Marriage Commissioners and Religious Freedom

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In May 2010, I was asked to submit an affidavit on an evangelical theology of marriage on behalf of the Evangelical Fellowship of Canada, which was acting as an intervenor to the Saskatchewan Court of Appeal in reference to proposed legislation to protect religious freedom of Marriage Commissioners. (Here is an earlier post about my involvement). At the time, I felt that it was inappropriate to post my affidavit until the case was decided (which it now is), so I have now uploaded it to my “Box.net” collection available here.

ActiveCFPL has summarized the case as follows:

In July 2009, the Justice Minister of Saskatchewan asked the Court of Appeal for an opinion on the constitutionality of two potential legislative options which would permit marriage commissioners to decline performing same-sex marriages if contrary to their religious beliefs. One would have permitted marriage commissioners appointed before a certain date to refuse to solemnize a marriage contrary to their religious beliefs and a second that would have allowed any marriage commissioner the same right.

(Access to the full Court of Appeals ruling can be found here. A short summary of the case and the ruling can be found here.)

On January 10, 2011, the Saskatchewan Court of Appeals handed down its ruling that neither of the proposed legislative amendments would be constitutional, and that each would violate section 15(1) of the Canadian Charter of Rights and Freedoms which protects Canadians against discrimination on the basis of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Though “sexual orientation” is not explicitly mentioned in the Charter, the Supreme Court of Canada has already read “sexual orientation” into the Charter.

What does this ruling mean? As I understand it, it means that even if the Government of Saskatchewan is not prevented from invoking legislation that would enshrine protection of Marriage Commissioners who, on the basis of religious conviction, would refuse to perform a marriage ceremony for a same-sex couple (since this is only a reference from the court, and is not binding), it clear that any such legislation would be immediately able to be challenged. So it is doubtful the government will invoke such legislation. Practically speaking, this means that current and future Marriage Commissioners (at least in Saskatchewan) will have no legal right to refuse to perform a same-sex marriage ceremony on the basis of religious conviction.

However, there may be a small glimmer of hope: In the ruling, the Honourable Justice Richards made mention of a “single entry point” system in which a centralized office would gather all applications and then assign a marriage commissioner to each application, thus potentially accomodating and protecting the religious convictions those marriage commissioners who do not feel that they can perform a same-sex ceremony. But since this is only a legal “reference” on proposed legislation (as opposed to a ruling on pre-existing legislation) there is no compulsion on the Government of Saskatchewan to have to follow through on this advice. Nevertheless, I do hope that they would consider setting up such a system in the absence of any new legislative protection.

So what are some of the implications of this ruling? Although I’m wonder if the decision is more far-reaching than I may realize, here’s at least three major implications to consider:

  1. The ruling sets in motion the possibility that the Charter of Rights and Freedoms will no longer guarantee universal protection of religious freedom. On the contrary, this ruling practically decides that there are certain circumstances under which the Religious rights and freedoms of an agent of the State must be limited. Unfortunately, the distinction, as appealed to under the ruling, between an agent of the State and a private individual is no where spoken of in section 15 of the Charter. Indeed, the Charter explicitly states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…” But under this ruling, potentially any agent of the State (i.e., anyone who works for the State) may be required to check her or his religious convictions at the door in order to accomplish her or his obligations to the State, or else resign her or his position. And I ask: It is Marriage Commissioners today, but who will it be tomorrow?
  2. The ruling allows no middle ground for the exercise of religious conviction for Marriage Commissioners, and potentially, for other agents of the State. In other words, the possibility of “reasonable accommodation” for the exercise of religious conviction for agents of the State has been reduced. In this particular case, certain Marriage Commissioners, who by religious conviction do not believe they can perform a same-sex marriage ceremony, have one of two options: Either they ignore their own religious conviction, act against their conscience, and begin performing same-sex marriage ceremonies for couples who present themselves, or Marriage Commissioners resign their position in order to protect their religious convictions and conscience. It is a sad irony, therefore, that it is the Charter which is supposed to protect individuals from needing to make such a choice in the first place, and yet it is the Charter which is supposedly being safeguarded by this ruling. In light of this, I certainly hope that the Saskatchewan government takes its cue from Justice Richards and sets up some kind of central “single entry” system which would prevent Marriage Commissioners with religious convictions against same-sex marriage from making the decision outlined above.
  3. The ruling means that in the future (barring a bureaucratic means of providing reasonable accommodation) only those who have no religious conviction against same-sex marriage will be able to apply to become a Marriage Commissioner, i.e.,  those with religious convictions need not apply.  The logic goes something like this: “All individuals are to be free from discrimination on the basis of religious belief, therefore all individuals may apply to become a Marriage Commissioner. However, only those who willingly give up their right to practice their religious conviction are actually employable as a Marriage Commissioner.”  Does this not sound like religious discrimination? The main problem is that this ruling has de facto taken a moral position on marriage, mainly, that the only proper conviction for an agent of the State to hold is one that upholds a definition of marriage that includes both opposite-sex and same-sex marriage. One can only imagine the mess that we will be in when (not “if”!) polygamy becomes legalized in Canada. I am sure there are some proponents of same-sex marriage who may be morally or religious opposed to multiple partner marriages. But in another ironic twist, they, too, would then be forced to perform polygamist marriage ceremonies. Where will it stop?

What can be said all this from a theological perspective? Well,  on this front, I need to be clear: From a biblical and theological perspective, I can offer no reason to say that Christians must be able to perform each and every vocational or professional path that a particular society offers. As disappointing as it may be, Marriage Commissioners with theological convictions against same-sex marriage are not in an insoluble dilemma:  They can simply not continue to be marriage commissioners in order to protect their religious convictions. They, like anyone else in any vocation where they may be asked to go against their religious convictions, can quit. Thus, if a person has a religious conviction about working on a certain day of the week, and if her or his employer requires work on those days, as painful as may be,  that person is under no moral or religious or theological compulsion to keep that job. Quitting may cause hardship, indeed. But we need to be honest: theologically, one is not left without a choice. In this regard, I believe that God never leaves us without a genuine option. But God never guarantees that in the exercise that option, one will be free from suffering, pain, or in extreme circumstances, even death. We may not like the option, but we always do have one. That is, in a nutshell, the true freedom of a Christianthe freedom to suffer for doing what is right. As the Apostle Peter puts it, “But even if you should suffer for what is right, you are blessed. ‘Do not fear their threats; do not be frightened.’” (1 Peter 3:14)

Thus, we should be clear that as disappointed as we may be with this ruling, it puts no one in a true moral and theological Catch-22. There are other options to maintain our religious conviction. It is simply a sad irony that we live in a country that claims to protect religious conviction. Consequently, we need to realize that we may not alway be able to depend on such protections in the future. Our test, as Christians, will be whether we make the right choices when our religious convictions are truly tested. Will we make the right decisions for the sake of Christ and his Gospel, or will we find ways to justify and protect ourselves?

That said, however, I am very concerned that everyone who cares about religious freedom, whether Christian, Muslim, Hindu or others (not to mention the non-religious person with moral convictions), recognizes that this ruling may potentially create an environment in which with increasing measure future challenges to the expression of religious freedom will be possible.  In a few paragraphs within the Court of Appeal ruling, the Justice makes the point that the need to protect the religious convictions of marriage commissioners could be equally invoked by

those who sell marriage licenses, or those who rent halls for marriage celebrations, and disapprove, on religious grounds, of same-sex relationships. But more than this, it could just as easily, and with as much validity, be made by those who provide rental living accommodation to married couples, and even those who provide  restaurant meals or entertainment to the public. The desire of individuals providing these services to the public to withhold the service from same-sex couples, on grounds of religious disapproval, is not legislatively protected.

This argument, I suppose, could be made. But it wasn’t being made. No one was arguing for such a “slippery slope” here. Nevertheless, it does cause me to wonder: In what other conditions might agents of the State in the future need to have their religious convictions “checked at the door”? Will a police officer, for example, have any right to refuse to participate in a certain kinds of activity that might put her or him in a religiously or morally compromising situation? e.g., Carrying out undercover work in vice, or gang-related investigations? Will doctors be forced to check their religious convictions at the door and need to perform certain procedures to which they are morally opposed? Doctors are, after all, paid by the State. Will publicly funded lawyers be required to defend clients who are engaged in activities that are clearly against their religious convictions? I don’t know the answers to these questions. But they are questions that plague my mind as we begin to see the ripple effects of these rulings.

My concern is not so much about the religious rights and freedoms of Marriage Commissioners per se, but about how this ruling is a piece of evidence that the State is slowly but surely becoming less of a servant and protector of the people, and more and more a Schoolmaster of what is, for its people, acceptable and non-acceptable belief and practice. And since we still do live in a country where we have the “right” to have our voices heard, I believe we have therefore a responsibility to point out to the State the inconsistency of its own governance–and to pray for those in authority over us while we do this very thing (cf. 1 Tim 2:1-2).


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9 thoughts on “Marriage Commissioners and Religious Freedom

  1. Thanks for the report David! I will say this:
    Though, in every way, this news is depressing for a society and though we are often blind to how it hurts us, there is hope. In reference to the Church & the Kingdom and Ladd I believe, the prophetic voice becomes louder the more the state separates us from it. This meaning that when there is a equal freedom, beliefs mingle. This results in the church (and maybe any religion) able to have the ability to hide among the state and grow stagnant.

    Your reference to 1 Peter and Peter in general, gives me hope in a cause for the Church to check herself and be more purified. Maybe this is an attempt to be optimistic in the poor state of mankind, but I would like it to be more so one of prophetic voice. In that, admitting that YES, we are in a poor state (relief from optimism), but YES the Church is being refined. Also, that YES it is going to be painful.

    Though for many like me who preach on a regular basis, who do not have much direct involvement in court appeal, we can deliver a message of hope to the church. In fact, our witness may (or dare I say, will) become more powerful. Praise be to God for the hope we have.

  2. Thanks for your thoughts and comments, Dave. As I read the announcement yesterday evening (and perused some of the text of the legal decision), many of these same thoughts came to my mind. We are indeed on a very slippery slope on this issue, and the sands of time are slipping through the hourglass: what’s next?!

    At the very least, God’s people are called to pray for those in authority over us. Additionally, prayers for those marriage commissioners persent and future are warranted.

  3. David, thanks for this informative piece and its list of provocative theological and sociological questions. Also thanks for your work behind the scenes on this matter, whatever that might be (I suspect it is considerable). I don’t know that I disagree with anything you’ve said here, but I do want to question a few things for my own clarity of thought and maybe some healthy rebuttals from you to set me straights.

    First of all, is it necessarily an either/or for Marriage Commissioners? In your second point you say “Either they ignore their own religious conviction, act against their conscience, and begin performing same-sex marriage ceremonies for couples who present themselves, or Marriage Commissioners resign their position in order to protect their religious convictions and conscience.” But isn’t a Christian Marriage Commissioner of the state already marrying people outside of the place where, for them, marriage finds it proper home and definition (i.e. the church)? Is the marriage commissioner or anyone else really under any illusion that civil ceremonies and legal marriages have ever been the same thing as the church wedding and the covenant of marriage between two persons mutually yoked to Christ? I might have some sympathy for the Christian Marriage Commissioner who rejected your either/or and went to work as usual under the conviction that they performed a civil service (that coincided with some commonly held general beliefs about the preference for committed monogomous relationships and so on) that was similar to the church service in name but different in intent. No?

    Secondly, in your first point, you wondered whether “potentially any agent of the State (i.e., anyone who works for the State) may be required to check her or his religious convictions at the door in order to accomplish her or his obligations to the State, or else resign her or his position.” Again I ask: are we under the illusion that politicians and people who work for the government (or corporate employees for that matter) do not face this dilemma every day? When I worked for Sears call centre I had to suppress religious convictions every time I peddled more useless goods to people who were already steeped under credit. The examples could go on. My point is, is the rhetoric of “checking our religious convictions at the door” suited to the complexity of the issues at stake? Did the Roman soldiers have to quit being Roman soldiers when they became Christians? Did Pharisees leave the Sanhedrin? Were early Christian slaves told to simply “check their religious convictions at the door” and go to work as usual? I just don’t know that “religious convictions” are static enough to support the “check them at the door” or don’t go to work at all dilemma.

    I think that’s just another version of my first point, now that I look at it. I was going to ask it again about your third point, but I think you can see where I would have gone. Instead I will turn around on myself and agree with your third point that Christians should not expect that their theological convictions and their services to state (or corporation, this might be a worse problem actually!) are always in line, and so they should expect everyday that they might have to make an ethical choice between following Christ and going along with the Empire, and depending on the discernment of the Spirit (as educated by understanding of the Word in the Church) in that occasion it will be them, the Christian, that takes the first brunt of the cost of that choice. This may well be one of those times, and I feel for Marriage Commissioners in this bind. However, their dilemma seems to me the tip of the iceberg, not for what’s coming down the slippery slope, but for what we have been facing everyday and perhaps not even bothering to notice anymore.

    Reactions? Again, I mean to sound no discordant note with the work you’ve done or the concerns you’ve raised above, many of which I think should concern citizens of our country.

  4. Thanks for the comments so far.

    Brandon, I appreciate you raising the prophetic element. Having worked closely on this case with two fine Christian lawyers (Faye Sonier from Ottawa and Scott Kennedy from Winnipeg), I was greatly impressed at how they saw their legal work as in service to the kingdom of God. Frankly, after spending just one day in the Court of Appeals, I had to wonder how they do it day in and day out. Indeed, I would recommend that anyone who hasn’t had the opportunity to attend a court case like this, do so at some point. It changed my perspective greatly. But whatever the case, the presence of Faye and Scott (and others) at the Court of Appeals case was, in my mind, salt and light, especially when I could see the darkness also so well on display that day as well. It is easy for Christians to take a fairly ideological bent to these issues and think that by engaging in them Christians are just trying to keep some kind of form of Christendom alive. But that is just as simplistic an understanding of what these legal battles are all about as those who think that we should just let society go its way and let the church care about her own internal issues. That is a division I neither see in Scripture nor support.

    Jon, I probably won’t go too far down the road on your first comment, except to remind us all that marriage, while fully revealed in Scripture as a picture of the reality of Christ and his church, is nevertheless created by God in Christ as an order in creation. I wouldn’t say that marriage is “ecclesiocentric” as much as it is “Christocentric” (in much the same way that Creation is of Christ and for Christ). Indeed, marriage only became a “sacrament” in the church at a much later stage in history. But whether marriage is in the church or not isn’t so much the issue as whether marriage reflects the creation of male and female. A Christian marriage commissioner is still upholding that which Christ created when performing a marriage, but I’m not at all convinced he or she is upholding and witnessing to that order when performing a same-sex marriage. I would go so far as to say, to perform such a ceremony IS a testimony against the Creator Christ. That which God has put together (and I think at the very least, this means male and female marriage) let no one put asunder.

    On your second point, admittedly the phrase “check convictions at the door” might be a bit vague, so thanks for critiquing me on that. That said, might we not do well to recognize that there is at least some difference between an active engagement against conviction (i.e., doing something fully against our moral or religious conviction, e.g., cooking the books for a flailing company) vs. an active “forbearance” (notice I didn’t say “passive”) of the many things that go on in most places of work or vocation? There are tons of things going on in many vocational settings that Christians necessarily “overlook” (e.g., the continual blasphemous cursing that may be found on a construction site–at least on all the construction sites that I used to work!). I could continue labouring as a carpenter’s helper, even though the carpenter’s speech and life were, as far as I could tell, the furthest from Christian, though even then, I occasionally tried to say or do something that might cause him to think. So I don’t know so much that it is the same to say that both instances are parallel, Jon. What do you think?

  5. I think those are great points and/or clarifications, particularly the first, but also the second. I’ll mull them over and come back if I have further rebuttal. As it is your response has been compelling indeed.

  6. David,
    A Lawyers work for he kingdom may be of greater purpose than the church and myself have allowed. I desire to meet one of these lawyers and attend an appeal. But the slippery slope and the trend of what is happening must be accepted, but I do desire to appreciate more the work in the legal system that is salt and light. The Lord needs the Church there as much as He needs us with the poor and the drug lords. It is redemptive work. Simply because it is a slippery slope does not mean it should be.

  7. Okay, not sure if we’re still talking about this, but as compelled as I am by your answers I still have some questions.

    You said: A Christian marriage commissioner is still upholding that which Christ created when performing a marriage, but I’m not at all convinced he or she is upholding and witnessing to that order when performing a same-sex marriage. I would go so far as to say, to perform such a ceremony IS a testimony against the Creator Christ. That which God has put together (and I think at the very least, this means male and female marriage) let no one put asunder.

    I take your point that from a Christian perspective there is reason to aim to influence society in a way that it defines and upholds marriage according to the order of creation, even if it does not confess Christ. In other words, we are not holed up in our churches only concerned to see marriage practices there. And the civil marriage ceremony that is not between a male and female does not uphold the created order and so by participating the Christian marriage counselor does not give witness to Christ the Creator. I wonder, however, if it would be any more a testimony against Christ the Creator to perform male to male civil marriages than it has been to perform male to female civil marriages that confirmed a rift between unreconciled partners illegitimately (by biblical standards).

    (Also, it is not clear how civil unions between homosexuals serve to “tear asunder” the marriages of heterosexuals, although they do tear asunder the creation order to see male and female united in marriage. I take Genesis to mean the former, although maybe it means the latter as well).

    I guess I’m pressing the point on whether homosexual civil unions necessarily present us with an entirely new dilemma. When it comes to discerning how much one might work for the government according to the laws and values of the land that are in conflict with religious convictions I wonder if there still isn’t a gray area between quitting and checking those convictions at the door.

    You of course rightly inquired: “might we not do well to recognize that there is at least some difference between an active engagement against conviction (i.e., doing something fully against our moral or religious conviction, e.g., cooking the books for a flailing company) vs. an active “forbearance” (notice I didn’t say “passive”) of the many things that go on in most places of work or vocation?”

    And certainly these questions open up complex questions of situational discernment. I guess I just wonder whether this issue is really quite so cut and dry and the others (such as whether to go along with poor corporate practices) are really so worthy of our “forbearance”. I also wonder whether we quickly call our compliances at work “forbearance” when we have little intent of ever standing up for what’s right, and are really in it for the salary. No doubt it is hard to judge such a thing generally. But I’m cautious about making issues of homosexuality out to be something set apart and easier to judge than those other scenarios. I want to be sure not only our decisions but our stances are even-keeled. Not that I think by any stretch of the imagination that you are self-righteous in what you’ve said or how you’ve come across. I’m just exploring the issue here. Thanks, you’ve pushed me to clarified thought already.

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