Lorne Gunter: Protecting gay rights and religious freedoms

Marriage commissioners with religious convictions opposed to gay marriage have been in a sticky spot since the same-sex unions became legal in 2005. On Monday, the Saskatchewan Court of Appeal tried to make commissioners’ position slightly less sticky, but only partly succeeded.

The court ruled that commissioners who perform civil ceremonies in Saskatchewan may not refuse same-sex couples just because of the commissioners’ personal religious beliefs. But the freedom to believe what one wishes and to practise one’s faith is protected by the Charter. If the religious rights of marriage commissioners must be subordinated to the equality rights of gays and lesbians, then by default the judges have determined that gay rights take precedence over religious ones.

This is in keeping with the politically correct hierarchy of rights created by Canadian human rights commissions and courts in the last decade-and-a-half. Gay rights always trump religious rights when the two come into conflict. In the case of Toronto printer Scott Brockie, for instance, Mr. Brockie refused a print job from a gay and lesbian organization. In a 1999 ruling, the province’s human rights commission concluded and a federal court concurred that while Mr. Brockie was “free to hold his religious beliefs and to practise them in his home, and in his Christian community,” but no Charter right protected his actions in business or in the public square.

Earlier, in the case of the Saskatchewan marriage commissioners, that province’s human rights commission ruled the provincial government was under no obligation to accommodate commissioners’ religious beliefs. Less well reported, though, was a suggestion by the Saskatchewan court that the provincial government devise a system that accommodates both sides. The justices recommended that couples seeking civil ceremonies be required to seek a commissioner through the provincial government, rather than approaching an individual commissioner directly. A bureaucrat could inquire whether that union was same-sex and, if it was, arrange for a commissioner willing to perform gay or lesbian weddings. That way, same-sex couples would never be turned down and religious commissioners never forced to perform ceremonies that offended their beliefs.

That’s a sensible solution.

The affront to freedom occurs when governments choose one side over the other, instead of trying to maximize everyone’s freedom. There should be no ban on same-sex marriage, but it will not do to free one person by shackling someone else. People with strong religious convictions should not have their own freedoms compromised by being forced to solemnize homosexual unions. The Supreme Court accepted this in 2004 when it suggested that while Ottawa should legalize same-sex unions it could also choose to protect religious institutions and leaders against being forced to perform them.

The trouble for commissioners is that they are not religious officials; their role is legally defined as strictly non-religious. One should not have to be ordained to have his religious freedoms protected. However, if someone signs on to perform a secular function under authority granted solely by the state, he or she should not be entirely surprised if the state’s objectives end up conflicting with his or her own.

There is no religious aspect to the commissioner’s licence, which is why the court’s reasonable accommodation suggestion is, well, reasonable. Let’s hope the Saskatchewan government has the good sense to act on it.

Read the original article by Lorne Gunter here.