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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
Diogenes of Sinope


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University of Guelph - Guelph, Ontario

Monday, January 10, 2011

A sensible court decision on gay marriage vs religious freedom

The Saskatchewan Court of Appeal has ruled that civil marriage commissioners cannot refuse to marry gay couples on the basis of personal religious beliefs. The Toronto Sun has the details:
A Saskatchewan court has determined that, regardless of personal religious beliefs, civil commissioners in the province must marry gay couples when asked to do so.

Following proposed legislation that would allow provincial officials the right to refuse to perform marriages that conflict with their religious beliefs, the Saskatchewan Court of Appeal was asked to rule on whether the very idea of such amendments would be constitutional.

They're not.

The court found that civil ceremonies free of religious implication are exactly that: free of the influence of religion.

The court also found that people who assume roles in public offices are bound to the rules governing those offices.

"Persons who voluntarily choose to assume an office, like that of a marriage commissioner, cannot expect to directly shape the office's intersection with the public so as to make it conform with their personal religious or other beliefs," the court wrote in its decision.

"In our tradition, the apparatus of the state serves everyone equally without providing better, poorer or different services to one individual compared to another by making distinctions on the basis of factors like race, religion or gender."

To allow civil commissioners to refuse to perform marriages solely on their personal religious grounds, the court ruled, "would violate the equality rights of gay and lesbian individuals."

I think the Court has made the correct decision here. The marriage commissioners involved in the case were not asked to perform a religious marriage ceremony in a private church, but to officiate at a civil ceremony in a public place. The laws of Canada say that it is legal for gay couples to marry - if a functionary of the state cannot in good conscience enforce the law, then he should resign his position.

I fully support allowing churches and religious organizations to refuse to perform gay marriages - after all, churches are private organizations(although their tax-exempt status implies a level of state support). Membership in a church is voluntary; no one is forced to belong and members are free to leave if they disagree with a point of doctrine.

However, citizenship is not voluntary - citizens are obligated to obey the constitutional laws enacted by duly elected representatives. One cannot pick and choose which laws to enforce and which to refuse.

No sensible gay couple wants to force reluctant or hostile churches to perform their marriages, but gay couples who wish to marry have only one legal alternative to a religious wedding - a civil ceremony performed by a non-religious state official. That a secular state official would refuse to provide this perfectly legal service is a violation of the civil rights of the couple wishing to marry. No one is asking the commissioners in question to change their religious beliefs or for their churches to change their doctrine; all they are being asked to do is their jobs.

We would not tolerate a white supremacist commissioner refusing to marry black or mixed-race couples, or a Muslim commissioner refusing to marry a Muslim and a Jew. This case is no different.

5 comments:

Anonymous said...

There aren't a lot of 'sensible' gay couples out there. My local pastor has been approached several times by gay people asking to be married, knowing that he'll refuse since this is an evangelical church, and then turning around and threatening legal action. It seems the gay lobby has been successful in sidelining religious communities using bully tactics and will continue to do so until reverse discrimination is in full swing.

Eric said...

I'm sorry your pastor had that experience, and I would support a policy that exempted churches from performing gay marriages.

However, I would argue that the gay couples in question don't represent the vast majority of ordinary gay people, who wouldn't even entertain the idea of being married in an institution that disapproves of their relationship.

Your church's experience, though, doesn't change the fact that non-religious civil marriages performed by secular marriage commissioners must be made available to eligible gay couples who ask for them.

Jan said...

While in theory I agree with you Eric, gay marriage was not recognized until 2004. For those who were marriage commissioners prior to this date, this could still be an area of moral/religious conflict for them. This should have been "grandfathered in" for these commissioners. The alternative is that they will resign.

I guess I am on the side of common sense. Why can't there be a website or information provided for gay couples who would like a civil ceremony and a list of commissioners who would be glad to provide this service.

I believe, as you do that sensible people don't want to antagonize the situation and create a greater rift than already exists. Why not let common sense prevail?

Kit said...

This is the correct decision regarding the role of the public servant. Now if the courts would only apply the same logic to such things like Caledonia and HRC's... maybe they would have some credibility. But they don't. The courts and the judges apply their own personal bias to their decisions all the time. This decision sound good but it is hollow because it is not consistent.

Philanthropist said...

Government should not be involved in our most personal relationship. The Marriage Act is a relic of the old days, thoroughly undermined by divorce law in any case, it should be repealed and not replaced.