January 24, 2011

REGINA — The right of gay couples to be married free from discrimination trumps the freedom of religion and conscience rights of Saskatchewan's marriage commissioners, the Saskatchewan Court of Appeal has ruled.

A unanimous decision released by the court Jan. 10 said any scheme that would allow marriage commissioners to refuse service to gay couples "would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions."

The Catholic Civil Rights League said the decision guts part of the 2005 law which redefined civil marriage to include same-sex unions. Section 3.1 of the 2005 Civil Marriage Act sought to protect conscience rights.

"The Court of Appeal has adopted a significant restriction on a robust understanding of freedom of conscience and religion," the rights league said.

"The court by its effort to aggrandize equal rights over conscientious freedoms has diverted from the notion of reasonable accommodation of such faith claims in the workplace."

The Court of Appeal was asked to rule on the constitutionality of two possible laws aimed at accommodating marriage commissioners who object on religious grounds to solemnizing gay marriages.

One would have given the right to refuse to all marriage commissioners, the other would have grandfathered the right for commissioners appointed before November 2004. The court ruled both options were unconstitutional.

"It's 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 Buddhist) but someone else will,'" wrote Justice Robert Richards on behalf of three of the five judges.

"Being told, 'I won't help you because you are gay/lesbian but someone else will' is no different."

Two other judges agreed that allowing discrimination by government marriage commissioners would be unconstitutional, but gave different reasons.

Saskatchewan Justice Minister Don Morgan said his province could alter its civil marriage system to resemble Ontario's.

In Saskatchewan couples directly contact individual marriage commissioners to arrange for the service. In Ontario couples go to a central office.