Klein Revisited
In a recent post, I wrote that marriage commissioners who refuse to marry gay and lesbian couples on moral or religious grounds should be forced to quit. That statement elicited several responses, including the following comment from an anonymous reader:
Though I've already responded in the comments section of the original post, I feel like my response warrants its own entry.
Anonymous said...
Actually, there is a reason for Alberta not to follow suit: they don't want to.
As long as some gov't representatives are willing to perform the service, there's no reason to force those who disagree on moral grounds to do it.
Those who don't agree with same sex marriage and don't wish to perform the services will be following the law of the land - Alberta's.
Ralph Klein hasn't been Canada's most successful politician by not following the will of the people. If the man can do anything, it's read which way the wind is blowing.
Though I've already responded in the comments section of the original post, I feel like my response warrants its own entry.
Bo said...
To Anonymous #1: I appreciate your comments, though I disagree. When I speak of marriage commissioners following the law of the land, I'm referring to federal law. Only the federal government has the right to define who can and can't be granted marriage licenses. In this case, they have said that all adults, regardless of sexual orientation can be issued a license. This is the law, whether or not Alberta chooses to recognize it as such.
As to there being "no reason to force those who disagree on moral grounds" to perform marriages for same-sex couples, I think that's untrue for both practical reasons and reasons of principle.
A practical reason: Imagine I want to get married on a particular day. I live in a small town with only two marriage commissioners at city hall. One is on vacation and the other refuses to marry me "on moral grounds." Who is supposed to perform the ceremony? Just as someone can be fired for not being able to work Saturdays or Sundays, the commissioner in this case should be let go for being unable to provide the public with the service for which he was hired.
A reason of principle: Marriage commissioners are government agents. If the government allows a particular commissioner to refuse to serve certain members of the public, then the government is guilty of discrimination. I tried to make this clear when I asked you to imagine an MTO agent refusing to issue a driver's license to a woman because he does not believe women should drive. Sure, another employee could serve this woman. "I'm sorry, I'm unable to serve you. Please wait for the next available agent," sounds like a relatively benign request, but it is pure discrimination and should not be condoned.
posted by Doughbot at
2:29 PM
13 Comments:
Ok so let's examine the precedent that we set when we allow marriage commissioners to reject to perform same-sex marriages.
Police could choose who they rescue based on some arbitrary trait.
McDonalds staff could choose to not give certain people food on a given day.
One could be disallowed from getting gas from say..a Petro-Canada station.
The position is that absurd and illegal.
I have but one thing to say to those commissioners: Get ordained so you can practice your discrimination under religious pretense or find another job. Otherwise, follow the law. Everyone else has to.
By
Canadian Perasma, at 9:24 PM
Canadian Perasma...and idoughbot...I couldn't agree more! As a civil servant or employee of the government, one *must* follow federal and provincial legislation regardless of their prejudice; it is only for those not whose employment is not sanctioned by government to choose to act out of prejudice. I love the examples you use, Canadian Perasma.
By
Anonymous, at 7:00 AM
To Canadian Perasma: I'm glad we agree. Thanks for taking such an active interest in my posts. I also agree that commissioners who have a problem marrying same-sex couples might feel more at home with the church.
I would like to point out, however, that a couple of your examples of discrimination are slightly off base. Though it might be in violation of a provincial human rights code, it would not be unconstitutional for McDonald’s, for example, to refuse to serve customers on a specific day, or of a specific race, gender or sexual orientation. The constitution does not apply to private citizens or organizations, as noted by Anonymous #1. A human rights violation is far less egregious than violating the Charter of Rights and Freedoms, which, as part of the Constitution, is the supreme law of Canada.
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Doughbot, at 10:14 AM
Ah..you got me. But I was really playing up the absurdity of the action not the legality. I didn't have time to look that part up.
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Canadian Perasma, at 12:47 PM
Anonymous #1 here,
I think your reply is misleading in at least one respect. While the federal government has the constitutional power to define marriage, they have no power to determine how a province goes about granting someone the title of 'marriage' as defined by federal legislation.
Indeed, it is entirely up to the provincial government to decide how to go about solemnizing marriage. For example, the federal government could not compel Alberta to grant marriage licenses. It is up to the Albertan government to decide how to confer the title of "marriage" upon a couple - the only caveat is that they must conform to the federal definition of marriage.
So, if Alberta chooses to allow certain civil servants to refuse to perform marriage ceremonies for same-sex couples, one could assume that it would be perfectly legal as long as some civil servants in Alberta were willing to grant marriage licenses and perform ceremonies for same sex couples (at least on federalism grounds; I'm sure that in a few years we'll see a s. 15 Charter challenge on the discriminatory aspects of this if it actually becomes law).
As for the morality of such a decision, I make no argument. One can assume - safely, I think - that a fair number of Albertans would agree that Ralph Klein is making the right decision here.
As for the discriminatory aspect of the law, I suspect that this move would violate s. 15 of the Charter. If it does, then I would not be surprised at all to see the invokation of the notwithstanding clause. Our Constitution is a wonderful thing.
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Anonymous, at 1:53 PM
To Anonymous #1: I agree almost entirely with your analysis. You must be in law school ;)
I tried to make sure that I made clear the particular jurisdictions of the federal and provincial governments when I made my arguments. Maybe I wasn't clear enough. The provinces certainly have jurisdiction over the solemnization of marriage, including any procedural issues. And if a province decides to let a marriage commissioner refuse to marry certain couples, that's not illegal and there will be no legal penalty for either commissioner or province. Still, allowing such discrimination is contrary to the express wishes of the federal government and the newly redefined definition of marriage as established by same. And that’s what I was trying to get at when I said, ‘marriage commissioners are government representatives and bound to follow the law of the land.’
By
Doughbot, at 11:17 AM
Anonymous #1 again. You said: "Still, allowing such discrimination is contrary to the express wishes of the federal government and the newly redefined definition of marriage as established by same."
Actually, I don't know that it is. I point you to this story.
In SK, the law is obviously markedly different from what is being proposed in Alberta. All marriage commissioners in SK are required to perform ceremonies for same sex couples. And what does Irwin Cotler, Justice Minister, have to say? Well, fist: "Justice Minister Irwin Cotler, who spearheaded the bill through the Commons, has repeatedly promised that religious rights would not be trumped by the equality provisions of the Charter that have made same-sex marriage a legal reality. But the transition to a nation that embraces the legal homosexual unions has not gone as smoothly as he had hoped."
And then,
"Because the solemnization of marriage is within provincial jurisdiction, he has appealed to his counterparts in the provinces and territories to make provisions for civic officials who don't want to perform a same-sex marriage.
Many, including Ontario, Quebec and British Columbia, have found middle-ground solutions.
But some provinces, including Saskatchewan, have taken a hard line.....
This is clearly a source of some frustration for Mr. Cotler.
If there is a conflict between religion and equality rights, he said "there is a principle of reasonable accommodation. . . . One should be able to find a way of accommodating those who for reasons of conscience feel they don't want to perform a same-sex marriage.""
I re-iterate: Alberta is free to set its own law, and it seems to have struck a sensible common ground that accomodates all interests.
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Anonymous, at 1:14 PM
They should have perform ceremonies for all Canadians. Its simple, its the law.
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Rick Barnes, at 9:03 PM
Anonymous #1 here,
Rick, you are wrong. Yes, in some provinces, it is. In others, it is not. The federal government lacks the power to tell a province whether it is or not.
What the federal government's legislation did is define marriage as between two persons. That is the extent of it.
Now it is up to the provinces to determine how they go about granting the title of "marriage." This might mean that all civil servants will be forced to perform the cermony, or it may mean that only those who choose to perform same sex marriages will have to. Saying that "it's the law" that all civil servants perform same sex marriage ceremonies is correct in provinces like Saskatchewan, as I mentioned above, but may be completely incorrect for a province like, for example, Ontario or, as proposed, Alberta.
By
Anonymous, at 10:30 PM
To Anonymous #1: Thanks for the comment. I learned a lot from your last post and the link to The Globe. You've convinced me the law does not compel provinces to force commissioners to marry same-sex couples. I continue to disagree with you, however, when you say that Alberta "seems to have struck a sensible common ground that accomodates all interests". For reasons of principle, already outlined in my original post, these people should be forced to quit, despite what the law has to say.
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Doughbot, at 12:03 AM
It's been fun, civil, and informative on both sides. I think we'll just have to agree to disagree.
I'll leave you now to your regularly scheduled programming.
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Anonymous, at 12:07 AM
Rick, you are wrong. Yes, in some provinces, it is. In others, it is not. The federal government lacks the power to tell a province whether it is or not.
Section 90 of the BNA Act gives the federal government the power to disallow provincial laws that are not in the interests of the country. Arguably, any such clearly discriminatory act as being proposed here could fall into that category. Parliament might be reluctant to exercise this power ordinarily, but not, I think, if the express purpose of a provincial law is to flout the intention of a hard-fought federal statue on the basis of a constitutional technicality. The matter has been argued, debated, and dragged out over years. It's not going to bankrupt Alberta or interfere in the way the average Albertan lives his or her life. There's no real cause to do this except to keep a little bigotted flame alive.
Bo, I think your MTO/women-shouldn't-drive example hit the nail right on the head. Bravo.
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Lone Primate, at 3:56 PM
To Lone Primate: Thanks for the comment. I doubt this is a serious enough issue for the federal government to interfere. I don't even consider it such, and I'm very sensitive to these issues! The province in question would certainly put up a fight and the government would look overbearing. Maybe with a strong majority, but not with Parliament Hill as volatile as it currently is.
By
Doughbot, at 3:19 PM
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