Kevin Kisilowsky, a Manitoba marriage commissioner who lost his licence last year when he refused to perform homosexual "marriages" is taking his fight for religious freedom to the provincial Court of Queen's Bench. In 2004, following the legalization of homosexual "marriage" in Manitoba, the province ordered marriage commissioners to conduct marriage ceremonies for same-sex couples or hand in their licence. In response, Kisilowsky filed a complaint with the Manitoba Human Rights Commission, arguing that by forcing him to conduct marriage ceremonies that went against his faith, the province was discriminating against his religious beliefs. The commission rejected his argument and so Kisilowsky is appealing the decision in court. He says that he is prepared to take his case to the Supreme Court if necessary.
However this case is resolved, it is likely to have far reaching consequences for marriage commissioners across Canada. At least twelve Manitoba commissioners resigned after the province introduced their policy in 2004. In Saskatchewan at least eight resigned, and resignations followed similar policies in Newfoundland and British Columbia. The question that must be resolved is why churches and clergy are protected from having to conduct such ceremonies while individuals are not. Religious freedoms cannot be so selective. To argue that marriage commissioners are representatives of the government and, hence, must follow government policy is fallacious. Clergy, too, receive their marriage licences from the provincial government and they are not bound to operate contrary to their beliefs or those of their church. In actuality, marriage commissioners are not officially civil servants at all. Anybody over the age of 18 can get a marriage commissioner licence, even a temporary one for the weekend. The licence simply allows the person to solemnize a marriage. There is no obligation for the marriage commissioner to ever conduct a marriage. Which is why this policy in Manitoba (and several other provinces) is so odd; it would appear that the only kinds of marriage that commissioners must conduct are same-sex ones! How typical of this country lately.
Last month, we released our latest video, Faith Under Fire: Canada in which Kevin Kisilowsky and others who are facing similar religious liberty battles are interviewed. To find out more and to order a copy, take a look at our online catalog.
Well, the problem is that religious freedoms are protected in the Charter, both in s.15 on the grounds of discrimination and in s.2 as a fundamental freedom. The government may not require Nichols to violate his beliefs or prevent him from expressing those beliefs without violating his rights.
ReplyDeleteMy argument is that s.15 is binding on the government (i.e. it must provide the legally required service) but the law does not grant any citizen the freedom to walk in to a government office, hand pick an employee, and demand that that employee provide the service. All the law requires is that the service be provided by the government. In so far as that service can be provided (as it was - the marriage was performed by a marriage commissioner) in a timely manner then no discrimination by the government occured.
Requiring a person to do something against their Charter protected religious freedoms is discrimination on the part of the government on religious grounds; this is prohibited by s.15. We must not forget that in Corbiere religion is identified as constructively immutable by the Supreme Court; it is not simply a choice.
The government can hire people of various faiths/abilities to cover all of the requirements of the law but it is not required to be sure that every person hired has to do everything.
Now, with respect to Saskatchewan firing commissioners who will not perform same-sex marriages on religious grounds, I would argue that this is constructive discrimination and in violation of s.15 if the person is being forced to violate their religious beliefs in order to keep their job.