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Letter to Ontario's Attorney General expressing concern about allowing public officials to refuse to marry same-sex couples

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December 20, 2004

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For immediate publication

Toronto - I am writing to express concern over recent comments attributed to the Honourable Irwin Cotler urging provinces to allow public officials who are licensed to perform marriage ceremonies to refuse to perform this service for same-sex couples.

As you know, the Ontario Human Rights Commission (the “Commission”) intervened in the Same Sex Marriage Reference before the Supreme Court of Canada to protect the right of gay and lesbian Canadians to get married.  In this regard, the Commission agreed with the Attorney General of Canada’s position that requiring a religious official to perform a marriage ceremony that does not accord with his or her religious beliefs about marriage would violate section 2(a) of the Charter of Rights and Freedoms (the “Charter”). 

However, in my view, there is a clear distinction to be drawn between same-sex marriage ceremonies performed by religious officials and those performed by public officials.   Religious officials express their religious beliefs in the performance of their duties, in contrast to secular service providers who cannot claim that the performance of their job functions is an expression of their deeply held religious beliefs.  The Supreme Court of Canada has recently recognized in the Trinity Western decision that public officials are expected to essentially "check their personal views at the door" when providing a public service.

Allowing an exemption for public officials would deny the equality rights of those seeking this service, particularly in rural areas and small towns where the numbers and availability of public officials will often be quite limited.   Further, the denial of the service by a public official to a same sex couple is no less a violation of the Code and the Charter than a denial of this service to an interfaith or interracial couple.

This issue is of concern to the Commission not only because its mandate includes the furtherance of equality, but also because it is a prime purpose of the Code, as set out in its Preamble, to create “a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community”.  Inclusion is an essential part of equality. 

If you have any questions or wish to discuss this issue further, please do not hesitate to contact me or my office. 

Original signed by
Keith C. Norton, Q.C., B.A., LL.B.Chief Commissioner

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