It appears the Saskatchewan government has been unable to find lawyers within their own justice department to argue in support of legislation that would allow marriage commissioners to refuse to marry same-sex couples for religious reasons. As a result they are hiring Regina lawyer Mike Megaw to argue before the Court of Appeals that the two proposed pieces of legislation are indeed constitutional and do not violate the Charter of Rights and Freedoms.
Justice minister Don Morgan said justice department lawyers are uncomfortable arguing for the proposed legislation after arguing in previous cases that marriage commissioners are civil servants who should not be allowed to refuse to marry same-sex couples.
“They feel that to argue a different point of view now, or take a different position even though they may provide a variety of different opinions, would be problematic for them. So for that reason, we will ask them to participate in the court process only to the extent that they provide resources or background information,” Morgan told the Saskatoon StarPhoenix.
Morgan also said he is hiring Saskatoon lawyer Reynold Robertson to argue against the proposed legislation. Robertson said the Supreme Court of Canada has established that same-sex marriage is a constitutional right.
“The solemnization of marriage is a provincial responsibility,” Robertson said. “The province has to have the services available so that these people can get married. You cannot then have people who serve the public in secular marriages refuse to marry people on a prohibited ground of discrimination. So that’s the basis upon which I’m being involved in this issue and I believe it’s a very strong argument.”
Megaw is the lawyer for marriage commissioner Orville Nichols who has appealed after being fined $2,500 by a Saskatchewan Human Rights Tribunal for refusing to marry two Regina gay men. “The courts have been consistent — there is no hierarchy of rights, so one right cannot, to use a phrase, trump another,” Megaw said. “If it’s found the religious freedom argument is a right that individuals have, then the argument runs that the two rights must be balanced and there must be an attempt to give effect to each of the rights.”
The Saskatchewan Human Rights Commission, who have argued in the past against marriage commissioners being able to refuse to marry same-sex couples, are unsure of whether they will be allowed to argue against the legislation in the Court of Appeals. Commission employee Bill Rafoss says they are still checking to see if they can be part of the process.
Former justice minister Frank Quennell, the NDP justice critic, blasted the government for bringing in outside lawyers suggesting it raises questions about Morgan’s confidence in the legislation. “I would be very surprised if this was based on or congruent with the advice that Mr Morgan had received from experts within the ministry,” Quennell said.
The Court of Appeals is expected to hear arguments in the case this fall.