Marriage Commissioners Reference: Much Ado About Same-Sex “I Dos”

January 14, 2011 marked the ten-year anniversary of the first same-sex marriages registered in Canada. In 2001, two couples were the first to marry at the Metropolitan Community Church of Toronto (MCCT), but the Ontario and Canadian governments refused to recognize the marriages as legal.

What followed was a legal challenge to the definition of marriage in Canada. The Ontario Divisional Court and the Ontario Court of Appeal (“ONCA”) held that the common law definition of marriage infringed the rights of the couples. The ONCA also ordered that the marriages be registered. Although Parliament eventually enacted a law redefining marriage to include same-sex unions in 2005, the recognition and registration of the marriages that were conducted at the MCCT in 2001 earned Canada the distinction of having the first registered gay and lesbian marriages in the world.

However, as is often the case with struggles over civil rights, substantive equality does not always signal a similar shift in social attitudes. This point is perfectly illustrated by the Court of Appeal for Saskatchewan’s recent decision in Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3 [Marriage Commissioners Reference]. The court released its decision in the Reference on January 10 – coincidentally, just four days before the tenth anniversary of the first recognized same sex unions in Canada – concerning the constitutional validity of possible legislative amendments that would allow marriage commissioners in Saskatchewan to refuse to perform same-sex marriage ceremonies on religious grounds.

Facts & History

Following the formal enactment of the Civil Marriage Act, SC 2005, c 33 [CMA], which amended the federal definition of “marriage,”  a handful of marriage commissioners in Saskatchewan refused to solemnize same-sex unions, citing religious grounds. Their refusal led to proceedings under The Saskatchewan Human Rights Code, SS 1979, c S-24.1, as well as a civil action brought by a same-sex couple who were refused a solemnization by a marriage commissioner. In response, the Saskatchewan government proposed two amendments to the provincial The Marriage Act, 1995, SS 1995, c M-4.1, and sought the Court of Appeal’s opinion on the constitutional validity of these amendments by way of a reference.

As noted by the Court in its decision, the marriage commissioners play an important role in the overall scheme of The Marriage Act, 1995. Section 3 of the Act sets out who may solemnize marriages between persons. For instance, the Act empowers religious officials such as clergy and Rabbis to solemnize marriages if registered pursuant to the Act. Perhaps most significantly, marriage commissioners are, the Court notes, “the route – the only route – by which individuals who wish to be married by way of a non-religious ceremony may have their union solemnized.” In other words, if a religious official refused to solemnize a couple’s marriage, marriage commissioners of the province are the couple’s only secular option.

In Reference Re Same-Sex Marriage, [2004] 3 SCR 698, the Supreme Court of Canada (“SCC”) was asked to weigh in on the validity of proposed federal legislation, which eventually led to the enactment of the CMA. In finding that the redefinition of marriage to include same-sex couples was constitutional and within the competence of Parliament, the Court also held that the guarantee of freedom of religion in the Charter protected religious officials from being compelled by the state to perform same-sex marriages, despite their religious conviction against such unions. The question that remained, however, was whether public servants like marriage commissioners, who occupied the role of solemnizing civil marriages, could refuse to perform same-sex marriages on a similar basis.

The two proposed amendments in Saskatchewan essentially would have provided marriage commissioners with the same rights. The first proposed amendment, Schedule A, would allow a marriage commissioner appointed on or before November 5, 2004 to refuse to solemnize a marriage if doing so would be “contrary to the marriage commissioner’s religious beliefs,” notwithstanding the provincial human rights code. Schedule B offered the same protection, but to all marriage commissioners regardless of when they were appointed.

The Court’s Decision

The Court of Appeal’s decision in the Marriage Commissioners Reference includes two opinions. The first is penned by Richards J.A., with Klebuc C.J.S. and Ottenbreit J.A. concurring, and the second by Smith J.A. with Vancise J.A. concurring.

Both Richards J.A. and Smith J.A. easily conclude that the proposed provisions would clearly violate section 15(1) of the Charter, as the provisions would allow for the differential treatment of gay and lesbian couples in a discriminatory fashion.

Richards J.A. also rejected the argument put forward that any impact flowing from the amendments would be insignificant because gay or lesbian couples who were turned down by a commissioner could “easily contact another commissioner who will be prepared to proceed.”

Richards J.A. noted that,

This submission overlooks, or inappropriately discounts, the importance of the impact on gay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union. As can be easily understood, such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different.

Further, Richards J.A. noted that a substantial number of commissioners may choose not to perform same sex marriages if the measures were enacted, increasing the difficulty for same-sex couples to have their marriages solemnized. There was also a concern that same-sex couples particularly living in rural areas or away from large urban centers would have to travel large distances to find a willing commissioner.

The key issue in the Marriage Commissioners Reference, according to both judges, was whether the violation of rights could be justified as reasonable under section 1 of the Charter. Richards J.A. also noted that a section 1 analysis would be the appropriate venue to balance the rights of same sex couples against the religious rights of marriage commissioners. In these circumstances, Richards J.A. noted that:

[M]arriage commissioners have to make a choice. They can either perform same-sex marriages or they can leave their offices. Accordingly, the obligation to perform a same-sex ceremonies does not interfere in a trivial or insubstantial way with the s. 2(a) freedoms of those commissioners who would have to act contrary to their religious beliefs in order to solemnize a same-sex union.

In order to determine if a violation of a Charter right is justifiable under section 1, courts must apply the Oakes test. The first requirement of the test is that the objective of the law be of sufficient importance to warrant overriding a Charter right. If this requirement is satisfied, judges conduct a “proportionality” test where three factors are considered to determine if a law is proportional. First, the law must be rationally connected to its objective. Secondly, the law must impair the right or freedom in question as minimally as possible. And finally, there must be an overall proportionality between the deleterious effects of the law and its object.

Richards J.A. concluded that the first requirement of sufficient importance was met, and that the amendments are rationally connected to their objective. However, when considering the minimal impairment of rights by the provisions, the judge raised the possibility of a single entry point system where couples could seek the services through a central office, rather than contacting commissioners directly.

In such a system, the beliefs of commissioners could be accommodated “behind the scenes,” while also ensuring that couples didn’t have to deal with the sting of rejection based on their sexual orientation. Richards J.A. noted that “the accommodation of commissioners who did not want to be involved in a same-sex ceremony would not be apparent to the couple proposing to wed and there would be no risk of the couple approaching a commissioner and being refused services because of their sexual orientation.”

Because such a system would minimize the impairment or incursion on the rights of couples, the amendments did not pass muster. However, Richards J.A. went on to consider the proportionality between the effects, and the judge found that the deleterious effects outweighed the salutary effects. Additionally, the amendment would violate one of the fundamental precepts of how public services should be delivered:

Marriage commissioners do not act as private citizens when they discharge their official duty. Rather, they serve as agents of the Province and act on its behalf and its behalf only. Accordingly, a system that would make marriage services available according to the personal religious beliefs of commissioners is highly problematic. It would undercut the basic principle that governmental services must be provided on an impartial and non-discriminatory basis.

Thus, Richards J.A. held that the proposed amendments would violate section 15, and could not be justified as reasonable under section 1 of the Charter.

Although Smith J.A. concurred in the result reached by Richards J.A., the concurring judgment departs on the section 1 analysis. In considering the objective of the legislation at the first stage of the Oakes test, she found that the provisions should not be characterized as accommodating the religious beliefs of marriage commissioners. Instead, the judgment notes, the objective is to “permit marriage commissioners to refuse to perform same-sex marriage ceremonies when to do so conflicts with their religious beliefs.”

Taking this narrower view of the objective of the legislation, Smith J.A, went on to consider the objections of marriage commissioners and interveners who support the amendments. In considering their views, Smith J.A. found that the religious objection could be boiled down to two bases. The first was that same-sex marriage is not included in their “religious conception,” and that there is no difference between religious and civil marriages. The second objection is that the claimants believe that a same-sex union is sinful, “and that to officiate in the ceremony would give the appearance of approval of, and might serve to encourage, such a sinful lifestyle.”

Smith J.A. noted that the first position was contrary to the provisions of the Act that were designed to protect the freedom of religion by providing for religious marriages, as distinct from non-religious civil marriages. Additionally, such a position is also contrary to the law surrounding same-sex unions.

On the second point, Smith J.A. stated that “it is far from clear that officiating at a civil marriage ceremony carries any implication or connotation at all that the marriage commissioner who officiates necessarily approves of the particular union.”

This analysis leads Smith J.A. to the conclusion that “the performance of a civil marriage by a marriage commissioner is not a religious rite or practice. Nor does the requirement to do so limit or restrict religious belief.” In addition, the judgment notes that the requirement that commissioners perform same-sex unions would affect their religious objection only in a secondary way.

Thus, Smith J.A. held that any claim for Charter protection based on religious freedoms would be “an exceedingly weak one,” and that it is doubtful that the objectives of the amendments would meet the threshold of “pressing and substantial” established by the Oakes test.

The Unsettling Reality of a Settled Legal Issue

The legal landscape for same-sex couples seeking the right to enter into civil marriages has been transformed over the last decade. However, as the Saskatchewan Marriage Commissioners Reference shows, the legal battle has now shifted to issues of access.

If anything, the Marriage Commissioners Reference shines a light on the sometimes-unhappy marriage between legal precedents and social attitudes. Although same-sex couples have been granted the same legal rights and the legal definition of civil marriage has been transformed, marriage is a deeply embedded religious institution and many Canadians view same-sex unions as an affront to their beliefs. The amendments at issue in the Marriage Commissioners Reference are another attempt to push back against the specter of gay marriage, and it is unlikely that it will be the last challenge.

At the end of the day, however, the Saskatchewan Court’s decision in the Marriage Commissioners Reference is not surprising. The jurisprudential history surrounding same-sex marriage rights has gone to great lengths to decouple the religious institutional of marriage from the civil construction of marriage. Although courts have ensured that religious officials are not compelled to perform same-sex marriages, it could be argued that pubic servants such as marriage commissioners occupy an uncomfortable middle ground.

However, as noted,  the drafted laws were overly broad. The laws, as proposed, could even allow marriage commissioners to refuse to perform interfaith or interracial marriages. The Court identified another possible means — a single entry point system — that could mitigate some of the discriminatory effects of religious accommodations more effectively than an amendment to the Act. But also, there is the overarching issue: should religious rhetoric be injected into what is, at its core, a secular position that was created to perform non-religious civil marriages as an alternative to religious solemnization?

Although the debate before the Court was highly charged due to polemical positions on same-sex marriage, the amendments would have had the troubling effect of adding religious content to an inherently secular public service.