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Reference re Marriage Commissioners Appointed Under The Marriage Act

January 20, 2011

Sask. Court of Appeal rejects proposed amendments as discriminatory

The Saskatchewan Court of Appeal has rejected proposed amendments to the Marriage Act that would allow marriage commissioners to refuse to perform same-sex marriages.


After the legalization of same-sex marriage in Canada, some marriage commissioners in Saskatchewan refused to solemnize same-sex marriages on the basis that it violated their personal religious beliefs. After various legal proceedings were taken under the Saskatchewan Human Rights Code and in the civil courts, the government of Saskatchewan decided to draft two possible amendments to the province’s Marriage Act and refer them to the Saskatchewan Court of Appeal for an opinion on their constitutional validity. The Marriage Act governs the solemnization of marriages in the province.

The first proposed amendment would amend the Act to allow marriage commissioners appointed on or before November 5, 2004 to decline to solemnize a marriage if performing the ceremony would be contrary to their religious beliefs. The second, alternative proposed amendment would allow all commissioners, regardless of their date of appointment, to refuse to solemnize a marriage if doing so would be contrary to their religious beliefs.

The proposed amendments were drafted to operate “notwithstanding the Saskatchewan Human Rights Code.” As a result, if either of the proposed amendments were passed by the legislature, marriage commissioners (or at least those appointed before November 2004) could refuse to solemnize marriages based on prohibited grounds of discrimination in the Code, including sexual orientation.

The government appointed counsel to argue both for and against the proposed amendments in a hearing before the Court of Appeal. In addition, a number of groups intervened in the reference, including Egale Canada.

The Court of Appeal’s decision

On January 10, 2011, a five-judge panel of the Saskatchewan Court of Appeal held that both of the proposed amendments discriminated against gays and lesbians contrary to s. 15 of the Canadian Charter of Rights and Freedoms. That discrimination could not be saved as a reasonable limit under s. 1 of the Charter.

The Court held that the proposed amendments would have the effect of creating a negative distinction based on sexual orientation, noting that marriage commissioners are the only route by which individuals who wish to be married by way of a non-religious ceremony may have their union solemnized. Given the opposition of many religions to same-sex marriage, many gay and lesbian couples would not have access to the institution of marriage unless they could call on a marriage commissioner to perform the required ceremony. The Court rejected the argument that any harm would be minimal because a same sex couple could always find someone else to solemnize their marriage:

As can be easily understood, such effects can be expected to be very significant and genuinely offensive. 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” or “I won’t help you because you are Jewish (or Muslim or Buddist) 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 also noted that, in any event, there was nothing in the proposed amendments to ensure some minimum complement of commissioners would always be available to provide services to same-sex couples.

The Court also concluded that the distinction drawn by the amendments was discriminatory, holding that putting gays and lesbians in a situation where a marriage commissioner could refuse to provide services solely because of their sexual orientation would clearly be a retrograde step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions.

Turning to s. 1 of the Charter, Mr. Justice Richards, writing for three members of the Court, held that the objective of the amendments – accommodating the religious beliefs of marriage commissioners – was pressing and substantial. He also held that the first step of the proportionality test (rational connection) had been met. However, he concluded that neither of the proposed amendments satisfied the minimal impairment aspect of the s. 1 test. In this regard, he noted that, rather than have couples contact a marriage commissioner directly, the government could set up a “single entry point” system under which a couple seeking the services of a marriage commissioner would contact Director of the Marriage Unit or some other central office who would assign a marriage commissioner to the couple. The religious beliefs of individual commissioners could be accommodated “behind the scenes” with the result that no couple would be denied services because of a consideration which would engage s. 15 of the Charter.

Justice Richards also held that the proposed amendments failed the third prong of the proportionality test (whether the deleterious effects of the impugned law are, overall, proportionate to the public benefit conferred by the law). Noting that the amendments in no way affected the freedom of commissioners to hold any particular religious beliefs or to worship as they wish, but were rather concerned only with the ability of marriage commissioners to act on their beliefs in the world at large, he held that “it would be a significant step backward if, having won the difficult fight for the right to same-sex civil marriages, gay and lesbian couples could be shunned by the very people charged by the Province with solemnizing such unions.” Moreover, it would “undermine a deeply entrenched and fundamentally important aspect of our system of government”:

In our tradition, the apparatus of the state serves everyone equally without providing better, poorer or different services to one individual compared to another by making distinctions on the basis of factors like race, religion or gender. The proud tradition of individual public officeholders is very much imbued with this notion. 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. Any idea of this sort would sit uneasily with the principle of the rule of law to the effect that “the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.”

Consequently, “a system that would make marriage services available according to the personal religious beliefs of commissioners is highly problematic. It would undercut the basic principle that governmental services must be provided on an impartial and non-discriminatory basis.”

In concurring reasons, Madame Justice Smith, writing for herself and Mr. Justice Vancise, held that it was doubtful that the proposed amendments passed muster under any part of the s. 1 test.

Noting that marriage commissioners are intended by the legislation to perform civil, non-religious ceremonies, as opposed to religious ceremonies, Justice Smith looked to the evidence to determine in what respect being compelled to perform a same-sex marriage could be said to offend the religious freedom of a marriage commissioner. She found that the interveners who supported the amendments explained the religious objection to performing same-sex marriages on two bases:

(1) that same-sex marriage is not included in their religious conception of marriage and, there being no difference between religious and civil marriage, it is therefore illegitimate; and (2) that the claimant believes, on religious grounds, that a same-sex union is sinful (to put it mildly—some also say unhealthy, perverse, etc.) and that to officiate in the ceremony would give the appearance of approval of, and might serve to encourage, such a sinful lifestyle.

Justice Smith concluded that the first of these positions was contrary to Act, which was “designed to protect freedom of religion by providing for both religious marriages, where the ceremony is to be performed by clergy in accordance with the beliefs, rites and sacraments of their religious faith, and also for non-religious civil marriages, where the ceremony is expressly intended to carry no religious implications.” Moreover, it was “expressly contrary to and disapproving of the legislative and jurisprudential evolution of the law upholding the right of same-sex couples to marry.”

With regard to the second position, Justice Smith held that it was “far from clear that officiating at a civil marriage ceremony carries any implication or connotation at all that the marriage commissioner who officiates necessarily approves of the particular union.” Indeed, the only evidence pointed to the contrary – that, aside from same-sex marriages, no proposed marriages are refused unless they are thought to be for legally improper purposes (such as illegal immigration). Consequently, performing a same-sex marriage would not necessarily convey approval of the union, but refusing to do was an overtly discriminatory act that causes psychological harm to couples so refused and perpetuates the prejudice and inequality that gays and lesbians have suffered historically.

Moreover, Justice Smith noted that, if accepted, the same arguments could be used to deny all kinds of services to same-sex couples:

…[P]recisely the same argument could be invoked by those who sell marriage licenses, or those who rent halls for marriage celebrations, and disapprove, on religious grounds, of same-sex relationships. But more than this, it could just as easily, and with as much validity, be made by those who provide rental living accommodation to married couples, and even those who provide restaurant meals or entertainment to the public. The desire of individuals providing these services to the public to withhold the service from same-sex couples, on grounds of religious disapproval, is not legislatively protected. The evidence before us clearly establishes that religious disapproval of same-sex relationships is hardly restricted to marriage commissioners. Indeed, it is fair to say that religious belief is at the root of much if not most of the historical discrimination against gays and lesbians. It is fair to ask, then, why it is particularly important to accommodate marriage commissioners’ religious beliefs in this respect.

In addition, Justice Smith noted that Canadian law draws a distinction between the right to hold religious beliefs and the right to act on them:

…[W]hile the right to hold certain religious beliefs, and to engage in particular rites and practices, lie at the core of the right to religious freedom protected by s. 2(a) of the Charter, Canadian constitutional jurisprudence has consistently distinguished between the right to hold certain beliefs and the right to act on those beliefs, particularly as one moves out of the fundamental area of religious rites and practices and when acting on a religious belief harms or infringes the rights of others. See, for example, the analysis in Trinity Western University v. British Columbia College of Teachers … where the Court was at great pains to distinguish between the right of education students to hold negative and stereotypical beliefs about gays and lesbians, held to be protected by s. 2(a), from the right to discriminate against others, based on those beliefs, by implication, not protected. At the very least, the protection of s. 2(a) of the Charter, like s. 2(b) encompasses a range of activities that diminish, as they recede from a fundamental core, in constitutional value.

The performance of a civil marriage by a marriage commissioner under the Act is not a religious rite or practice. Nor does the requirement to do so limit or restrict religious belief.

For all these reasons, Justice Smith concluded that it was doubtful that the objective of the proposed amendments could even be said to be pressing and substantial for the purposes of the s. 1 analysis and, in any event, these doubts about its value recur and must be recognized in the context of the proportionality analysis. Like Justice Richards, Justice Smith went on to hold that the proposed amendments did not meet the proportionality tests under s. 1.

In the result, the Saskatchewan Court of Appeal unanimously determined that neither of the proposed amendments, if enacted, would be consistent with the Charter.

Read the opinion.

Egale Canada Inc. intervened in the appeal and was represented by Cynthia Petersen.

Practice Areas

Appeals & Judicial Review, Constitutional Law