Tuesday, January 18, 2011

Toeing the Line Between Right and Privilege

The recent decision by the Saskatchewan government over the case of Orville Nichols, a local marriage commissioner employed by the province who refused to marry gay couples because of his personal convictions on the issue, should bring some pause to those of us in this country where we like to proclaim our progressive and rights-based virtues. It should bring pause because the issue represents a very fine line between protecting the rights of individuals to refuse to do certain actions again their will without coercion (or in this case, the threat of losing a job they've held for years), and the privileges we've given to minority and special status groups to be given the same respect the government accords everyone else.

Now right away, there's no disputing that the decision taken by Mr. Nichols was unconstitutional, and the Court Justices made that very clear. So I'm not going after that aspect. However, one has to wonder whether its actually right that Mr. Nichols has been overruled in this way. The entire idea behind the Justices' decision is that because same-sex marriage is a government-granted privilege (all marriage rights are privileges technically, so don't take it the wrong way), a government employee such as Mr. Nichols has to follow the letter of the law and marry same-sex couples, or else he, and the government he represents, are in breech of the very same law they passed. Ergo, Mr. Nichols personal convictions are overridden because of his status as a government employee. Not much else too it, really.

But the question I pose is whether or not Mr. Nichols individual rights should come into force in any way in this matter. I mean, consider this; of all the marriage commissioners in Saskatchewan, the majority are not likely to oppose doing same-sex marriages if requested, so the idea that Mr. Nichols' opposition will mean no same-sex couples in Saskatchewan can't get married is void. And while yes, he is a representative of the government of Saskatchewan, which is bound by laws and oath to perform same-sex marriages, his individual rights, as stated in the Charter, tells us that he cannot be forced to do something he does not want to do, through threat or coercion, and considering that his job and livelihood has been threatened, it's not too hard to draw a line. And given that Mr. Nichols is not the only marriage commissioner in the province, there's no real obstacle in the way for a same-sex marriage to occur in the province, which means that the government can still perform its duties, but Mr. Nichols can exert what he feels to be his right not to.

So the question becomes: if the government can still perform its duties, why is Mr. Nichols being forced to do something against his personal convictions? And if same-sex couples can still invoke their privileges under the law, Mr. Nichols be damned, why are they forcing him to do this when this violates his rights as an individual?

As the linked article states, Ontario's own system creates a separate list of commissioners that are willing to do those marriages, and those who aren't. It's a simple and easy system that honours both the government's commitment to reinforcing the SSM law, and keeps individual's rights intact. The article also states that it may not even hold up to a constitutional challenge, but I question that. I fail to see how its wrong to have such a system, so long as the government keeps to its commitments under the law.

And that's where we start toeing the line between rights and privileges in this country. Is it right to override Mr. Nichols' individual rights because of the privilege granted to same-sex couples, something he apparently opposes? I don't know, it personally doesn't affect me so I can't really say. But, there it is. What do others think?

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