Same-sex couples have rights, too

As our society has progressed and members of the gay community have attained a level of equality, there has been a conflict that has arisen among those who would promote this equality and those who object based on religious grounds.

This should not come as a surprise, as both protection from discrimination based on sexual orientation and freedom of religion are covered under our human rights legislation.

For the most part, courts have only intervened in areas that are covered under public laws, and have refused to intrude into areas of religious interest, thus striking a balance between the two.

The one issue which has continued to cause conflict in this area concerns same-sex marriage, and this conflict came back into the public sphere earlier this month.

In December 2004, the Supreme Court of Newfoundland and Labrador issued a declaration that the legal definition of marriage now included samesex couples.

Subsequently, the government sent a letter to all marriage commissioners informing them of this change and requesting that if a commissioner felt they were unable to provide services to same-sex couples — as was now required by the law — to tender their resignation by Jan. 31, 2005.

Desiree Dichmont, a commissioner since 1997, felt she could not do so based on her religious beliefs and tendered her resignation on Jan. 14, 2005.

Shortly after, she filed a complaint with the Human Rights Commission stating that she had been discriminated against based on her religious beliefs.

After investigating the complaint, the commission ruled there was insufficient evidence to proceed to a board of inquiry and dismissed the matter.

This decision was then appealed to the Supreme Court.

A couple of weeks ago, Justice Alphonsus Faour ruled on the appeal that the commission had failed to provide reasons for its decision and had failed to accommodate Dichmont’s religious beliefs. He set aside the commission’s decision and ordered the matter to a board of inquiry.

It will be interesting to see whether there will be any change in this matter once this case goes to the board of inquiry.

Right the first time

I have to believe that the commission got it right the first time and that the board of inquiry will only confirm this fact.

When it comes to accommodation, this needs to be reasonable and something that does not impact on the law or activity being covered.

As an example, police forces have been required to accommodate members of the Sikh community by allowing them to wear a turban while on duty instead of a police cap. This was deemed reasonable accommodation of their religious beliefs as it did not interfere with the performance of their duties as police officers.

What Dichmont is asking for is an entirely different matter.

The law now states same-sex marriages are legal and marriage commissioners — who are public officials — are expected to be able to obey the law as it exists.

If our system were to accommodate her beliefs, it would mean she could choose to discriminate against same-sex couples by refusing to marry them, and only marry the couples who meet her moral standards.

Where would we be if we allowed public officials to enforce only the laws that meet their personal moral or religious beliefs? Can you imagine the chaos if police officers could choose which laws to enforce and which to ignore?

This case reveals quite clearly why we have the separation of church and state in our society and how both have a role to play.

Under our laws, churches do have freedom of religion and none of them have been forced to perform same-sex marriages. It is precisely because of churches’ moral objection to certain marriages that we have the need for marriage commissioners who can offer couples civil marriages, as is their right under our laws.

Hence, divorced people could legally remarry, but a church could refuse to marry a divorced person based on moral or religious grounds.

This is how our system works and how it strikes a fair balance between religious and secular rights.

Marriage falls under both categories and it is fitting that all couples who choose to marry have equal access to this right.

Appropriate action

If a marriage commissioner is unable to offer this right to all legal couples who seek their services — as is required under the law — then it is appropriate that they be asked to resign.