Saskatchewan Refers Same-Sex Marriage Question to Courts

Dan Shouldice
July 3, 2009

The Saskatchewan government announced on July 3, 2009 that it will ask the provincial Court of Appeal for its opinion on draft legislation to allow marriage commissioners to opt out of performing same-sex marriages based on their religious beliefs, while ensuring there would still be enough commissioners available to perform same-sex marriages.[1] Attorney General Don Morgan said that two legislative options would be referred to the court. It would be asked to decide whether either or both would comply with the Canadian Charter of Rights and Freedoms.[2]

Section 2(a) of the Charter guarantees Canadians’ fundamental freedoms of religion and conscience. Section 15(1) of the Charter guarantees equal treatment under the law, including protection from discrimination based on sexual orientation.[3] In the Same-Sex Marriage Reference,[4] the Supreme Court of Canada found that Parliament’s power over “marriage” in section 91(26) of the Constitution Act, 1867 extended to legalizing same-sex marriage.

Parliament passed the Civil Marriage Act in 2005. It states:

(2) Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
(3) It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
(3.1) For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.[5]

In 2006, Alberta MLA Ted Morton introduced a private member’s bill which died on the order paper after passing second reading in the Alberta legislature.[6] Morton’s bill would have amended the provincial Marriage Act to allow marriage commissioners to opt out of performing same-sex marriages based on their religious beliefs.[7]

In issuing its advisory opinion on the proposed Saskatchewan legislation, the Court of Appeal will need to address the balance between two separate Charter rights. In Trinity Western University v. B.C. College of Teachers, a majority of the Supreme Court stated that there is no hierarchy of Charter rights. The Court concluded that if two or more rights are in conflict, the conflict must be resolved in a way that respects the importance of each right.[8]


[1] “Saskatchewan government to ask courts for ruling on same-sex marriage” Globe and Mail (3 July 2009).
[2] “Marriage Commissioner Legislation Referred to Court of Appeal” Saskatchewan Justice and Attorney General (News Release, 3 July 2009).
[3] In Egan v. Canada, [1995] 2 S.C.R. 513, the Supreme Court of Canada held that “sexual orientation” was analogous to grounds already explicitly protected in the Constitution Act, 1982, s. 15.
[4] Reference re Same-Sex Marriage, 2004 SCC 79.
[5] S.C. 2005, c. 33.
[6] “Bill Status Report for 2006” Legislative Assembly of Alberta (8 Sept 2006).
[7] Bill 208, Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006, 2nd Sess., 26thLeg., Alberta, 2006, s. 2.
[8] 2001 SCC 31.
Subscription Form


Protection of Privacy – Personal information provided is collected in accordance with Section 33(c) of the Alberta Freedom of Information and Protection of Privacy Act (the FOIP Act) and will be protected under Part 2 of that Act. It will be used for the purpose of managing CCS’ email subscription lists. Should you require further information about collection, use and disclosure of personal information, or to unsubscribe, please contact: Administrator, Centre for Constitutional Studies, 448D Law Centre, University of Alberta, Edmonton AB, T6G 2H5, Tel: 780-492-5681, Email: You may unsubscribe from our email lists at any time.
Centre for Constitutional Studies
448D Law Centre
University of Alberta
Edmonton, AB T6G 2H5
chevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram