religious person who officiates at the wedding must then file marriage documents with the government.
bulletThe state or provincial government then records the marriage in its data base.
bulletThe married couple then receives on the order of 1,500 benefits, rights and obligations from their state/provincial or federal government.

The term "marriage" thus has a different meaning within the religious and secular sphere. In most jurisdictions, any female can marry any male, assuming that they are old enough and not too closely related. As of 2005-JAN, in six Canadian provinces and one territory, any two persons can marry, subject only to age and consanguinality. But religious organizations often refuse to marry a couple even though they possess a valid marriage license. We have found twelve grounds that faith groups have given for refusal; there are probably more.

As of 2005-JAN, only the most liberal faith groups will marry same-sex couples. In Canada, this includes the United Church of Canada, some Reform Jewish congregations, and those congregations affiliated with the Unitarian Universalist Association. There is an potential conflict between the freedom of religious organizations to discriminate against same-sex couples, and the right of such couples to marry. Some conservative faith groups are worried that their clergy may eventually be charged with violating a civil rights code by refusing to marry same-sex couples.

It is not obvious how this conflict in freedoms will evolve in the future. There is a clash between:

bulletThe fundamental right of loving, committed same-sex couples to marry, as many courts in Canada have ruled is inherent in The Charter of Rights and Freedoms, Canada's constitution, and
bulletA second fundamental right -- that of religious freedom. Faith groups have traditionally been guaranteed autonomy. They are free to decide their own beliefs and rules of behaviors for their membership. Some religious institutions will want to continue to discriminate on the basis of race, gender sexual orientation and many other grounds in membership, ordination and marriage. Many faith groups will want to continue to refuse to marry same-sex couples.

There is little concern for the immediate future for those clergy who refuse to marry same-sex couples. But there has been apprehension among religious conservatives that the public might eventually consider homophobia -- discrimination against persons with a homosexual orientation --  as despicable as racism and sexism are today. Who knows what the future might hold?

One good indicator of the supremacy of religious groups to discriminate is seen in interracial and interfaith marriages. Many religious groups have refused to marry couples of different races or religions in the past. Some still do. If and when the first clergyperson is charged under a Human Rights code for refusing to marry a man and woman of different races or religions, then other clergy may have reason to fear that they may be targeted for refusing to marry a same-sex couple. Another indicator may be if and when a religious institution is charged under a Human Rights code for refusing to consider any women for ordination.

It might be a groundless concern:

Some observers argue that there is no possibility that faith groups will charged with civil rights abuses if they refuse to marry same-sex couples. They argue that religious institutions have always been able to deny marriage to couples who do not meet their requirements. For example:

bulletThe author recalls an incident in Toronto on a Saturday in the mid 1950s, when an exhausted young couple entered the Unitarian Congregation sanctuary bearing a marriage license. They had been trying to locate a clergyperson in the city who would be willing to marry them. They had no success. I introduced them to the Unitarian minister who interviewed them, convinced himself of their sincerity, and agreed to perform the ceremony. All other other churches that they had visited had rejected them because they were an inter-racial couple.
bulletSome churches have strict rules concerning consanguineous marriages. i.e. opposite-sex marriages in which the bride and groom are too closely related. Some, for example, will not marry first cousins, even though such marriages are allowed in some political jurisdictions.
bulletSome faith groups refuse to marry inter-faith couples -- e.g. some Protestant churches refuse to marry their member to a Hindu.
bulletSome refuse to marry intra-faith couples -- e.g. a Roman Catholic and a Protestant.
bulletSome refuse to marry a couple in which one or both parties are affiliated with another denomination, or none.
bulletSome have refused to marry interracial couples; some may still refuse.
bulletSome refuse to marry couples who are living together unless they agree to be celibate until they are married.
bulletRoman Catholic priests refuse to marry couples in which one or both members have received a civil divorce, unless that individual first has obtained an annulment from the Church.
bulletMany clergy will refuse to marry couples who they feel are insufficiently mature, or who have a flippant attitude towards marriage.
bulletThe Roman Catholic church has refused to marry at least one male paraplegic because he was physically unable to procreate.
bulletSome clergy will not marry a couple if they cannot pay for the service.
bulletSome refuse if the couple will not take part in a marriage preparation course.

We have not been able to find instances where charges were brought against religious organizations because they have refused to marry couples on any of the above grounds. One might argue that there is little chance that a charge will be placed in the future because of a group's refusal to marry a same-sex couple. The Ontario Human Rights Code specifically exempts religious organizations from its provisions. Thus, religious organizations are free to discriminate on the basis of gender, sexual orientation, or any other factor with impunity. If they were not given immunity then human rights tribunals would be buried by cases of women, gays and lesbians who have been denied ordination by religious groups. Similar exemption clauses are found throughout North America.

On 2004-DEC-08, the Supreme Court of Canada released its rulings on the Federal Government's reference questions. They partly settled the question. They advised that clergy can legally continue to discriminate in selecting which engaged couples they will marry. However, this immunity from prosecution under human rights legislation does not necessarily extend to some of the auxiliary activities of religious groups which are associated with marriage.

It might be a valid concern:

The term "homophobia" has different meanings for different people. We define it here as the desire to oppress and limit the personal rights and freedoms of gays and lesbians -- including the right to marry. In decades to come, if present trends hold, homophobia will be considered as reprehensible as racism is today. Courts are sensitive to shifts of beliefs within society. Their intolerance of homophobia may develop to the point where they start to rule against homophobic religious organizations. They might not differentiate between the provision of a ritual by a faith group and the provision of a commercial service by a commercial firm. To our knowledge, religious exclusion clauses which are imbedded in many civil rights legislation have never been examined by the Supreme Court of Canada. They might eventually be found to be unconstitutional.

Consider an event that happened over a decade ago in Canada. A store providing printing services to the general public refused to print letterhead for a homosexual advocacy group. The group complained to the Ontario Human Rights Commission. The printer was found guilty of discriminating against a potential client on the basis of his sexual orientation. A board of inquiry ordered him to pay $5,000 in damages. Analogies could be drawn by the courts between a clergyperson refusing to marry a same-sex couple. More details.

If Canadian culture evolves to the point where homosexuality is generally accepted as a normal, natural sexual orientation for a minority of adults, one could see how very similar arguments to those in this printing case could be argued before a court in defense of a gay or lesbian couple who a clergyperson refused to marry.

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The same-sex marriage "reference" sent to the Supreme Court of Canada:

In mid-2003, the governing federal Liberal party in Canada was faced with unambiguous decisions by three senior provincial courts which called on the Federal government to legalize same-sex marriage. The House of Commons' Justice Committee very narrowly passed a resolution to recommend that the government accept the court rulings. Prime Minister Jean Chretien promised that a new marriage act would be drafted to implement SSM in the country. He said that the proposed legislation would protect the rights of churches, mosques, synagogues, and other religious congregations to discriminate against individuals on any basis in the provision of a marriage ceremony. He said: "... we'll be proposing legislation that will protect the right of churches and religious organizations to sanctify marriage as they define it. At the same time, we will ensure that our marriage legislation includes and legally recognizes the unions of same-sex couples." 6

On 2003-JUL-17, the federal government sent a "reference" to the Supreme Court which included the proposed legislation and a specific question: Whether the freedom of religion clause in the Charter of Rights and Freedoms -- Canada's constitution -- allows religious groups to refuse to marry gays and lesbians without threat of lawsuit. 7,8

Opposing views:

bulletUnknown date: Egale Canada, a gay and lesbian positive organization, stated:
bullet"Clergy are protected by the Charter's guarantee of freedom of religion. Religious institutions set their own rules for marriage. The Catholic Church won't marry divorced persons. Many religions won't permit inter-faith marriages. Once same-sex couples can marry, each religion will still be free to set its own rules. The B.C. Court of Appeal said: 'The equality rights of same-sex couples do not displace the rights of religious groups to refuse to solemnize same-sex marriages which do not accord with their religious beliefs. Similarly, the rights of religious groups to freely practise their religion cannot oust the rights of same-sex couples seeking equality, by insisting on maintaining the barriers in the way of that equality'."
bullet"The federal government is asking the highest court in the land to confirm, once and for all, that religious freedom is fully protected. This will completely address the concerns raised by those opposing this legislation." 14
 
bullet2003-JUN-10: ChristianWeek, Canada's national Christian newspaper, described concerns that a number of conservative Christian denominations and para-church organizations had expressed about SSM:
bullet"Churches that do not allow gay marriages could be punished (e.g. lose their charitable status);
bulletThe ability to grant marriage licences could be conferred only upon churches and ministers who promote an inclusive new definition of marriage;
bulletCharitable organizations who support the definition of marriage could be penalized for discriminatory language, and lose their charitable status;
bulletSchool curriculum could not differentiate between homosexual and heterosexual unions in marriage." 11
 
bullet2003-JUL-3: Beliefnet published an article by the Religion News Service on the status of SSM in Canada. They reported that church officials had differing views on SSM. Liberal denominations were in favor:
bulletOfficials of the United Church of Canada and the Anglican Church of Canada, the two largest Protestant Christian denominations in Canada and the most liberal, were confident that the federal government would not pressure clergy into ending discrimination against same-sex couples.
bulletJackie Harper spokesperson for the United Church said: "Constitutionally in Canada, religious rights are guaranteed that no one will be required to do something against their religious beliefs."
bulletKaren Hamilton, general secretary of the Canadian Council of Churches, said that clergy will continue to have the right to refuse to marry couples. Their religious freedom will be protected under the new legislation. 

Conservative Christian groups were more concerned:
bulletBruce Clemenger of the conservative Evangelical Fellowship of Canada said that they were "deeply disappointed" with the government's decision to accept the rulings of the three provincial courts and legalize SSM. He said: "We are deeply concerned that the effect of the redefinition will be to begin a process of marginalization for many churches and their clergy who currently participate in the civil registration of marriage....As the right of religious exemption from the court's ruling was not addressed in the court's decision, we will watch carefully the legislation that will address religious freedom concerns."
bulletRoman Catholic Archbishop from Vancouver, Adam Exner, anticipates that the presence of SSM will put pressure on his denomination to marry all committed couples -- both opposite gender and same gender. He said: "It won't be easy to deal with. We'll be the odd man out." He said that he will take Prime Minister Chretien on his word that priests won't be required to marry same-sex couples. 13
 

bullet2003-JUL-25: A Hamilton ON newspaper quoted a number of Members of Parliament on the topic of SSM. They reported: "Stan Keyes, Liberal MP for Hamilton West said he wants to be sure the bill balances religious freedom not to perform same-sex marriages with the rights of gays to marry. 'We're trying to make everyone happy,' Keyes said. 'There is no reason why we can't respect rights on both sides of the issue'." 12
 
bullet2003-AUG-21: Deputy Prime Minister John Manley told the Globe and Mail newspaper that "...at the same time [we're] protecting the rights of faith communities to define marriage as they are comfortable with doing."
 
bullet2003-AUG-21: At a rally on Parliament Hill, Rev. William Oosterman of the Christian Coalition of Canada suggested that "religious persecution" has arrived in Canada. He said that the legislation's clause protecting the right of religious groups to discriminate against same-sex couples might not withstand a constitutional challenge. He said: "The Charter of Rights will not protect you. It will be used as a witness against you as people of faith."
 
bullet

2003-SEP-2: A coalition of religious and social conservatives attacked SSM. Charles McVety, president of Canada Christian College, said that the federal Liberal government has no right to breach "the separation of church and state and attempt to redefine a religious term as sacred as marriage." He has been joined by one socially conservative group, REAL Women, and several conservative religious groups: Quebec's francophone evangelical Protestant community, the Canada Family Action Coalition and a clerical group called the Evangelical Association. They expressed concern concerned that the government will eventually force churches to perform SSMs against their will. 10
 

bullet

2003-DEC-18: In a interview with CBC Radio, Prime Minister Paul Martin said that he would use the Constitution's "not withstanding clause" in the unlikely event that the Supreme Court of Canada ruled that religious institutions must perform same-sex marriages. This clause allows the government to pass temporary legislation that violates constitution. The legislation expires automatically after three years and must be renewed. This would be the first instance of the clause being used at the federal level. Martin said that there are very few situations in which he would use the not withstanding clause. One would be if it were needed to preserve the right of religious groups to continue to discriminate against gays and lesbians. 15

The Supreme Court's ruling on the federal government's reference questions:

On 2004-DEC-08, the Supreme Court of Canada released its ruling on the Federal Government's reference questions. They determined that clergy can continue to pick and choose whom they will marry within their "sacred space" without fear of being challenged in the courts under human rights legislation. This settled the matter, as far as the actual marriage ceremony in a cathedral, church, mosque, synagogue, etc. is concerned. Imams, ministers, pastors, priests, etc. can refuse to marry a same-sex couple there and not be in danger of charges of discrimination under human rights codes.

However, this does not settle all of the concerns of religious conservatives. Religious institutions perform many functions that are associated with marriages that do not involve an actual marriage ceremony in their sacred space. There are some gray areas that may or may not be covered by the Supreme Court's ruling. What might happen if a same-sex engaged couple:

bullet

Arranges with a liberal clergyperson to marry them, and then tries to rent the use of a conservative church's hall or church grounds as the location for their marriage?

bullet

Asks to be married by a conservative clergyperson in a non-religious setting remote from the officiator's "sacred space" -- e.g. in a conservation area or city hall?

bullet

A same-sex couple arranges to be married in a civil ceremony and attempts to rent a conservative church's hall for the reception?

bullet

Attempts to join a conservative church's marriage preparation course?

Will the ability of religious groups to discriminate be protected by the religious freedom clauses in the Charter of Rights and Freedoms? These questions will undoubtedly be raised by at least one same-sex couple in the future -- probably in the form of a lawsuit.

References:

  1. "Equality Coalition to present arguments in Brockie case," 2001-DEC-7, Egale Canada, at: http://www.islandnet.com/
  2. "Man appeals fine for rejecting 'gay' client. Toronto printer refused to produce promotional materials," WorldNetDaily, 2001-DEC-8, at: http://worldnetdaily.com/
  3. "Freedom of conscience debated in Ontario. Christians support right of printer to refuse homosexual group's business," WorldNetDaily, 2001-DEC-17, at: http://worldnetdaily.com/
  4. "Company ordered to provide printing services to gays and lesbians," CGLA, 2000-MAR, at: http://www.clga.ca/
  5. Janet Epp Buckingham, "Canadian Religious Freedom Alliance Makes Argument in Religious Conscience Case," Christian Legal Fellowship, at: http://www.christianlegalfellowship.org/
  6. Colin Nickerson, "Canada will amend federal law to allow same-sex marriages," The Boston Globe, 2003-JUN-18, at: http://www.signonsandiego.com/
  7. "Same sex marriages bill goes to supreme Court. Government asks for Supreme Court opinion on draft bill," Canada Online, at: http://canadaonline.about.com/
  8. Alexander Panetta, "Same-sex legislation expected," Canoe.ca, 2003-JUL-14, at: http://www.canoe.ca/
  9. "Thousands rally in defence of marriage," Today's Family News, Focus on the Family, Canada, 2003-AUG-26.
  10. Tonda MacCharles, "Gay-marriage foes plan prayer protests," Toronto Star, 2003-SEP-3, Page A17.
  11. CW Staff, "Ottawa favours same-sex marriage," Vol. 17, #6, 2003-JUN-10, at: http://www.christianweek.org/
  12. "Bryden opposes same-sex marriage; Many local Liberals sitting on the fence," The Hamilton Spectator, Hamilton, ON, 2003-JUL-25.
  13. Douglas Todd, "Canada's Churches Divided on Rights Regarding Same-Sex Marriages," Religion News Service, 2003-JUL-3, at: http://www.beliefnet.com/
  14. "Equal Marriage for Same-Sex Couples: Affirming Religious Freedom," Egale, 2003, at: http://www.egale.ca/
  15. "Same-sex debate urged: PM seeks study by Supreme Court," The Toronto Star, 2003-DEC-19, Page A6.
  16. "Sean Gordon, "Churches, groups wade in. Strong reactions from both sides to divisive bill," The Toronto Star, 2005-FEB-2, Page A7

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Copyright © 2003 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2003-AUG-22
Latest update: 2009-FEB-28
Author: B.A. Robinson

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