The Saskatchewan Marriage Commissioner’s Reference
In a January 10, 2010 judgment, the Saskatchewan Court of Appeal considered whether marriage commissioners may refuse to perform marriages when doing so would be contrary to their religious beliefs.[1]
The court considered two solutions the Government of Saskatchewan proposed. Neither proposal addressed marriages performed by religious officials, as they have never been required to perform same-sex marriages. Rather, the proposals dealt with government-appointed individuals who are authorized to perform non-religious, civil marriages.
Five members of the Court of Appeal ruled on the proposals. They unanimously ruled that both proposals are unconstitutional, but they did not all reach this conclusion by the same reasoning. Instead, the court split into two camps: a three-judge majority provided one set of reasons while a two-judge minority provided another set of reasons.
This article considers both judgments of the court. Before doing so, it provides a brief history of how the decision arose. Particular focus is placed on the key points of agreement and disagreement on the Saskatchewan Court of Appeal.
Background to the Case
Prior to 2002, marriage in Canada was restricted to opposite-sex couples. In 2002, an Ontario court became the first court in the country to rule that the exclusion of same-sex couples was unconstitutional.[2] Courts in other provinces, including Saskatchewan, soon followed suit.[3]
Rather than appealing those decisions to the Supreme Court of Canada, the federal government drafted legislation that would permit same-sex couples to marry. This draft legislation also allowed religious officials to refuse to perform same-sex marriages if doing so would be contrary to their beliefs. The Canadian government then asked the Supreme Court to consider whether this draft legislation would be constitutional.
In December of 2004, the Supreme Court of Canada ruled on that proposed legislation.[4] That case addressed two issues.
The first was whether the federal or provincial governments had authority to permit same-sex marriage. This was an issue because the provincial legislatures and federal Parliament each have responsibility for passing laws dealing with aspects of marriage. In particular, the Constitution specifies that Parliament has authority over “marriage and divorce” while the provinces have authority over “the solemnization of marriage.”[5] The government asked the Supreme Court whether the proposed legislation was within the powers of the federal Parliament. The Supreme Court ruled that Parliament could make this change because Parliament is allowed to determine who may marry. In contrast, the provinces are allowed to legislate on who may perform marriages that meet the requirements set in federal legislation.[6]
The second issue in the Supreme Court case was whether religious officials could be forced to perform same-sex marriages. The Court ruled that doing so would violate freedom of religion as protected in the Canadian Charter of Rights and Freedoms.[7] The Court was not asked to consider the religious rights of officials who perform non-religious marriages.
Thus the proposed legislation, which permitted same-sex marriage while making an exception for religious officials, was constitutional. The legislation was then passed by Parliament and became law in July 2005.[8] This made it clear that same-sex marriages are permitted throughout Canada and that religious officials are not required to perform same-sex marriages. However, the legislation did not address whether marriage commissioners could also rely on their religious beliefs to refuse to perform civil marriages
In Saskatchewan, this lack of certainty about the officials who perform civil marriages resulted in further litigation about same-sex marriage. On the one hand, some marriage commissioners refused to perform same-sex marriages. They argued that requiring them to do so amounts to work-place discrimination and violates their freedom of religion.[9] On the other hand, some same-sex couples argued that a refusal would amount to discrimination on the basis of sexual orientation.[10]
The Saskatchewan government responded to this spate of litigation by considering how they could accommodate the religious beliefs of marriage commissioners. Eventually, the government asked the Saskatchewan Court of Appeal to consider two proposed solutions and provide their opinion on whether either proposal would be unconstitutional if passed into law.[11]
The Proposed Legislation
The first proposal would allow any marriage commissioner to refuse to solemnize a marriage if doing so would be contrary to his or her religious beliefs. The second would allow a limited set of marriage commissioners to refuse to perform same-sex marriages. It would exempt only commissioners who were appointed before same-sex marriage became legal in Saskatchewan.
As well, both options specified that a refusal would not be considered to be contrary to Saskatchewan human rights legislation that prohibits discrimination on the basis of sexual orientation in the provision of public services.[12] This exemption was necessary because a Saskatchewan court had already ruled that such a refusal violated human rights law.[13]
The Judgments
All five judges concluded that both proposals would be unconstitutional, but the court was split into two camps in their reasoning for reaching this conclusion. The following discussion will consider the points of agreement and disagreement in both sets of reasons.
Broadly speaking, judges must take two steps to determine whether proposed legislation complies with the Charter. First, they must determine whether the proposed legislation limits a Charter right. Then, if such a limit is established, they must consider whether that limit is “a reasonable limit prescribed by law” that “can be demonstrably justified in a free and democratic society.”[14]
Step 1: Would the Proposals Limit a Charter Right?
The argument in this case was that both proposals would limit the Charter right to equality. The court unanimously accepted this argument.[15] While they acknowledged that the purpose of the legislation may be to accommodate the beliefs of marriage commissioners, they also noted the negative effects of that the legislation. Specifically, some commissioners would refuse to provide service when contacted by a same-sex couple..[16]
This refusal, according to the judges, would cause significant personal hurt to the same-sex couple.[17] The judges also pointed out that there was no reason to assume that it would be a rare event because a large number of marriage commissioners may make religious objections. The effect of an objection would be more significant in rural areas where fewer commissioners are available.[18] Justice Smith, writing for herself and Justice Vancise, also pointed out that marriage commissioners are the only option available to most same-sex couples because most religions object to same-sex marriages. This, in her opinion, made the effect of the proposals even more significant.[19]
The result of either proposal, according to the judges, would be a negative distinction on the basis of sexual orientation. This would reinforce the history of prejudice and stereotyping against gays and lesbians.[20] As a result, all of the judges agreed that the right to equality was infringed.
Step 2: Are the Proposals a Reasonable Limit on the Right to Equality?
The fact that the proposals limit the right to equality is not the end of the inquiry as there is also an opportunity to defend that limit. At this point, the judges had to look at two broad questions. First, they had to consider whether the proposals pursue a pressing and substantial objective that can justify limiting a Charter right. If so, the second question is whether that objective is pursued in a way that is proportional to the limit it places on the right to equality.[21]
The following discussion will consider the approaches taken by both factions of the Saskatchewan Court of Appeal. Particular emphasis will be placed on the major points of disagreement and agreement that may become relevant in the future.
What is the Objective and is it Pressing and Substantial?
The first step for the judges was to identify the objective of the proposals. It was here that the majority and minority judges differed most significantly.
Supporters of the proposed amendments argued that they were aimed at “protecting the religious freedom of marriage commissioners.”[22] As a result, the judges had to consider whether the current system, which requires all commissioners to perform same-sex marriage, interferes with their Charter-protected freedom of religion. This became a key point of disagreement on the court.
The majority judgment was written by Justice Richards. He pointed out that freedom of religion is violated when two things are established. First, there must be a sincerely held belief that has a connection with religion. Second, there must be an interference with the ability to act in accordance with that belief or practice, and the interference must be “more than trivial or insubstantial.”[23]
The majority pointed out that some marriage commissioners claimed that solemnizing same-sex marriages would violate their religious beliefs.[24] Thus, the first element – a sincerely held religious belief – was established. As well, the majority concluded that requiring all commissioners perform same-sex marriages interferes with that belief. The majority also took the view that this interference is not trivial or insubstantial.[25] In this regard, the majority pointed out that the inquiry into the extent of the interference concerns only the degree to which freedom of religion is burdened. According to Justice Richards, this “does not involve an inquiry into the extent to which the measure encroaches on freedom of religion in the sense of examining whether ‘core’ or ‘peripheral’ freedoms are in issue.”[26] (This, as will be seen below, differs from the minority’s approach.)
Thus, according to the majority, requiring marriage commissioners to perform same-sex marriage means that religious objectors must choose between (i) leaving their offices, or (ii) acting contrary to their religious beliefs. This, according to the majority, violates freedom of religion.[27] Thus, according to the majority, the objective of the proposals was the accommodation of the religious beliefs of marriage commissioners “by relieving them of the obligation to perform marriage ceremonies in circumstances where doing so would be contrary to their religious beliefs.”[28] Since this was aimed at accommodating another Charter right, the majority considered it to be a pressing and substantial objective.[29]
The other two judges, Justices Smith and Vancise, took a drastically different approach.
The minority pointed out that freedom of religion also protects individuals from being compelled to practice or recognize any religion.[30] This, in their opinion, is significant because marriage commissioners are the only non-religious option for obtaining a marriage. Access to marriage commissioners is important for couples who are unable or unwilling to have their marriages solemnized by religious officials.[31] The minority also emphasized that marriage commissioners are intended to provide “non-religious, civil, as opposed to religious ceremonies.”[32]
More significantly, the minority argued that freedom of religion was not really engaged in this case. Justice Smith concluded that commissioners were making two objections. First, some commissioners object because same-sex marriages are not part of their religious conception of marriage and, since they see “no difference between religious and civil marriage,” they considere same-sex marriages to be illegitimate.[33] Second, some commissioners believe that same-sex relationships are sinful and thus officiating same-sex marriages would amount to approval of a sinful lifestyle.[34]
The minority took issue with both of these objections. The first, according to the minority, is contrary to the separation between religious and non-religious ceremonies. They pointed out that this position is contrary to the evolution of Canadian law toward upholding the right of same-sex couples to marry.[35] On the second objection, the minority took the view that performing a same-sex marriage does not necessarily imply approval of same-sex relations.[36]
Three other points were emphasized by the minority. First, they pointed out that allowing commissioners to object to performing same-sex marriages could result in further discrimination on the basis of sexual orientation. Similar objections could be made regarding renting halls for marriage ceremonies, providing rental accommodations, or providing meals or entertainment.[37] Second, the minority argued that there is a distinction between religious belief and religious action. According to the minority, while the right to hold certain beliefs lies “at the core” of freedom of religion, the right to act on those beliefs is farther from the core.[38] Finally, the minority argued that the religious beliefs of marriage commissioners are affected “only in a secondary way” when they are forced to perform same-sex marriages.[39] They pointed out that nobody was being compelled to engage in sexual activity to which they object. Rather, the objection is based on the view that it is sinful for others to engage in such activity.[40]
As a result, the minority took that view that it is at least “arguable that the interference with freedom of religion is trivial or insubstantial.”[41] On this view, forcing commissioners to perform same-sex marriage may not violate freedom of religion.[42] As a result, the minority characterized the objective of the proposals as permitting “marriage commissioners to refuse to perform same-sex marriage ceremonies when to do so conflicts with their religious beliefs.”[43] According to the minority, it is “doubtful” that this is a pressing and substantial objective.[44] This alone would be enough to establish a violation of the Charter, but the minority also completed the rest of the analysis.
Is the Objective Proportional to the Limit on the Right to Equality?
The next issue the judges had to consider was whether the objective of the proposals was proportional to the limit placed on the right to equality. This involved three questions. First, are the proposals rationally connected to their objective? Second, would they minimally impair the right to equality? Third, would the positive effects of the proposals outweigh their negative effects?
On these questions, all five judges were in substantial agreement. Although they identified different objectives, they unanimously agreed that the proposals were rationally connected to those objectives.[45]
In terms of “minimal impairment,” the judges were again in unanimous agreement.[46] In particular, they pointed out that there may be a better way of accommodating the religious beliefs of marriage commissioners. The judges considered a “single entry point” system currently being used in Toronto.[47] Under this system, couples do not contact individual commissioners directly. Instead, they contact a central office. The central office then ensures that same-sex couples are only directed to marriage commissioners who are willing to perform their marriages.[48]
The judges were careful to point out that they were not being asked to rule on the constitutionality of such a system. As such, they could not consider whether it would survive a constitutional challenge.[49] However, the available of such a system was sufficient for them to conclude that the proposals that they were asked to consider did not minimally impair the equality rights of same-sex couples.[50]
Finally, the judges considered the positive and negative effects of the proposals. In terms of positive effects, the judges pointed out that the proposals would ensure marriage commissioners would not have to act contrary to their religious beliefs.[51] However, they also pointed out that this positive effect would be limited, because it only concerned the ability of commissioner to act on their beliefs, not the ability to hold their beliefs.[52]
On the other hand, the judges identified three negative effects. First, the proposals would perpetuate a brand of discrimination that Canada has only recently overcome. As such, it “would be a significant step backward.”[53] Second, the proposals would have harmful impacts on individual same-sex couples as well as the broader gay and lesbian community.[54] Third, the proposals would undermine the “deeply entrenched and fundamentally important aspect of our system of government” that services are provided equally to everyone.[55] The judges stated:
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 to their personal religious beliefs.[56]
The judges unanimously concluded that the positive effects of the proposal would be outweighed by their negative effects.[57] As a result, they ruled that either of the proposed solutions would be unconstitutional if it was enacted.[58]
Adam Badari (February 2, 2011)
Further Reading
Adam Badari "Equality Rights since 1985" Centre for Constitutional Studies (August 26, 2010).
Adam Badari, "Egan v. Canada (1995) – Equality Rights and Same-Sex Spousal Benefits" Centre for Constitutional Studies (July 22, 2010).
Adam Badari, "Law v. Canada (Minister of Employment and Immigration) (1999) – Equality Rights Framework" Centre for Constitutional Studies (June 8, 2010).
Jim Young, "Reference re Same-sex Marriage (2004)" Centre for Constitutional Studies (May 12, 2010).
Dan Shouldice, “Saskatchewan Refers Same-Sex Marriage Question to Courts” Centre for Constitutional Studies (May 12, 2010).
Dan Souldice, “Refusal to Perform Same-Sex Marriage Costs Sask. Marriage Commissioner $2500” Centre for Constitutional Studies (July 27, 2009).
Terry Romaniuk, "Andrews v. Law Society of British Columbia" Centre for Constitutional Studies (September 20, 2007).
“Vriend v. Alberta” Centre for Constitutional Studies (undated).
[3] Hendricks and Leboeuf v Quebec, [2002] RJQ 2506(SC (TD)), aff'd [2004] RJQ 851, 238 DLR (4th) 577 (CA); EGALE Canada inc. v Canada (Attorney General), 2003 BCCA 251, rev'g 2001 BCSC 1365; Dunbar & Edge v Yukon (Government of) & Canada (AG), 2004 YKSC 54; Vogel v Canada, [2004] MJ No 418 (QB); Boutilier et al v Canada (AG) and Nova Scotia (AG), Doc. S.H. No. 227691(NSSC); W(N) v Canada (Attorney General), 2004 SKQB 434; Pottle v Attorney General of Canada, 2004 01T 3964 (NL Sup Ct); Harrison v Canada (Attorney General), 2005 NBQB 232.
[4] Reference Re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.
[5] Constitution Act, 1867, 30 & 31 Victoria, c 3, ss 91(26), 92(12) (UK).
[6] Supra note 4 at paras 18, 31-34.
[7] Ibid at paras 55-60.
[8] Civil Marriage Act, SC 2005, c 33.
[9] Supra note 1 at paras 13, 15.
[10] Ibid at para 14.
[11] Ibid at para 16.
[12] Ibid at para 17.
[13] Nichols v Saskatchewan Human Rights Commission, 2009 SKQB 299.
[15] Supra note 1 at paras 46, 102.
[16] Ibid at paras 37-38, 102, 104.
[17] Ibid at paras 41, 105.
[18] Ibid at paras 42-43, 105.
[19] Ibid at para 106.
[20] Ibid at paras 44-45, 107-08.
[22] Ibid at para 71.
[23] Ibid at para 50.
[24] Ibid at para 60.
[25] Ibid at para 63.
[26] Ibid at para 64.
[27] Ibid at para 65.
[28] Ibid at para 76.
[29] Ibid at para 77.
[30] Ibid at para 121.
[31] Ibid.
[32] Ibid at para 123-24 [emphasis added].
[33] Ibid at para 140.
[34] Ibid.
[35] Ibid at para 141.
[36] Ibid at para 142.
[37] Ibid at para 145.
[38] Ibid at para 146-47.
[39] Ibid at para 148.
[40] Ibid.
[41] Ibid.
[42] Ibid.
[43] Ibid at para 115.
[44] Ibid at para 152.
[45] Ibid at paras 82, 154.
[46] Ibid at paras 84-89, 160.
[47] Ibid at paras 86-87.
[48] Ibid.
[49] Ibid at para 89.
[50] Ibid at para 88.
[51] Ibid at para 92.
[52] Ibid at para 93.
[53] Ibid at para 94.
[54] Ibid at paras 95-96.
[55] Ibid at para 97.
[56] Ibid.
[57] Ibid at paras 99, 161.
[58] Ibid at paras 101, 162.