The recent appeals court ruling regarding the question of two possible amendments to the marriages act forwarded by the provincial government has raised again the national debate regarding gay marriage.
The proposed amendments that the Wall government was seeking clarification on were both under consideration due to the outcry of some provincial marriage commissioners against having to solemnize gay marriages.
The commissioners in particular, and the many religious organizations that presented evidence to the hearing, focused on the religious and moral questions involving gay marriage.
Repeatedly, the organizations backing the proposed legislative amendments pointed out that, by solemnizing such marriages, it was tantamount to accepting or supporting not just gay marriage, but the act of gay sex itself.
The first amendment would allow marriage commissioners who had been appointed previous to 2004 to be 'grandfathered' in the sense that, since they began serving as commissioners previous to the change in law, they could refuse to perform gay marriages, and the second amendment possibility was to allow all marriage commissioners to refuse to perform gay weddings.
Those who represented against the proposed amendments forwarded a number of arguments as well.
They argued that the whole point of a marriage commissioner was to provide those who wished to be married outside of religious institutions an outlet to do so, therefore a commissioner appointed through the secular means refusing on religious grounds to perform a service runs counter to the concept of the post.
They argued that religious freedom entails the freedom of worship, the freedom of religious thought and belief, but does not extend to using religious consideration to act out in such a way that it affects the freedom and wellbeing of other persons, relative to their Charter protections.
They argued that, due to the generalized language in the amendments, it would allow commissioners to refuse any marriage which conflicted with their religious beliefs, opening the door for refusals of inter-faith couples, inter-racial couples, couples for whom their previous marriage was legally ended, but this legal status was not recognized by the faith community (as an example, a Catholic who has not had an annulment would not be allowed to marry until the previous marriage was annulled.)
Finally it was argued that, should marriage commissioners wish to be led by religious consideration in their performing of solemnization of marriages, that they could be protected under the Charter of Rights and Freedoms, relative to their religious expressions, by becoming ordained or otherwise elevated to a rank within their religion that include the ability to provide marriage services, thus allowing them then to refuse to perform gay marriages.
In the finding, the court presented an opinion that the rights of religious freedom of commissioners, as their office exists to perform the act of civil marriage, not religious marriage would not be infringed upon.
In section 148 of the finding, the court also held that, ". . . the requirement that marriage commissioners perform same-sex marriages . . . affects their religious objection to same-sex conduct only in a secondary way," the finding reads. ". . . marriage commissioners are not . . . 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. . . it does not even fall within the protection of s. 2(a) of the Charter."
The court also found that, considering the widespread religious intolerance of gay relationships, the civil marriage commissioner would often be the sole means by which a gay couple could exercise their marriage rights.
Finally, the court expressed concern that, if marriage commissioners were allowed to refuse service based on a religious intolerance, then this could lead to similar demands from individuals and boards that rent halls for weddings, or sell marriage licences, or even landlords who, on religious grounds, disapprove of gay lifestyle tenants.
