Legal Research

Freedom of Religion Not Fully Applicable to Civil Servants

By Yosie Saint-Cyr

The Saskatchewan Court of Appeal recently released its decision as to whether marriage commissioners?as civil servants?can opt out of performing same-sex marriages. Why is this an issue? In 2004, the Supreme Court of Canada rendered a landmark decision confirming the legal validity of same-sex marriage. Parliament then enacted legislation redefining marriage to include such unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriages on the basis that they could not provide services in this regard without acting in violation of their personal religious beliefs.

The Saskatchewan government found this unacceptable. Since many religions do not approve of same-sex marriages, many gay and lesbian couples would not have access to the institution of marriage unless they were able to call on a marriage commissioner to perform the required ceremony.

To counter the negative impact, the Saskatchewan government proposed legislative changes to the provincial Marriage Act and requested the Appeal Court?s opinion on the constitutional validity of two possible amendments:

1. Permitting marriage commissioners appointed before November 5, 2004, to refuse to solemnize a marriage contrary to their religious beliefs, or
2. Allowing any marriage commissioner the same right

The Court of Appeal was tasked with determining whether either or both amendments met the constitutional standard of the Canadian Charter of Rights and Freedoms, which prohibits discrimination based on characteristics such as race and sex.

On January 10, 2011, the Saskatchewan Court of Appeal declared the proposed legislative amendments, which would have allowed Saskatchewan?s marriage commissioners to refuse to perform same-sex marriages on religious grounds, unconstitutional and discriminatory.

The Court said:

Either of them, if enacted, would violate the equality rights of gay and lesbian individuals. This violation would not be reasonable and justifiable within the meaning of s. 1 of the Charter. As a result, if put in place, either option would be unconstitutional and of no force or effect.

The Court claimed that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle of equality in a democratic society and that government services must be provided to all members of the public on an impartial and non-discriminatory basis.

Justice Robert Richards expressed concern that the proposed amendments are also broad enough that if marriage commissioners were allowed to opt out of services, they might also do so because they object to interfaith marriages or interracial marriages based on their religious beliefs.

Good point!

Many Christians and evangelical Christians are very disappointed by the outcome of this case and have expressed the following views in some form or another:

Once the Gay Agenda is codified into law, any right-of-conscience objection by Christians gets ruled unconstitutional, as demonstrated by a Canadian appeals court.

While homosexuals are granted rights to force their beliefs onto others by their conduct, Christians are forbidden to express their beliefs.

According to a Canadian Human Rights Commission study on freedom of religion and same-sex marriage:

Freedom of religion is a fundamental right in our society. It means that the state cannot impose on religious groups? activities or practices which would violate their religious freedom, except where it can be shown by the state to be demonstrably justifiable in a free and democratic state. Religious freedom also means that one group in society cannot impose its religious beliefs on another group with a different view. ?

For many people, marriage is a religious act and this act will continue to be protected by human rights law. Some religions in fact wish to perform same-sex marriages and a change in the law would allow them to do so. But the state also offers and sanctions civil marriages. As long as the state continues to sanction civil marriages, then, in our view, the anti-discrimination standards set by Parliament itself require that civil marriage be open to all Canadians.

Canada is a secular democracy where traditional religious practices continue to thrive while new relationship choices?like same-sex relationships?are recognized and accepted in many areas of the law. The faith-based categorization in some theocratic states of same-sex relationships as a sin should be contrasted with the more inclusive practices in a secular democracy. Canadians want a secular democracy where choices and human rights are accepted, guaranteed and protected.

The federal Civil Marriage Act explicitly provides for the freedom of religion for churches and religious groups. The Act recognizes that officials of religious groups are free to refuse to perform marriages that are not in accordance with the religious views of their respective faiths.

Although a person can object to the act based on religious beliefs, if they are employed as marriage commissioners, they are civil servants performing a government service and must serve the public equally.

John Whyte, a constitutional expert and former provincial deputy justice minister has stated in several interviews that reference cases are advisory, so the province isn?t technically legally bound to follow the Court?s advice. But he noted that, from a more practical standpoint, the government often follows such advice.

Saskatchewan Justice Minister Don Morgan says the government is accepting the Court?s decision (the government concluded there are no grounds for appeal) but is looking at a roundabout way to allow civil servants to refuse to perform same-sex civil marriages and avoid future litigation. To accommodate the religious beliefs of marriage commissioners, the province is considering implementing a system similar to the one in Ontario where couples go to a central office instead of contacting an individual commissioner. Commissioners who don’t want to perform same-sex ceremonies can be accommodated ?behind the scenes? (i.e., they?ll never be called on to perform a same-sex wedding) and couples don?t risk being denied services.

I sympathize with the view that the government should not force a citizen to act against her or his conscience, with respect to religious or other beliefs, but I?m not sure I agree that civil servants should be allowed to impose their religious beliefs on the general public?the servants? officially secular employers.

Saskatchewan says it?s looking for an alternative because it wants to avoid further lawsuits. Quebec, on the other hand, seems to be inviting lawsuits by tabling a law that ?would require anyone providing or receiving government services to do so with their face uncovered for reasons of identification, security and communication. This includes services from hospitals, schools, universities, and daycare centres that receive provincial funding.? Clearly, this law is aimed at persons, especially Muslim women, who wear face coverings related to their religion, such as a burqa or niqab.

Religious beliefs have special status because freedom of religion is enshrined in Canada?s Charter of Rights and Freedoms, but the government coerces citizens in many ways to do things with which they disagree. Consider the beleaguered libertarian, put upon by taxes to support public services for his neighbours. Taxation and public services are (for the most part) contrary to the very core of his beliefs!

All the same, I?m sure that if my employer required me to act contrary to my beliefs, I would protest and either demand accommodation or leave the job. Others might simply continue in the job but with low morale, reduced productivity and high resentment toward the employer.

Governments can almost certainly find a creative solution to accommodate marriage commissioners and gay couples, while preventing commissioners? from extending their protests to other groups, such as interfaith or interracial couples. But clearly, it?s an uneasy balance, and it?s too early to tell whether these compromise solutions will prevent further constitutional challenges.

Full post as published by Slaw.ca on January 20, 2011 (boomark / email).