Civil marriage commissioners who are civil servants and balk on religious grounds at performing same-gender marriages should not be accommodated. They should resign – or be fired, with little, if any, notice.
Furthermore, the New Brunswick legislature should not enact the legislation, currently in third reading, that purports to permit balking on conscientious grounds. The Alberta government should not proceed with its stated intention to enact such legislation. If those governments carry through, the courts should strike down their legislation and, in any event, enforce the rights of same-gender partners to marry and dismiss any wrongful dismissal lawsuits brought by the commissioners fired for balking.
That balking by marriage commissioners should not be permitted is not only a clear legal result of clear court rulings, it is also the result of even a simple examination of the principles of human rights, civil liberties, and employment law.
The closest analogy to the present situation, to my mind, arose during the US civil rights movement. When racial discrimination was prohibited by the Civil Rights Act of 1964, southern politicians concocted a number of rearguard rationales and maneuvers. Segregated schools were said to be “separate but equal.” They weren’t, of course, and segregation in public schools was gradually exposed in all its forms as discriminatory and illegal.
So, too, is balking by a civil marriage commissioner, arguing that same gender couples will receive “equal” rights if obliged to drive (with all their guests) to the next New Brunswick or Alberta town where the marriage commissioner does not have compunctions that predictably conflict with their core functions. Even if the provinces fund transportation, experience shows that separate is never “equal” in these matters. Furthermore, one shouldn’t underestimate the ingenuity of those who cling to discriminatory practices. Southern US politicians appealed to bigots in the southern states by using code words – invoking “states’ rights” – including the right to permit segregated subdivisions, which, lo and behold, resulted in de facto segregation in public schools in those subdivisions. So, too, some Canadian marriage commissioners are invoking religious rights disingenuously.
In both cases, these manoeuvers amount to a claim to the right to discriminate. These manoeuvers cannot prevail. They do not bear up under scrutiny.
It is a fundamental objective of civil liberties that the rights and freedoms of an individual be as extensive as possible – extending up to, but not beyond, the point at which those rights and freedoms impinge on the rights of others unreasonably.
So, just as US blacks have a right to a truly equal education, reconciled with States’ Rights by former President John F Kennedy’s bussing regime if necessary, so too, Canadian same-gender partners ought to have truly equal marital rights. To accommodate balking commissioners on religious grounds is to accommodate discrimination. Discriminatory effect is discrimination in sheep’s clothing. It would be as if there were a right, in human rights legislation, to be a bigot. It would be as if bigotry were a prohibited ground of discrimination.
Currently, under human rights legislation, one cannot discriminate in housing or employment on the basis of “race, colour, creed, religion, sexual orientation, disability, etc.” Is intolerance a disability that must be accommodated? That cannot be, because that would undermine all the other protections. Not even Governor George Wallace of Alabama tried that one.
Marriage commissioners could argue that being obliged to preside over same gender marriage is such a fundamental change to their employment, of which they have little or no notice, that they should be given reasonable notice of the change, not required to implement the change during the reasonable notice period, or be entitled to treat the change as constructive dismissal. They could claim wages in lieu of notice, say, of six months to two years.
However, the wrongful dismissal argument doesn’t wash. Clearly, these commissioners have strong views on queer marriage. They cannot reasonably have failed to notice the Vriend decision in the Supreme Court of Canada in 1998. That decision “read in” (or effectively required) that “sexual orientation” be a prohibited ground of discrimination in the human rights legislation of Alberta, as it was in other provinces. From there, the next steps are small and predictable. Courts of one province after another enable same-gender civil marriage. After seven provinces have followed suit, we engaged in a painful national debate, a federal election, and a parliamentary debate.
Simply put, the marriage commissioners had notice. They are deemed to know the law, in any event. Every innovation in the common law (judge-made) is retrospective and retroactive (except some Charter rulings are explicitly put on a fuse, when the Courts want to give a government the chance to implement or over-rule by use of the notwithstanding clause – notably absent here).
The division between church and state clearly precludes accommodation, where religious claims would curtail state services to a minority protected from discrimination. Any pretense of supporting the traditional family ignores the fact that a same-gender union is every bit as much a family as the patriarchal traditional model. That’s the point. Any talk, Ralph Klein, of using the notwithstanding clause would be a stain on Alberta and Canada’s claims to principled tolerance and inclusion.