Kim Davis and competing Charter rights

The story of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples on the basis of her Christian faith, has made headlines across the US and Canada in recent weeks. On September 3, 2015, United States District Judge David Bunning held Davis in contempt, sending the clerk to jail. The controversy continues after her release – court proceedings are ongoing, and Davis returned to work on September 15, ordering her office to alter the marriage license templates to remove her name and title and substitute “pursuant to federal court order”.

While this story has brought widespread attention to the tension between equality rights and religious freedom, the issue of how to reconcile competing rights claims is not new. Increasingly in the years since the Canadian Charter of Rights and Freedoms came into force, Canadian courts have had to grapple with how to resolve this tension. The Saskatchewan Court of Appeal’s decision in the Marriage Commissioners case provides insight into how a Canadian court would address the Kim Davis case in the context of the Charter.

The Saskatchewan Marriage Commissioners Case

On the heels of legal and political developments that legalized same-sex marriage in Canada, some marriage commissioners in Saskatchewan began refusing to solemnize same-sex marriages on the basis that their religious beliefs prevented them from doing so. The issue led to numerous legal proceedings pursuant to the Saskatchewan Human Rights Code as well as a civil court action. The Saskatchewan government proposed two possible amendments to the provincial Marriage Act that would allow marriage commissioners to opt out of performing same-sex marriages, and asked the Saskatchewan Court of Appeal to give its opinion on whether the amendments were consistent with the Charter.

The Court’s Decision

The Court acknowledged that the purpose of the proposed amendments was to accommodate the religious beliefs of marriage commissioners. However, a law can violate section 15 guarantee of equality if the effect of the law is to deny equal protection or benefit. In this regard, the Court held that the effect of the proposed amendments would be to draw a distinction on the ground of sexual orientation – same-sex couples contacting a marriage commissioner to have their marriage solemnized may be denied where a heterosexual couple would not. The Court found that this distinction was contrary to the Charter and that the distinction could not be justified, even though the issue involved the Charter-protected religious freedom of marriage commissioners.

The Kim Davis case through a Canadian lens

The Court’s commentary in the Marriage Commissioners decision provides a good indication of how a Canadian court would deal with a situation similar to the Kim Davis case in Canada. The Court emphasized the fact that marriage commissioners are public office holders and do not act as private citizens when they discharge their official duties. Those duties involve performing secular civil marriage ceremonies. Indeed, a ceremony performed by a marriage commissioner was the only form of non-religious marriage solemnization available in Saskatchewan. As the state must provide services on an impartial and non-discriminatory basis, individuals who voluntarily become public office holders must carry out their duties in line with that basic principle, as opposed to shaping their duties to reflect their personal beliefs.

A court considering the Kim Davis case in Canada would likely emphasize that she is a public office holder, similar to secular marriage commissioners. Her duties therefore include issuing marriage licences in accordance with the law, which now extends marriage equality to same-sex couples. Thus, the court would likely conclude that Davis cannot act upon her religious beliefs in denying marriage licenses, if that act discriminates against the public on the basis of sexual orientation. In essence, the competing rights claim is less of a competition where one side is filling a public and secular role. Although Canadians are free to hold personal religious beliefs, that right does not necessarily extend into the public realm, particularly where significant equality rights are at stake.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]





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