Regina, Canada - Marriage commissioners should not be allowed to use their own religious beliefs to pick and choose whom they marry, a Saskatchewan human rights tribunal heard Thursday.
The argument was made during final submissions at a hearing to determine whether a marriage commissioner discriminated against a gay couple when he refused to marry them.
"A function of a marriage commissioner is to provide the service without a distinction," Thomson Irvine, a lawyer for Saskatchewan's attorney general, told reporters after the hearing.
"Refusing to perform a ceremony based on a religious ground involving sexual orientation is refusing to comply with their own statute and refusing to comply with the (Saskatchewan Human Rights) Code and the charter."
The attorney general was granted leave to intervene in the complaint against Orville Nichols, who was contacted in 2005 by a gay man about performing a wedding.
But Nichols' lawyer, Mike Megaw, said the tribunal faces the "clashing of rights" between same-sex couples wanting to marry and an individual's freedom of religion.
Both deserve to be treated equally, he said.
"Freedom of religion allows more than the ability to hold those views," he said. "It is the ability to act on those views."
"The attorney general seems to be suggesting that as a public official, rights are not something to which Mr. Nichols is entitled."
The gay man, who can only be identified as M.J. because of a publication ban, found Nichols' name on a list of marriage commissioners in Regina.
Same-sex marriage was made legal in Saskatchewan in November 2004. Marriage commissioners, who are appointed and licensed by the province to perform civil ceremonies, were told to provide the service.
Nichols, who has been a marriage commissioner since 1983, testified that he told the couple he would not marry them because it went against his religious beliefs. He is a devout Baptist.
Irvine argued that that reason doesn't apply to marriage commissioners.
"Any religious group can perform a marriage and can refuse to perform same-sex marriages," Irvine explained outside the hearing.
"But to ensure that parties can get married without having to meet a religious test, marriage commissioners are appointed and the terms of their appointment are that they will perform a marriage without any distinctions."
Megaw questioned whether Nichols could truly be categorized as a public official rather than a private citizen performing a public service.
He argued that Nichols' refusal to perform the marriage did not interfere with the wedding, which went ahead as planned in May 2005.
In fact, Nichols referred the couple to a marriage commissioner who would perform the ceremony, the lawyer pointed out.
Counsel for the Saskatchewan Human Rights Commission has asked for damages of $5,000 and an order directing Nichols not to refuse his services in the future.
Megaw argued that's unfair.
"There is a great distinction between what the government must do (in allowing same-sex marriage) and what Mr. Nichols must do," he said.
"What the government cannot do is pass that obligation onto an individual citizen like Mr. Nichols."
The tribunal's chairman reserved his decision.