In this issue:
Marriage; marriage commissioners; equality; discrimination; same-sex marriage; sexual orientation; section 15; freedom of conscience and religion; accommodation; section 2(a); justification; section 1; Charter of Rights and Freedoms
In Saskatchewan, under The Marriage Act, S.S. 1995, c. M-4.1, members of the clergy, certain religious officers, ordained Rabbis, and marriage commissioners appointed by the government are able to perform marriages. This means that outside of a religious context, only civil marriage commissioners can perform marriages.
When a couple in Saskatchewan wishes to be married by a marriage commissioner, they are given a list by the Director of the Marriage Unit and they approach the commissioner of their choice.
In 2004, the Supreme Court of Canada confirmed the legal validity of same-sex marriage (see LexView 59.0). Some civil marriage commissioners in Saskatchewan then refused to solemnize same-sex marriages because doing so would violate their religious beliefs. This gave rise to various proceedings under Saskatchewan human rights legislation.
To deal with this, the Lieutenant Governor in Council of Saskatchewan requested the Court's opinion on the constitutionality of two possible amendments to The Marriage Act.
The first amendment would allow civil marriage commissioners to refuse to perform same-sex marriages if doing so would be contrary to their religious beliefs. This amendment would only have applied to commissioners who held that office on the date of an earlier Saskatchewan Court of Queen's Bench decision striking down a prohibition against same-sex marriage in that province. The second amendment would allow every commissioner, regardless of appointment date, to refuse to perform same-sex marriages if doing so would be contrary to his or her religious beliefs.
As in a significant number of cases over the past 15 years, this case involves the intersection of freedom of religion and equality rights based on the ground of sexual orientation. An appropriate balancing must be achieved, such that both rights are respected.
The Court failed to properly respect and accommodate freedom of religion. Balancing is a difficult exercise, but in this case, the Court:
(a) incorrectly concluded that freedom of religion could be protected in a more narrow manner, and therefore removed the protection entirely; and
(b) did not place sufficient importance on protecting freedom of religion when considering the benefits and costs of the proposed legislative amendments.
The Court held that the proposed amendments would breach section 15 of the Charter of Rights and Freedoms in a manner that could not be justified under section 1. The five judges wrote two decisions, but reached the same result.
Richards J.A. wrote for the majority of three judges, including himself. He held that the objective of the proposed amendments was not to discriminate but to accommodate the religious beliefs of marriage commissioners. However, the effect of the amendment would result in some same-sex couples being told by a marriage commissioner that he or she would not provide the service requested. This would create a discriminatory distinction based on the applicant's sexual orientation.
Richards J.A. rejected the argument that this effect is ameliorated by the fact that a same-sex couple could readily contact another marriage commissioner, because the initial refusal is "very significant and genuinely offensive". He also considered that a "significant number of marriage commissioners" may choose not to perform same-sex marriages under the proposed amendment to the legislation, meaning that homosexual couples would have to make numerous calls before finding a marriage commissioner who would perform the ceremony. As such, he found the equality guarantee under section 15 of the Charter would be breached if these amendments were made to The Marriage Act.
The majority further held that this breach would not be justified under section 1 of the Charter pursuant to the Oakes test. They agreed that the freedom of religion of marriage commissioners guaranteed under s.2(a) of the Charter would be breached if they were compelled to perform a same-sex marriage contrary to their religious beliefs (or to choose between doing so and resigning their office). Richards J.A. found that the accommodation of the religious freedom of marriage commissioners was a sufficiently important goal that it was rationally connected to the proposed amendments.
However, he held that the rights of same-sex couples were not minimally impaired by the amendments. He envisioned the government adopting a"single entry point" system for obtaining the services of a marriage commissioner through which the accommodation could be done "behind the scenes".
Finally, the majority held that the deleterious discriminatory impact on same-sex couples outweighed any salutary effects of protecting the religious freedom of marriage commissioners. They found this to be so since their interests "do not lie at the heart of s.2(a) of the Charter" because they remained free to believe and worship as they chose and do not act as private citizens when performing marriages.
The minority decision differed from the majority primarily by according the religious liberty rights of marriage commissioners "considerably more attenuated value". Justices Smith and Vancise did not accept that compelling marriage commissioners to choose between their office and performing a same-sex marriage would offend their religious freedom. They held that if there were any breach of s.2(a), it could be "trivial or insubstantial".
The majority of the Saskatchewan court appropriately treated this case as a balancing of rights. Based on past jurisprudence, the state cannot discriminate on the basis of sexual orientation in providing services to members of the public. By allowing some of its marriage commissioners to refuse to perform same-sex marriages because of their religious beliefs on homosexual relationships, there could potentially be situations where a same-sex couple was, at least initially, denied the services of a particular government-appointed marriage commissioner.
The balancing occurs under section 1 of the Charter, which allows infringements if they can be justified in a free and democratic society. In conducting the analysis, courts review the importance of the legislative objective, whether it is rationally connected to achieve that objective, whether it does so in a way that minimally impairs Charter rights, and whether there is proportionality between its salutary and deleterious effects.
In this case, the majority properly accepted that the purpose of the proposed amendments to The Marriage Act was to protect against an infringement of the Charter right of marriage commissioners to religious freedom. Without an amendment, marriage commissioners whose religious beliefs would not allow them to participate in same-sex marriages would be compelled to choose between their beliefs and their appointment as a civil marriage authority.
The minority wrongly questioned this conclusion, writing that marriage commissioners were only called on to conduct a civil, and not a religious, ceremony. They would not be called on to practice religion in a manner that conflicted with their own beliefs, and so any infringement of their religious freedom rights was "trivial" and insubstantial. The minority's approach to this was incorrect, and deeply offensive to religious people. In viewing the matter as it did, the minority questioned the validity of the religious beliefs of marriage commissioners. Courts are permitted to only consider the sincerity of religious beliefs in considering matters under s.2(a). The state is not permitted to assess the merits or validity of those beliefs.
In terms of rational connection, the majority justices also correctly concluded that the objective of the amendment was to protect freedom of religion. Where they erred was in their approach to the issues of "minimal impairment" and in assessing the proportionality between effects and objective.
The law is clear that the government need not impair Charter rights in a perfectly minimalistic way; it need only choose an option for implementing an important objective (like protecting religious freedom) that falls within a range of reasonable alternatives.
The majority focused on the fact that same-sex couples had to contact individual marriage commissioners and therefore risked the possibility of being told that an individual commissioner would be unable to conduct their service. To remedy this perceived disadvantage, the court proposed a process whereby the government would provide a "clearing-house" service: only providing same-sex couples with names of marriage commissioners who had no religious objections to participating in the service. The absence of such a procedure was the basis upon which the court rejected that the proposed amendments were sufficiently well crafted.
It is true that the proposed amendment to The Marriage Act did not address how the accommodation of some religious marriage commissioners would occur; it simply acknowledged and respected their fundamental freedom. Same-sex couples wishing to be married would presumably still have to find a willing marriage commissioner without the government's assistance. Yet, the mechanics of how the services of marriage commissions would be offered by the government is a secondary concern.
The question is not whether couples wishing to become married would be aware of the administrative mechanics of implementing the exemption, but whether exemption was a minimal impairment of the rights of same-sex couples to be free from discrimination. The Court had already correctly agreed that the accommodation of some marriage commissioners could not be done without granting the exemption allowing them not to participate. How does it undermine the exemption if couples are aware of it?
The Court's conclusion in this regard belies the nature of the offensiveness of granting the exemption in the first place. All the judges focused on how significant and genuinely offensive it would be for a same-sex couple to be told that a particular marriage commissioner could not participate in their wedding ceremony. This focus is on the specific interaction between the commissioner and the couple, which in at least human rights jurisprudence, has some precedence.
For example, in Smith & Chymyshyn v. Knights of Columbus (LexView 54.0), the British Columbia Human Rights Tribunal (relying on the Brockie decision of the Ontario Superior Court—LexView 51.0) concluded that the Knights could refuse to allow their hall to be used for a same-sex wedding reception since doing so would conflict with their core religious beliefs. However, the Tribunal still ordered financial payment for the manner in which the Knights of Columbus made the refusal.
The emphasis on avoiding offence is arguably more important when considering the need to be free from discrimination in accessing government services. It also might be rightly said that Saskatchewan could devise a slightly better system for ensuring the rights of both the couples and the marriage commissioners are respected. The granting of an exemption does not mean that individual marriage commissioners would be insensitive or insulting when advising couples that, because of their deeply held religious beliefs, they would not be able to participate in the marriage. It also does not mean that exempted marriage commissioners would not provide the name of an alternative commissioner.
The problematic aspect of the Court's analysis is the one-way perspective on the creation of offence. Section 15(1) equally protects against discrimination on the bases of sexual orientation and religion. Marriage commissioners whose religious beliefs preclude them from participating in homosexual marriages have a right to have their beliefs tolerated and respected. The only way to accomplish this important objective is to allow them to avoid participating in these marriages. To tell them that this will not be so because the government's administrative structure is not perfect leaves them to bear the full cost of achieving "equality".
In other words, the Court's conclusion was that because the commissioners' rights were not protected in the right way, their freedom of religion would not be protected at all.
In considering the balancing of the salutary and deleterious effects of the accommodation of religious marriage commissioners, the Court again placed insufficient weight on the rights and dignity of the marriage commissioners.
The majority indicated that since they could still "hold the religious beliefs they choose or worship as they wish", their interests did not lie at the heart of freedom of religion and the salutary effects of protecting them were "less significant". This conclusion is surprising, and wrong, given the Court's proper recognition that the state would force them to choose between their religious beliefs and their office.
Imagine if this same conclusion had been reached in Multani, the Supreme Court of Canada case dealing with whether students could be allowed to wear kirpans in public schools (LexView 57.0). Sikh students could be said to still hold their religious beliefs and worship as they chose, despite being told to choose between attending a public school and their religiously-based conduct in wearing the kirpan. In Multani, as in other cases, the Supreme Court of Canada recognized that the public dimension of the free exercise of religious rights might well have an impact on the rights of others.
Against the backdrop of clearly infringing on the religious freedom of some marriage commissioners, the Court highlighted the "genuinely harmful impacts" of allowing individual marriage commissioners to deny services. This narrow focus on one interaction between a hypothetical commissioner and same-sex couple loses sight of the requirement that the state accommodate both needs.
The government of Saskatchewan is required to provide the services of marriage commissioners in a manner that does not discriminate. It must not refuse a marriage to a couple because of their sexual orientation. However, it need not guarantee the services of any particular marriage commissioner. Provided that Saskatchewan provides a marriage commissioner to all same-sex couples in a reasonable manner, it can be said to have discharged its obligations.
What then of the hypothetical same-sex couple who are initially refused by a religious marriage commissioner? The court concludes that accommodating these few marriage commissioners would create a negative feeling that would "ripple through friends and family of gay and lesbian persons and the public as a whole" and that "members of the public would also be negatively affected by the idea".
That may be true, but exactly the same point can be made with respect to the failure to accommodate religious minorities. By telling religious people that, because of their beliefs, they cannot hold a government office, a burden is imposed on them. It is easy to see that this could create negative feelings that could "ripple through friends and family of [religious] persons" and that "members of the public would be negatively affected".
Accommodation has costs. The Court lost sight of the fact that, to create a truly tolerant and inclusive society, the rights and needs of all minorities should be accommodated. As citizens, we can be expected to respect the legal choices and fundamental freedoms of others. It is no more offensive to ask same-sex couples to respect the freedom of religion of others than it is to ask marriage commissioners to respect the equality rights of homosexuals.
Contrary to the statement of the majority, religious marriage commissioners would not be asking that marriage commissioner services "conflict with their personal religious or other beliefs". They would ask only that their religious beliefs, and constitutional rights, be accommodated. This would not deny marriage services to same-sex couples.
Equality rights do not trump religious freedom rights. The Supreme Court of Canada has consistently eschewed any such hierarchy of rights.
The freedom of religion of some religious marriage commissioners cannot be accommodated without allowing them to respectfully decline performing same-sex weddings. Conversely, the rights of homosexual couples to obtain the services of a marriage commissioner can be accommodated if the exemption is granted. The government would only be required to ensure that sufficient commissioners were appointed to ensure that such services could readily be obtained.
True tolerance requires that we respect one another. In reading the decisions in this case, one is left with the impression that it is less important to respect and accommodate religious beliefs than equality rights. This is inconsistent with the law and undermines a truly tolerant society.
A pluralistic society is one in which there are legitimate, sometimes sharp disagreements on issues of morality and behaviour. Tolerance and respect are key, but this tolerance and respect must be reciprocal, and sometimes multi-dimensional. While the perspective of some religious marriage commissioners may seem increasingly peculiar in our society, these individuals remain entitled to respect and to have their constitutional rights protected. They cannot be made ineligible to hold a public office if there are reasonable alternatives, which there clearly are.
In this case, the Charter was used to undermine an attempt by the provincial legislature to acknowledge and accommodate religious belief. Given that the Charter protects freedom of religion under s.2(a) and precludes government discrimination on the ground of religion under s.15, this result is surprising, to say the least.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.
LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations, and individuals. To inquire about making your contribution, please contact Cardus.
Copyright © 2011 Kevin L. Boonstra
LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.
Please note that LexView is not intended to constitute legal advice and the interpretation and comments are those of the authors alone and are not necessarily those of the Editorial Board.
Copyright notice: LexView may be copied, printed, and re-transmitted by e-mail, provided that the copying, printing, or re-transmission is not for commercial purpose. Portions of LexView less than a single paragraph may appear in broadcast, print or other media, provided that proper citation is made. Otherwise, LexView may not be reproduced, in any form in broadcast or print media without express written permission. Permission may be obtained by application to firstname.lastname@example.org.
There are good books to be written on Catholic social thought. Milburn could doubtless have written one had he stuck to his theme of Christ at...