Rights tribunal rebukes marriage commissioner in same-sex ruling

The Saskatchewan Human Rights Tribunal has ordered a marriage commissioner who refused to perform a same-sex ceremony for religious reasons to pay $2,500 in compensation to the gay complainant. 

Orville Nichols, 71, has also been ordered to stop discriminating against same-sex couples in a judgment issued in Saskatoon Friday by the quasi-judicial provincial body that adjudicates human rights complaints.

In the 25-page decision, tribunal member Anil K. Pandila ruled that as a public servant providing a government service, Nichols does not have the right to refuse service on the basis of his personal beliefs.

While religious organizations have that right , the ruling states, the purpose of civil marriage is to give people, including same-sex couples, who have the legal right to marry a chance to be wed outside of a church.

To refuse service on the basis of religious belief is to remove the distinction between religious wedding ceremonies and civil ceremonies, the ruling states.

In testimony before the tribunal on Jan. 31 and Feb. 1, 2007, the complainant — who can only be identified as M.J. due to a publication ban — testified he was devastated when he telephoned Nichols on April 18, 2005, to make arrangements for the ceremony.

M.J. testified Nichols confirmed a date on which he could perform the marriage ceremony, but when told it would be a same-sex ceremony, Nichols said his religious beliefs would not permit him to perform the ceremony.

And while Nichols did provide the name of a marriage commissioner who subsequently performed the ceremony on May 5, 2005, the initial refusal was damaging, according to testimony from M.J.'s spouse, identified as B.T.

At the time of the incident, B.T. testified,  M.J. was only coming to grips with his homosexuality. M.J., 51 at the time, had testified earlier that he had been married to a female spouse for about 17 years and had three children. He indicated he did not realize he was gay until after he was divorced.

B.T. testified that Nichols's decision to refuse to perform the ceremony, coupled with the resulting publicity in the local press and on the internet, led to bouts of anxiety and difficulty sleeping for M.J.

In his testimony before the tribunal, Nichols, a marriage commissioner since 1983, said his Christian faith took first priority in his life. In day-to-day terms, he testified, this meant praying and reading the Bible on a daily basis.

He testified he viewed the Bible as the inspired work of God and that in it God stated that man shall not sleep with man and woman with woman. He indicated that these were the particular provisions of the Bible he relied upon when he decided to refuse to perform same-sex marriages. He testified that his church, the Faith Baptist Church, had a doctrine whereby it would not perform same sex marriages.

Public servants still have rights, commissioner argues

Nichols acknowledged the marriage unit of the Department of Justice had directed that marriage commissioners were required to perform same-sex marriages, the judgment states. However, Nichols testified, he was not able to follow that direction as it went directly against his religious beliefs.

Nichols, who failed in a bid to get a tribunal hearing of his own on the basis that his own rights had been violated, said Friday he was disappointed by the decision.

"Did every public servant in Canada lose their rights when they became a public servant?" he asked.

Marilou McPhedran, who heads the Saskatchewan Human Rights Commission, which refers complaints to the tribunal, said she supports the ruling.

"Well, the starting point is the law," McPhedran said.

"And the notion, the overriding notion, is that we all live together in a democracy. And we live together as part of an implicit social contract that we're not going to be discriminating against each other — and particularly where any of us want to access a publicly funded service."

McPhedran said Nichols's bid for a tribunal hearing was turned down by the commission because he had accepted an appointment to perform civil marriages.

"That statutory appointment is based on a law in Saskatchewan that offers a publicly funded public service," she said.

"That public service is defined, partially, by a promise that people can get married with no religious content and that anybody in Saskatchewan who qualifies for that marriage will not be turned away for discriminatory reasons."