Conflict between marriage commissioner &
same-sex couple in Saskatchewan, Canada
Submissions by the Tribunal and
Attorney General. Conclusions. Lawsuit.
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Submission by the Human Rights Commission:
The Commission had filed a brief of law with the Tribunal. It said in part:
"It is submitted that Mr. Nichols' denial of a civil marriage ceremony to M.J.
on the basis of M.J.'s sexual orientation is a violation of Section 12 of the
[Human Rights] Code. Mr. Nichols religious views cannot afford him a defence to that denial.
M.J. has no duty to accommodate Mr. Nichols. Any balancing of Mr. Nichols
religious rights with M.J.'s equality rights and right to non-discriminatory
public services must take into account that civil marriages were specifically
designed to allow citizens to be married without regard to religious beliefs. To
allow the character of that service to be changed by an individual, contravenes
the purpose of the legislation. The Code protections may then vary depending
upon the belief system of the service provider. Mr. Nichols defence of religious
freedom is not made out in a contextual analysis of the purpose for civil
marriage ceremonies."
Submission by the Attorney General:
With the consent of all parties, the Attorney General of Saskatchewan was recognized as an intervener.
In his brief to the Tribunal, he stated:
"The Attorney General's basic point in these proceedings is that a marriage
commissioner such as the Respondent is a public official, providing a
statutory service to the public. Like all public officials, he must provide
his services consistently with the statute under which he is appointed,
The Marriage Act, 1995. He must also comply with the Code and the
Charter, which require that governments provide their services without
discrimination, and without requiring applicants to satisfy a religious
test."
"The Attorney General also submits that the nature of the service in issue, a
civil marriage ceremony, is of fundamental importance to the analysis. Under
The Marriage Act, 1995, the basic purpose of a civil marriage
ceremony is to ensure that couples who are lawfully eligible to marry can do
so without meeting any religious test or qualifications. Allowing individual
marriage commissioners to refuse their services based on religious
objections to a marriage would undercut the basic purpose of the civil
marriage ceremony. The entire point of civil marriage is that a couple does
not have to satisfy the religious requirements of the official performing
the marriage. Allowing individual marriage commissioners to refuse their
services based on religious requirements would transform the civil marriage
ceremony into a quasi-religious one, contrary to the basic purpose of civil
marriage"
Conclusions of the tribunal:
- Was the refusal of the marriage commissioner discrimination? Tribunal
Member: Anil K. Pandila, Q.C. concluded that he was unable to agree with the
respondent that there was no denial of service to the couple because they
were able to be married on their chosen date by another commissioner. He
concluded that there was a denial of service '... as the evidence clearly
points out that the Respondent refused to provide the service on the basis
of his religious beliefs'."
- Should the respondent's religious beliefs about SSM be accommodated?
Pandila agreed with the submissions of both the Human Rights Commission and
the Attorney General. He noted that the former concluded:
"The only words that can be used to solemnize marriages by marriage
commissioners do not include any reference to religious principles. ....
As the marriage commissioner is a public official acting on behalf of
the state, he is required to provide services to ensure that all persons
who meet the legal requirements for marriage can marry without regard to
his or her personal characteristics. According to the Commission, the
service must be designed in such a way that individuals entitled to
receive the service have equal benefit of the law and are treated in a
non-discriminatory matter."
He noted that the Attorney General concluded that:
"As a public official appointed under a statute, a marriage commissioner's
duty is to determine whether a couple is eligible for a civil marriage
ceremony based solely on the legal criteria: The federal substantive law,
dealing with capacity to marry, and the provincial procedural law dealing
with the process for a valid marriage ceremony. A marriage commissioner
cannot effectively create additional eligibility requirements, based on the
marriage commissioner's personal religious or moral beliefs about the
morality or suitability of a proposed marriage. To do so would be to allow
the Marriage Commissioner to refuse to apply the law based on an irrelevant
consideration."
Pandila noted that if marriage commissioners were allowed follow their
religious beliefs and deny same-sex couples the right to marry, then other
commissioners would deny marriage to inter-faith couples or interracial
couples.
- Pandila issued his report on 2008-MAY-23. He awarded the sum of $2,500 to the Complainant and
directed that "... the Respondent cease contravening s.12 of the Code."
1
Marriage commissioner sues Saskatchewan government:
Orville Nichols launched a lawsuit against the government in an attempt
to change its policies so that marriage commissioners could refuse to marry
couples on religious grounds. He filed a statement of claim in late 2008-NOV.
According to Focus on the Family Canada:
"The suit alleges that the province’s Saskatchewan Party government
had broken a commitment made when it was in Opposition not to force marriage
commissioners to perform same-sex 'marriages' against their will. 'We find this
quite concerning. The government must respect freedom of religion,' Nichols’
lawyer, Philip Fourie, told the StarPhoenix. '[People] in the public
service must be able to exercise their convictions'." 2
Conservative religious groups often place the word marriage
in quotation marks when same-sex marriages are being discussed. This emphasizes
that they do not feel that a SSM is a valid marriage.
Commissioner Nichols loses appeal:
Orville Nichols appealed the Tribunal's ruling. The the basis of his case was that the Charter of Rights and Freedoms -- Canada's constitution -- should protect his religious beliefs to discriminate against individuals on the basis of their sexual orientation.
Justice Janet McMurty of the Court of Queen's Bench dismissed Nichol's argument in a 39-page decision dated 2009-JUL-17. She concluding that the human rights tribunal was:
"... correct in its finding that the commission had established discrimination and that accommodation of Mr. Nichols' religious beliefs was not required."
Human Rights Commission manager, Rebecca McLellan, was pleased with the court decision. She said:
"To allow a public official to insert their personal beliefs into decisions about who should and who should not receive a public service would undermine the protection of the Saskatchewan Human Rights Code." 3
References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "M.J. v. Nichols," Saskatchewan Human Rights Tribunal, 2008-MAY-23, at:
http://www.saskhrt.ca/
- "Marriage commissioner sues Saskatchewan government," Today's Family News,
2008-DEC-03.
- "Commissioner who refused to marry same-sex couple loses appeal," CBC News, 2009-JUL-23, at: http://www.cbc.ca/
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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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