Case and Legislation Commented On: In the Matter of Marriage Commissioners Appointed under the Marriage Act, SS 1995, c M-4.1, 2011 SKCA 3; Marriage Act, RSA 2000, c M-5
The Saskatchewan Court of Appeal ruled last week on the constitutionality of proposed amendments to Saskatchewan’s Marriage Act, S.S. 1995, c.M-41, which would have allowed marriage commissioners to decline to perform marriage ceremonies that were contrary to their religious beliefs. The Court found that the proposed amendments violated the equality rights of gays and lesbians under section 15 of the Canadian Charter of Rights and Freedoms, and that this violation could not be justified under section 1 of the Charter because the Saskatchewan government had not minimally impaired the rights of same sex couples in the way it had set out the proposed scheme for religious exemptions.
What are the implications of the decision in Alberta? Surprisingly, the Marriage Act, R.S.A. 2000, c. M-5, still defines marriage as “marriage between a man and a woman” (section 1(c); see also the preamble), even though in 2004 the Supreme Court confirmed that the power to determine whether same sex couples have the capacity to marry belongs to the federal government under section 91(26) of the Constitution Act 1867 (Reference re Same-Sex Marriage, 2004 SCC 79,  3 S.C.R. 698). While the Alberta government tried to shield the law by using section 33 of the Charter, the notwithstanding clause, that clause could not have saved the invalidity of the Act on division of powers grounds, and the relevant section of the Marriage Act expired in 2005 in any event. Furthermore, Alberta marriage commissioners have been performing same sex marriages in this province since 2005 in spite of the heteronormative definition in the Marriage Act. An attempt to bring in a law similar to that ruled upon in the Saskatchewan case was defeated when Bill 208, the Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006, was blocked by members of Alberta’s opposition parties. This Bill would have amended the Marriage Act and human rights legislation to protect marriage commissioners who refused to perform same sex marriages on religious or moral grounds. On the face of it then, marriage commissioners in Alberta do not have the sort of opting out protection that was considered in the Saskatchewan case.
Melissa Luhtanen of the Alberta Civil Liberties Research Centre will be providing further analysis of the Saskatchewan case and its implications in Alberta on ABlawg; readers may also be interested in this post on the case by Denise Réaume on the Women’s Court of Canada blog.