WINNIPEG — A Manitoba judge has rejected a former marriage commissioner's bid to strike down the province's requirement that all commissioners perform same-sex marriage ceremonies.
Court of Queen's Bench Justice Karen Simonsen ruled this week that the Manitoba government's decision to strip Kevin Kisilowsky's licence did not substantially violate his constitutional right to religious freedom.
Simonsen wrote that Kisilowsky could still perform individual marriage ceremonies that follow his Christian beliefs by applying for one-time permits for status as a temporary marriage commissioner, or by becoming a religious official. She also said the effects of the Manitoba policy have been positive.
"It was a rejection of discrimination against gays and lesbians and their right to marry in Manitoba. It has prevented the applicant from engaging in discriminatory behaviour against same-sex couples," Simonsen wrote.
"At the same time, the effects on the applicant have been limited. He may practice his faith as he chooses but is simply not permitted to use his faith as a basis to refuse to marry couples whose weddings, due to religious or moral views, offend his," she added.
Manitoba stripped Kisilowsky's licence after the Supreme Court of Canada changed the legal definition of marriage in 2004.
Kisilowsky was granted a commissioner's licence in 2003 although he opposed performing same-sex marriages, saying they are non-Christian.
According to the ruling, Kisilowsky engages in Christian ministry through the House of the Risen Son Ministries and the Bondslave Motorcycle Club. While not an ordained minister, the ruling said he ministers to inner city gang youth, prison inmates and outlaw motorcycle gangs.
Simonsen noted in her ruling that Kisilowsky argued he wasn't a civil servant, and therefore had the right to decide when and where to use his appointment as a marriage commissioner. But Simonsen cited a Supreme Court of Canada ruling in 1997 which stated that a private entity which delivers a specific government policy or program acts as government, and is therefore subject to the Charter.
Kisilowsky argued that it took four to six weeks to apply for a temporary licence to perform an individual ceremony, which was more than some people were willing to wait. He also said there were other marriage commissioners in Manitoba who would perform same-sex ceremonies.
Simonsen, however, said Kisilowsky was unable to supply evidence of couples in such a hurry, and said it would be offensive for a same-sex couple to be refused by a marriage commissioner.
"If the applicant were allowed to refuse to do so, other marriage commissioners may follow suit. This could result in more rejections and difficulty for same-sex couples finding a marriage commissioner who would marry them," Simonsen stated.
Kisilowsky was one of several marriage commissioners who either quit or had their privileges revoked following the 2004 Supreme Court of Canada ruling.
He originally tried to file a complaint with the province's human rights commission but it was dismissed.