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Canada appeals court rules refusal to marry same-sex couples unconstitutional

By LaToya Sawyer

[JURIST] The Saskatchewan Court of Appeals [official website] on Monday ruled [opinion text, PDF; case summary] that refusal by provincial marriage commissioners to marry same-sex couples violates § 15(1) of the Charter of Rights and Freedoms [text]. The decision invalidates a proposed amendment to Saskatchewan's Marriage Act of 1995 [text; PDF] that would allow for marriage commissioners to refuse to solemnize same-sex marriages in service to their of religious beliefs and would exclude the participation of commissioners in office before Parliament legalized same-sex marriage in 2005. The court expressed that its opinion protects the rights of gay and lesbian couples :

[The amendment], if enacted, will create situations where a same-sex couple contacting a marriage commissioner for the purpose of getting married will be told by the commissioner that he or she will not provide the service requested. This is not a merely theoretical concern. ... Both the Grandfathering Option and the Comprehensive Option will have the effect of drawing a distinction based on sexual orientation. ... 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.

Furthermore, the court noted that because most other marriage officials are of religious backgrounds and do not condone same-sex unions, allowing marriage commissioners to refuse to marry same-sex couples would destroy all opportunities for gay and lesbian couples to have access to the institution of marriage.

Since Canada legalized the marriage of same-sex couples [JURIST report] in 2005, the issue has been the topic of popular debate. Despite resistance to the law, in 2006, Canadian law makers refused [JURIST report] to reconsider the decision, calling the matter settled. In 2004, a Saskatchewan court found [JURIST report] that a federal prohibition on same-sex marriages was unconstitutional, making such marriages legal in the province. In 2005, Canada was only the fourth country to recognize same-sex marriage. There are now more than ten countries that recognize same-sex marriages.

Full post as published by JURIST - The Paper Chase on January 10, 2011 (boomark / email).