Saskatchewan same-sex marriage case heats up

The Saskatchewan Court of Appeals is seeking interveners in a case that will rule on proposed legislation that would let religious marriage commissioners refuse to marry gay couples.

In June the Saskatchewan Party government asked the court to rule on the constitutionality of two proposed changes to the province’s Marriage Act. The amendments would exempt marriage commissioners from performing a same-sex marriage “if to do so would be contrary to the marriage commissioner’s religious beliefs.”

One amendment would exempt those marriage commissioners appointed before gay marriage was legalized in the province in 2004. The other would exempt any marriage commissioner, no matter when they received their appointment from the province.

The issue of religious marriage commissioners refusing to marry same-sex couples has been a hot issue in the province since gay marriage was legalized in 2004. At the time, the NDP government issued a directive requiring all commissioners to marry same-sex couples.

In 2008 a Saskatchewan Human Rights Tribunal ruled that Orville Nichols, a Regina marriage commissioner, violated the rights of two Regina men when he refused to marry them. The tribunal fined Nichols $2,500. He appealed but was turned down by the Court of Queen’s Beach. Nichols appealed again to the Court of Appeals, which hasn’t ruled yet. Two other marriage commissioners have also sued the province claiming that being forced to marry same-sex couples violated their religious rights.

Queer activists across the province are outraged, suggesting that the government is trying to appease their socially conservative supporters on the backs of queer people. Bob Challis, co-director of the Avenue Community Centre for Gender and Sexual Diversity in Saskatoon, called the case ridiculous, adding that he doesn’t understand the principle of allowing some civil servants to violate human rights legislation.

“These people were appointed to work for the people of Saskatchewan,” says Challis, “and they are legally required to marry same-sex couples. This speaks to the fact that homophobia is still pervasive and the government wants to support that homophobia. This kind of stuff gives permission for kids to bully other kids they perceive as queer.”

This case is beginning to look like ground zero in the debate about marriage commissioners being allowed to refuse to marry same-sex couples. Already a number of groups from across the country have indicated that they will be applying for intervener status.

Janice Gingell, chief council for the Saskatchewan Human Rights Commission, says her organization will be intervening. “It’s open season on gay and lesbian people if these amendments to the Marriage Act are allowed to go through,” says Gingell.

Gingell also indicates that Egale will be applying for intervener status opposing the amendments as will the Canadian Civil Liberties Union. She says she believes that the Catholic Civil Rights League, the Evangelical Fellowship of Canada along with a group of Catholic lawyers will be intervening in support of the proposed amendments to the Marriage Act. She also suspects that lawyers representing the three marriage commissioners who have been fighting for an exemption will also apply to intervene.

It’s unknown at this point in time whether the Attorney General of Canada will be intervening although they usually do in cases that involve questions about the constitutionality of legislation. One can only speculate what position they would take if they choose to intervene.

The Saskatchewan government was unable to find lawyers within their own justice department willing to argue their case before the Court of Appeals. The government’s lawyers have argued in the past that marriage commissioners shouldn’t be exempt from following the law and were uncomfortable having to change their arguments on the issue.

As a result the government has hired outside lawyers to argue both sides of the case. Regina lawyer Michael Megaw has been hired to argue for the government that it is indeed constitutional to allow marriage commissioners to not obey the law if it goes against their religious beliefs.

Saskatoon lawyer Reynold Robertson has been hired to argue against the amendments. Robertson has arranged a meeting to sit down with representatives of the queer community to discuss the impacts of the proposed amendments.

Those wanting to intervene in the case have until Nov 27, 2009 to indicate their interest in intervening. Information on obtaining intervener status can be found at www.justice.gov.sk.ca/MCReference.