Wishy McWasherton

Saskatchewan too backwards? Or just backwards enough?

Okay.

Gay marriage is legal in Saskatchewan. YAY!
A marriage commissioner who refused to marry a gay couple was fined $2500 for discrimination. Makes sense.
The marriage commissioner in question has launched an appeal with the Government of Saskatchewan, in essence saying that *he* is being discriminated against in terms of his religious beliefs. Okay.
Now, the Saskatchewan government is re-examining (see that link above, there) making an exception to the ruling of the previous court, that as a public official, he doesn’t get to pick and choose which parts of the law he wishes to uphold. Right.

So.
First of all, as everyone knows, many Christians pick and choose which parts of the bible they want to uphold, so why is anyone surprised that this marriage commissioner wants to pick and choose what parts of civil law he wants to obey?

Secondly, what’s the big deal? So some marriage commissioners want to be ‘specialists’. We don’t get all up in arms when our GP refuses to do a colonoscopy, choosing instead to refer you to an arse doctor. We don’t get all up in arms when our history professors refuse to teach particle physics.

We all get our knickers in a knot as soon as someone says the word ‘discrimination’. We’ve turned that word into a kind of curse; a swear word. It’s not quite as bad as the eff word or the cee word, to be sure, but if someone accuses you of ‘discrimination’, it’s essentially a social (and sometimes legal) sentence. Discrimination doesn’t have to be a bad thing, people.

I do discriminatory things *every day*. In addition to meaning “to treat differently” (which isn’t always a bad thing…more on that later), Discriminate also means the ability to recognise differences, and distinguishing one thing from another. What’s so wrong with treating people differently? This is something that has always blown my mind. I treat my family differently from the way I treat strangers (I don’t *often* yell “GET YOUR GODDAMNED ELBOWS OFF THE GODDAMNED TABLE!” at people I don’t know. Sometimes, but not often.

I’m going off the rails here.

My point is that professionals discriminate *all the time* in what they do. When you become an engineer, in, what, your second or third year, you have to discriminate “against” all the other disciplines. So what’s wrong with allowing a civil servant to discriminate, to specialise?

Well, I guess you could argue that police officers don’t get to choose which criminals to arrest. But they do. Every day. Sometimes, you don’t get stopped and fined for jaywalking, f’rinstance. Granted, police officers who choose to arrest you or not to arrest you based on how unpink you are is kind of douchey (should that be douchy?).

I guess there’s the argument that elected officials and their staff don’t get to choose which parts of society they serve. But they do. Every day. My elected officials don’t, for the most part, represent me *at all well* in their work. In fact, they kind of totally suck at it. They refuse to represent me, not because of my gender or my religious beliefs or whether I prefer innies or outies, but because we have differing opinions on what “they” should do with “my” money.

So, I mean, yes, it’s terrible that someone refuses to perform gay marriages. Particularly a civil servant. To be honest, I think it’s shameful that anyone still thinks “that way” (that backwards way). I am also of the opinion that until the church changes its position on what marriage is for, gay marriage should not be a religious ceremony. But THAT’S NOT THE ARGUMENT HERE. The argument is whether or not someone can refuse to perform a civil service because they have moral (or social, or religious, or whatever) objections to it.

In Canada, we uphold freedom of speech, freedom of expression, and freedom of religion. No matter how shameful and backwards someone’s action is, as long as no harm is done, you should be able to uphold your own religious beliefs wherever and whenever you want. But let’s think about this – the marriage commissioner who refused to perform gay marriages on religious grounds…what’s he been doing all these years? Sneaking religion into civil services? Isn’t that illegal? If I wanted a civil union and the Justice of the Peace started talking about prayer and God, I think I’d hit him/her with my matron of honour and take the jerk to court. Some people just don’t want to invite God to their weddings and THAT’S FINE. You can’t sneak Him in. People notice that kind of thing, you know.

In fact, if I had been married by this guy, after having read some of the stuff he’s said about his other civil marriages, I might file a discrimination lawsuit against him too. If he’s been offering prayers on my behalf when I don’t want them offered (I am not an atheist, but let’s just pretend for a moment that I am), he’s being incredibly offensive.

Again, sorry. I’m derailed. My point is this as long as no one is harmed, there oughtn’t be a problem. Actually, no, that’s not my point. My point is the question. Which was:
What’s wrong with allowing JPs or Marriage Commissioners to ‘specialise’? Is it just a gay thing? Would it be worse/better if it was a race thing?

Ultimately, I don’t even know what *I* think about the whole thing – I mean, I think it was shameful for the Commissioner to turn away a gay couple from his services. I think it was good that he stood up for his religious beliefs. I think that maybe being a marriage commissioner was not the right vocation for this guy, and that maybe he ought to have gone into the clergy. I think that the question of whether or not gay folks should be able to marry each other is ludicrous. I think the marriage commissioner gets to feel that his religious freedom has been tramped upon. I think that his religious freedom oughtn’t have come in to the equation at all, because he was supposed to have been performing a God-free service. But, you know, conscience and all. I think it’s unfortunate that the couple wanting to get married were affronted (after all, just because something’s legal doesn’t mean folks have to like it – it’s legal to own handguns in this country, but you’ll never force me to like them). I think a lot of things, and could probably argue myself in to and out of either point of view.

  16 comments for “Wishy McWasherton

  1. Amy
    2 February 2010 at 1:29 pm

    What melistress said. Your argument would be better if you did not draw a parallel to engineers and doctors, because for those folks, it is actually unethical (and probably illegal) to do something that you’re not trained in. I’m an EE; it would go against a bunch of stuff I’ve promised to uphold if I told my neighbour how to pour concrete for his deck. That’s completely against my duty of care.

    But as long as the marriage service is the same for gay folk as it is for straight folk, and as long as the commissioner does exactly the same things for both, you cannot use your “specialization” argument for it.

  2. melistress
    2 February 2010 at 1:29 pm

    GAH! While I think that everyone should have the right to religious freedom, there is a time and a place for it. When it infringes on the rights of others, that is not the time, nor the place. I completely disagree with the idea that a civil servant should be allowed to “specialize” based on their religious beliefs. If a vocation is likely to infringe on your religious beliefs, that is not the vocation for you. Period. He was hired to perform a God Free Service and was even sworn to do so.

    The thing is, if we allow for this particular sort of “specialization” where does it end? Do we allow the doctor in Winnipeg to turn away a patient because she doesn’t know much about being gay? Do we allow another JP to turn away a couple because they are of different colors? Just where does it end? Should an islamic doctor be able to refuse services to me because I don’t wear a burqua?

    I feel like you might be comparing apples to oranges here. A doctor refers someone to a proctologist because the specialist is better able to serve his needs. A GP will do a PAP smear but will refer to an OBGYN should the issues require special attention, not because they disagree with your vagina.

    I think for me, bottom line, is that one gets hired and paid to do a job, knowing full well what that job entails. When you begin to disagree morally with the job on the basis of religion or any other place you get your values, it is time for you to check out on your own. Should the employer be running their business (government or not) within the confines of what is legal, they have no obligation to you to look away when you refuse to do your job.

    Freedom of religion does not equal freedom of employment. They can’t fire you for your religious beliefs but you bet your ass they can fire you for not doing your job.

  3. der kaptin
    2 February 2010 at 1:29 pm

    For me it’s this — the job description says that the position performs marriages, all legal marriages. If the person finds that within the scope of that job description are actions that the person finds somehow offensive to his/her religious beliefs, he/she should feel perfectly free to seek out a job that does not have, within its conditions of employment, the obligation to do something he/she doesn’t personally believe in. Don’t try and distort the public job, in other words, with your personal beliefs. Just move on or, in this case, back.

  4. melistress
    2 February 2010 at 1:29 pm

    I believe that very marriage commissioner designed a religious ceremony for one of my friends and performed it as a marriage commissioner rather than an ordained minister.

    I’m not sure I agree with a choice to take a job that requires a uniform that you feel a religious obligation not to wear being anywhere near comparable to a MC who doesn’t want to do his/her job. I don’t think I agree with their rights to wear what they feel is religiously significant either in a position that demands a uniform. However, in one case it is “fashion” and really affects no one else in the other case it infringes on the legal rights of others.

  5. cenobyte
    2 February 2010 at 1:29 pm

    Well, I’m not really arguing *for* or *agin’* anything; I’m just kind of tossing things around. Heh. If you’ll pardon the pun.

    I think the real thing I was trying to say before I derailed myself many, many, ma-hany times was the “why is anyone surprised that this MC wants to pick and choose what parts of his job he wants to do?”

    But the real question that’s been poking around in my head is, in an increasingly “secular” society, can we expect freedom of expression/religion in our jobs? Sikh men who join the RCMP don’t have to wear the official uniform – that’s freedom of religion in a secular, civil job. Muslim women wear headscarves when they work at McDonald’s; that’s freedom of religion. I mean, it IS a different case, a different example. I’ve always said that when the law changed (thankfully) to permit gay marriage, the MC in question ought to have resigned his position. But he didn’t.

    What bothers me *more* than what he did…or at least as much…is the thought that he was secretly asking God to bless all those other civil marriages he performed, when clearly, that is a VIOLATION of his job description.

    But, yeah.

    I’m just kind of thinking out loud, more than anything.

  6. cenobyte
    2 February 2010 at 1:30 pm

    In regards to the fine, was he fined by Human Rights or fined in regards to violating the terms of his license?

    The MC in question was fined ($2500) by the Saskatchewan Human Rights Tribunal for violating the Human Rights Code by being discriminatory toward the gay couple he refused to marry. Which he was, because he did. Now the MC has filed an appeal with the Court of Queen’s Bench. So in other words, his employer and regulatory agency (the Province of Saskatchewan) did nothing to ‘punish’ him for refusing to do his job. It was a third agency (the Human Rights Tribunal).

  7. melistress
    2 February 2010 at 1:30 pm

    Ok…after discussing this elsewhere, how does it work in Saskatchewan? In other provinces the MCs are not employees of the province but private entrepreneurs liscenced and subcontracted by the government. If this is the case here then I suspect that what he did was in violation of the rules and regulations in regards to the license of the MC. It would also be in violation of his contract (which I suspect states that he is contracted as a representative of the government to apply the laws of the province and perform legal marriages). If the contract changed, then perhaps compensation should have been given (depending on the terms of contract) and the MC should have opted out of his contract. Therefore, there is no violation of labor law in a contract situation. This would be a matter for civil court should the government have not upheld their end of whatever the contract stated. It is unfortunate that in this case, should the MC wish to continue to live in Saskatchewan there is no other organization with which to contract your services.

    In regards to the fine, was he fined by Human Rights or fined in regards to violating the terms of his license?

    As far as upholding his religious views, I don’t agree with his cherry picking in regards to this matter then. As a Baptist he should be hard pressed to marry anyone outside of the church as marriages not sanctioned by God are not recognized in his faith. This leads me to believe that it is bigotry, pure and simple, disguised as a religious freedom case.

  8. cenobyte
    2 February 2010 at 1:30 pm

    Woz – that was brilliant! Thank you! I especially like your point about offering him severance if he’s not willing to or able to do the job. And I especially like the point about fining him being a punishment for his religious beliefs. I’m sure that’s not how the HR Tribunal meant for it to come off, but I can see what you mean.

    Smarty Pants – the difference between you not being comfortable doing a job and you violating your core religious beliefs in a country which espouses freedom of expression and freedom of religion as common rights is pretty huge. I think Woz is right; if you’re not able to do your job because it *violates your religious views*, that needs to be discussed between you and your employer.

    Damn, that’s a good reply, Woz.

  9. Smarty Pants
    2 February 2010 at 1:30 pm

    If my own job description changed and I was asked to perform a duty I wasn’t comfortable doing, my choices would be simple. Like it or lump it. Why should it be different for this guy?

  10. Woz
    2 February 2010 at 1:30 pm

    I’m going to make an assumption. The assumption is that the commissioner became a commissioner before gays were legally allowed to marry. Then I’m going to approach this as a labour and religious rights issue.
    the commissioner does not have the right to this employment, but he does have the right to be treated fairly.

    Woz
    Given my assumption, the job changed on the commissioner. He was now asked to due duties he was not previously obliged to do. It would be like a slaughter house switching from chickens to pigs and telling telling the quality assurance guy who happens to be Muslim that he now has to taste bacon and opposed to chicken nuggets. And then fining him when he refuses. In the case of the quality assurance guy, he has the right to sue for what the labour law people call constructive dismissal. This means his job changed and he did not agree to this job change so he is entitle to an appropriate amount of severance for the loss of his job. The marriage commissioner’s job changed in much the same way, and the province should dismiss him with the appropriate amount of severance. Now if the province offered compensation to quit being a commissioner, or if the province made it clear that he would be expected to perform gay marriages AND the commissioner did not dispute this information in a timely fashion then the province could fire him for not performing duties. Precedent has been set in labour law that duties cannot change without agreement between the parties. Compliance is usually considered agreement, but the commissioner may have reasonably assumed that he had a choice unless otherwise told.

    I am not familiar with the legal differences between labour law as compared to rules and regulations of granted commissions, but I would suggest that this is a more fair way of dealing with this for everyone rather that fining the commissioner for his religious beliefs. Fining someone is punishment, punishment for his religious beliefs is wrong. It is a violation of his rights and freedoms.

    What the court said is that it is more important that his duties be performed than his religious beliefs be upheld. OK, I’ll agree, but the Human Rights Tribunal choose to FINE him. Punishing him for a Right explicitly stated in the Canadian Charter of Rights over a Right interpreted by the courts. The commissioner should have been dismissed with compensation.

    If the commissioner did indeed become a commissioner after the law allowing gay marriages. Then he should simply be fired for not performing his duties. He should not be punished for his religious beliefs. If he became a commissioner after the gay marriages were allowed it would be like another Muslim guy applying for the bacon tasting job then refusing to taste bacon. I don’t expect that this is the case with the marriage commissioner. His rights were assaulted, and he was wronged.

  11. Woz
    2 February 2010 at 1:30 pm

    It is part of the law that dictates that laid off employees are required to be given severance if they are laid off. The government considers it to be equivalent to being laid off. See:

    http://www.canadabusiness.ca/servlet/ContentServer?cid=1085667966576&pagename=CBSC_SK%2Fdisplay&lang=en&c=Regs

    Now I’m not sure if severance packages are part of labour law or contract law, or both in some cases, but constructive dismissal is the same as being laid off.

    I became familiar with constructive dismissal with experiences that others went through from my last job.

    No, nothing says he has the right to refuse. Other than the Charter of Rights and Freedoms that guarantee his freedom of religion. The Charter of Rights and Freedoms is supposed to protect all freedoms. Specifically religious freedoms. Religious freedoms have been written into the Canadian constitution since confederation and before. Gay rights, are not written in the constitution, it probably ought to be, and the courts quite reasonably addressed this. But religious freedom isand has been a part of our constitution. The entire point of having freedom of religion is to believe and act on things others don’t agree on and to not be punished for it. The whole point of having the charter of rights and freedoms is to protect those that might not agree with the state, or with others. It is supposed to protect those say and do things that are opposed to the norm. He should have the right to freedom of conscious and freedom of speech and freedom of religion and be able to act on his beliefs.

    That does not mean that he is guaranteed employment, but it should mean he should not be punished (fined) for his beliefs. These beliefs which although might inconvenience others and hurt some feelings do not cause any real harm to anyone. The charter of rights and freedoms does not (and should not) protect the hurt feelings of each and every disadvantaged group in the country. This man’s rights were trampled upon no matter how much you and I disagree with him.

    His commission should be revoked. He should be compensated for the change. And future commissioners should be screened for their ability to do the required job.

    It should be noted that the compensation is likely very small. Commissioners only get $50 per marriage, plus mileage. So appropriate compensation would likely be fairly minimal for those commissioners that feel a similar way.

  12. Melistress
    2 February 2010 at 1:30 pm

    Woz,

    Have we actually confirmed that we are looking at labor law and not contract law? That would be a whole different ball of wax if we are looking at labor law. I’m not convinced we are. I’m pretty sure they are private entrepreneurs, licenced to represent the government.

    As far as being compelled to perform the ceremony, there would also be nothing in the marriage act that gives the marriage commissioner RIGHT of refusal either then, would there? He/she is licensed to represent the government and apply the law accordingly and fairly.

    Sorry, Cenobyte, I’ve hijacked your bournal.

  13. Woz
    2 February 2010 at 1:30 pm

    Smarty Pants:

    You are not different than this guy.

    You have the right, if your job description changes, and you do not agree with the change, to quit and to sue for constructive dismissal. You will win. You would then be compensated at a rate that would be comparable to that if you were laid off. That is my point. You have that right, I have that right and and so should the commissioner. This is not necessarily true in all provinces. It is absolutely not true in at least some States (Minnesota for one). But it is absolutely true in Saskatchewan.

    However, I recognize that there are some caveats. It might be different in a Union, because the Union is “agreeing” for you. It might actually be different for the commissioner, if it actually is a “commission” as opposed to “employment”.

    Even if it is a commission, the precedent has been set in labour law and strikes me as a fair way of dealing with the commissioner.

    Der Kaptain, Melistress:

    Nowhere in the marriage act does it say a commissioner MUST marry anyone. Though it is certainly implied by the purpose of a marriage commissioner. The act says some nifty things about dukobors and marrying of children and proving that you are divorced if you are divorced, but I could find nothing suggesting that the marriage commissioner does not have the right to refuse. Now this is probably laid out elsewhere, in regulations as opposed to law, but I could not find it. And at any rate, what it means to be a marriage commissioner changed, at least for this fellow.

    Cenobyte is right, it was a third party. And I should do some reading into what level of government it is. I think it is federal. I wonder about their authority and from where it is derived. I disagree with the Human Rights Tribunal. Their rulings are often flavour of the day type of rulings. I truly wonder what would happen if Mr. Nichols was Muslim, or Jewish and claimed it was against his religious beliefs. The outcome could have been much different. It is trendy to be anti-Christian.

  14. Melistress
    2 February 2010 at 1:30 pm

    Thanks for clearing that up. Would the Human Rights Commission not consider the Human Rights of Mr. Nichols as well, while making that judgement? It appears that in this case the authority on these things actually decided that Mr. Nichols religious freedoms do not trump the legal rights of others. This says to me that things should be left as is. He’s been weighed, measured, and found wanting.

  15. Neo
    2 February 2010 at 1:30 pm

    quote; “I might not agree with what you say, but I will defend with my life your right to say it”.

    Not sure if anyone else posted anything to this effect, and there are some really long posts that i didn’t feel like reading through because its late.

  16. Melistress
    2 February 2010 at 1:30 pm

    Woz,

    I have a hard time with the idea that he was fined for his beliefs. This is not the fact at all. He was fined for his actions which were biggoted. His actions were due to his beliefs.

    If a muslim cop cuts off the hand of a shoplifter are we punishing the muslim cop for his beliefs or for his actions.

    In our country one can believe whatever they want. If a christian believes that a witch should be stoned to death this does not give them the right to act upon that belief.

i make squee noises when you tell me stuff.

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