Saskatchewan Court of Appeals to Rule on Religious Exemption in Performing Same Sex Marriage - Monday, May 10, 2010

The Saskatchewan Court of Appeals will decide on Thursday whether marriage commissioners in that province can refuse to perform marriages for same sex couples on religious grounds.  The ruling will have implications for other provinces, since this will be the first time that a court will evaluate whether or not the refusal meets the standards of Canada’s Charter of Rights and Freedoms. 

The specific case deals with a matter that began in 2005, soon after Canada’s parliament declared same sex marriage legal.  Orville Nichols, a civil marriage commissioner in Regina, with 20 years experience, was approached by a man who asked him to perform a wedding ceremony. The man, identified in court documents as M.J. informed Mr. Nichols that it would be a same-sex ceremony.  Mr. Nichols explained that his Christian beliefs prevented him from performing such ceremonies and therefore he could not in good conscience take part.

M.J. found a commissioner who did perform the ceremony, but decided to bring Mr. Nichols before the Saskatchewan Human Rights Commission.  In 2008 the Commission fined Nichols $2500 and last year he lost on appeal to the Court of Queen’s Bench.

Quoted in the National Post, Mr. Nichols said “I have nothing against gay people.  I have a nephew and niece who are gay.  I don’t hate them.  I just don’t want to take part in a same-sex service.”

The Province of Saskatchewan is intervening in a unique way.  The Attorney-General Don Morgan has hired two outside lawyers to argue both for and against the constitutionality of exemptions.  He said that if the Court allows exemptions, his province will introduce legislation, similar to that of some other provinces, to codify the exemption.  If the court finds against Mr. Nichols the matter will end there.  The court will also hear from other interested parties on both sides of the issue.

Faye Sonier will argue for the exemptions on behalf of the Evangelical Fellowship of Canada.  She commented “accommodations have to be made to respect both parties’ rights but now and again we’ve seen circumstances where some rights conflict with other rights and sometimes rather directly.  The Supreme Court ruled in another case 2001 that there is no hierarchy of rights. What we hope to do in this case is find a way to respect both parties’ rights. That’s what the Charter demands.”

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, said her group decided to intervene against the exemptions. She called it a difficult decision given how many shades of grey there are in this case.  According to Ms. Deshman “we have come down in favour of reasonable accommodation of conscientious objection or religious views in other cases in the past.  The crucial difference here is that this will help decide the nature of government and the right of all citizens to equally access non-religious services. I think there are higher obligations on government, which is to treat all citizens equally when providing services.”

However, she said her group does not agree that civil servants must give up all religious rights. “We think that reasonable accommodation should be made when possible. But we just think in this case this accommodation takes too heavy a toll on equality.”

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