Same sex vs. religious freedom case in Sask. court

Saskatchewan's top court has begun to hear arguments in a case that pits gay rights against religious freedoms.

Lawyer Michael Megaw argued Thursday before the Saskatchewan Court of Appeal that the law should not force marriage commissioners to perform same-sex marriages if it's against their religious beliefs. Megaw said that making them do so forces them to "park their rights at the door."

The issue arose in 2005 when marriage commissioner Orville Nichols, a devout Baptist, told a gay couple he wouldn't marry them because it went against his religious beliefs.

Megaw said courts should give the green light to a proposed law that would exempt commissioners from being required to perform same sex marriages if to do so offends their personal beliefs. And while it's the government's obligation to make sure civil ceremonies are available to everyone, marriage commissioners shouldn't be obliged to perform all marriages.

The reference case is viewed by Saskatchewan's minister of justice as necessary, to clarify the law.

"There's two legal positions," Don Morgan said Wednesday. "One, the rights of the same-sex couple which are absolute. And there's also the right to religious freedom."

Morgan said the province wants guidance from the court.

"There is nothing in the Charter [of Rights and Freedoms] that indicates one of those should take priority over the other," Morgan said. So we're saying to the court we need to know with certainty which of those takes priority or is there an ability to accommodate both views?"

Saskatchewan has drafted two legislative options for the court to consider.

One proposal would see a special provision for marriage commissioners who were appointed before 2004 when the Court of Queen's Bench ruled that same-sex marriage was legal in Saskatchewan. The provision would allow those marriage commissioners not to perform same-sex marriages if it's against their religious beliefs.

The second option would create a religious exemption for all marriage commissioners.

Morgan said he hopes the court will approve one of the two forms of legislation, but also acknowledged the court could rule that both options are unconstitutional.

Arguments in the case are expected to continue into Friday and the court is expected to reserve its decision.
© The Canadian Press, 2010