A Saskatchewan marriage commissioner is suing the Saskatchewan Justice Department claiming he should be exempt from having to perform same-sex marriages because it goes against his religious beliefs. Orville Nichols, a Regina marriage commissioner, who was appointed by Saskatchewan Justice in 1983, was fined $2,500 in May by a human rights tribunal for his refusal to marry two gay men in Regina.
In Apr 2005, MJ (the identity of the complainant and his partner have been sealed by order of the Saskatchewan Human Rights Commission) found Nichols’ name on a list of marriage commissioners and called him to arrange a ceremony. Nichols said he wouldn’t marry the two men as it was against his religious beliefs.
MJ and his partner, identified as BR, found another marriage commissioner to conduct the ceremony and they subsequently filed a human rights complaint claiming that Nichols had discriminated against them.
During the human rights tribunal, Nichols acknowledged that the government appointed him to his position and also mandates the fees he can charge and the geographical area he can work in. He also acknowledged that the marriage unit of Department of Justice had notified all marriage commissioners that they were required by law to perform same-sex marriages. However, he testified that he could not follow the direction of the marriage unit because same-sex marriages were against his religious beliefs. He told the tribunal that “God hates homosexuals.”
The attorney general, who intervened in the case on behalf of the complainants, testified that a marriage commissioner is a public official who must comply with the human rights code and the Charter of Rights and Freedoms. “Allowing individual marriage commissioners to refuse their services based on religious objections to a marriage would undercut the basic purpose of the civil marriage ceremony. The entire point of a civil marriage is that a couple does not have to satisfy the religious requirements of the official performing the marriage.”
In 2005 Nichols filed a human rights complaint against Saskatchewan Justice claiming he had been discriminated against on the basis of his religion by being required to perform same-sex marriage ceremonies. That complaint was rejected by the chief commissioner of the Saskatchewan Human Rights Commission and a subsequent tribunal backed the decision of the chief commissioner.
Determined to assert that he has the right to refuse to perform same-sex marriage Nichols is now suing the Saskatchewan government. He has been joined in his suit by two other marriage commissioners, Bruce Goertzen of Prince Albert and Larry Bjerland of Rose Valley.
The three men are being represented in court by Prince Albert lawyer Philip Fourie. He is seeking a legal clarification on whether the three men deserve exemptions from performing same-sex marriages because of their religious beliefs.
“This is clearly a horrible violation of Charter right,” Fourie said in a news release. This problem can easily be fixed by simply allowing the commissioners a right to decline and pass on the ceremony request to another commissioner.”
“The pendulum has swung way too far in favour of same-sex people and against people of faith,” Fourie said. “What is next? Will the government be invading churches with their laws and forcing pastors and ministers and priests to perform same-sex marriage ceremonies?”
“Both in the private sphere and public sphere, our actions reflect what we believe,” Fourie said. “That’s the hallmark of Canadian society, to be tolerant towards others in our beliefs until the point of undue hardship.”
Saskatchewan Justice Minister Don Morgan said the province is bound by the ruling of the human rights tribunal. “We’re obliged to defend these types of things,” he added. “We have to support the law that exists in our province.”
Morgan also said that marriage commissioners unhappy with the law could always turn in their licence to perform civil marriages. “We have sent a letter to all the marriage commissioners indicating to them that it is an option to them to surrender their civil marriage certificate and to obtain a religious one if they wish to affiliate themselves with one of their churches.”
The Saskatchewan Party government finds itself in an awkward position. When same-sex marriage became legal in Saskatchewan in 2004, the then opposition Saskatchewan Party urged the government to fight against the court ruling that allowed same-sex marriage and to allow marriage commissioners uncomfortable with having to perform same-sex marriages the option to decline. Now that they are in government they find themselves having to defend decisions that are now the law of the land but which they had opposed while in opposition.
According to Fourie, Saskatchewan in only one of three provinces, the others being Manitoba and Newfoundland, that do not allow exemptions for marriage commissioners on the basis of religious beliefs.
The suit will be heard in Court of Queen’s Bench on Dec 23.