Pitting human rights against each other

Saskatchewan marriage commissioners ordered to perform gay marriages
By Shannon Klie
|Canadian HR Reporter|Last Updated: 03/14/2011

Legislation that would allow Saskatchewan marriage commissioners to refuse to perform same-sex marriage ceremonies would violate the equality rights of gay and lesbian individuals and is, therefore, unconstitutional, the Saskatchewan Court of Appeal has ruled.

Allowing government-appointed marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis, ruled the court.

However, the ruling — which appears to pit two human rights against each other — will have little affect on employers, said Stuart Rudner, an employment lawyer at Miller Thomson in Toronto.

“The issue wasn’t a question of two different employees having a dispute over whose rights will prevail, this was an issue of the rights of the public and those conflicting with the religious beliefs of marriage commissioners,” he said.

While there are plenty of workplace scenarios where the human rights of individuals could clash, there have been few, if any, such cases, said Rudner.

One case that never made it to a hearing involved an employee who was a Jehovah’s Witness. During lunch breaks, the employee would proselytize to other employees, who subsequently complained to the employer.

The employee claimed the protected ground of freedom of religion allowed for such activity in the workplace, said Rudner.

The right to freedom of religion does require employers to accommodate employees, such as observing religious holidays or special diets, but there is a limit, he said.

“(Religious freedom) doesn’t extend to imposing your views upon others in the workplace,” said Rudner.

When deciding cases where there are two conflicting rights, the courts will look at each case individually and weigh the options, he said.

The Ontario Human Rights Commission released Balancing Conflicting Rights: Towards an Analytical Framework in 2005 to help organizations and individuals figure out what to do when two rights clash.

One of the paper’s key points is one person’s right, such as the right to freedom of expression, cannot be used to compel someone else to do something that violates one of her rights.

In the Saskatchewan case, the issue before the court was the duty of the government body to treat everyone in a manner that doesn’t breach the Charter of Rights and Freedoms, said Rudner. As such, the religious freedom of the marriage commissioners was only a factor in assessing the proposed legislation, not the key issue, he said.

“Marriage commissioners aren’t government employees, they’re appointed officials, so the duty to accommodate is quite different than in an employment perspective,” said Janice Gingell, senior staff solicitor at the Saskatchewan Human Rights Commission. “They’re appointed to carry out a specific purpose — marriages.”

After same-sex marriages were introduced in 2005, some Saskatchewan marriage commissioners quit. When others refused to perform same-sex marriages, gay couples filed human rights complaints.

Three marriage commissioners sued the province, saying their religious rights were being breached.

This led the provincial government to request the Court of Appeal’s opinion about potential amendments to The Marriage Act, 1995, that would allow a commissioner to decline to perform a marriage if it was contrary to his religious beliefs.

The federal Civil Marriage Act recognizes officials of religious groups are free to refuse to perform marriages not in accordance with the religious views of their respective faiths.

But while a person can object to the act based on religious beliefs, marriage commissioners are civil servants performing a government service and must serve the public equally, said Gingell.

The Saskatchewan government has accepted the court’s decision and will require marriage commissioners to perform civil marriages for all couples, including same-sex partners.

“We concluded there are no grounds for appeal of this unanimous court decision,” said Justice Minister Don Morgan. “The Court of Appeal has clearly ruled that civil marriage commissioners must perform ceremonies for couples who meet the legal requirements.”

The decision affects only commissioners who perform civil marriages on behalf of the provincial government. It has no bearing on marriages performed within a religious institution.

As a secular service, marriage commissioners are required to perform their duties regardless of their personal beliefs, said Cara Zeibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association in Toronto, which intervened in the Saskatchewan case.

“This is a public service that is meant to be the secular alternative to religious marriage,” said Zeibel. “We felt it was important that individuals who have these public positions perform the duties associated with their jobs.”

Marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies, emphasized the Saskatchewan court in its ruling.

And the obligation to officiate same-sex marriages doesn’t affect or interfere with the core elements of a commissioner’s religious freedoms to hold beliefs and worship, stated the court.

Shannon Klie is a Toronto-based freelance writer.

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