Six years ago Canada became one of only four countries in the world to legalize same-sex marriage. Yet, six years later, and some same-sex couples still aren’t hearing wedding bells.
Marriage commissioners, appointed by a province to marry couples in a non-religious ceremony, still have the option to opt out of marrying the couple if their religious values conflict with same-sex marriage (at least, the commissioners who didn’t quit, or threaten to quit, after the legalization in 2005).
On January 10, 2011, Saskatchewan’s highest court ruled to disallow marriage commissioners from opting out of marrying same sex couples. Choosing not to marry gay couples on religious grounds was found to be a violation of the equality provisions of the Charter of Rights and Freedoms and therefore unconstitutional.
Back in 2005, when legalization of same-sex marriage was under consideration by the Supreme Court of Canada, religious institutions were promised, under the Civil Marriage Act, the freedom to refuse to perform marriages that do not conform with their faith.
Marriage commissioners on the other hand, are appointed by the province to perform civil and non-religious ceremonies. It might be their right to have these conflicting religious beliefs, but performing secular ceremonies is part of their job description.
For the time being, it looks like Canadian same-sex couples in other provinces who are turned away by marriage commissioners might not need to wait until their province follows Saskatchewan’s lead. They can follow a suggestion made by the justices of the Saskatchewan court and go through their province to arrange a commissioner who will not refuse them based on religious beliefs.
That half-measure is unlikely to hold much water in the long run. Recall the case where a Toronto printer refused to offer his services to a gay and lesbian organization. Eventually, the Ontario Human Rights Commission found the printer in the wrong, citing religious views as only suitable within the home and religious communities. There are no Charter Rights to protect someone who discriminates, based on a religious belief, while doing business with the general public. Eventually, marriage commissioners are going to be marrying same-sex couples—or they’re not going to be marriage commissioners anymore.