REGINA—Saskatchewan’s top court has ruled that marriage commissioners cannot refuse to wed same-sex couples on religious grounds.

The Appeal Court was asked to rule on proposed provincial legislation that would allow commissioners to cite their religion in saying “no.” The law was crafted after a conflict arose in 2005 when commissioner Orville Nichols, a devout Baptist, refused to marry a gay couple.

In a decision released Monday, the court found the law unconstitutional saying accommodating the religious beliefs of the commissioners could not justify what would amount to discrimination against gays and lesbians.

Supporters of the law argued it didn’t deny same-sex couples the right to find someone else to marry them. But Egale Canada, which advocates for gays and lesbians, said it was discriminatory and would erode equality rights.

Currently in Saskatchewan a couple seeks out a marriage commissioner from a list posted on a government website. The couple calls the commissioner directly to perform a service.

The court was asked to consider two options: allowing all marriage commissioners the right to refuse same-sex couples or only allowing commissioners appointed before November 2004 to say no.

“Either one, if enacted, will create situations where a same-sex couple contacting a marriage commissioner for the purpose of getting married will be told by the commissioner that he or she will not provide the service requested,” wrote Justice Robert Richards. “This is not a merely theoretical concern.”

Richards rejected suggestions that the number of gay marriages would be small and those affected could simply seek out someone else to perform the ceremony.

“First, and most importantly, this submission overlooks, or inappropriately discounts, the importance of the impact on gay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union,” he wrote.

“It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer, ‘I won’t help you because you are black (or Asian or First Nations) but someone else will,’ or ‘I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will.’ Being told, ‘I won’t help you because you are gay/lesbian but someone else will’ is no different.”

The case involving Nichols went before the Saskatchewan Human Rights Tribunal, which ruled in 2008 that Nichols discriminated against the couple. It found that he was acting as a public servant when performing marriages and so was obligated to marry the two men who had approached him.

Nichols, who has been a marriage commissioner for almost 30 years, was fined $2,500. He asked the Court of Queen’s Bench to reverse the decision, but it upheld the tribunal’s ruling.

During arguments before the Appeal Court last May, Janice Gingell, a lawyer for the Saskatchewan Human Rights Commission, told the court that while the proposed law didn’t deny same-sex couples the right to marry, it did put another hurdle unfairly in their path.

“The interference in this case would be a legislative measure, so it is actually government saying in these particular circumstances, where these two rights come into conflict, we prefer the rights of the marriage commissioners,” she said at the time.

Lawyer Michael Megaw, who was appointed by the Saskatchewan government to argue in favour of the legislation, argued that marriage commissioners were entitled to their religious beliefs. He questioned whether it would be truly discriminatory for same-sex couples to have to phone another commissioner to perform the service.

Megaw also suggested the legislation would be constitutional, although he acknowledged that the way of finding a marriage commissioner needed to be improved. so that couples don’t face rejection.

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Lawyer Scott Kennedy, who made submissions on behalf of the Evangelical Fellowship of Canada, said that most provinces accommodate marriage commissioners one way or another.

The Saskatchewan government says it will not appeal the ruling. Justice Minister Don Morgan says the government will take some time to review the decision so it can decide how to proceed.