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Prairie officials compelled to perform gay marriages

By CAMPBELL CLARK
From Saturday's Globe and Mail

Justice Minister Irwin Cotler's assertion that civic officials will be able to opt out of performing same-sex marriage on religious grounds is being rebuffed in some provinces as jurisdictions across the country develop a patchwork of policies.

Manitoba Premier Gary Doer insisted that marriage commissioners in that province must still perform such ceremonies if they want to keep their licences.

The same policy is in effect in Saskatchewan.

But New Brunswick, one of only four provinces where same-sex marriage remains illegal, is preparing legislation to allow court clerks who perform civil marriages to opt out of performing same-sex ceremonies.

That has thrown a wrench into Mr. Cotler's assurances that disputes over the question can be resolved smoothly when he meets with provincial justice ministers in Ottawa on Jan. 5.

Justice Minister Irwin Cotler's assertion that civic officials will be able to opt out of performing same-sex marriage on religious grounds is being rebuffed in some provinces as jurisdictions across the country develop a patchwork of policies.

Manitoba Premier Gary Doer insisted that marriage commissioners in that province must still perform such if they want to keep their licences. The same policy is in effect in Saskatchewan.

Making rules for those who perform civil marriages is a matter of provincial jurisdiction, and the provinces have taken different tacks.

In New Brunswick, Justice Minister Bradley Green said the province is drafting a bill to allow clerks and deputy clerks of the Provincial Court to opt out of performing same-sex marriages by citing a religious objection. That bill is slated to take effect as soon as Parliament passes a bill legalizing such marriages across the country.

"There's no question that the subject of same-sex marriage is one that has generated strong feelings, pro and con, right across the country," Mr. Green said.

"Essentially what we will do is we will provide, through legislation, protection for those who perform marriages in the province of New Brunswick, such that they cannot be forced or compelled to perform same-sex weddings."

Mr. Doer, however, told reporters that despite Mr. Cotler's assertion, marriage commissioners in Manitoba will still be required to perform same-sex marriages. Mr. Doer says they are provincial officials and must not discriminate against gay couples.

Two marriage commissioners have quit over that rule, first expressed in instructions from the province's bureau of vital statistics in September, and have filed human-rights complaints. Saskatchewan has adopted the same policy, and officials there have given no indication that will change.

Saskatchewan Conservative MP Maurice Vellacott said Mr. Cotler has made an unequivocal pledge to allow civic officials to opt out of performing civil marriages, and he must ensure it is kept.

"He made it very plain," he said. "I think if you are going to honour the Constitution or the Charter of Rights, it isn't just about within the four walls of the church, but it is about individuals who have those convictions, those conscience qualms."

A Supreme Court opinion issued last week made clear that church officials cannot be required to perform same-sex marriages if that conflicts with their beliefs. That would violate guarantees of religious freedom under the Charter of Rights and Freedoms, the court said in a unanimous opinion.

The court made no mention of civic officials — marriage commissioners, court clerks, or justices of the peace, depending on the province — who perform civil marriages but might object to officiating at a ceremony for same-sex couples.

Courts in six provinces and one territory have ruled that same-sex couples must be allowed to marry because they are protected from discrimination under the Charter.

Some human-rights activists have questioned whether provinces can allow their officials to discriminate in effect by refusing to perform same-sex marriages.

Others have argued that existing human-rights legislation allows government employees to demand that their religious convictions be accommodated by their employers.

British Columbia has instructed marriage commissioners that they can refuse to perform same-sex marriages as long as they refer couples to commissioners who will perform the ceremony. Twelve B.C. commissioners have quit, apparently because they were unwilling to make such referrals.
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