A few months ago, I wrote a paper for my Canadian Law class about the specific issue brewing in Saskatchewan. In that paper, I discussed the concepts of "lists" of marriage commissioners in depth. I stated that "this policy establishes a separate but equal policy in civil marriage law. The State would essentially be saying, yes, homosexual marriages are equal to heterosexual marriages, but heterosexuals can choose between 100% of marriage commissioners, while same-sex couples are relegated to the back of the bus ‘list’ of commissioners." That is in fact what Ontario's method does, it regulates gay and lesbians to an unequal distribution of civil resources. This alone means that it is discrimination based upon sexual orientation, which in the Egan decision, the Supreme Court of Canada found was unconstitutional.Unlike in Saskatchewan, where couples contact a marriage commissioner directly via a database, Ontario’s single-entry point approach requires that couples deal with a central unit. In such a system — which the court warned might also fail a full constitutional test — a commissioner who does not wish to perform same-sex marriages could make that known to the central office, which could in turn consider that when giving a couple a list of available commissioners.A random sample of Saskatchewan commissioners revealed hesitant support for such a two-tiered approach, though one commissioner, who asked not to be named, questioned whether it amounts to government-sanctioned discrimination. Several com missioners also said provincial regulations prohibit religious references in their ceremonies — which, one woman said, weakens any argument about a commissioner’s attachment to their freedom of beliefs.
Not only would this "list" policy give rise to this unequal distribution of the law and taxpayer money, it also gives governmental legitimacy for these commissioners beliefs. It is saying to these gay and lesbian couples - no matter if they blatantly see it like they did in Saskatchewan or if they don't like in Ontario- that the government is ok with allowing others to ride roughshod over your rights if they can provide a good reason. What is the impact to gays and lesbians because of this "legitimacy"? It is a statement by government once again that our relationships are worth less than heterosexual ones.
Lastly, I would also question in general a commissioner who declined to marry a gay and lesbian couple on how consistent they are with the application of their beliefs. For we must ask ourselves, have we seen such an uproar or accommodation when a religious civil marriage official was required to marry someone who has been divorced, been of two different faiths, or even because they engaged in pre-marital sex, all examples of which a religious marriage official would necessarily take issue with. Could it not be that those who are objecting on this one issue, instead of others, are not doing so because of their religious views, but instead because they have issue with same-sex marriage in general? Instead of being consistent in their religious based refusals, could they not be using their religion as a cover to validate their own beliefs on the validity of same-sex unions?
It is for these reasons that when I saw how the system works in Ontario, I was very disappointed. Not only does Ontario's method relegate same-sex couples to a "back of the bus" list, but it also gives governmental legitimacy to these discriminatory opinions. It allows these commissioners to use their religion as a reason to not perform their job duties. It is for these reasons that Ontario's method should be also found unconstitutional.