Thursday, January 13, 2011

"Except for gays" unconstitutional in Canada

Last year, the Saskatchewan Court of Queen's Bench upheld a ruling from the Human Rights Commission that civil marriage commissioners (what we would call a celebrant) could not discriminate against gay people by refusing to perform same-sex marriages. As public servants, performing a public function, they were obliged to marry any eligible couple who went to them with the right paperwork. The provincial government immediately announced they would legislate to overturn the ruling, and submitted two draft bills to the provincial Court of Appeal for constitutional scrutiny. That court has now ruled that any "conscientious objection" is unconstitutional:

"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."

In its decision, the court notes that marriage commissioners offer the only option for any individuals who want to marry in a non-religious ceremony.

"Many gay and lesbian couples will not have access to the institution of marriage unless they are able to call on a marriage commissioner to perform the required ceremony," the decision stated.

As a reference case, the ruling isn't legally binding - the provincial government can pass the law. But if they did, then the court has signalled that it would be immediately overturned. The case will also likely be a strong influence should any similar cases arise in Canada - or in countries which pay attention to Canadian human rights jurisprudence, such as New Zealand.

The full ruling is here [PDF]. One of the bits that stood out:

Marriage commissioners do not act as private citizens when they discharge their official duties. 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.
"Conscientious objection" is at its heart about forcing the state to work for god, and perverting it from a neutral arbiter into an instrument of Christian bigotry. And that is not something the citizens of any liberal society can permit.