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Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages

Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages
15 Devonshire Place, Room 200, Larkin Building
Time: Sep 28th, 12:00 pm End: Sep 28th, 2:00 pm
Interest Categories: Women/Gender, Sexual Diversity, Religion, Study of (FAS), Political Science, Law, Faculty of , Ethics, 2000-
Talk by Richard Moon, University of Windsor

The Centre for Ethics presents Ethics at Noon

Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages

The question of whether a province can require civil marriage commissioners to perform same sex marriages, over their religious objections, has been addressed by the Canadian courts in a series of cases. In each of these cases the issue is framed by the courts as a contest between religious freedom and sexual orientation equality that must be resolved through the balancing of these competing interests. And in each of these cases the court strikes the balance in favour of sexual orientation equality, determining that the equality rights of same-sex couples outweighs the religious freedom of marriage commissioners. Despite what they say, the courts in these cases do not balance or trade-off religious freedom and sexual orientation equality, but instead give complete priority to the latter. A refusal by a marriage commissioner to perform a same-sex civil marriage ceremony is viewed by the courts as the cause of harm or injury to the couple (an act of discrimination) and not simply as a competing claim. I will argue that there is no balancing in these cases because there is no freedom of religion interest to be balanced against the right to sexual orientation equality. The marriage commissioner's freedom of religion lacks substance not, or not simply, because the commissioner is a public official, or because the interference with his/her religious beliefs is indirect or partial. Rather the religious objection of the marriage commissioner falls outside the scope of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms [the Charter], because it involves a belief about how others in the community should behave and be treated. A marriage commissioner has no claim to be exempted from the duties of his or her position on the basis of such a belief.

Richard Moon, Professor of Law, University of Windsor, teaches both private and public law courses. His research focuses on freedom of expression and freedom of conscience and religion. He has written numerous articles and book chapters on these topics. He is also the author of The Constitutional Protection of Freedom of Expression (U of T Press, 2000) and Freedom of Conscience and Religion (Irwin Law, 2014), editor of Law and Religious Pluralism in Canada (UBC Press, 2008), co-editor of Religion and the Exercise of Public Authority (Hart Publications, forthcoming) and contributing editor to Canadian Constitutional Law (3rd and 4th editions) (Emond-Montgomery, 2006, 2010). He wrote an influential report for the Canadian Human Rights Commisssion in 2008 - "The Regulation of Hate Speech on the Internet". He is currently completing work on a book entitled "Putting Faith in Hate: When religion is the subject or source of hate speech". He has been the recipient of both the law school and university-wide teaching awards as well as the Mary Lou Dietz Award for contributions to the advancement of equity in the university and community. He has held a variety of academic positions including President of the Canadian Law and Society Assn.

This event is free and open to all. Registration is not required. For further information, please contact the Centre for Ethics at 416 946-6288.


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