Since notifying our readership that we are intervening in the Marriage Commissioner Reference at the Saskatchewan Court of Appeal, we have received a number of questions about the case and the state of the law in Canada. We hope the FAQs that we have provided below are helpful.
Below we posted two of them. To view them all, download this PDF and have a read.
If you’re interested in reading our factum, our written legal submission, you can view it here.
Shouldn’t everyone have a right to marriage in Canada?
Yes, individuals who are seeking to marry, who comply with the few legal requirements, have a legal right to marriage. There is no right to compel someone to perform the ceremony.
The duty to ensure access to marriage rests with government and not with each individual marriage commissioner. The Government of Saskatchewan is at liberty to appoint as many additional marriage commissioners as it sees fit to meet the demand for such officials.
Lastly, there is an important distinction between the right to be married and the right to be married by a particular person. The first is an actual right and the latter is not.
Is your interpretation of religious freedom in this context unconventional?
Not at all. As a matter of fact, representatives for the gay and lesbian community shared and stated the same beliefs as recently as 2005.
In 2005, in the consultations before the Senate Committee on Legal and Constitutional Affairs, Mr. Laurie Arron, Director of Advocacy for Egale Canada, made strong statements supporting the rights of marriage commissioners.
In referring to the Scott Brockie case, where a Christian printer was found to have a right to refuse to print material that infringed his conscience or religion, if the materials promoted action which was contrary to or in direct conflict with his religious beliefs, Mr. Arron said the following,
[The Court] said that printing letterhead and business cards is a straightforward service. You are not giving of yourself to do that; you are just putting paper through a machine. They did say that when you do have to do something whereby you are giving more of yourself, there would be a basis for accommodation.
Obviously, I think for a marriage commissioner to preside over a same-sex wedding is much more of an imposition than just running letters through a copier. I think the court clearly laid out the principle by which there would be reasonable accommodation for marriage commissioners. That case is a good one in saying that religious freedom is entitled to expansive protection. (page 20:46)
This position was echoed by Alex Munter, National Coordinator for Egale Canada, in his appearance before the House of Commons Legislative Committee on Bill C-38. When asked how marriage services should be offered, Mr. Munter replied the following,
When people show up at the counter to obtain marriage licences—as citizens and taxpayers, to avail themselves of a government service- the issue is that it be provided. By whom or how doesn’t really matter from this side of the counter; it’s up to the provincial government. Mr. Arron gave the example of how in Ontario the provincial government has dealt with that in how it manages its workforce to be able to deliver that service.
There is certainly a principle in human rights law in Canada around reasonable accommodation. There’s no reason to believe that it will not be possible to ensure, on the one hand, that there’s access to the service and, on the other hand, to ensure that the employer – the municipality, the province, or whoever – ensures access is provided by whatever mix of workforce that can accommodate that. (page 14-15)
The rights to freedom of religion and conscience and the principles of reasonable accommodation are widely understood and accepted.