Marriage commissioners' conflict in Saskatchewan

An activist court legislating from
the bench? Readers' comments.

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The acronym LGBT stands for the lesbian, gay, bisexual, transgender and transsexual communities

Is the Saskatchewan Court of Appeal an activist court, legislating from the bench?

The answer depends upon whom you ask.

• Religious and social conservatives: They often express these concerns about courts' rulings on social and sexual cases, particularly those involving persons with a homosexual or bisexual orientation. They see the courts as being willing to reduce the freedoms of Christians and/or granting special rights to LGBTs. They often view courts as usurping the legislative authority of Congress and state legislatures. Most would probably view this case as a conflict between the rights of LGBTs, vs the rights of Canadians generally to enjoy freedom of religion-- a conflict in which the "gays" won. Some would view the Court of Appeal's decision as involving who had a greater claim on rights:
  
  
  • LGBTs to want to be treated equally with Canadians who have a heterosexual orientation or a cisgendered identity, or
    
    
  • Canadians generally who want to enjoy freedom of religion. Religious and social conservatives would include freedom of religious belief, freedom of religious assembly, freedom of religious practice, freedom of religious speech, and freedom to freely denigrate and oppress LGBT persons based on conservative religious beliefs.
    
    
  Many would view the Court of Appeal's ruling as giving greater weight to the right of LGBTs to receive equal treatment than to Canada's "first freedom" -- religious freedom. That is, the Justices were on the side of same-sex couples and don't mind removing parts of everyone's religious freedoms in order to give LGBTs more rights. The Justices are seen as usurping the rights of the legislature and promoting their own biases.
  
  
• Religious and social liberals and secularists: The ruling by Ms. Justice Gene Ann Smith of the Court of Appeal offers another vision of these competing rights. She appears to recognize the importance of freedom of religious belief, freedom of religious assembly, freedom of religious practice, and freedom of religious speech.
  
  Requiring a commissioner to conduct a same-sex marriage ceremony does not interfere with their freedom of religious belief, assembly, practice, or speech. The marriage commissioners are quite free to detest homosexual behavior, regard gays, lesbians and some bisexuals as engaging in sin, to proclaim their beliefs in a religious setting, and to prefer to not marry them. But conducting a same-sex marriage ceremony does not involve any actual sexual activity in which the commissioner must engage. Thus, requiring them to marry same-sex couples does not intrude upon their core religious freedoms.
  
  The Court of Appeal's decision preserves the core freedoms of religion, but does not allow the marriage commissioner to insult or denigrate LGBT persons while on the job as a representative of the Government of Saskatchewan.

Reactions by newspaper readers:

The article "Same-sex nuptials can’t be refused on religious grounds, Saskatchewan court rules," ₁ in The Globe and Mail, on 2011-JAN-10, received 502 comments by the end of the month.

The first nine were:

• mjf BC: Excellent. "Separation of Church and State. If you represent the state, or are paid by the state (the taxpayers), you work equally for all citizens."
  
  
• michaelmoore: "If your job is to marry people who are legally entitled to marry, it's not up to you to decide which such couples you re willing to marry. If you don't want to do the job, find another one."
  
  
• Stan Duptall: "Bigotry is not an acceptable excuse to refuse to do your job in a public service position."
  
  
• A_K: "A good decision. No one person should have the authority to bend the law."
  
  
• visagrunt: "I am a public servant, and when I arrive at work in the morning, I check my personal biases and prejudices at the door. I carry out my Minister's instructions. I do not have the privilege of applying my own lens to those instructions.
  
  Were this a case of a member of the clergy, there would be no case to answer. It stands to reason that no member of any clergy would face accountability for refusing to conduct a marriage on religious grounds. After all, no divorced person has ever successfully complained that a Roman Catholic priest has refused to celebrate their marriage."
  
  
• Metasphere: "What if public officials were allowed to refuse to serve Jews or blacks based on their personal prejudices?"
  
  
• Ernie Richards: "Religious beliefs are personal and if they hamper your ability to perform your job, then you must quit your job. The secular world rules, not the religious."
  
  
• Wolfred: "This was clearly a face saving strategy so that the Sask Party wouldn't be seen as responsible for supporting gay marriage, and thus upsetting their more extreme supporters. How could any government think it might exclude some of the officials wielding any type of government authority from following the law? Consider that a firefighter, or police officer, or zoning inspector deciding they had a religious objection to attending to a gay couple's house would be proposing the same logic, and would never be allowed to do so. Too bad there are still so many gay fearing among the god fearing. Lots of fear in that crowd."
  
  
• Angry West Coast Canuck: "Marriage commissioners are SECULAR. If they want to play religion politics, let these people formalize marriages through the office of their church/synagogue/temple/mosque/what-have-you. Good decision!"
  

This list continues in a separate essay....

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Jennifer Graham, "Same-sex nuptials can’t be refused on religious grounds, Saskatchewan court rules," The Globe and Mail, Toronto, 2011-JAN-10, at: http://www.theglobeandmail.com/
2. Jennifer Graham, "Saskatchewan says marriage commissioners must wed same-sex couples," The Canadian Press, 2011-JAN-18, at: http://www.theglobeandmail.com/

Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JAN-30
Latest update: 2011-JAN-30
Author: B.A. Robinson

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