Friday, July 24, 2009

No "right" to discriminate in Saskatchewan

The issue of "conscientious objection" and same-sex marriage has reared its head again in the Canadian province of Saskatchewan, after a marriage commissioner (what we would call a celebrant) lost his appeal of a Human Rights Commission ruling that he had unlawfully discriminated in refusing to solemnise a same-sex marriage. The full ruling (Nichols v Human Rights Commission, 2009 SKQB 299) is here [PDF]. The key part:

I agree with the tribunal’s finding that Mr. Nichols performs a governmental activity when he acts as a marriage commissioner. As a government actor, he is not permitted to consider his personal religious views when performing his public functions.

I also agree with the tribunal that there is nothing in the [Saskatchewan Human Rights] Code, or in The Marriage Act, that provides Mr. Nichols with a defense of bona fide justification based upon his religious beliefs. Mr. Nichols has a personal right to freedom of religion, but it is not a right enforceable against M.J. It is not M.J. who is interfering with his religious beliefs, but the duties imposed upon him by The Marriage Act.

M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation.

(Emphasis added)

And there you have it: your freedom to discriminate on religious grounds stops when you start performing a public function. The Saskatchewan government is talking about legislating to allow "conscientious objection", but given the rulings cited in that judgement, it is difficult to see how it would survive a test of constitutionality under the Canadian Charter of Rights and Freedoms.

The interesting point is that the same logic would almost certainly apply in New Zealand when we legalise same-sex marriage. Marriage celebrants do not solemnise marriages as private individuals, but as people performing a public function - which means the Bill of Rights Act applies to the performance of that function. And the BORA forbids discrimination by the government on any of the grounds listed in the Human Rights Act - grounds which include sexual orientation. The same already applies should a celebrant refuse to solemnise a marriage on the basis that someone is Maori, or pregnant, or does not share their religion - and the fundamental point is that homophobic discrimination is no different from, and no less vile, than these other forms.