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Conflict between marriage commissioner &
same-sex couple in Saskatchewan, Canada

A marriage commissioner
refuses to marry a same-sex couple

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Introduction:

Saskatchewan became the seventh Canadian jurisdiction to allow same-sex marriages (SSMs). This occurred on 2004-NOV-5 when Madam Justice Donna Wilson of the Court of Queen's Bench issued a ruling. She determined that the traditional definition of marriage, as it was then specified in provincial law, restricted marriage to one man/one woman. This conflicted with the Charter of Rights and Freedoms -- Canada's constitution.

The provincial marriage laws discriminated against gay and lesbian couples. The constitution forbids discrimination on the basis of gender. It was a no-brainer: the provincial law was clearly unconstitutional and had to be revised. Thus, SSM became available in the province for the first time.

One of the plaintiff couples married the following weekend.

However, this was not a joyous development for all of the citizens of Saskatchewan. In particular, some marriage commissioners objected on religious grounds to being required to marry same-sex couples. They felt that this would violate their religious freedom to discriminate against lesbians, gays and bisexuals.

A man who identifies himself as gay and his male partner decided to marry in 2006. He contacted a marriage commissioner, Orville Nichols, who refused to marry the couple because of his religious beliefs concerning homosexuality and marriage. This led to a complaint before the Saskatchewan Human Rights Tribunal.

The conflict was resolved in 2011, when the province asked the courts to determine whether commissioners could be allowed to deny marriage to a couple with a valid marriage license if the commissioner didn't want to marry them because of religious beliefs. The court ruled that such an arrangement would be unconstitutional because it would violate the rights of same-sex couples to equal treatment by their government.

About 1% of the existing marriage commissioners are expected to resign or be fired because they are unwilling to meet this employment requirement. More info.

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About marriage commissioners

As in most jurisdictions in Canada, marriages are generally performed during a religious ritual by a minister, priest, pastor or rabbi. However, couples in Saskatchewan also have the option of obtaining a civil marriage from a marriage commissioner.

The wording of the marriage ceremony is defined by statute. It is the essence of brevity, and can probably be recited in less than 60 seconds. In the case of person A.B. being married to C.D. by marriage commissioner E.F. the required text is:
A.B.: I do solemnly declare that I do not know of any lawful impediment why I, A.B., may not be joined in matrimony to C.D.
C.D.: I do solemnly declare that I do not know of any lawful impediment why I, C.D., may not be joined in matrimony to A.B.
A.B.: I call upon these persons here present to witness that I, A.B. do take you, C.D. to be my lawful wedded wife (or husband)
C.D.: I call upon these persons here present to witness that I, C.D. do take you, A.B. to be my lawful wedded husband (or wife)
E.F.: I, E.F., a marriage commissioner, by virtue of the powers vested in me by The Marriage Act, 1995, do hereby pronounce you A.B. and C.D. to be husband and wife”. 1

Obviously, the final three words in the ritual would not be suitable for a same-sex couple. It would be logical to replace "husband and wife" with "married spouses," or some other term. However:

  • Section 31 of the Act requires the marriage commissioner to solemnize a marriage only in the "form and manner" specified, and

  • Section 50 assesses a $20 fine for a "person who violates any provision of this Act." This might include substituting more appropriate wording for the standard text.
As of late 2008, commissioners charged a fixed fee of $50.00 per marriage, and were allowed to charge a mileage fee of about 0.39 per km (about $0.63 per mile) in Canadian dollars.
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Commissioner refuses to marry same-sex couple:

Generally speaking, complaints before Canadian Human Rights Tribunals that are filed by LGBT persons who have typically involved a devout conservative Christian individual who is motivated by their faith to:

  1. Deny a LGBT person services that the respondent would readily supply to a customer who is a heterosexual. A typical example is a printer offering services to the general public who refused to print letterhead for a gay-positive group.

  2. Fire, refuse to hire, or refuse to promote a LGBT person because of their sexual orientation.

  3. Publish hate literature that denigrates LGBTs and in one case linked to a biblical passage that advocated the murder of anyone performing a same-sex sexual act.

This case was of the first type. A marriage commissioner is expected to marry any couple with a legitimate marriage license, unless he or she knows that there is a lawful impediment preventing the couple from marrying. The Marriage Unit of the department of Justice had instructed all of the commissioners when SSMs became available that they were all required to perform SSMs upon request.

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "Marriage by marriage commissioner," Section 31(b), Chapter M-4.1, An Act respecting the Solemnization of Marriage," Saskatchewan status, at: http://www.qp.gov.sk.ca/
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Site navigation:

 Home > LGBT > Same-sex marriage > Canada > Saskatchewan > Commissioner . here

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Copyright © 2004 to 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2004-OCT-11
Latest update: 2011-FEB-28
Author: B.A. Robinson

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