Faye & Scott on Day 1Yesterday was the first day of hearings at the Saskatchewan Court of Appeal on the Marriage Commissioner Reference.
As explained a few days ago, in July 2009, the Justice Minister of Saskatchewan asked the Court of Appeal for an opinion on potential legislation which would permit marriage commissioners to decline performing marriages if contrary to their religious beliefs.
The government has proposed two potential legislative options; one permitting marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs and the second would allow any marriage commissioner the same right. The Court of Appeal is tasked with determining whether either or both meet the constitutional standard of the Canadian Charter of Rights and Freedoms.
The EFC supports only the proposed legislation, known as Schedule B, which would protect and ensure the religious and conscience freedoms of all marriage commissioners.
Scott Kennedy and I traveled to Regina on Wednesday to attend the hearing. We worked very hard on our written arguments, our factum (submitted some time ago), along with Don Hutchinson, the Evangelical Fellowship of Canada’s Vice-President, General Legal Counsel. Yesterday was the EFC’s opportunity to present oral arguments.
We started the day with an interview by CBC TV outside the courthouse. Arriving in the courtroom an hour early, we were quite surprised to see just how many people were in attendance. The courtroom was packed and some were forced to stand for the entire day as seating was limited. There many members of the press, a class from a nearby law school and members of the public. Some EFC friends were in attendance, including Dr. David Guretzki who provided an expert theological opinion which was included in our submissions.
The panel of five judges included Justices Smith and Richards. First up at 10 am were those counsel in favour of the proposed legislative option known as Schedule B. Below I’ve briefly noted a few arguments as put forth by each participant. This summary is not exhaustive. To include a fuller account of arguments would take far more space than this short blog permits. I’ve tried to focus on one or two key arguments for each.
Mike Megaw, Counsel Appointed to Argue in Favour of the Legislation. Mr. Megaw covered many things, including comments that the proposed amendments are intended to recognize the religious freedom of marriage commissioners and, according to the Supreme Court of Canada’s decision in Big M Drug Mart, religious freedom is a robust freedom. He also answered many questions from the justices. One issue raised was about the definition of ‘compelling’, as in “does the current state of the law really compel commissioners to act contrary of their beliefs?”
Next up was the Christian Legal Fellowship represented by Tom Schuck and Ruth Ross. Mr. Schuck argued that forcing commissioners to choose between their conscience and their employment is the essence of the definition of religious discrimination in Canada. He also commented that to refuse to permit commissioners to decline from performing marriages contrary to their religious beliefs is to establish generally that there is nothing morally wrong with same-sex behaviour.
Following Mr. Schuck was the Canadian Fellowship of Churches and Ministers represented by lawyer Dale Blenner-Hassett. Mr. Blenner-Hassett argued that the Supreme Court of Canada has established that the balancing of rights is required to ensure that the rights of both parties, religious commissioners and those seeking access to marriage, are respected. A correct application of the SCC’s decision in Trinity Western would ensure that a hierarchy of rights is avoided. He also argued that it is in the private sphere where individuals can live their values.
The Evangelical Fellowship of Canada was next. Scott Kennedy opened by stating that this case is not about same-sex marriage – that reference was heard and addressed several years ago at the Supreme Court of Canada. He explained that this reference is about religious freedom. He also identified, with support from the Supreme Court of Canada’s decision in Chamberlain, that religious rights and perspectives are entitled to equal participation with other rights in the public square. Justice Gonthier’s dissent on this point in Chamberlain, supported by Chief Justice McLachlin on behalf with the majority (thus a unanimous decision of the SCC on this point of law), makes it clear that the definition of “secular,” in regard to participation in the public square, includes religious belief, i.e. that the public square is to be religiously inclusive. Scott also stated that rights only have validity if they can be expressed. The right to belief without expression is not much of a right at all and only a corrupt government would seek to control the thoughts and beliefs of its citizens. Religious individuals must have a right to express their beliefs in practice and in conduct in order that the right have meaning.
Grace MacIntosh then spoke on behalf of the Seventh-Day Adventist Church in Canada. Ms. MacIntosh explained that marriage commissioners and pastors and priests alike are entitled to the Charter’s s. 2(a) freedom of religion and conscience rights. The proposed legislation, Schedule B, would assure both rights. Otherwise, there would be a conflict for the provincial legislation with the federal Civil Marriage Act on the basis of the doctrine of paramountcy (where the provinces and federal government have shared jurisdiction and conflicting legislation on a matter, the federal jurisdiction is paramount). Further, it is the duty of the state to create space where all members of society can respectfully interact. The Chamberlain decision ensures space in Canada for all ideologies and worldviews. She closed with a question for the court, “Is there a constitutional difference between clergy and laity?”
Patrick Loran addressed the court on behalf of the Roman Catholic Diocese of Saskatoon. Mr. Loran submitted that religious conscience was a subset of conscience rights generally. He also stated that it would be difficult to conceive on any basis that the Supreme Court of Canada would say that the Charter 2(a) rights of religious officials were on a diffirent standard that the 2(a) rights of marriage commissioners. We must be cautious in any rush to protect new rights that we don’t trample the old rights.
Philip Fourie followed, representing marriage commissioners Bruce Goertzen, Larry Bjerland and Desiree Dichmont. Mr. Fourie explained that his clients’ thought it important their views on the matter be presented to the court. His clients were indeed sincere about their religious beliefs and they perceived their performance of the solemnization of marriages as a service to their community and their country, which they take very seriously. This service, they regard as part of their spiritual service which provides a sense of purpose in their lives but they cannot support or participate in same-sex marriage because of their personal religious beliefs.
And that wrapped up the arguments presented by those in favour of accommodation, with Mr. Megaw having a right to reply after the arguments of those opposed are presented to the court.
Robert Reynolds, Counsel Appointed in Opposition the Legislative Proposals and Cynthia Peterson on behalf of EGALE Canada Inc. spoke before the day was out. Both presented a “floodgates” argument, i.e. – if this type of exemption is permitted for commissioners then the potential would exist for commissioners to seek exemptions for a variety of marriages to which they are opposed, such as in regard to divorced individuals seeking to remarry.
I apologize- but I have to end it here! It’s time to get ready for today’s session. More later!