Just over 14 years ago, the government of Newfoundland and Labrador issued the province’s marriage commissioners an ultimatum: agree to perform same-sex marriages or resign.
At least seven commissioners, many of them mayors, chose to quit, arguing overseeing such marriages would contradict their religious beliefs.
But one former commissioner, Desiree Dichmont, also filed a human rights complaint, claiming discrimination based on religious creed. The case has been snaking its way through the courts ever since – and even though Dichmont has died, the case remains alive.
An Alberta-based free speech advocacy group, the Justice Centre for Constitutional Freedoms, recently won the right to intervene in the appeal proceedings, arguing the public has an interest in the outcome. The latest appeal in the case will be heard next month.
LGBTQ activists who championed the issue of same-sex marriage more than a decade ago say the case’s renewed life speaks to lingering homophobia in Canada that has since moved under the surface.
“I feel like I’m in a time warp,” said Newfoundlander Gemma Hickey, who was president of advocacy group EGALE Canada in 2004 when same-sex marriage was legalized and fought for legalization across Canada.
“I wasn’t surprised back then and I’m not surprised now,” Hickey said in an email from Tokyo.
Should the case set a precedent for future objections based on religious belief, Hickey said the consequences would be dire for LGBTQ people in rural parts of the province.
For example, then-mayor Claude Elliott was Gander’s sole marriage commissioner when he resigned his duties as a marriage commissioner in 2005.
“My concern is for same-sex couples in rural areas who don’t have a choice between marriage commissioners. They shouldn’t have to travel elsewhere to find someone to marry them in a civil ceremony,” Hickey said.
“A wedding is something to celebrate and regardless if someone agrees or disagrees, same-sex marriage has been a reality in the province of N.L. since 2004 and in Canada since 2005.”
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Winding its way through the justice system
Dichmont’s complaint arguing discrimination based on religious creed was filed in 2005, and was at first dismissed by the Human Rights Commission for insufficient evidence.
After an appeal, the province’s supreme court ordered a hearing by the commission’s board of inquiry. A ruling finally came down in 2017 in the province’s favour.
Dichmont passed away before the adjudicator released his report, but her estate appealed the decision. A January hearing on the Dichmont estate’s latest appeal was pushed back to March following the Justice Centre for Constitutional Freedoms’ application for intervener status.
The group cited the estate’s notice of appeal, which argues the outcome of the Dichmont appeal raises matters of “broad public and societal concern.”
It argues the human rights adjudicator unfairly placed charter obligations on Dichmont, and that her employer failed to accommodate her individual religious views by making her act as a representative of government first.
It also argues the duty of state neutrality was not applied to her.
Justice Rosalie McGrath of the Supreme Court of Newfoundland and Labrador said she agreed to grant the Justice Centre intervener status because it has experience acting as an intervener and can make a “useful contribution.”
“The Justice Centre has identified a different perspective it can bring by focusing on the evolution of case law, particularly from the Supreme Court of Canada, on the issue of how the Charter applies to public servants,” McGrath wrote in a Feb. 1 ruling.
McGrath said “the issue of mootness as well as the standing of the estate remain live issues to be argued at the hearing of the matter.” That hearing is scheduled for March 4-5.
A lawyer with the province’s Human Rights Commission said in an interview that the organization’s stance, laid out by adjudicator Robby Ash in his 2017 decision, has not changed.
Ash dismissed Dichmont’s complaint, saying her request for a system that would assign same-sex couples to a non-objecting marriage commissioner would contradict the province’s duty of neutrality in delivering public services.
“To borrow a phrase from the Ontario Court of Appeal …. requiring minorities to reveal their differences for the purposes of accommodating those who oppose what makes them different only serves as a ‘subtle and constant reminder’ of unacceptance and intolerance. A ‘single point entry’ system would do just that,” Ash wrote.
“Each marriage commissioner, vested with the authority of the state, is required to provide the service on behalf of government to all those eligible under law to receive the service.”
A spokesperson for EGALE Canada said the organization is watching the case and considering next steps, including the possibility of legal action.
Gerry Rogers, then a film-maker and activist and now the outgoing leader of the province’s NDP, wrote to the premier in 2005, requesting marriage commissioners declare their willingness to perform same-sex marriages.
Rogers and several others became marriage commissioners in response to the objectors’ resignations.
Rogers, a former acquaintance of Dichmont, said she was bewildered and disappointed by her decision to pursue the case, and by continued efforts from outside groups to push back against a human rights matter that has already been decided upon by Canada’s highest court.
“They’re absolute dinosaurs and they should simply take their case and go home,” said Rogers, who was the province’s first openly gay party leader. “It’s time to move on. This has already been settled in the courts.”
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Hickey said instances like this show how rights awarded to minority groups are not simply given, but are the result of ongoing, hard-won fights for change.
“I try not to let my fear paralyze me. But our rights are never given to us. We have to fight for them.”
The issue of LGBTQ rights hasn’t completely left the public square in Newfoundland and Labrador, particularly in rural areas.
Last spring, the province and country rallied in support of Springdale, N.L., teenagers after town councillors voted down the Gender-Sexuality Alliance’s bid for a rainbow crosswalk, igniting fierce debate.
“Homophobia and transphobia never went away,” Hickey said.
“In my experience, laws change faster than attitudes.”