The Charter of Rights and Feelings: Marriage Commissioners have been wronged

Marriage commissioners in Saskatchewan and across the country have been wronged.

Any employment (or appointment) with government or in the private sector requires accommodation of the individual for one or more of a prescribed list of circumstances identified in human rights legislation. One of the listed circumstances in every province and territory in Canada is religion.

The Canadian Charter of Rights and Freedoms – not the Charter of Rights and Feelings, but I’ll expand on that point soon – lists the ‘Fundamental Freedom’ ‘freedom of conscience and religion’ first. The Charter was drafted that way intentionally. Religion was an important issue in North America since before there was a Canada or a United States, still was in 1981/2 and still is. The Supreme Court of Canada has defined again and again that freedom of religion includes both the right to believe and the right to engage in practices connected to that belief.

The Supreme Court has also noted repeatedly that where rights may be in competition or conflict, there is a process under which there is to be a balancing of those rights; not a hierarchy of rights. Yet, again and again the courts ‘balance’ the competing rights of religious freedom and gay/lesbian accommodation only to conclude that historic discriminations against gays and lesbians requires the accommodation of their rights in paramountcy to those of religious believers.

This ‘unbalancing’ of rights fails to take into account the historic discrimination and persecution that resulted in many of those very religious communities immigrating to Canada to seek refuge. Now a more than a decade and a half long tradition of favouring ‘sexual orientation’ (a right found to be analogous to those intended by the drafters of the Charter and legislatures that approved the Charter even though not included in the Charter) over ‘freedom of religion’ begs the question, “How long will religious believers/practitioners have their place in Canadian society subjugated before the Charter pendulum will, by the standard established, be required to swing in their favour in an effort to restore the balance the courts allege now to be seeking?”

The Saskatchewan Court of Appeal had no difficulty recognizing the right of marriage commissioners to believe and practice their faith based on existing decisions of the Supreme Court and other courts across the country. The members of the court, however, quickly turned their thoughts to the impact of the practice on the equality rights of gay and lesbian individuals. If one has any doubts about where the court is headed when reading such opinions, it is usually clarified early on when “religious freedom” is “infringed” and the equality right of “sexual orientation” is “violated.” What feelings are aroused in the reader by “infringed” and what feelings by “violated”?

Is it not interesting that in reviewing the legislative alternatives before it, the court chose not to focus on the infringement of the rights of marriage commissioners – the purpose for which the legislation was drafted – but the violation and “circumstances of same-sex couples.”

One fault the court found with the draft legislation was that “there is nothing in the proposed amendments to ensure some minimum complement of commissioners will always be available to provide services to same-sex couples.” Clearly, that complement of commissioners is an obligation of the government. Equally clearly, it is not an impediment to accommodating religious beliefs within the ranks of commissioners.

The court continues in similar vein directing toward its conclusion that the legislation would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions – none of which was mentioned in the legislation or as the intent of the legislation or the intent of the Government of Saskatchewan. All of which is jargon related to ‘feelings’ rather than dealing with the substantive issues of law before the court.

Next, the Court of Appeal determined to define on behalf of the Supreme Court of Canada what the SCC judges intended to say in Reference Re Same-Sex Marriage (2004) when the SCC referenced protection for ‘religious officials’ from being compelled to be involved in the performance of same-sex marriages. The Court of Appeal justices concluded this reference was only “to those individuals, such as priests or rabbis, who hold formal positions in faiths or religious organizations.” If that is what the Supreme Court intended, one might suppose they could have said so. But they did not. Here’s what the Supreme Court of Canada actually said:

56     Against this background, we return to the question.  The concern here is that if the Proposed Act were adopted, religious officials could be required to perform same-sex marriages contrary to their religious beliefs.  Absent state compulsion on religious officials, this conjecture does not engage the Charter.  If a promulgated statute were to enact compulsion, we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of religion, given the expansive protection afforded to religion by s. 2(a) of the Charter.

57     The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice:  Big M Drug Mart, supra, at pp. 336-37.  The performance of religious rites is a fundamental aspect of religious  practice. 

58     It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter.  It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter. 

59     The question we are asked to answer is confined to the performance of same-sex marriages by religious officials.  However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages.  The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns.

60     Returning to the question before us, the Court is of the opinion that, absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs. 

Even if one agrees with the conclusion of the Court of Appeal on its interpretation of the Supreme Court’s reference to ‘religious officials,’ it is worth re-reading paragraph 59 of the Supreme Court’s decision with consideration given to marriage commissioners, and other people and places that might otherwise be involved in marriage ceremonies, being compelled to do so in infringement (violation would be the better word) of their religious beliefs.

Perhaps, the most evident example of the court adjudication on the basis of a Charter of Rights and Feelings is found in the judges’ selection of this quote identifying the harmful impact the proposed legislation might have:

It was actually pretty devastating … So when this happened I was quite devastated. I rehashed this I don’t know how much when I couldn’t sleep because I actually wound up sleeping very little. I was just crushed about it. I couldn’t believe that as a human being I wasn’t going to be treated as a real person. And everybody should be treated as a real person. …

                                                     M.J. v Nichols (2008), 63 CH.R.R. D/45

I agree that everyone should be treated as a real person. That also means that a marriage commissioner who refers you politely to someone else to perform your ceremony because he does not perform same-sex marriages is treating you as a real person. And, he deserves to be treated as a real person, too. Are the beliefs and feelings of marriage commissioners irrelevant?

Of course, this entire scenario – including the human rights complaints and lawsuits that have unfolded in several provinces – could have been avoided with the use of common sense. In the zeal to impose same-sex marriage on public officials many provinces failed to pay heed to human rights legislation that requires accommodation of those very officials. Most, like Saskatchewan, took the heavy handed step of ordering all marriage commissioners to perform same-sex marriages. A few took the simple step of implementing a system that required those seeking to marry by way of a commissioner to complete a simple application noting the names and sexes of the intendeds and the geographic location where they planned to marry. The accommodation of commissioners took place out of sight and the couple received a list of commissioners in the geographic area who were available to perform their ceremony.

Saskatchewan, and a few other provinces, owe these men and women some compensation for the expense they have incurred to stand up for their right to accommodation. Orville Nichols, Kevin Kisilowsky, Larry Bjerland, Désirée Dichmont, Bruce Goertzen and others should not be out of pocket or out of work because decision makers failed to act reasonably. After all, they’re real people too.