Civil marriage commissioners who balk on religious grounds at performing same-sex marriages should not be accommodated. They should resign – or be fired.
Furthermore, the New Brunswick government should not enact legislation, currently in third reading, that purports to permit them to do so. The Alberta government should not proceed with its stated intention to enact similar legislation. If those governments carry through, the courts should strike down their legislation and enforce the rights of same-sex partners.
A simple examination of the principles of human rights, civil liberties and employment law shows that the marriage commissioners should not be permitted to refuse their services to same-sex couples.
To my mind, the closest analogy to the present situation 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 manoeuvres. Segregated schools were said to be “separate but equal.” They weren’t, of course, and segregation in public schools in all its forms was gradually exposed as discriminatory and illegal.
It’s also discriminatory to argue that same-sex 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 conflict with their core functions. Even if the provinces fund transportation, experience shows that separate is never “equal” in these matters. Dis-criminatory effect is discrimin-ation in sheep’s clothing.
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, like invoking states’ rights, including the right to permit segregated subdivisions, which 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 manoeuvres amount to a claim to the right to discriminate. 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.
Just as US blacks have a right to a truly equal education, so too, Canadian same-sex partners ought to have truly equal marital rights.
Currently, under human rights legislation, one cannot discriminate in housing or employment on the basis of race, colour, creed, religion, sexual orientation or disability, among other things. Is intolerance a disability that must be accommodated? That cannot be, because that would undermine all the other protections.
Marriage commissioners could argue that being obliged to preside over same-sex marriage is such a fundamental change to the conditions of their employment, of which they have had little or no notice, that they should not be 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.
The wrongful dismissal argument doesn’t wash. Clearly, these commissioners have strong views on marriage. They cannot reasonably have failed to notice the 1998 Supreme Court Of Canada Vriend decision, which “read in” sexual orientation as 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 allowed same-sex 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. 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-sex union is every bit as much a family as the patriarchal traditional model. That’s the point. Ralph Klein’s talk of using the notwithstanding clause would be a stain on Alberta and Canada’s claims to principled tolerance and inclusion.