THE DEVIL’S ADVOCATE: Not Again! The Same-Sex Marriage Controversy in Saskatchewan – By Ryan Blood
On July 20, 2005, Canada became the fourth country in the world to legalize same-sex marriage. This was, of course, seen as a great success for the many people who felt that in a free and secular society all adults should be able to decide who they want to marry. Even for the religious groups which disagreed with same-sex marriage this was not terribly controversial; individual churches and clergy would still be able to decide who was eligible for a marriage ceremony. This is not to say that everyone agreed to promote same-sex marriage, but compared to the constant battle in the US over the issue all seemed well in the world…Until someone remembered that the State performs marriages and that not everyone performing them prior to the change agreed with same-sex marriage.
This problem recently became the subject of renewed controversy in Saskatchewan. At question for some time was whether marriage commissioners must marry same sex couples if it is against their conscience. This appears to have ended with the recent decision of the Saskatchewan Court of Appeal banning individual marriage commissioners from not marrying homosexual couples. It was held that any clause the provincial legislature placed within legislation exempting individuals from performing same-sex marriages on religious grounds would violate the Charter, and lead to potential discrimination against inter-race or inter-faith marriages.
This issue is not a simple one. Regardless of their correct (or not) decision, I think one has to feel sympathy for those individuals who are devoutly religious and feel there is a real tension between their obligation to marry same-sex couples and their religious duties. Personally, I see this problem (amongst many similar situations) as being a reason for government to get out of the marriage problem entirely and have universal civil unions for everyone – a view advocated by legal scholars like Cass Sunstein.
Let’s assume though, as is reasonable, that this approach will not be taken. It seems to me that religious differentiation need not rear its head on these facts. On the theory that government sanctioned marriages are considered purely secular, those performing the ceremony are not engaging in a religious act at all; if taken seriously, the conflict between religious duty and non-discrimination, in this context, may be one not of substance but perception. This is not to say that tensions will not exist in other situations, but certainly such an approach may minimize the tensions involved in this narrow case.
