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Marriage commissioners conflict in Saskatchewan

Christian understandings of homosexuality.
Human rights case. Provincial government

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Christian understandings of homosexuality:

There are six or seven "clobber passages" in the Bible that may discuss same-sex sexual behavior, written in either Hebrew or Greek. Unfortunately, the precise meaning of these passages is not clear. They have been mainly interpreted in one of two very different ways:

  • Most religious conservatives interpret the passages as condemning all forms of same-gender sexual behavior, whether engaged in by relative strangers or by a loving, committed, monogamous couple; whether by two women or two men. In addition, most conservatives view homosexuality as a chosen behavior, condemned by God, that is abnormal, unnatural, and changeable through reparative therapy. It is often considered a sin that is so serious that it prevents a person from attaining Heaven after death.

  • Most religious liberals, secularists, psychologists, psychiatrists, other mental health professionals, gays, lesbians and bisexuals interpret the same passages as condemning:
    • The raping of strangers.
    • Two passages in Leviticus can be interpreted in any of the following three ways.
      • Engaging in sexual behavior in a Pagan temple with a temple prostitute of the same gender, or
      • Two men having sex in a bed belonging to a woman, or
      • Two men having sex in which there is a major imbalance of power: one being aggressive; the other passive.
    • Men sexually molesting boys.
    • Heterosexual men and women violating their own basic nature by engaging in sexual behavior during an orgy with a person of the same sex.
    • Bestiality: sex between men and another species -- angels in this case.

    That is, consensual and safe sexual behavior by a loving committed monogamous couple is not condemned. Further they view homosexuality as a discovered orientation, largely genetically predetermined, welcomed by God, that is a normal, natural, and fixed for a minority of adults. They considered it as morally neutral as heterosexuality.

    Although studies can be designed and have been conducted to prove or disprove these conflicting beliefs, it has been essentially impossible for both sides to dialogue and harmonize their beliefs.
  • Commissioner Nichols appears to accept the conservative interpretation. Marrying a same-sex couple would be deeply offensive to his religious beliefs; he would view his cooperation in the ceremony as deeply offensive to God.

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The human rights case:

The gay couple launched a complaint with the Saskatchewan Human Rights Commission. The latter ruled in 2008 that Mr. Nichols had discriminated against the couple, and that as a public service, he is required to marry whoever presents themselves to him with a valid marriage license. The Commission fined Nichols $2,500 in Canadian funds.

Nichols appealed the ruling to the Court of Queen's Bench, and lost. He then appealed to the highest court in the province: the Saskatchewan Court of Appeal. They have not yet ruled in the case. However, in view of the following decision by the same court, it is essentially certain that he would lose again. 1

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Involvement by the provincial government:

The government asked the Court of Appeal to study proposed legislation that would allow an exemption to marriage commissioners who wanted to refuse to marry a same-sex couple. They drafted two versions of a bill:

  • One would allow any marriage commissioners the right to refuse to marry same-sex couples if they wished.

  • The other would allow only commissioners appointed before 2004-NOV to refuse.

The court issued a unanimous decision on 2011-JAN-10. They ruled that either version of the bill would violate the Canadian Charter of Rights and Freedoms because they would violate the equality rights of same-sex couples. They ruled that marriage commissioners cannot refuse to conduct a marriage because of their religious beliefs.

Mr. Justice Robert Richards wrote the majority report on behalf of three of the five judges, saying:

"The historical marginalization and mistreatment of gay and lesbian individuals is well known. They have been able to recently claim the right to marry only after traveling a very difficult and contentious road."

"Accordingly, putting gays and lesbians in a situation where a marriage commissioner can refuse to provide his or her services solely because of their sexual orientation would clearly be a retrograde step -- a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions." 3

Somebody involved with the case had suggested that the matter is unimportant because there are relatively few same-sex marriages and because the couples could simply find some other commissioner to marry them. Justice Richards noted that this would overlook the negative impact on the couples. He wrote:

"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 2) but someone else will,' or 'I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will'."

"Being told, 'I won’t help you because you are gay/lesbian but someone else will,' is no different." 3

Cory Oxelgren, president of the Gay and Lesbian Community of Regina was pleased with the decision. He said:

"This has been going on for years and years and years that there's one battle after another. ... I guess it was a sigh of relief. I'm not surprised. I wasn't surprised at the ruling. I was sort of surprised that it was unanimous. I assumed that it might be a win for us, but I didn't think it would be complete and that made me feel good."

"If the government allowed that [type of discrimination] to go ahead, what's there to stop another person in another department or another agency from saying, 'Well, I don’t agree with this so I would like to opt out.' The answer is you can’t. You are an agent of the government and you follow the laws."

Ms. Justice Gene Ann Smith wrote the minority report for the remaining two judges who also determined that the proposed bills were unconstitutional. She said that the commissioners' religious objections are secondary:

"These marriage commissioners are not themselves compelled to engage in the sexual activity they consider objectionable. Their objection is that it is sinful for others to engage in such activity."

"It is therefore arguable that the interference with the right of marriage commissioners to act in accordance with their religious belief ... is trivial or insubstantial, in that it is interference that does not threaten actual religious beliefs or conduct." 3

A co-worker of Nichols, marriage commissioner Larry Bjerland of Rose Valley, SK, was disappointed at the ruling. He said:

"We’re not asking for a whole lot. All we’re asking for are the same rights that anyone else has -– and that’s to refuse to do work. If the work is contrary to what your religious beliefs are, then you shouldn't be forced into doing it."

Bjerland is considering quitting because of the ruling.

Saskatchewan Justice Minister Don Morgan said:

"Given the thoroughness of the analysis, I am not recommending that the government appeal." 1

He believes that there is no reason to expect the Supreme Court of Canada would give a different ruling. 3

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This topic continues...

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jennifer Graham, "Same-sex nuptials can’t be refused on religious grounds, Saskatchewan court rules," The Globe and Mail, Toronto, 2011-JAN-10, at: http://www.theglobeandmail.com/
  2. The term "First Nation" refers to Native Canadian communities.
  3. "In the matter of marriage commissioners appointed..." Text of the ruling of the Court of Appeal, 2011-JAN-10, at: http://www.lawsociety.sk.ca/
  4. Jennifer Graham, "Saskatchewan says marriage commissioners must wed same-sex couples," The Canadian Press, 2011-JAN-18, at: http://www.theglobeandmail.com/

Site navigation:
"SSM" means "same-sex marriage"

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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JAN-30
Latest update: 2011-JAN-30
Author: B.A. Robinson

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