Same Sex in Saskatchewan

By Lee Harding

The historic decision came over the fax machine.  Erin Scriven and her partner Lisa Sturnborg were in their lawyer’s office in Saskatoon on the morning of November 5.  The couple and four other couples had challenged Saskatchewan’s marriage act, restricting marriage to “a man and a woman.”  At 9:30 am on November 5, 2004, they discovered their fate.  Court of Queen’s Bench Justice Donna Wilson declared marriage to be, “the lawful union of two persons to the exclusion of all others.”

“We were pretty excited,” said Scriven.   On Saturday the 6^th, she and Sturnborg wanted to “ride the tide of excitement after such a big court decision the day before.”  So at St. Thomas Wesley’s United Church on 20^th Street in Saskatoon, they married.  One hundred friends, family, and well-wishers blessed the first same-sex marriage in the province.

But the decision put something else in Lawrence Drozda’s heart: “extreme disappointment, and I guess, fear for the implications.”  From his home in the Cathedral area of Regina, the devout Pentecostal and retired Catholic school teacher has fought a long letter writing campaign against the advancement of gay rights. “In every case, it’s been a sitting member. But I’ve written over the years up to about 100 different ministers in different batches, and different things came up.”

Those “different things” include the first significant steps on gay rights since homosexuality was legalized in 1968.  After many years of only incremental change, the Supreme Court of Canada recognized sexual orientation as protected ground in 1995.  The next year, Parliament added “sexual orientation” to the Canadian Human Rights Act.  In 1999 the court ruled same-sex couples should have the same benefits and obligations as heterosexual couples; Parliament followed suit.  And although in 1999, Parliament voted 216 to 55 to keep the traditional definition of marriage, this stance wouldn’t last either.

In October 2003, the Supreme Court of Canada affirmed an Ontario court’s ruling that the traditional definition of marriage was unconstitutional.  Parliament has proposed changes, and referred them to the Supreme Court for a decision on their constitutionality.  Since then, gays and lesbians have married in Ontario, British Columbia, Quebec, Manitoba, the Yukon, Nova Scotia, and now Saskatchewan.

Some in the land of living skies were happy with the decision, but others were decidedly not.  Saskatchewan is a unique confluence of conservatism, socialism, and faith.  The same people that have voted for a provincial NDP government since 1991 also voted the party out of all 13 federal ridings in 2003.  Before the court verdict in Saskatchewan, NDP Justice Minister Frank Quennell got letters on both sides of the same-sex marriage issue.  But now that gay rights advocates have the court decision they hoped for, only those opposed are still writing.

“Some people are concerned about the court decision,” says Quennell. “They have either written me directly or they have written the judge who made the decision and [sent me a copy]. I don’t think we’re getting a lot of correspondence about it, but obviously it’s a concern to people.”

Saskatchewan Party Justice Critic Don Morgan says he received far more letters favoring traditional marriage than the ones opposed.  Morgan, who practiced law for 25 years, believes there should have been democratic debate on the issue, including in the Saskatchewan legislature.  He wanted the province to intervene at the Supreme Court (as Alberta did) or, at the very least, argue against it at the Court of Queen’s Bench.

“As Canadians, we complain too much about judge-made law,” says Morgan. “We complain about it all the time; and this is a situation where both the provincial government and the federal government had the opportunity to intervene and become active in the litigation.”

Quennell says the province had no reason to step in at the Court of Queen’s Bench. “The provincial legislature has no jurisdiction to define marriage, which was the question at the application. . . our marriage act, the provincial marriage act, sets out the procedural steps [to get married].  But it’s not within a provincial jurisdiction to define marriage or who has the capacity to get married.”

Yet the NDP made no secret of its preference.  Premier Lorne Calvert openly favors same-sex marriage, as do others in the party.  Traditional NDP supporters like the Saskatchewan Federation of Labour also voiced their support for gay marriage before the court decision.  When Justice Wilson made same-sex marriage legal, the NDP were at their provincial convention.  Upon hearing the news, the party passed a motion to commend the judge and the court for their ruling.

“It definitely made me very happy,” recalls Mazdak Chinichian, a gay NDP member at the convention.  “The whole people there got extremely happy,” he recalls.  Chinichian is president of Gays, Lesbians, and Bisexuals at the University of Regina.  His campus club threw a party over the ruling two weeks later.  Fifty people and two university vice-presidents enjoyed two triple-decker wedding cakes, topped with figurines of gays and lesbians getting married.

“There are many people that might be against it and they might be upset.”  To them Chinichian says, “You never had to fight for your right to get married, so I don’t think it’s any idea to say whether someone else has the right to get married or not.”

Others are not so sure.  In fact, the only concession politicians, homosexuals, and conservatives agree on is exempting religious clergy from the obligation to perform gay marriages. Scriven, recently back from her honeymoon in Puerto Villarta, believes the concession is just.  Unlike some, she also believes it will always be there.

“I don’t foresee a lot of same-sex couples rushing off and getting married in the Catholic Church where the priest who isn’t in favor of same-sex marriages,” Scriven explains. “I wouldn’t want to go a church where they were opposed to same-sex couples. That doesn’t make sense.  And I don’t foresee that there’s any way that can be forced upon a religion. There’s also freedom of religion in our charter as well.  So I think that that fear is to me, seems unfounded.”

Justice Minister Frank Quennell agrees. “I don’t believe that will happen.  So I don’t see this advancing on religious organizations at all.”

But Drozda remains unconvinced.  He remembers when Progressive Conservative Justice Minister Robert Mitchell assured him in the early 1990s that including sexual orientation in the criminal code would never lead to gay marriage.

“Mark my words, there will be a case against pastors,” he insists. “This wasn’t the law either that men could marry men. It never was a law and we never thought it was a problem.  Just like all of my esteemed government members that I wrote to said that will never happen, they said very very clearly.  And of course I said, ‘It’ll happen; just wait!’ . . . Get the camel’s nose under the tent, and then ask for the next thing, and the next thing, and the next thing.”

Not all clergy are as certain of this scenario, but many believe it is possible. David Wells, pastor of Regina’s Harvest City Church, says since pastors act as an agent of the government in marrying people, the government might one day force them to marry gays.  “At that point I think evangelical pastors will turn in their credentials because they’re not going to do it.”

Father Tom Needham, a Regina priest who broke from the Anglican Church of Canada after it endorsed same-sex marriage, says, “I don’t think it’s going to be as blatant as a lawsuit and someone turning around and saying, you must marry us,” says Needham. “What I think is going to happen is that churches that refuse same-sex blessings or marry same-sex relations are going to find their tax status taken away.”

Like many social conservatives, Needham feels the court has overstepped its role in forcing legal changes on marriage and other issues. “I am disappointed as a Canadian citizen that Parliament doesn’t make our laws. The courts do. And I think that in a democracy, we elect people into Parliament and that’s their function--to make laws. All they’re doing now is passing it down to the courts.  Nine judges sit on the panel to decree what is ethical and what is unethical.  I think that’s wrong.”

Needham finds an ally not only in Justice Critic Morgan, but also in federal Conservatives like Justice Critic Randy White and Saskatoon M.P. Maurice Vellacott. Unlike Scriven, Vellacott believes non-clerical marriage commissioners should have the same protection as clergy, and not be forced to carry out same-sex marriages.

“There is absolutely nothing in the Canadian Constitution that permits a ‘read-in’ right to trump explicitly protected conscience rights,” said Vellacott in a statement following the Saskatchewan decision.  “As politicians, we need to prevent further damage to our Constitution by judges.”

But many think the court’s jurisdiction is proper and that its decision is correct.  Many observers also believe Randy White’s comments helped his sink his party in the last federal election.  Chinichian believes that Canadians would vote in favor of same-sex marriage even in a national referendum. But he says it’s wrong for a people to vote on minority rights. “You do not put the rights of people to vote. Some things are rights and you hold them and the majority shouldn’t say a thing.”

Traditional marriage advocates say gay rights are an exception.  “Forget the courts,” Drozda insists, echoing Randy White. “What do the people of Canada think?”  He says all laws discriminate by banning a practice (stealing for example) for the benefit of society.  And he anticipates other interests, such as polygamists, could also claim the two-person definition is also discriminatory.  “You break what was written in stone for many years and you break open the door for the unthinkable.”

Proponents of democratizing the approval for gay marriage disagree on how to do it.  Some like Needham believe a referendum, as was held recently in 11 American states, would be the way to go.  There, voters chose overwhelmingly to preserve the traditional definition of marriage.  Drozda prefers a free vote in Parliament, such as the Liberals promised after the Supreme Court approves its proposed legislation.

Others think same-sex marriage is here to stay, regardless of how history plays out.  “It’s like trying to close the barn door after the horse has gone,” says David Wells, pastor of Harvest City Church in Regina. “Liberal judges, and liberal politicians have definitely steered us down this road, and I think it’s going to take a lot to swing us back.”

But gays like Chinichian take nothing for granted.  “The fight is not over. The issue is not resolved in any sense. These rules and these rights are only a help to our cause and to address some of our issues, but definitely there is way more that has to be done.”

In Saskatoon, newly married Scriven plans to have children by artificial insemination. The 29-year-old executive director of AIDS Saskatoon believes legalizing gay marriage will help homosexuals across the country will gain parenting rights.  As for Chinichian, he says the next step is changing the educational system so the world will be more accepting of those children and their parents. He wants schools to put alternative families in a positive light, so the next generation “will have a better understanding, and as a result be accepting of other people’s differences.”

But with so many still opposed to the advancement of gay rights, a long political fight remains.  Chinichian also speaks for those wishing to reverse the tide when he says, “You need to have a political base to push those [changes] forward. And you can hardly do anything in this country without having a base, a support group, the majority of time to get a politician to push forward for changes.”

Either that, or find a sympathetic judge.  In Canada politicians almost inevitably follow.