In the Matter of Marriage Commissioners Appointed Under the Marriage Act, Saskatchewan Court of Appeal, Canada (10 January 2011)
Constitutional Reference brought before the Saskatchewan Court of Appeal by the Lieutenant Governor in Council. The Court was asked to determine the validity of possible amendments to the Saskatchewan Marriage Act 1995.
The Saskatchewan Marriage Act empowered certain individuals, in particular qualified members of religious bodies, to conduct marriage ceremonies. In addition, the Marriage Act provided for the appointment of marriage commissioners, whose role was to officiate at all non-religious unions.
In 2004, following a decision by the Supreme Court of Canada upholding same-sex marriages, the Parliament enacted legislation that altered the statutory definition of marriage to include same-sex couples. A number of marriage commissioners in the province of Saskatchewan subsequently resigned or refused to officiate at same-sex marriages on the basis of religious objections. These refusals led to litigation in the province, including proceedings under the Saskatchewan Human Rights Code. As a response, two possible legislative amendments to the Marriage Act were drafted and the question of their validity was brought before the Court of Appeal.
The amendments would have allowed marriage commissioners in Saskatchewan to decline to officiate at same-sex civil marriages. The first would have allowed marriage commissioners who had been appointed prior to the 2004 recognition of same-sex marriage to refuse to solemnise marriages “if to do so would be contrary to the marriage commissioner’s religious beliefs” and if certain additional procedural requirements were met. The second, alternative amendment would have allowed commissioners to refuse on identical grounds but did not involve any procedural requirements and would have applied to all marriage commissioners in Saskatchewan regardless of the date of their appointment.
Whether either of the proposed amendments to the Marriage Act 1995 was consistent with the Canadian Charter of Fundamental Rights.
Canadian Charter of Fundamental Rights and Freedoms, Sections 1 (limitations to rights and freedoms), 2(a) (freedom of conscience and religion), and 15(1) (equality before the law).
Saskatchewan Marriage Act 1995.
Saskatchewan Human Rights Code.
R v. Oakes, Supreme Court of Canada, 1986 (setting out the analytical framework for determining whether restriction of a fundamental right could be justified under Section 1 of the Canadian Charter).
Reasoning of the Court
As a preliminary matter, the Court decided to deal with the two possible amendments together, on the grounds that they raised the same substantive issues. The Court then set out its basic methodology for dealing with the constitutionality of legislation in relation to the Canadian Charter of Fundamental Rights and Freedoms. Legislative amendments would be rendered void if they were found inconsistent with any constitutional right enshrined in the Charter. If the Court found that the purpose or effect of the proposed amendments would curtail one of those rights, it would have to determine whether that curtailment amounted to an inconsistency or, alternatively, could be considered a reasonable and justified limitation under Section 1, and therefore deemed lawful.
In addressing the first stage of this test, the Court considered the substance of the rights enshrined in the equal protection provision. Previous case law had established that the central elements of a violation were differential treatment, and discrimination associated with factors such as “the imposition of disadvantage, stereotyping, or political or social prejudice”. The Court noted that the proposed amendments were drafted to appear neutral. However, in practice the amendments could have the effect of preventing same-sex couples from enjoying the equal protection of the law by diminishing their ability to access the services of marriage commissioners. If a marriage commissioner could opt out of performing his or her function, same-sex couples, particularly those in isolated rural areas, would be unduly disadvantaged. Therefore, in the Court’s opinion, the amendments would open the door to negative and differential treatment on the basis of sexual orientation and would curtail same-sex couples’ rights under Section 15 (1) of the Charter. The Court stated:
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.
Next, the Court conducted an analysis of whether this curtailment of rights would be justified and reasonable under Section 1 of the Constitution. In performing its Section 1 analysis the Court utilised the framework set out in the case of R v. Oakes. The Oakes test required that, “the objective of the impugned law be of sufficient importance to warrant overriding a Charter right or freedom”.
The Court concluded that the objective of the amendment was to “accommodate the religious beliefs of the marriage commissioners”. Although the role of marriage commissioners, in contrast to religious officials, was to perform a strictly civil function, the Court found that, if the amendments were not enacted and marriage commissioners were compelled to perform same-sex marriages, their Section 2 right to freedom of religion could be curtailed. The Court held that the objective of the amendments was sufficiently important to warrant the curtailment of same-sex couples’ rights, subject to an analysis of proportionality.
Under the Oakes test, three factors relating to the proportionality of the law had to be considered: (a) the existence of a rational connection between the objective and means of achieving it, (b) the availability of less restrictive alternatives, and (c) the proportionality between the objective and deleterious effects of the amendments.
On the first point, the Court held that, by enabling marriage commissioners to opt out of officiating same-sex marriages, the proposed amendments were rationally connected to the objective of protecting religious freedom. However, on the second point, the Court held that the level of impairment of the Section 15(1) rights of same-sex couples, considered “within a range of reasonable alternatives”, was excessive and that less restrictive alternatives were available.
The failure of the minimal impairment element of the proportionality test was decisive and the Court held the amendments to be invalid. Since the matter was a constitutional reference, the Court continued its analysis and considered the third and final limb of the proportionality test. The Court held that the negative effects of the proposed law would be disproportionate to the objective of accommodating the religious beliefs of marriage commissioners. Requiring marriage commissioners to officiate same-sex marriages did not prevent them from holding their religious beliefs or from practicing their religion. Thus it did not infringe on the core of their right to religious freedom. In comparison, were the amendments to be enacted, they would have had serious negative consequences for same-sex couples.
The Court held that it would be “a significant step back if, having won the difficult fight for the right to same-sex civil marriages, gay and lesbian couples could be shunned by the very people charged by the Province with solemnizing such unions”. Allowing marriage commissioners to opt out of fulfilling the function for which they were appointed could perpetuate discrimination. The Court held that the differential treatment allowed by the amendments could have “genuinely harmful impacts”, including personal and psychological detriment, for same-sex couples, their families and friends. The Court focused on the fact that commissioners were government officials who were appointed to officiate at non-religious marriages and had voluntarily assumed their posts. The Court held that to allow a marriage commissioner to reshape or opt out of his or her role would “sit uneasily with the principle of the rule of law” and “undercut the basic principle that governmental services must be provided on an impartial and non-discriminatory basis”. Therefore, the Court found that the objective of the proposed amendments did not outweigh their potential negative consequences.
The concurring opinion considered the impact of the amendments on the operation of the Saskatchewan Human Rights Code and in particular the fact that they were intentionally drafted to circumvent the prohibition on sexual orientation discrimination in the Code. The amendments would essentially grant marriage commissioners “an immunity to the anti-discrimination provisions of the Code” which was not available to any one else in the Province.
The concurrence emphasised that commissioners were essentially civil functionaries who were meant to fulfil their roles neutrally. To permit marriage commissioners to refuse to officiate at same-sex marriages would be akin to permitting discrimination on the basis of sexual orientation.
Both proposed amendments were held to be inconsistent with the Charter.
In the Matter of Marriage Commissioners Appointed Under the Marriage Act, Saskatchewan Court of Appeal, Canada (full text of jdugment, PDF)