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Marriage commissioners can’t discriminate: Saskatchewan court

Province will still seek religious exemptions

The Saskatchewan Court of Queen’s Bench has turned down the appeal of marriage commissioner Orville Nichols saying that Nichols “in his capacity as a marriage commissioner acting as government, is not entitled to discriminate regardless of his religious beliefs.”

In 2005 Nichols refused to perform a civil marriage ceremony for two Regina men after he discovered that it was to be a same-sex marriage. The two men filed a complaint with the Saskatchewan Human Rights Commission (SHRC) and a human rights tribunal later ruled that Nichols had discriminated against the two men, fined him $2,500 and ordered that he perform same-sex marriages if requested.

In his appeal Nichols argued that he has the right to refuse to marry same-sex couples because of his deeply held religious beliefs. He argued that his religious beliefs should be accommodated and that it was the government’s responsibility, not his, to ensure that services were available to same-sex couples wanting to be married.

In her ruling Justice Janet McMurty said 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.”

Rebecca McLellan, manager of operations for the SHRC said the Commission was pleased with the decision, noting that to allow the commissioners to discriminate would undermine protections of the Saskatchewan Human Rights Code.

Justice Minister Don Morgan said the province will still go ahead with seeking a legal opinion on the constitutionality of two possible pieces of legislation that would exempt marriage commissioners from having to perform same-sex marriages because of their religious beliefs. One version would grandfather in marriage commissioners who were appointed before Saskatchewan legalized same-sex marriage in 2004 while the other would provide an exemption for all marriage commissioners. “The gist of the application is that the province has got an obligation to accommodate their religious views,” Morgan told the Saskatoon Star Phoenix.

Janice Gingell, chief counsel for the SHRC, said she expects that Nichols will appeal the Court of Queen’s Bench decision to the Saskatchewan Court of Appeals, the same court the government has asked for a decision on the two proposed pieces of legislation exempting marriage commissioners.

Morgan agreed that the Queen’s Bench decision would likely be appealed.

Saskatchewan is rapidly becoming ground zero on the issue of whether marriage commissioners should be exempted from having to perform same-sex marriage ceremonies if it goes against their religious beliefs. Gingell says she has been notified that the Evangelical Fellowship of Canada and the Catholic Civil Rights League will both be applying for intervenor status when the court hear arguments on the constitutionality of the proposed legislation exempting marriage commissioners.

Gingell added that the SHRC hasn’t decided yet on whether they will be applying for intervenor status. However, she did inquire whether any queer organizations might be applying for intervenor status.

No date has been set yet to determine the constitutionality of the two proposed pieces of legislation that the Saskatchewan government wants to introduce.