Diocese takes intervener
role in same-sex hearings
By Kiply Lukan Yaworski
REGINA — The Roman
Catholic Diocese of Saskatoon was represented at recent hearings before
the Saskatchewan Court of Appeal, addressing the question of whether
civil marriage commissioners in Saskatchewan have a right to refuse
to wed same-sex couples.
The diocese was one of the
intervening groups that appeared before the Court of Appeal May 13-14
in Regina, said Rev. Paul Donlevy
,
diocesan chancellor, in a recent interview.
The appeal court’s
five judges have been asked by the provincial government to rule on
the constitutionality of a proposed law that would allow marriage commissioners
to refuse to perform civil marriage ceremonies that are contrary to
their religious beliefs.
The court was asked to consider
two legislative options: one that would grant a provision for marriage
commissioners appointed before 2004 (when courts ruled that same-sex
marriage was legal in Saskatchewan) to refuse to perform same-sex marriages
if it is against their religious beliefs. The second option would create
the same exemption for all marriage commissioners, regardless of when
they were appointed.
Donlevy noted that the issue
is between a marriage commissioner’s right to freedom of conscience
and religion (Section 2 of the Charter of Rights and Freedoms) and a
same-sex couple’s right to equal treatment before the law, without
discrimination (Section 15 of the Charter).
“There are several
rights guaranteed in the Canadian Charter of Rights and Freedoms, but
all of them are equal, and one does not trump another,” said Donlevy.
“When there is a conflict, the court may be called upon to find
a way for the least egregious damage to be done to either of the parties.”
The Supreme Court of Canada
has already stated that members of the clergy cannot be forced to officiate
at same-sex marriages in religious ceremonies, as it would be an imposition
on religious practice.
In his submission, Donlevy
explained the Catholic understanding of marriage and the reasons a Catholic
layperson in good conscience would not be able to officiate at a same-sex
marriage.
Three per cent of the approximately
250 marriage commissioners in the province have indicated they would
have difficulty officiating at same-sex marriages. These commissioners
come from a variety of religious backgrounds, said Donlevy, pointing
out that this is not a specifically Catholic issue, but one touching
on the rights of conscience and freedom of religion for all.
“Is a person who works
in a government role obliged to leave their conscience and their religious
practice at the door?” asked Donlevy, saying the questions raised
go beyond the particular situation of marriage commissioners. “The
Catholic Church in Saskatchewan is very concerned, because this goes
beyond just one issue. We see a principle here that is far ranging.
This relates to the conscience rights of anybody who works as an employee
of the provincial government: for example in health care, where there
might be situations and procedures that a person cannot conscientiously
take part in.”
This particular issue came
to public attention in 2005 when marriage commissioner Orville Nichols,
a Baptist, told a same-sex couple he wouldn’t marry them because
it went against his religious beliefs. A complaint was taken to the
Saskatchewan Human Rights Commission, which ruled in May 2008 that Nichols
discriminated against the couple, finding that, since Nichols was acting
as a public servant when he performed civil marriages, he was obligated
to marry the men. A recent appeal upheld the tribunal’s decision.
The provincial government
is now seeking the court ruling on the constitutionality of proposed
legislation that would allow marriage commissioners to refuse to perform
marriage ceremonies that are contrary to their religious beliefs. The
Constitutional Questions Act allows the government to seek advice from
the appeal court on the constitutionality of proposed legislation.
“This is happening
before the law is made,” said Donlevy of the process. “And
I think it is important to note that among other people of goodwill,
the church was involved at the beginning of this discussion and is being
proactive rather than reactive. We were there.”
A number of other groups
were also granted intervener status by the Court of Appeal, including
the Christian Legal Fellowship, the Canadian Fellowship of Churches
and Ministers, the Evangelical Fellowship of Canada, the Seventh Day
Adventist Church in Canada, the Saskatchewan Human Rights Commission,
EGALE (Equality for Gays and Lesbians Everywhere) Canada Inc., the Canadian
Civil Liberties Association and the Saskatchewan Federation of Labour
Solidarity and Pride Committee, as well as marriage commissioners Bruce
Goertzen, Larry Bjerland and Desiree Dichmont.
After hearing submissions,
the five judges have reserved their decision and will issue a written
ruling about the proposed legislation after further deliberation.
 |
|