When Rights Collide: Religious Freedom vs. Same-Sex Marriage

When it comes to same-sex marriage, Canada is much more progressive than its neighbour to the south. But while same-sex marriage is legal in most of the country, there are still plenty of Canadians who think the institution is morally wrong. Among those who may harbour religious objections are the public officials required to carry out civil marriages of same-sex couples. Do such officials have a legal right to refuse to perform same-sex marriages on religious grounds? This fascinating clash between religious freedom and same-sex marriage was at the center of a recent case in Saskatchewan.

The Case

What Happened: Orville Nichols is a veteran marriage commissioner who has presided over more than 1,800 marriage weddings since 1983. Mr. Nichols is also a deeply religious man who believes that homosexuality is abhorrent in the eyes of God and that marriage is a sacred institution between a man and a woman. Unfortunately for Mr. Nichols, the Saskatchewan marriage law he’s charged with carrying out provides otherwise. So when a same-sex couple asked him to preside over their nuptials, Mr. Nichols refused. The couple sued for discrimination. Nichols argued that he was the real victim and that forcing him to solemnize same-sex marriages would violate his religious freedom. The Saskatchewan Human Rights Commission found Nichols liable for discrimination. Nichols appealed.

What the Court Decided: The Saskatchewan Court of Queen’s Bench upheld the Commission’s ruling and the $2,500 penalty it imposed.

How the Court Justified Its Decision: The court made the following points:

No Implied Bona Fide Justification Defence: Some human rights laws include a defence allowing for conduct that would otherwise be considered discriminatory that actually advances the non-discriminatory goals of the law. But the court noted that even if Mr. Nichols’s conduct was justifiable, the Saskatchewan human rights law doesn’t spell out a so called “bona fide justification” defence and it refused to imply one.

No Need to Accommodate Religion: Mr. Nichols also claimed that his refusal to perform a same-sex marriage ceremony was an exercise of his religious freedom that the Commission was required to accommodate to the point of undue hardship. But the court said no dice. The accommodation requirement is designed to prevent discrimination, not allow a public official to commit it.

Nichols v. M.J., 2009 SKQB 299 (CanLII), July 17, 2009

Analysis

Freedom of religion is as important a value as the right of same-sex couples to get married. Moreover, courts and tribunals across Canada have consistently recognized the right of individuals against being coerced into acts they find religiously objectionable. Examples:

• In 1992, the BC Human Rights Tribunal ruled that a financial services worker who strongly objected to abortion couldn’t be forced to counsel clients about public abortion services [Moore v. BC (Ministry of Social Services); and
• In a ruling called Reference re: Same-Sex Marriage, the Supreme Court of Canada said that religious officials can’t be compelled to perform same-sex marriages.

What makes this case different is that Nichols was not a private sector employee like the financial counsellor in Moore or a religious official addressed by the Supreme Court in Reference. Nichols was a public official entrusted with carrying out a government function: the solemnization of marriages in civil ceremonies. Allowing public officials to take off their government caps and assume the role of private individuals in carrying out their jobs would pollute government functions with the taint of discrimination, said the court. “As a government actor, [Nichols] is not permitted to consider his personal views when performing his public functions.”