Marriage Commissioners and Religious Freedom

Posted: January 26, 2011

In May 2010, I was asked to submit an affidavit on an evangelical theology of marriage on behalf of the Evangelical Fellowship of Canada, which was acting as an intervenor to the Saskatchewan Court of Appeal in reference to proposed legislation to protect religious freedom of Marriage Commissioners. (Here is an earlier post about my involvement). At the time, I felt that it was inappropriate to post my affidavit until the case was decided (which it now is), so I have now uploaded it to my “” collection available here.

ActiveCFPL has summarized the case as follows:

In July 2009, the Justice Minister of Saskatchewan asked the Court of Appeal for an opinion on the constitutionality of two potential legislative options which would permit marriage commissioners to decline performing same-sex marriages if contrary to their religious beliefs. One would have permitted marriage commissioners appointed before a certain date to refuse to solemnize a marriage contrary to their religious beliefs and a second that would have allowed any marriage commissioner the same right.

(Access to the full Court of Appeals ruling can be found here. A short summary of the case and the ruling can be found here.)

On January 10, 2011, the Saskatchewan Court of Appeals handed down its ruling that neither of the proposed legislative amendments would be constitutional, and that each would violate section 15(1) of the Canadian Charter of Rights and Freedoms which protects Canadians against discrimination on the basis of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Though “sexual orientation” is not explicitly mentioned in the Charter, the Supreme Court of Canada has already read “sexual orientation” into the Charter.

What does this ruling mean? As I understand it, it means that even if the Government of Saskatchewan is not prevented from invoking legislation that would enshrine protection of Marriage Commissioners who, on the basis of religious conviction, would refuse to perform a marriage ceremony for a same-sex couple (since this is only a reference from the court, and is not binding), it clear that any such legislation would be immediately able to be challenged. So it is doubtful the government will invoke such legislation. Practically speaking, this means that current and future Marriage Commissioners (at least in Saskatchewan) will have no legal right to refuse to perform a same-sex marriage ceremony on the basis of religious conviction.

However, there may be a small glimmer of hope: In the ruling, the Honourable Justice Richards made mention of a “single entry point” system in which a centralized office would gather all applications and then assign a marriage commissioner to each application, thus potentially accomodating and protecting the religious convictions those marriage commissioners who do not feel that they can perform a same-sex ceremony. But since this is only a legal “reference” on proposed legislation (as opposed to a ruling on pre-existing legislation) there is no compulsion on the Government of Saskatchewan to have to follow through on this advice. Nevertheless, I do hope that they would consider setting up such a system in the absence of any new legislative protection.

So what are some of the implications of this ruling? Although I’m wonder if the decision is more far-reaching than I may realize, here’s at least three major implications to consider:

1. The ruling sets in motion the possibility that the Charter of Rights and Freedoms will no longer guarantee universal protection of religious freedom. On the contrary, this ruling practically decides that there are certain circumstances under which the Religious rights and freedoms of an agent of the State must be limited. Unfortunately, the distinction, as appealed to under the ruling, between an agent of the State and a private individual is no where spoken of in section 15 of the Charter. Indeed, the Charter explicitly states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…” But under this ruling, potentially any agent of the State (i.e., anyone who works for the State) may be required to check her or his religious convictions at the door in order to accomplish her or his obligations to the State, or else resign her or his position. And I ask: It is Marriage Commissioners today, but who will it be tomorrow?

2. The ruling allows no middle ground for the exercise of religious conviction for Marriage Commissioners, and potentially, for other agents of the State. In other words, the possibility of “reasonable accommodation” for the exercise of religious conviction for agents of the State has been reduced. In this particular case, certain Marriage Commissioners, who by religious conviction do not believe they can perform a same-sex marriage ceremony, have one of two options: Either they ignore their own religious conviction, act against their conscience, and begin performing same-sex marriage ceremonies for couples who present themselves, or Marriage Commissioners resign their position in order to protect their religious convictions and conscience. It is a sad irony, therefore, that it is the Charter which is supposed to protect individuals from needing to make such a choice in the first place, and yet it is the Charter which is supposedly being safeguarded by this ruling. In light of this, I certainly hope that the Saskatchewan government takes its cue from Justice Richards and sets up some kind of central “single entry” system which would prevent Marriage Commissioners with religious convictions against same-sex marriage from making the decision outlined above.

3. The ruling means that in the future (barring a bureaucratic means of providing reasonable accommodation) only those who have no religious conviction against same-sex marriage will be able to apply to become a Marriage Commissioner, i.e., those with religious convictions need not apply. The logic goes something like this: “All individuals are to be free from discrimination on the basis of religious belief, therefore all individuals may apply to become a Marriage Commissioner. However, only those who willingly give up their right to practice their religious conviction are actually employable as a Marriage Commissioner.” Does this not sound like religious discrimination? The main problem is that this ruling has de facto taken a moral position on marriage, mainly, that the only proper conviction for an agent of the State to hold is one that upholds a definition of marriage that includes both opposite-sex and same-sex marriage. One can only imagine the mess that we will be in when (not “if”!) polygamy becomes legalized in Canada. I am sure there are some proponents of same-sex marriage who may be morally or religious opposed to multiple partner marriages. But in another ironic twist, they, too, would then be forced to perform polygamist marriage ceremonies. Where will it stop?

What can be said all this from a theological perspective? Well, on this front, I need to be clear: From a biblical and theological perspective, I can offer no reason to say that Christians must be able to perform each and every vocational or professional path that a particular society offers. As disappointing as it may be, Marriage Commissioners with theological convictions against same-sex marriage are not in an insoluble dilemma: They can simply not continue to be marriage commissioners in order to protect their religious convictions. They, like anyone else in any vocation where they may be asked to go against their religious convictions, can quit. Thus, if a person has a religious conviction about working on a certain day of the week, and if her or his employer requires work on those days, as painful as may be, that person is under no moral or religious or theological compulsion to keep that job. Quitting may cause hardship, indeed. But we need to be honest: theologically, one is not left without a choice. In this regard, I believe that God never leaves us without a genuine option. But God never guarantees that in the exercise that option, one will be free from suffering, pain, or in extreme circumstances, even death. We may not like the option, but we always do have one. That is, in a nutshell, the true freedom of a Christian–the freedom to suffer for doing what is right. As the Apostle Peter puts it, “But even if you should suffer for what is right, you are blessed. ‘Do not fear their threats; do not be frightened.’” (1 Peter 3:14)

Thus, we should be clear that as disappointed as we may be with this ruling, it puts no one in a true moral and theological Catch-22. There are other options to maintain our religious conviction. It is simply a sad irony that we live in a country that claims to protect religious conviction. Consequently, we need to realize that we may not alway be able to depend on such protections in the future. Our test, as Christians, will be whether we make the right choices when our religious convictions are truly tested. Will we make the right decisions for the sake of Christ and his Gospel, or will we find ways to justify and protect ourselves?

That said, however, I am very concerned that everyone who cares about religious freedom, whether Christian, Muslim, Hindu or others (not to mention the non-religious person with moral convictions), recognizes that this ruling may potentially create an environment in which with increasing measure future challenges to the expression of religious freedom will be possible. In a few paragraphs within the Court of Appeal ruling, the Justice makes the point that the need to protect the religious convictions of marriage commissioners could be equally invoked by

those who sell marriage licenses, or those who rent halls for marriage celebrations, and disapprove, on religious grounds, of same-sex relationships. But more than this, it could just as easily, and with as much validity, be made by those who provide rental living accommodation to married couples, and even those who provide restaurant meals or entertainment to the public. The desire of individuals providing these services to the public to withhold the service from same-sex couples, on grounds of religious disapproval, is not legislatively protected.

This argument, I suppose, could be made. But it wasn’t being made. No one was arguing for such a “slippery slope” here. Nevertheless, it does cause me to wonder: In what other conditions might agents of the State in the future need to have their religious convictions “checked at the door”? Will a police officer, for example, have any right to refuse to participate in a certain kinds of activity that might put her or him in a religiously or morally compromising situation? e.g., Carrying out undercover work in vice, or gang-related investigations? Will doctors be forced to check their religious convictions at the door and need to perform certain procedures to which they are morally opposed? Doctors are, after all, paid by the State. Will publicly funded lawyers be required to defend clients who are engaged in activities that are clearly against their religious convictions? I don’t know the answers to these questions. But they are questions that plague my mind as we begin to see the ripple effects of these rulings.

My concern is not so much about the religious rights and freedoms of Marriage Commissioners per se, but about how this ruling is a piece of evidence that the State is slowly but surely becoming less of a servant and protector of the people, and more and more a Schoolmaster of what is, for its people, acceptable and non-acceptable belief and practice. And since we still do live in a country where we have the “right” to have our voices heard, I believe we have therefore a responsibility to point out to the State the inconsistency of its own governance–and to pray for those in authority over us while we do this very thing (cf. 1 Tim 2:1-2).