On March 2, the opposition Tories in New Brunswick’s legislature introduced Bill 37, An Act to Amend the Marriage Act. MLA David Alward, who authored the bill, said it was an affirmation of the rights of those clergy and clerks of the court (marriage commissioners) who have conscientious objections to performing same-sex “marriages,” and was needed to prevent them from being prosecuted. He referred to the situation of Regina, Sask. marriage commissioner Orville Nichols, who is currently before a provincial human rights tribunal for refusing to officiate a same-sex “wedding” because of religious objections. New Brunswick Attorney-General and Justice Minister T.J. Burke said the government would support the amendment, because he saw no conflict with the Charter of Rights and Freedoms regarding equality issues and “the religious rights of the employee trump the position of employment.”
Almost immediately, the bill was cast by homosexual activists and the media as controversial, discriminatory and an affront to the “equal marriage” movement, even though it did not mention same-sex “marriage.” Former New Brunswick NDP leader Allison Brewer threatened a Charter challenge.
In reaction, a 39-year-old blogger from Moncton, who calls himself “Leonard,” wrote: “The anti-family activists are furious … What (they) fear is not (that they) couldn’t register their relationship … The bill clearly states that additional marriage commissioners could be appointed if necessary … It’s (the) right to oppose abnormal lifestyles that makes the activists worry.”
They need not worry. On March 7, Burke reversed his position. He said additional research on the topic and a full briefing by department officials helped him see that Bill 37 was “fundamentally flawed” and would be “a step backwards.” He pointed out that all provincial civil servants “have taken an oath of office to perform their duties in an impartial and professional manner regardless of their personal beliefs” and, in fact, the position of employment does trump the religious rights of employees.
Burke – who backs legislation to permit pro-homosexual adoption of children and applauds the Liberals for being pro-active on homosexual rights – added that in his view, the Conservatives were “just trying to stir up controversy.”
The bill was defeated on second reading, two weeks after its introduction.
Alward says the amendment should not have caused controversy and he is disappointed the Liberals allowed outside pressure to change their position.
In a letter to the attorney-general, members of the Christian Legal Fellowship pointed out that a 1994 Supreme Court decision stated that Charter principles “require a balance that fully respects the importance of both sets of rights.” In other words, one right cannot trump another.
Norman Bosse of the Christian Legal Fellowship says that under New Brunswick’s Human Rights Act, employees have a right to be accommodated by their employers in religious and conscience matters, unless doing so would be impossible without undue hardship for the employer. Since this employer – the government – could easily appoint additional non-conflicted marriage clerks, there is no hardship. This part of the act does not require that persons outside the employer/employee relationship be accommodated.
Bosse suggests that since Canadians profess to value diversity and multiculturalism, it would seem sensible to permit the co-existence of two expressions of values, without unnecessarily restricting the rights of one party over another.
Karl Csaszar, head of the Fredericton branch of the Canada Family Action Coalition, told the CBC, “The Charter of Rights and Freedoms does not seem to apply to people who say, ‘My conscience won’t allow me to go down that road.’” Alward does not plan to introduce another amendment.