The Saskatchewan Court of Appeal has issued a decision in the case of Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3. I have only had a brief opportunity to read the judgment and will comment on it detail later but in general terms it appears to follow the same logic as the English case of Ladele v London Borough of Islington [2009] EWCA Civ 1357
The Court has decided that proposed legislative amendments to the Saskatchewan Marriage Act 1995 which would have allowed Saskatchewan’s marriage commissioners to refuse to perform same-sex marriages on religious grounds are contrary to Saskatchewan Anti Discrimination Law and the Canadian Charter of Rights and Freedoms. As I blogged back in October 2009 the Ontario Canadian Supreme Court in the 2004 case of Halpern et al. v. Canada had decided that the Common Law definition of marriage as between one man and one woman was not consistent with the Charter and subsequently Same Sex Marriage had become legal throughout Canada though the specific legislation remains the responsibility of the individual provinces in Canada.
The Saskatchewan government had proposed two potential legislative amendments to the Marriage Act in order to deal with situations where some marriage commissioners were called before the Saskatchewan Human Rights Commission or the Courts for refusing to perform same-sex marriages: one amendment would have permitted marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs, and a second would have allowed any marriage commissioner, no matter when they were appointed, the same right.
The court said that its decision was based on section 15(1) of the Charter of Rights and Freedoms which prohibits discrimination based on characteristics such as race and sex. Though the Charter makes no mention of sexual orientation, the courts have nevertheless read sexual orientation into this section. The court said that a law empowering marriage commissioners to deny their services to homosexual individuals would violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The Court claimed that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
What that judgment however seems to ignore, as did Ladele, the possibility of allowing individual government employees a right of conscientious objection so long as the "service" was provided by someone. On a personal note I find it somewhat Orwellian to use a "Charter of Rights and Freedoms" in order to justify forcing people to do something against their conscience and to say that that even a Democratically elected Legislature does not have the right to give people freedom to refuse to perform an action. That is not a Charter of Rights and Freedom so much as a Charter of Coercion and is an object lesson in Judicial activism exercising a corrosive influence on democracy and freedom.
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8 comments:
Fundamental flaw in the Saskatchewan's Court of Appeal is to look at the fundament of marriage as being sexual activity. Fundamentally it is love that makes any union work. Love is the litmus-test to even sexual behaviour. Love between Christians more so without quest for bodily pleasure must be even more protected. Thus if some inferior behaviour is more protected, the Appeal Court's decision is not only discriminatory but outright dictating fleshly acting as entrance fee for a right.
What that judgment however seems to ignore, as did Ladele, the possibility of allowing individual government employees a right of conscientious objection so long as the "service" was provided by someone.
Are individuals allowed to not perform ceremonies for, say, mixed race couples, or couple of differing religions?
By the way, someone who would marry a man and a woman, but who wouldn't marry a woman and a woman appears to be discriminating on the basis of sex.
And why the scare quotes around "marriage"?
In the Saskatchewan case this point about "what if someone objected to a mixed race marriage" etc was made and the Court noted that these objections were theoretical since no real examples of such objection could be produced and the real fact was that the only grounds of religious objection in reality related to same sex marriages.
The question I am raising is whether a legislature should be stopped from allowing people a right of conscientious objection. Whether or not that conscientious objection is something you agree with is a political argument. What has happened in this case it that the Saskatchewan Court has said that the Saskatchewan Parliament does not have the right to give a right to conscientious objection and that is a disturbing decision.
PS Brian
Your argument
"someone who would marry a man and a woman, but who wouldn't marry a woman and a woman appears to be discriminating on the basis of sex."
misses the point that the person who who not marry a woman and a woman would similarly not marry a man and a man therefore there is no sex discrimination sine the same principle is being applied to both men and women equally
misses the point that the person who who not marry a woman and a woman would similarly not marry a man and a man therefore there is no sex discrimination sine the same principle is being applied to both men and women equally
This is identical to arguments used to justify laws against mixed-race marriage; since neither whites nor non-whites could marry someone of a different race, the law treated the races equally.
The question "would you marry person A and person B" if person A is a man, and a yes or no depends solely upon the sex of person B is pretty obviously a case of discrimination on the basis of sex. If, instead of marriage, the issue being discussed was, say, a loan, and the lender would only loan money to two men but not a man and a woman, the lender would be accused of sex discrimination.
Also, you didn't answer this: why the scare quotes around "marriage"?
Brian
I disagree with your basic assumption that the two situations are comparable. In the situation of a mixed race couple any reason to object would be based on their race whilst with a same sex couple any objection would be based on the fact that their gender was the same not the fact of the Gender itself.
In any event the argument is somewhat artificial. Mixed race marriage has never been illegal in Britain (or Canada come to that) and I am not aware of any situation where any priest or registrar in Britain ever objected to participating in a mixed race marriage.
There have been attempts in Britain to extend the wording of the Sex Discrimination Act 1975 to cover discrimination on the basis of sexual orientation but such attempts were rejected by the House of Lords in the case of Pearce v Governing Body of Mayfield School [2003] UKHL 34
Regarding the Scare quotes as you describe them I had put quote marks in there because I was making a distinction between British Same Sex Civil partnerships and Canadian Same Sex Marriage. However I can see that my reason for using the quote marks is not obvious so I have removed them
I disagree with your basic assumption that the two situations are comparable. In the situation of a mixed race couple any reason to object would be based on their race whilst with a same sex couple any objection would be based on the fact that their gender was the same not the fact of the Gender itself.
That's not a difference; you can easily rephrase the mixed race objection to "the fact that their races are different" and now the racial objection is somehow "not based on their race" but only the fact that their races are different.
If the objection is really due to the sexual orientation of the couple, is a marriage between an out gay man and an out gay woman not allowed, or recognized? Are existing marriages automatically nullified if one member comes out as gay? THESE would be examples of marriage discrimination based on sexual orientation.
However, as far as I know, it's perfectly legal for known gay people to get married to members of the opposite sex.
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