Canada Court Rules Marriage Commissioners Must “Marry” Homosexuals

The appeal of a Saskatchewan marriage commissioner against a human rights tribunal decision was denied by the Court of Queen’s Bench last Friday.  Orville Nichols, 71, was fined by the tribunal last year for refusing to "marry" two men based on his Christian religious beliefs.

Nichols, who served as a marriage commissioner from 1983 after retiring from a 25-year career in the police force, was approached by the complainant, only identified as M.J., in April 2005 to conduct the ceremony.  Nichols informed M.J. that he was available, but when he realized that M.J.’s partner, B.R., was a man, he told them that he could not "marry" them based on his religious beliefs.

Nichols had himself complained to the human rights tribunal in February 2005 after he had been informed in November 2004 by the Saskatchewan Department of Justice that commissioners would be required to conduct same-sex ceremonies after the law changed to allow them.  That case was later dismissed, in March 2006.

He was fined $2,500 by the tribunal in June 2008, which decided that as an official of the government, Nichols was not entitled to have his religious beliefs accommodated.

Nichols appealed that decision to the Court of Queen’s Bench, contending that his right to religious freedom should have been protected under the Charter of Rights and Freedoms. But Justice Janet McMurtry upheld the tribunal’s decision.

Nichols’ religious views are not relevant in how he conducts his job, according to the judge in her 36-page decision .  "In that capacity [as marriage commissioner], his personal religious beliefs do not matter," she wrote.

As a public official, she said, Nichols is obliged to perform civil marriages according to the statutes in the Marriage Act, which allows same-sex "marriages." "I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect," she wrote. "However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position."

The judge did not tell marriage commissioners who object to performing same-sex "marriages" that they must resign, however.  According to McMurtry, based on The Marriage Act, commissioners are able to choose to take a more limited purview by offering their services only to those of a particular nationality or creed. For instance, if Nichols were only to offer his services to fellow Baptists, he would likely avoid the circumstance of having to refuse to perform a same-sex "marriage." But the ability to choose a more limited commission does not apply to the choice only to marry heterosexuals, according to McMurty.

However, Saskatchewan Justice Minister Don Morgan announced recently that the provincial government intends to bring in legislation that would allow marriage commissioners to refuse same-sex "marriages" for religious reasons.  Two other commissioners besides Nichols have brought cases against the government for not protecting their religious freedom.

Nichols will have 30 days to appeal the decision, but according to CJME News Talk Radio 980 he has said in the past that he has difficulty covering legal costs, living merely on his pension.

A message left for Nichols was not returned by press time.

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  • plowshare

    The rigidity of the people behind the decision is what most bothers me. A creative legal solution would see that Nichols has served many years under a legal system that did not recognize same-sex marriages and could be “grandfathered in” as someone not required to make them.

    The alternative chosen leads to a situation where someone else has to take over his job, when a much simpler and less stressful solution would be for Nichols to refer the odd couples to the “someone else” while continuing to perform marriages for the overwhelming majority of opposite-sex couples who want them.

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