Monday, January 10, 2011

Reference re Marriage Commissioners Appointed under the Marriage Act, 2011 SKCA 3

This was a reference by the Province of Saskatchewan to the Court of Appeal for its opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995, S.S. 1995, c. M-4.1. Following the enactment of the federal Civil Marriage Act, which redefined marriage to include same-sex unions, some civil marriage commissioners in Saskatchewan refused to solemnize these unions on the basis that being required to do so would violate their religious beliefs. After the issue became the subject of several human rights complaints and litigation in the Court of Queen’s Bench, the Province instituted the reference.

The only distinction between the two proposed amendments related to a marriage commissioner’s date of appointment: the first would allow only those appointed on or before November 5, 2004 to decline to solemnize a marriage if doing so would be contrary to his or her religious beliefs, while the second would allow every commissioner, regardless of date of appointment, to decline on this basis. In the proceedings preceding the reference, gay and lesbian couples had argued that the ability to refuse to solemnize same-sex unions would constitute discrimination on the basis of sexual orientation. They also argued that since solemnization by a marriage commissioner is the only option for Saskatchewan couples who do not wish to be, or cannot be, married in a religious ceremony, they would not otherwise have access to the institution of marriage.

 The Court held that both proposed amendments would violate s. 15(1) of the Charter. Because the amendments were intended to accommodate the religious beliefs of marriage commissioners rather than deny the rights of same-sex couples, their objective did not run afoul of the Charter. However, the effect of either amendment would be to treat same-sex couples differently than their opposite-sex counterparts, drawing a distinction on the basis of sexual orientation, an analogous ground under s. 15(1). The Court noted that if either amendment was enacted, it was clear from the record available to the Court that some, and possibly a significant number, of commissioners would refuse to perform same-sex marriages. This would be compounded by the fact there was nothing to ensure that couples would always have ready access to a commissioner willing to perform same-sex unions. Furthermore, even if such access were available, it would be offensive to same-sex couples to first be refused the service by another commissioner. This was possible given that commissioners are not assigned to perform particular marriage ceremonies, and that, at most, a couple will be provided with contact information so that they may approach a commissioner of their choice. In addition to drawing this distinction on the basis of sexual orientation, the Court concluded that the amendments would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions, which, in the Court’s view, was a retrograde step toward the historical marginalization and mistreatment of gay and lesbian individuals. The majority (Richards J.A. speaking for himself, Klebuc C.J.S. and Ottenbreit J.A.) nonetheless recognized that the s. 2(a) rights of a marriage commissioner would be engaged if he or she were obliged to solemnize a marriage contrary to his or her religious beliefs. This would necessitate a choice between either performing same-sex marriages or leaving one’s position as a marriage commissioner, which was not a trivial or insubstantial interference with religious freedom. Balancing this with the equality rights of same-sex couples wishing to marry, the Court found that while the objective of accommodating the religious beliefs of marriage commissioners was pressing and substantial, the proportionality requirement under s. 1 was not met. Although there was a rational connection, the proposed amendments did not minimally impair the s. 15 rights of same-sex couples, nor did the salutary effects of the amendments outweigh their deleterious effects. The Court noted that it would be less impairing to ask couples requesting a marriage commissioner for their gender, which would then allow them to be provided with a list of available commissioners in their area (who were willing to perform same-sex ceremonies), avoiding the possibility they would be refused by a commissioner.

 Smith J.A., speaking in concurring reasons for himself and Vancise J.A., agreed in the result, but would have stated the objective of the amendments differently, and would have accorded it a more attenuated value in the s. 1 analysis. He found the objective to be narrower than articulated by the majority: rather than seeking to protect the religious freedom of marriage commissioners, it should be characterized as aiming to permit marriage commissioners to refuse to perform same-sex marriages when to do so would conflict with their religious beliefs. Specifically, he felt it was arguable that the requirement to perform same-sex marriages affected the religious objection to same-sex conduct in only a trivial or substantial way, which would not be protected by the Charter. He was of the view that it was at least doubtful that this objective met the threshold of “pressing and substantial”, and, as a result, took an even stronger view than the majority that the salutary effects of the legislation did not outweigh its deleterious effects.

January 10, 2011
Link to Decision

Kathryn McGoldrick