The recent case in Saskatchewan involving Orville Nichols, a marriage commissioner who is also a devout Baptist, is again raising arguments we heard throughout the long process of legalizing same-sex marriage in Canada. Nichols is arguing his religious beliefs should allow him to refuse to marry same-sex couples.
As was repeatedly noted by those in favour of equal marriage, what was being considered was civil marriage.  Nobody on the pro-side of the question was suggesting religious institutions be forced to marry anybody.  It is a position those of us who lobbied for equal marriage still hold and is one held by the Government of Canada.
Marriage commissioners are civil servants and, as such, are obliged to uphold the laws of the land in their duties.  The case in Saskatchewan, now before the provincial Court of Appeal, hinges on whether or not Nichols’ ¬¬- or anyone’s - religious convictions outweigh the rights of those seeking to be civilly married.
Nichols refused to marry a same-sex couple in 2005, stating that to do so went against his religious beliefs.  The Saskatchewan Court of Queen’s Bench had already ruled in 2004, that same-sex marriage was a legal right in that province, just as several provinces and territories across Canada had already done prior to the Federal law being changed in July of 2005.  The couple took their complaint to the Human Rights Commission who ruled, in 2008, that Nichols had in fact discriminated against the couple in the supplying of a service available to the public, and he was fined $2,500.  The decision was also upheld by the provincial Court of Queen’s Bench.
Whether a particular marriage commissioner can refuse to marry a particular couple because he or she disagrees with same-sex, interracial, or interfaith marriages is what is at the core of this issue.  If, in fact, a refusal was premised on the couple being of different race or religious background, it would be clear this would be discriminatory.  It is no less clear refusing to marry a same-sex couple is discriminatory as well, but apparently, for some segments of our society, this reality has yet to sink in.  Hence, we need to get the courts involved.  Unfortunate, but obviously necessary in order to send the message that discrimination is discrimination, and will not be tolerated in Canada.
The government of Saskatchewan has requested the Court of Appeal to rule on the broader constitutional issue of whether one’s religious beliefs under the Charter of Rights and Freedoms trumps the rights of couples seeking to marry, in this case a same-sex couple.
Saskatchewan’s Minister of Justice, Don Morgan, feels the case is warranted in order to clarify the law.
“There is nothing in the Charter that indicates one of those should take priority over the other, so we are saying to the court we need to know with certainty which of those take priority, or is there an ability to accommodate both views?”
I suppose he has a point, although it does seem rather clear to me that a civil servant has to uphold and follow the laws under which he or she has sworn to operate.  If someone has a conscientious objection to doing that, then the option is there to find other employment where such a conflict of conscience does not exist.  This is not censorship nor is it coercion.
As for accommodation, the various human rights commissions across Canada were originally set up to ensure the rights of the majority did not ride roughshod over the rights of minorities.  I would say GLBTQ folk definitely qualify as a minority.  Gradually, the various provincial human rights commissions came to the same conclusion and included sexual orientation as a protected ground (although Alberta was quite late to the party on that score, not including us until after Delwin Vriend sued and won at the Supreme Court level in 1997.  Even at that, we are still only being “read into” the Act, not actually named in it).
The whole idea of “accommodation” is premised on making it easier, if you will, for minorities to participate in the mainstream.  For instance, if one is disabled an employer cannot fire you or not hire you based on that.  Rather, the employer is legally bound to “accommodate” either by making the workplace chair accessible, allowing for service animals, or even personal aides.  If one’s religious beliefs call for honouring the Sabbath from Friday sundown to Saturday sundown, during which time the adherent cannot work, an employer must accommodate that and not force the employee to work on their Sabbath.  If one observes the Sabbath on Sunday and truly believes one should not work on the Sabbath, an employer is legally bound to accommodate that and ensure that employee has Sundays off.  If one is GLBTQ the requirement for accommodation is no less important, although it may not be as clear as the above examples.  What is to be noted here is that accommodation of views and practices should favour the minority, not the majority.  The majority, by definition, is already being accommodated and is not at any disadvantage.
At any rate, the government has drafted two options for the court to consider.  One option would call for a special provision for marriage commissioners appointed before 2004 to be exempt from performing same-sex marriages if doing so conflicted with their religious convictions.  The other option would create a religious exemption for all marriage commissioners, not just those appointed prior to 2004.
When dealing with human rights issues it is prudent, even necessary, to try and accommodate those whose views or physical being do not fit neatly into the legislation.  It seems to me this is at the very essence of recognizing rights.
However, the two choices offered are almost a textbook example of being caught between a rock and a hard place and, if implemented, would leave many same-sex couples seeking to be married civilly out in the cold.  That is discrimination.
Marriage commissioners are not exactly pouring out of the woodwork, even in large urban centres.  Imagine being in a smaller community with an even more limited number of commissioners, if any, available.  And then imagine, of those commissioners available in this smaller centre all share the same, or similar, religious and cultural views.  It’s not that outrageous a scenario to consider.  What does the couple do then?
Of course, having someone who clearly has issues around marrying you and your beloved, actually having to perform the ceremony would put a damper on anyone’s “special day.”  This is a time to celebrate one’s love and commitment to one’s life partner, to stand up in front of family, friends and community, and have one’s commitment witnessed, celebrated, and honoured.  The person performing the ceremony should be a part of that, not the proverbial fly in the ointment.
If the court ruled both options to be unconstitutional, the issue would be settled...after a fashion.  If the court went that route - and it could - then marriage commissioners, at least in Saskatchewan, would have to comply or resign their appointment and seek other employment.  If the case, be it this one or another, was moved beyond the provincial Court of Appeal it would be the Supreme Court of Canada to which one would have to appeal, and the Supreme Court has the option of refusing to hear specific cases.  Given the Supreme Court has already dealt with, and ruled, on same-sex marriage it is doubtful it would agree to hear such a case.  In that instance, whatever the Saskatchewan Court of Appeal ruled would stand.
Because the decision, whatever it might be, is a constitutional issue, it would set a precedent that other provincial Courts of Appeal would have to consider in any deliberations brought before them.
Having spent considerable time on the issue of equal marriage while I was the Regional Co-Director for Egale Canada, I find the continuing reaction of individuals like Nichols annoying and frustrating.  At the same time I do understand where he is likely coming from.  If he truly holds these beliefs, which I am sure he does, then I have no doubt he feels he is the one who is being...well...victimized.
No argument in the world will convince the Nicols’ of this world that civil marriage between same-sex couples should be as respected and as much a right as civil marriage between opposite-sex couples.  But that intransigence, quite bluntly, is the definition of prejudice.  If we as a nation refuse to tolerate prejudice on the basis of race, gender, ethnicity and, yes, religion - if we stand up and state prejudice is wrong - then prejudice is wrong in all instances, not just some.
Yet, if someone genuinely believes homosexuality is a sin - and that is at the root of this issue - and that marriage between two men or two women is not just wrong but bordering on an abomination and a flouting of God’s Word, how then does society accommodate that?  Should it be accommodated, any more than any other religious or cultural belief that goes against the law would be?
How does one find an equitable solution when two sets of rights collide?  That is the issue before the Saskatchewan Court of Appeal, and I hope the esteemed justices are up to the challenge.