A Saskatchewan court ruled at the end of July that a provincially-appointed marriage commissioner cannot refuse to wed same-sex couples.
In 2005, Orville Nichols refused to perform a civil marriage ceremony for two Regina men, who then filed a complaint with the Saskatchewan Human Rights Commission. The HRC ruled Nichols had discriminated, fined him and ordered that he perform same-sex marriages when requested.
Nichols appealed, claiming that his deeply-held religious beliefs gave him the right to refuse. He argued that it was the government’s responsibility to accommodate his beliefs and to ensure other officials were available to perform same-sex ceremonies.
Justice Janet McMurty disagreed, ruling that “A public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.”
The ruling will probably be appealed, and the province seems determined to test the legality of legislation that would exempt commissioners from performing same-sex ceremonies on the grounds of religious belief.
Nevertheless, I find this ruling important. It confirms that cloaking it in “deeply-held religious beliefs” does not make opposition to same-sex marriage any less an expression of homophobic discrimination.
Second, and more importantly, the ruling clearly outlines that governments or individuals working for governments cannot discriminate based on religious beliefs. Government officials cannot force their religious beliefs on the rest of us. Now marriage may be relatively minor, but the ruling potentially could have far greater impact on healthcare or housing or social services, especially as those services are increasingly contracted out to religious organizations.
The Saskatchewan ruling also coincided with a story from Utah. Reportedly, security guards for the Mormon church in Salt Lake City cuffed and detained two men as they walked across the Main Street plaza. The police then charged the men with trespassing.
But a police report, released after the charges were dismissed, states that the behaviour that prompted the security guards’ actions was the men kissing and hugging. Gay activists held a kiss-in in the square to protest the actions.
But what makes the incident stand out to me is not the homophobic actions of police and church, it’s the fact that the Mormon church owns a public square in the centre of Salt Lake City. Apparently, in 2003, the city entered into a land swap with the church that left the Mormons with private ownership of a previously publicly-owned plaza that thousands of people walk across every day. The church now has the right to regulate all behaviour on the plaza according to its own religious beliefs.
Think that couldn’t happen in Canada? I’m sure that governments in Canada facing massive deficits — at federal, provincial and municipal levels — would be delighted to enter into land-swap deals or just flat-out sell land to private owners, including churches.
Stories of private property owners discriminating are commonplace — remember the recent story about Air Canada Centre security kicking out two women at a concert for kissing? But we need to keep an eye on what ends up happening to our public spaces as governments search for new revenues.
Speaking of human rights commissions, the Saskatchewan case is an example of what human rights commissions should be doing: looking at cases where people are being denied services, equal treatment or employment opportunities because of their race, gender, religion or sexual orientation.
What human rights commissions should not be doing is interfering with free speech. This was reinforced for me recently when I was reminded again of the case of the Free Dominion website.
Free Dominion is a site for Canadian rightwingers — often fundamentalist Christians and often homophobes — to discuss and vent their grievances about the state of the country. On those occasions when I’ve surfed the site, I’ve rarely found anything that I’ve agreed with. And a number of posters on the site have made it abundantly clear that I’ve never written anything that they’ve agreed with.
Nonetheless, what’s happened to Free Dominion is a perfect example of what happens when free speech runs into blockades. The site faced investigations from human rights commissions and lawsuits from various individuals. The result was that at the beginning of 2008, ownership of the site was sold to Liberty News Service, a company in Panama.
The site also advises contributors on how to remain anonymous and how to conceal their identities from anyone seeking to identify them.
“In conclusion, Liberty News Service has created a stronghold from which Principled Conservatives (and others) can withstand the attacks by individuals and bureaucracies who threaten to silence us all,” wrote the site’s former owners. “Free Dominion is now safe and our members are beyond the reach of the unscrupulous and the unprincipled. Let’s use our new strategic position to its fullest advantage. Let’s return our country to the values of liberty that are the source of its greatness.”
Now I don’t think Free Dominion’s contributors are particularly principled. I mostly find them myopic, small-minded bigots. And like most fundamentalists, I find their obsession with what a persecuted minority they are to be hugely at odds with reality. But I can’t dismiss their concerns about free speech and the penalties they could face from groups like human rights commissions.
When people feel compelled to make their arguments anonymously, it weakens the discourse in the country. It’s hard to engage with people when there’s no way of knowing who they are. It also potentially leaves them without the constraints of logic or decency those of us with names operate under. When you know nobody can find out who you are, there can be a tendency to descend to the baser levels of simple abuse.
That does not serve the interests of free speech, even when that speech may be rightwing religious gibberish.