‘Freedom of Religion is Not Absolute’: Same-Sex Marriage and Religious Beliefs and Convictions

In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011)

In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner Case), held that that a marriage commissioner’s refusal to solemnize same-sex marriage on the basis of religious beliefs is unlawful.  The Court held that two proposed amendments to the Marriage Act 1995 would offend the Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate the equality rights of gay and lesbian individuals’.


In 2005, the parliament of Canada redefined marriage to include same-sex unions.  This development caused some marriage commissioners in Saskatchewan (and indeed other parts of the country), to refuse to solemnize same-sex marriages on religious grounds.  These refusals served to spawn a variety of legal proceedings pursuant to The Saskatchewan Human Rights Code, as well as various civil actions.

The Marriage Act, 1995, a provincial statute, identifies those persons empowered to solemnize marriages, being those with or without religious connections.  Importantly, a civil marriage ceremony conducted by a marriage commissioner is strictly non-religious.  The Director of the Marriage Unit may provide couples with commissioner's contact details or couples may approach commissioners directly.

The Saskatchewan provincial government requested the Court of Appeal's opinion on the constitutional validity of two possible amendments to the Act.  In essence, both amendments would allow a commissioner to decline to solemnize a civil marriage if performing the ceremony would be contrary to his or her religious beliefs.  Neither of the proposals focused exclusively on the issue of same-sex marriage, however, the Court did use this as its focus, recognising that it was the central issue leading to the proposed amendments.


The decision of the Court was grounded in s 15(1) of the Charter which 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’.

The Court noted that the aim of the amendments was to accommodate the religious beliefs of marriage commissioners rather than to deny the rights of same-sex couples.  In this way, the amendments were concerned with managing the intersection of the freedom of religion of marriage commissioners on the one hand and the rights of gay and lesbian individuals on the other.

However, the Court said that the effect of the amendments would ‘create situations where a same-sex couple contacting a marriage commissioner ... will be told by the commissioner that he or she will not provide the service requested’.  Of this situation, the Court said, ‘gay and lesbian individuals will be treated differently than other people who wish to be married ... the differential treatment will be negative and will flow directly from their sexual orientation’.  The Court was not persuaded by the suggestion that same-sex couples could simply approach another marriage commissioner.  All in all, the Court concluded that the amendments would curtail rights guaranteed by s 15(1) of the Charter.

Accordingly, the key question became whether that curtailment of s 15(1) rights could be 'justified' as reasonable, in accordance with s 1 of the Charter.  Relying on the 'proportionality' test, the Court concluded that the amendments ‘would perpetuate a brand of discrimination which our national community has only recently begun to successfully overcome’ and ‘would have genuinely harmful impacts’.  Crucially, while acknowledging religious freedoms afforded under s 2(a) of the Charter, the Court said that marriage commissioners ‘do not act as private citizens when they discharge their official duties ... they serve as agents of the province’.  The Court added, ‘a system that would make marriage services available according to the personal religious beliefs of commissioners is highly problematic’.  As such, the Court concluded that the positive effects of the amendments did not outweigh their deleterious effects and did not curtail equality rights in a way that was justifiable.  The Court concluded, ‘freedom of religion is not absolute’.

Relevance to the Victorian Charter

In Australia same-sex marriage remains off limits, courtesy of amendments to the Marriage Act 1961 (Cth) by the Howard Government which restricted the definition of marriage to be ‘between a man and a woman’.  Marriage remains an issue debated on a federal level but increasingly commentators argue that the States could enact their own marriage laws (at the risk of being struck down by the Federal Parliament).  Nonetheless, the tide is most certainly turning and the ground swell of support for same-sex rights in this domain has never been stronger.  Given international trends, it seems Australia will in time follow the lead of more progressive nations by removing this discriminatory barrier against gay and lesbian citizens.  When that time does arrive, it will be interesting to see how issues presented in the Marriage Commissioner Case intersect with the Victorian Charter (or any equivalent human rights law that may eventually exist in the Federal sphere).  Of particular interest will be the balancing of rights under s 8 (‘Every person has the right to enjoy his or her human rights without discrimination’) and s 14(1) (‘Every person has the right to freedom of thought, conscience, religion and belief’).

The decision is at http://www.lawsociety.sk.ca/judgments/2011skca3.pdf.

Daniel Creasey is Senior Associate & Pro Bono Coordinator with DLA Phillips Fox in Melbourne