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UPDATE: SK court upholds same-sex couples’ rights

Marry gays or you're fired: justice minister

Jan 19, 4:15pm

Saskatchewan’s Justice Minister, Don Morgan told the province’s marriage commissioners they must conduct same-sex marriages or resign, or be fired.

“Conducting marriages for couples of the same sex is part of the duties of marriage commissioners in Saskatchewan,”  the letter reads. “If you do not feel that you can perform your duties as set out in this letter, you should consider resigning from  the position of marriage commissioner.

“I also wish to advise you that refusing to perform your duties without discrimination may lead to the termination of your commission,” the letter concludes.

The minister’s correspondence, dated Jan 18, comes just over a week after Saskatchewan’s highest court unanimously ruled that proposed legislation giving marriage commissioners the right to refuse to marry couples for religious reasons is unconstitutional.

Morgan considered but ultimately decided against implementing a “single entry point” system. Under such a model, which currently exists in Ontario, a couple seeking marriage services would contact a central agency rather than an individual commissioner so that any religious considerations would be made behind the scenes.

“We feel that the Ontario model would not serve the marriage commissioners or the members of the public very well,” Morgan says. “It amounts to the transfer of authority to the municipality and they usually have marriages conducted by civil servant,” he notes. “It’d effectively put all marriage commissioners out of business and wouldn’t give people flexibility in choosing a marriage commissioner.”

Morgan described this model as unworkable, citing a comment by one of the judges, who said he wasn’t sure that it would stand up to Charter scrutiny.

Jai Richards, co-director for the Avenue Community Centre in Regina, applauds the government’s decision.

“I think it’s reassuring that there’s recognition of the separation of one’s personal beliefs and the carrying out of their duties in their jobs,” she told Xtra on Jan 19.

“This is not only victory for queer community, but for anyone who is trying to access services which could have potentially been affected by this,” Richards adds.

Larry Bjerland of Rose Valley, one of three marriage commissioners listed as intervenors in the case, refuses to marry same-sex couples on religious grounds, but won’t resign his position.

“I don’t have a reason on earth to resign,” he says. “That would be like saying I concede, and of course, I don’t.

“There are many places in the Bible where it refers to homosexuals and homosexual activity and I’m a firm believer in the Bible,” Bjerland adds.

“I understand that there were five judges that ruled on this,” he says, “but there’s only one judge that I’m concerned with, and that’s the Almighty.”

Bjerland feels the loss of this position will give him a lot of free time.

“I’m 73 years of age and I’m pretty badly crippled up so I can’t do any manual labour anymore, but this has given me an opportunity to contribute back to the world. That’s one I could do and I must admit that I thought I was doing a pretty good job of it.”

Marriage Commissioner Letter

Jan 10, 6:20pm

Saskatchewan’s Justice Minister, Don Morgan,told Xtra his government has no plans to appeal the ruling to the Supreme Court of Canada.

“In my view, from a litigation point of view, it’s a done issue,” Morgan says. “There’s certainly an option to appeal to the Supreme Court, but when you got a well-written judgment  from five of the leading jurists in the province, you would want to accept that.”

Morgan plans to discuss a “single entry point” system with his cabinet. Under such a model, which currently exists in Ontario, a couple seeking marriage services would contact a central agency rather than an individual commissioner so that any religious considerations would be made behind the scenes.

Morgan notes that the justices “mused” about the Ontario model.

“We’ll have some discussion in cabinet whether that would be something they wish to go to. Even though they mused about it, however, they were not highly supportive of that model,” he says.

If, however, they do not implement the “single-entry” model, marriage commissioners who refuse their services to same-sex couples will be penalized.

“If [this ruling] becomes the final decision it would be up to us to enforce it, and we would expect marriage commissioners to comply or we’d take away their ability to perform marriages.”

Jan 10, 3pm

The Saskatchewan Court of Appeal unanimously ruled that proposed legislation giving marriage commissioners the right to refuse to marry couples for religious reasons is unconstitutional.

In 2009, Saskatchewan’s justice minister asked the province’s highest court to rule on two proposed amendments to the Marriage Act.

One amendment would give marriage commissioners the right to refuse to perform a marriage if it goes against their religious beliefs. The other amendment would limit this right to marriage commissioners appointed prior to the legalization of same-sex marriage in Saskatchewan in 2004.

“If put in place, either option would be unconstitutional and of no force or effect,” the ruling states.

The court said the proposed legislation would allow public officials to officially discriminate against gay people.

“Astonishingly, this clause would grant to a public official, charged with the delivery of a public service, an immunity to the anti-discrimination provisions of the Code not enjoyed by any other person in this Province.

“Moreover, in practice, it would deny to gays and lesbians the protection from discrimination that the Code provides to others,” the judgment further states. “In the words of the Supreme Court’s decision in Vriend, supra, this clause would send ‘a strong and sinister message’ that ‘gays and lesbians are less worthy of protection as individuals in Canada’s society.'”

The matter stems back to 2005 when Regina marriage commissioner Orville Nichols refused to marry a same-sex couple because to do so would conflict with his religious beliefs. The couple then filed a complaint to the Saskatchewan Human Rights Tribunal, which ruled in 2008 that Nichols had discriminated against the couple and fined him $2,500. Nichols appealed the decision, but in 2009 the Court of Queen’s Bench upheld the tribunal’s ruling.

According to the Court of Appeal’s Jan 10 ruling, there are approximately 372 marriage commissioners in Saskatchewan who perform an average of six or seven ceremonies in a year. They are the only people in Saskatchewan who can solemnize marriages in a non-religious ceremony.

“All of this is particularly significant for gay and lesbian couples who wish to marry,” the court notes. “The material filed with the Court indicates that many religions do not approve of same-sex marriages.

“The result of this reality is self-evident,” the ruling further states. “Many gay and lesbian couples will not have access to the institution of marriage unless they are able to call on a marriage commissioner to perform the required ceremony.”

Jai Richards, co-director for the Avenue Community Centre in Regina, keeps an informal list of marriage commissioners and other individuals from different faith backgrounds who are open to performing same-sex marriage.

Some people, however, face limited options.

“Most of the province is made up of smaller rural communities that are far away,” Richards says. “If your marriage commissioner says no, you’re kind of hooped.”

Richards and her wife were one of the couples who successfully challenged the courts for the right to marry. The subsequent ruling legalized same-sex marriage in the province. She says that if marriage commissioners are unwilling to perform a ceremony, they ought to solemnize marriages as members of a clergy.

“Take your faith belief and become a lay priest or lay minister in your faith choice,” Richards suggests. “Why be a marriage commissioner when the whole point is to be able to offer marriage to people who may not have a particular faith background?”

It’s not up to marriage commissioners to pick and choose which duties may or may not conform to their religious beliefs, the court agrees.

“Persons who voluntarily choose to assume an office, like that of marriage commissioner, cannot expect to directly shape the office’s intersection with the public so as to make it conform with their personal religious or other beliefs,” the judgment reads. “The law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.”

The NDP MLA for Saskatoon Meewasin, Frank Quennell, who served as justice minister from 2003, believes the ruling right-of-centre Saskatchewan Party put forth the questions for political reasons.

“I would argue that the base of the Saskatchewan Party does not like the decision in respect to same-sex marriage that the Supreme Court arrived at and doesn’t like that same-sex couples are entitled to civil marriage, and the only thing that the Saskatchewan Party government could do to pander to its base on this issue,” he contends.

The proposed legislation, however, does not mention same-sex marriage or sexual orientation, Quennell notes.

“If the Court of Appeals said either proposed bill would be constitutional and it was passed by legislature, marriage commissioners could, if they decided on religious grounds, refuse to marry interracial couples or interfaith couples,” he says. “That is what the legislation would theoretically allow because there is no reference to sexual orientation, although that’s what provoked this reference.”

Although the legislation has been ruled unconstitutional, Joe Rubin, a gay doctoral student in Saskatoon, says it speaks to the government’s feelings about queers.

“Putting forward that kind of legislation kind of perpetuates the myth that homophobia isn’t real discrimination and is allowed even in a country like Canada, which has more legal protection than other places,” he argues.

“It says homophobia is kind of okay as long as it’s not ABC, and we’re all right with it because there are all these other things.”

Larry Bjerland of Rose Valley, one of three marriage commissioners listed as intervenors in the case, is “very disappointed” with the ruling.

“When they take the word of human versus the word of God, I just don’t want to get involved in something that puts me in a contradictory position to the Bible,” he says.

Bjerland, who became a marriage commissioner about 10 years ago, has no plans to give up his role as a commissioner to perform marriages as a clergy member.

“In order to be a clergy, if it’s a legitimate church at all, you’re required to study for a number of years, so it’s not just a matter of someone saying, ‘I’m a minister.’

“I’m a member of the Lutheran church and my pastor went to school for five years. It’s not something as simple as saying, ‘I want to be.'”

He says the process of becoming a marriage commissioner was far simpler. The requirements were “basically nothing,” he says.  “I suspect they check your criminal records. No questions were asked or anything else.”

He feels his 25 years serving as a boy-scout leader, as well as his role as a padre with the local legion, may have helped him.

When Xtra asked him what he’d do if a same-sex couple approaches him to perform a wedding ceremony, he said he’d “simply recommend them to someone else.”


Saskatchewan’s Court of Appeal decision