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The Saskatchewan Court of Appeal issued its decision today in the Marriage Act Reference. The Court found the proposed legislation unconstitutional on the grounds that it “would [unreasonably] violate the equality rights of gay and lesbian individuals,” reports Christian Concern for our Nation.

Parties have been awaiting this decision since May 2010, when the Court was asked by the Saskatchewan legislature to determine the constitutionality of proposed legislation drafted to protect the rights of individual marriage commissioners who decline, on conscientious grounds, to perform same-sex marriage ceremonies, as well as same-sex couples desiring access to marriage. The Christian Legal Fellowship was one of ten parties that intervened in the matter, submitting both written and oral arguments before the Court.

“Canada has suffered a severe loss to its collective rights and identity today,” said CLF Executive Director and General Legal Counsel Ruth Ross. “The interpretation of the Charter of Rights and Freedoms in this Reference does not promote diversity and tolerance, nor does it extend freedom equally to all Canadians. Instead, it creates a hierarchy of citizenship whereby greater protection is extended to those whose thoughts and beliefs are generally accepted within society. The proposed legislation adequately balanced the interests of all parties, ensuring that same-sex couples had access to marriage, and that marriage commissioners had protection for their religious beliefs. It is disappointing the Court did not see the wisdom in this balanced approach.”

The Saskatchewan Court did, however, leave open the possibility of introducing a “single entry point” system, such as that used by Ontario, under which “a couple seeking the services of a marriage commissioner would proceed, not by directly contacting an individual commissioner, but by dealing with the Director of the Marriage Unit or some other central office.” While the Court was unwilling at present to assess its constitutionality, “in such a system, if the request for the services of a commissioner included information about the sorts of matters that might lead a commissioner to excuse himself or herself on religious grounds, then the religious beliefs of individual commissioners could be accommodated ‘behind the scenes’ with the result that no couple would be denied services because of a consideration which would engage s. 15 of the Charter.”

The proposed legislation was drafted after two marriage commissioners sued the Government of Saskatchewan in response to being told they must marry same-sex couples or resign from their positions. The marriage commissioners petitioned the Court of Queen’s Bench requesting Charter protection, on the basis that the government had failed to provide accommodation for their religious beliefs. The legislation was also in response to a decision of the Saskatchewan Human Rights Tribunal which fined marriage commissioner Orville Nichols for his refusal, on conscientious grounds, to marry a same-sex couple.

The proposed legislation sought to remedy this conflict by granting marriage commissioners the same right to refusal as is granted clergy. The solution resembled similarly adopted policies and practices in a number of Canadian provinces.

Without the legislation, the marriage commissioners face a lose-lose decision: perform actions that violate their sincerely held religious beliefs or suffer career-ending punishment. With the legislation, the marriage commissioners could have continued to serve while honouring their religious beliefs and same-sex couples could have continued to access marriage services without hindrance.

The Court’s decision in this Reference is not binding in other Canadian provinces. It is uncertain whether the Province of Saskatchewan will appeal the decision or introduce new legislation creating a “single entry point” system.