On Jan. 10, the Saskatchewan Court of Appeal declared in the Marriage Act Reference that legislation proposed by the provincial government allowing individual marriage commissioners to refuse marrying homosexual couples if it violated their conscience is unconstitutional. The court rejected two proposed draft bills: one allowing commissioners to refuse to perform same-sex “marriages” and the other granting this exemption only to those commissioners who already held the job when the federal government legalized same-sex “marriage” in November 2004. According to the court, the legislation would have violated section 15(1) of the Charter of Rights and Freedoms, which protects people against discrimination based on personal characteristics such as race or sex. Sexual orientation is never mentioned in the Charter, although several court decisions in the 1990s have read it into document.

All five of the Saskatchewan judges working on the case agreed that the legislation was unconstitutional. “This submission overlooks … the importance of the impact on gay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union,” wrote Justice Robert Richards on behalf of three of the five judges. “It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer, ‘I won’t help you because you are black (or Asian or First Nations) but someone else will,’…Being told, ‘I won’t help you because you are gay/lesbian but someone else will’ is no different.”

The court decision, however, does leave room for the province to consider creating a “single entry point system” like in Ontario, where a couple requests the ceremony from a central office and not directly from individual marriage commissioners as is currently the case in Saskatchewan.

The Saskatchewan bill was drafted after the government was sued by two marriage commissioners who were told to marry homosexual couples or resign. It was also a response to the case of marriage commissioner Orville Nichols, who was fined by the Saskatchewan Human Rights Tribunal for refusing to marry a gay couple.

Pro-family groups have raised strong objections to the court’s decision. The Christian Legal Fellowship said: “The interpretation of the Charter of Rights and Freedoms in this Reference … creates a hierarchy of citizenship whereby greater protection is extended to those whose thoughts and beliefs are generally accepted within society. The proposed legislation adequately balanced the interests of all parties.” CLF executive director and legal counsel Ruth Ross said in a press release: “It is disappointing the Court did not see the wisdom in this balanced approach.”

“This decision detracts from the provisions of the federal Civil Marriage Act, the federal law which ultimately was passed in 2005, to implement same sex ‘marriage’ across the country,” said Catholic Civil Rights League president Phil Horgan.

Provision (s.3.1) protects freedom of conscience and religion in regards regardless of one’s position on marriage between two people.

The Evangelical Fellowship of Canada also issued a press release opposing the decision. “In this type of situation, the rights of all parties can be accommodated and respected rather than excluding one set of rights in favour of another,” said legal counsel Faye Sonier. “It is the inclusion of individuals from a wide variety of cultures, beliefs and perspectives in government positions that ensures and communicates that the state is truly committed to a diverse, multicultural society.”

In an open letter to the Saskatchewan Justice Minister Don Morgan, Conservative MP Maurice Vellacott wrote, “The court has hereby belittled religious faith by writing it off as something ‘you do in your head or on weekends’ without it impacting all of a person’s life.”

“We will consider the Court’s advice,” said Justice Minister Don Morgan on Jan. 10 after the decision was rendered. “Given the thoroughness of the analysis, I am not recommending that the government appeal.”