Publicly appointed marriage commissioners in Canada must marry same-sex couples

Opponents of gay rights now often portray themselves as victims -- victims of discrimination, intolerance, bigotry, hate, etc. (Remember that this is how they convinced the US Supreme Court not to permit video broadcasting of the Perry same-sex marriage trial).

Well, some of those opponents argue that it violates their right to religious liberty for the government to require them to do something they find morally repugnant, like marry same-sex couples or place foster children in a same-sex couple's care. This week, the Saskatchewan Court of Appeal, the Canadian province's highest court, ruled against allowing government appointed marriage commissioners to refuse to marry same-sex couples.

The court considered two proposals -- one to allow those who became marriage commissioners before same-sex marriage existed to refuse to marry gay couples and the other to allow any marriage commissioner to refuse to marry gay couples. Actually the proposals were written more broadly than that -- to permit refusal to conduct any marriage that violated the commissioner's religious beliefs. The court found that both options violate the Canadian Charter's equality principles. The court called the proposals "a retrograde step – a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions."

The proposal's proponents argued there would be insignificant harm to gay couples because they could just find someone else to marry them. The court dismissed this assertion, saying instead that "such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different." The court also noted that, given the vast geography of the Saskatchewan, some same-sex couples might have to travel very far to actually find a willing marriage commissioner.

The court did acknowledge that marriage commissioners would have to violate their religious beliefs to perform same-sex marriages. It suggested the possibility that it would not violate the Charter to have all couples place a request for a marriage commissioner at a "single entry point," where a person knowing which commissioners objected to same-sex marriage could direct the couple to someone who would perform their union. Apparently, such a system is currently in effect in Toronto. The idea is that no couple would ever face rejection on the basis of their sexual orientation. The court did not explicitly rule on whether such a system would be acceptable, and that issue may be decided at some point in the future.

The court summed up its position with the following eloquent language:

In our tradition, the apparatus of the state serves everyone equally without
providing better, poorer or different services to one individual compared to
another by making distinctions on the basis of factors like race, religion or
gender. The proud tradition of individual public officeholders is very much
imbued with this notion. Persons who voluntarily choose to assume an office,
like that of marriage commissioner, cannot expect to directly shape the office’s
intersection with the public so as to make it conform with their personal
religious or other beliefs. Any idea of this sort would sit uneasily with the
principle of the rule of law...

Some day we'll find out if our courts believe the same.