1. Accommodation or Discrimination?
The Canadian Controversy Over Same-Sex Marriage
Lauren V. Steinman
Faculty of Religious Studies
McGill University
3520 University Street
Montreal, Quebec
H3A 2A7

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Contemporary Western societies operate according to principles of liberalism and democracy.
It is understood that these values inform many aspects of the culture, ranging from political
structures to legal systems. Modern Canadian constitutionalism has been greatly influenced by
liberalist concepts; such a rendering of law shapes each dimension of culture according to its own
set of “informing commitments” (Berger 4). While contemporary societies are typically perceived
as secular regimes abiding by a separation of church and state, there is nonetheless an underlying
relationship between law and religion. Law effectively casts religion in terms that are congruent
with its own “structural assumptions, as well as symbolic and normative commitments”, all of
which are informed by the political culture of liberalism (4). Although such a model may appear
reductionistic, it is arguably difficult to conceive of religion in terms that lie outside the domain of
constitutional liberalism. As such, religion is understood to exist as a form of culture within a larger
secular, legal framework. Liberalism emphasizes the value of an individual’s pursuit of the good
through the exercise of his capacity for autonomy; as such, religion is perceived as a matter of
personal choice. The right to freedom of religion can be said to represent an intersection between
religious norms or precepts and state law; it is through an appeal to religious freedom that private
beliefs and practices are given greater visibility and exposure in the public sphere.
According to legal scholar Richard Moon, at present, the public defense of religious freedom
is now framed in increasingly secular terms. In the context of a modern spiritually diverse society, it
is frequently claimed that the safeguarding of religious beliefs or commitments is rooted in the
value of individual judgment or autonomy. The secularization of religious freedom has not merely
led to the severance of the link between individual conscience and God. It has likewise produced a
partial or obscure movement “from individual conscience or autonomy to cultural identity, as the
foundation for freedom” (217). While the licensed justification of religious freedom in
contemporary liberal democracies such as Canada emphasizes the importance of individual choice,

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the protection of this foundational right appears to likewise rest on the notion that religion is a
matter of cultural identity. Under this theory, religious belief is not based on the active decision
made by individuals, but is perceived to be a profoundly embedded aspect of his or her identity or
character that should be accorded equal respect (217). If the state does not regard religious beliefs or
practices with proper reverence, or if the government marginalizes any given religious community,
individual adherents will experience not simply a rejection of their views and values, but will
likewise discern this intolerance as a form of unjust treatment that engenders an affront to their
human dignity (217).
Under Section 2(a) of the Canadian Charter of Rights and Freedoms, court decisions that
concern the issue of freedom of religion or conscience appear to possess an ambiguous view of
religion. Uncertainty about the nature of religious adherence, “as a matter of personal choice and
commitment or as a matter of identity” (218) presents a series of overarching tensions in the
Canadian cases. What is most significant in Moon’s argument is his assertion that there is judicial
apprehension about the scope of religious freedom; more specifically, there is a sense of doubt
pertaining to whether such a right protects all types of deeply held convictions, or if it principally
safeguards religious beliefs and practices that are in some way distinct from other general views and
practices. Moon posits that if autonomy underlies one’s commitment to freedom of religion or
conscience, then the freedom’s protection should extend equally to sacred and profane beliefs and
practices. Despite the court’s argument that freedom of religion and conscience safeguards values
and beliefs that are non-religious in nature, “religious beliefs and practices continue to be at the
centre of Canadian freedom-of-religion or conscience cases” (219). Religion is perceived as
paradoxically both intimidating and vulnerable; it is potentially threatening insofar as it entails
practices and standards that may be imposed on others without sufficient public justification.
Conversely, religion is potentially vulnerable due to its position as outside the scope of public

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concern; as a result, it may be disregarded and outweighed by secular forces (219).
v
The recent Canadian controversy concerning the refusal of marriage commissioners to
solemnize same-sex unions is indicative of the contentious conflict that arises when religious beliefs
become entangled within the duties and operations of government employees. This clashing of
values is embodied in the Charter of Rights and Freedoms, a foundational constitutional document
that is wrought with numerous internal tensions. The competing claims to equality enumerated
under s. 15(1) and the fundamental right to religious freedom guaranteed by s. 2(a) are in a
perpetual state of disagreement. Jurisprudence from the Canadian context highlights the antagonism
that exists between respecting a multiplicity of religious beliefs and the manner in which these
expressions of personal conscience impact the equality rights of minorities. Same-sex marriage has
been legalized in Canada under Bill C-38. Marriage for civil purposes is redefined as “the lawful
union of two persons to the exclusion of all others” (Cere 287).
The refusal of marriage commissioners to solemnize same-sex unions is rooted in their
religious beliefs, which appears to originate in a system of morality. From a historical vantage
point, religious doctrine has been aligned with moralism. Religions can be perceived as establishing
a system of ethical norms that are meant to instill a state of orderly conduct among followers.
Scripture tends to abide by an overarching dichotomy that places the concept of virtue as the
antithesis of sin; when connected to the topic of sexual orientation and conjugality, heterosexuality
is revered as righteous and morally upright, while homosexuality is perceived as inherently
depraved and wicked. Within the Bible, marriage is a strictly heterosexual institution; the Book of
Genesis underlies the classical definition of marriage to be a bond between one man and one
woman: “Therefore a man shall leave his father and mother and be joined to his wife, and they shall

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become one flesh” (Gen. 2: 24). In contrast, homosexual identity and its associated acts are
frequently referred to as sinful and immoral: “If a man also lie with mankind, as he lieth with a
woman, both of them have committed an abomination: they shall surely be put to death; their blood
shall be upon them” (Lev. 20:13). Apparently, sexual activity between persons of the same sex is
viewed as an evil crime that is punishable by death. This biblical standard has been upheld in
contemporary society by individuals are intolerant towards any form of diversity. Such a scriptural
passage has been interpreted and employed by believers as a justification for the denial of equal
rights to homosexuals.
The legal redefinition of marriage runs contrary to the aforementioned tradition that
entrenches the meaning of conjugality within biblical scripture; the revised definition of marriage is
not rooted in Judeo-Christian religious precedents. The introduction and passage of Bill C-38 marks
a shift in the overall conception of marriage, widening the scope of the institution to include same-
sex couples. In effect, the new legislation abides by a principle of gender-neutrality, since the
revised definition of marriage does not make any reference to an opposite-sex requirement. Hence,
the redefinition of marriage in Canada arguably represents a disentanglement of religion from the
domain of conjugality, to the extent that gay and lesbian couples are afforded access to the same
civil benefits as their heterosexual counterparts. The refusal of marriage commissioners to
solemnize a same-sex union on the grounds of religious belief deprives gay and lesbian couples of
their rights to equality guaranteed by s. 15(1) of the Charter and constitutes an improper
infringement of moral precepts into the secular, public sphere. In effect, religious freedom becomes
aligned with heterosexist ideology, given the use of biblical precedents by marriage commissioners
to justify their refusal to perform same-sex marriages.
Marriage commissioners are paid employees of the government who are hired to perform a
variety of services. Since these commissioners are civil servants, they operate as representatives of

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the secular state. Bill C-38 allows for religious authorities the right to decline the performance of a
same-sex marriage; however, such an option should not extend to marriage commissioners, given
that their responsibilities are largely civic in nature and have no affiliation with religious traditions.
Marriage commissioners who refuse to solemnize same-sex unions should be asked to resign from
their positions as officers of the state. The right to freedom of religion should not be permitted to
override the equality claims of gays and lesbians. Although religious freedom possesses a strong
degree of protection in Canadian society under s. 2(a) of the Charter, it should not operate as
pretence for unwarranted discrimination against homosexuals. The provision of access to the
institution of civil marriage for same-sex couples enables the full expression of sexual diversity in
Canadian society and likewise assists in fostering an environment free of stigmatization and
discrimination. The acknowledgment of an array of distinct identities within the realm of sexual
orientation is the force that overrides the attitude of religious intolerance towards minority groups; it
is precisely this recognition of sexual diversity that ultimately seeks to eradicate the dominant
paradigm of normative heterosexism. The preceding arguments outlined will be discussed through
three theorists who have contributed widely to the discourse on accommodation, recognition and
identity; namely, Bruce Ryder Martha Minow and Charles Taylor. Prior to examining the work of
these theorists and its application to the legal case concerning the Matter of Marriage
Commissioners Appointed Under The Marriage Act, 1995, information taken from the majority
ruling written by Chief Justice Richards will be provided to contextualize the examination of the
topic in question and will likewise serve as the backdrop for the discussion that will follow.
v
In 2004, the Supreme Court of Canada rendered a landmark decision and confirmed the legal
validity of same-sex marriages. Parliament enacted legislation that redefined the institution of

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marriage to include homosexual unions (Matter of Marriage Commissioners para 1). This law
produced a negative impact in certain provinces, including that of Saskatchewan, where certain
marriage commissioners refused to solemnize same-sex marriages on the grounds that they could
not provide services in this regard without acting in violation of their personal religious beliefs. The
position of these marriage commissioners gave rise to legal proceedings “pursuant to the
Saskatchewan Human Rights Code…and a civil action in the Court of Queen’s Bench” (para 1). It is
against this background that the Lieutenant Governor in Council requested the Court’s opinion on
the constitutional validity of two possible amendments to the Marriage Act 1995 S.S. 1995, c. M-
4.1. The first amendment would permit a marriage commissioner appointed on or before November
5, 2004 to decline to solemnize a marriage if performing the ceremony would be contrary to his or
her religious beliefs. The second amendment operates as an alternative to the first and allows every
commissioner to decline to perform a same-sex marriage on the basis of religious belief,
irrespective of his or her date of appointment (para 2).
In his decision, Justice Richards concludes that both amendments represent an infringement of
the Charter of Rights and Freedoms. If either amendment were enacted, this would violate the
equality rights of those individuals who self-identify as homosexual. Such a violation would not be
reasonable and justifiable under section 1 of the Charter. Therefore, if enacted, either amendment
option would be unconstitutional and would be rendered null and void (para 3). According to
Justice Richards, neither Parliament nor the provincial legislatures possess an absolute authority
with respect to the institution of marriage. Section 91.26 of The Constitution Act, 1867 assigns
Parliament jurisdiction concerning “The Solemnization of Marriage in the Province” (para 4). It has
long been established that Parliament has exclusive legislative power in relation to the question of
capacity to marry, while authority pertaining to the performance of marriage formalities rests with
the provincial governments (para 4). In Saskatchewan, the provincial statute of The Marriage Act,

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1995, distinguishes those persons who are licensed to solemnize marriages. Apart from bestowing
such power on various individuals with connections to specific religious institutions, the Act also
stipulates that a “marriage commissioner” may solemnize marriages (para 5).
Justice Richards asserts that marriage commissioners play a very carefully designed role in
the overall configuration of the Marriage Act; they are the only route by which people who wish to
be married via a non-religious ceremony may have their union solemnized. Under Section 31 of the
Act, the requirements of, and the wording for a civil marriage ceremony are carefully presented. It is
evident that both the latter and the former possess a strictly non-religious nature (para 9). The
statements that are uttered by either party during the solemnization process do not contain any
references to God or to any doctrines affiliated with an official religious tradition, most notably
Judaism or Christianity. Justice Richards asserts that this formulation of the marital ceremony is
particularly significant for gay and lesbian couples who wish to enter into marriage. Many of the
materials filed with the Court indicate that Western religious traditions disapprove of same-sex
marriages and outwardly condemn homosexuality. The results of this harsh reality are quite
obvious; access to marriage is quite restricted for gay and lesbian couples, given the negative stance
of religious traditions towards individuals who identify with such a sexual orientation. In effect,
many homosexuals will largely remain excluded from the institution of marriage unless they are
able to request that a marriage commissioner perform the required ceremony (para 10).
The background events that led to the proceedings in this reference begins in November 2004,
when the Court of Queen’s Bench, in N.W. v. Canada (Attorney General), 2004 affirmed that the
common law definition of marriage for civil purposes must be regarded as “the lawful union of two
persons to the exclusion of all others”. As such, the opposite-sex component, as grounded in the
traditional definition of marriage, was no longer a centralized aspect of conjugality worthy of legal
protection. Advocates of same-sex marriage have argued that the opposite-sex requirement of

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marriage is discriminatory and similarly, the Court held that a refusal to supply marriage licenses to
homosexual couples would constitute a violation of their equality rights as guaranteed by s. 15(1) of
the Charter of Rights and Freedoms. In light of this decision, the Director of the Marriage Unit
advised marriage commissioners that they were obliged to conduct marriage ceremonies for same-
sex couples. This ruling led to the resignation of eight commissioners on the grounds of same-sex
marriage (para 11). In December 2004, following these events, the Supreme Court of Canada
released its decision in Reference Re Same-Sex Marriage, supra. This proceeding pertained to the
justifiability of proposed federal legislation defining marriage, “for civil purposes, as the lawful
union of two persons” with no opposite-sex requirement (para 12). The Supreme Court held that
this revised definition was consistent with the Charter and was within the exclusive legislative
jurisdiction of Parliament. The Court likewise articulated that the guarantee of religious freedom in
the Charter provided the religious officials protection against being pressured by the state to
perform same-sex marriages that run contrary to their religious beliefs.
On June 30, 2009 the Lieutenant Governor in Council, acting pursuant to The Constitutional
Questions Act, R.S.S. 1978, passed Order-in-Council 493/2009. To this end, it sought the Court’s
opinion on the validity of two alternative potential amendments to The Marriage Act, 1995. The
distinct amendment models were labeled as Schedule A and Schedule B, respectively. The former
makes reference to the appointment of marriage commissioners “on or before November 5, 2004”
(para 17) since this is the date of the Court of Queen’s Bench decision to abolish the prohibition
against same-sex marriage in Saskatchewan. Justice Richards refers to Schedule A as the
Grandfathering Option and to Schedule B as the Comprehensive Option (para 18). When they are
subject to proper scrutiny and analysis, it becomes clear that both the Grandfathering Option and
the Comprehensive Option would permit a marriage commissioner to refuse to solemnize a
marriage if such an act would conflict with the commissioner’s religious beliefs. The difference

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between the two amendment alternatives is that the Grandfathering Option would only be
applicable to those commissioners appointed on or before November 5, 2004. Although the
submissions of counsel in this case focus on the issue of same-sex marriages, Justice Richards notes
that neither the Grandfathering Option nor the Comprehensive Option are limited to such
marriages. Given that the amendments are drafted in general terms, they are applicable in any
circumstance where solemnizing a marriage would be contrary to the religious beliefs of a marriage
commissioner (para 24). Nonetheless, while Justice Richards acknowledges the degree of openness
concerning the nature of the proposed amendments, his analysis of the constitutional validity of the
two proposals is devoted to the circumstances of homosexual couples. In effect, it is same-sex
marriage that occupies a central position in the debate surrounding the Grandfathering Option and
the Comprehensive Option (para 25).
The remainder of Justice Richards’ analysis of the two proposed amendments seeks to assess
whether the Grandfathering Option and the Comprehensive Option are consistent with the Charter
of Rights and Freedoms. Given that the Charter is an essential aspect of the Canadian constitution,
any law that is inconsistent with this bill of rights is considered “unlawful and [is] of no force or
effect” (para 27). Justice Richards follows the standard methodology of Charter analysis; he first
inquires as to whether the purpose or effect of the legislative provision at issues will act to restrict
one or more of the rights guaranteed by the Charter. If this is determined to be the situation, then it
is necessary to determine whether such a contravention is justifiable within the scope of s. 1 of the
Charter, as a “reasonable limitation of those rights or freedoms” (para 28). For the purposes of the
present paper, attention will not be devoted to the Charter-based analysis that is discussed at great
length by Justice Richards. Rather, emphasis will be placed on the aspects of the ruling that
specifically address the conflict between equality rights and the right to religious freedom. There are
arguments that put forth the unconstitutional nature of the Grandfathering Option and the

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Comprehensive Option is rooted in s. 15(1) of the Charter. Section 15(1) advances a guarantee of
equality that articulates a universal right to “equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability” (para 29). Although it is not enumerated
under s. 15(1), sexual orientation is considered to be an analogous ground of discrimination;
citizens are entitled to be protected from any demeaning forms of prejudice, wrongful stereotyping,
or differential treatment on the basis of their sexual preference and identity. Equality rights are very
much connected to the notion of human dignity; this is to suggest that the self-worth of individuals
is preserved insofar that their claims to equality are respected rather than quashed by other
competing fundamental freedoms that remain protected by the Charter.
With this background on the nature of equality rights, Justice Richards proceeds to apply such
a framework to the two proposed amendments. Justice Richards contends that if either amendment
option were enacted, this would generate largely negative effects. The ratification of these
amendments would create a series of situations where same-sex couples would be exposed to
further discrimination. In essence, if a same-sex couple was to seek a commissioner to conduct a
marital ceremony, there is a stronger possibility that the commissioner may refuse to provide the
service requested. This concern is not solely theoretical in nature; many of the affidavits filed in this
case have demonstrated that if The Marriage Act, 1995 were to be amended, some marriage
commissioners would be highly likely to exercise their right to decline the performance of a same-
sex marriage ceremony (para 38). Consequently, both the Grandfathering Option and the
Comprehensive Option will have the effect of drawing a distinction based on sexual orientation, “a
ground analogous to those listed in s. 15(1)” (para 38). Under this scheme, lesbian and gay
individuals will be subject to differential treatment in comparison to their heterosexual counterparts

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who wish to be married. Such an expression is representative of a negative form of bias that is
based solely on the category of sexual orientation (para 39).
Many of the intervenors who took part in the case posited the argument that any such impact
resulting from the enactment of the Grandfathering Option or the Comprehensive Option will be
minimal. Following this reasoning, if a homosexual couple is rejected by a commissioner who does
not solemnize same-sex marriages, it is believed that said couple can easily contact another civil
servant who will be prepared to proceed with the ceremony. In order to further bolster their
position, the intervenors maintain that since the number of same-sex marriages is relatively
minuscule, the chances of a homosexual couple being denied services from a commissioner will be
not be substantial. Justice Richards asserts that such a line of argument is unpersuasive (para 40) for
two reasons. Firstly, the submission overlooks and inappropriately dismisses the detrimental
psychological impact of a marriage commissioner’s refusal to solemnize a same-sex union. It is
fairly easy to comprehend that such effects can be very significant and genuinely offensive. Justice
Richards contends that there is no difference between discrimination on the basis of racial or
religious identity (para 41) and the prejudicial attitudes expressed by marriage commissioners who
decline to officiate at civil marriage ceremonies for gay and lesbian couples (para 41).
The intervenors’ argument is unconvincing for a second reason: namely, that if either
amendment is enacted, there is a stronger probability that a substantial number of marriage
commissioners will refuse to perform same-sex marriages. The impact of commissioners who
exercise such a choice would be compounded by the fact that the content of the proposed
amendments does not ensure “some minimum complement of commissioners will always be
available to provide services to same-sex couples” (para 42). Consequently, if more than a small
number of marriage commissioners opt out of solemnizing same-sex marriages, it can only become
more difficult for gay and lesbian couples to find a civil servant that is willing to preside over such

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a marriage. In turn, this will force those homosexuals who wish to be married to engage in a
widespread search for a commissioner who is prepared to assist them with such a request. While
some intervenors have argued that this would only amount to a few extra phone calls, such an
endeavor may lead gay and lesbian individuals to face numerous rejections before they locate a
nonjudgmental civil servant who is willing to officiate at a same-sex marriage (para 42).
From the preceding analysis, Justice Richards concludes that both the Grandfathering Option
and the Comprehensive Option will have a detrimental effect on society since the amendments form
a negative distinction on the basis of sexual orientation (para 44). Under s. 15(1) of the Charter, the
distinction generated by both possible amendments would be discriminatory in nature. Justice
Richards refers to the historical marginalization and mistreatment of gay and lesbian individuals,
stating that they recently obtained access to the institution of marriage after enduring numerous
hardships. The past difficulties endured by homosexuals add further credence to the argument that
marriage commissioners should not be permitted to refuse services on the basis of sexual
orientation. Exercising the right to decline the performance of same-sex marriages is a clear
retrograde step that would only serve to perpetuate disadvantage and existing stereotypes about the
worthiness of same-sex unions (para 45). Consequently, the enactment of the Grandfathering
Option or the Comprehensive Option would place a restriction on the rights guaranteed by s. 15(1)
of the Charter of Rights and Freedoms. Given the effects that would be generated, both proposed
amendments would draw adverse distinctions on the basis of sexual orientation and will therefore
constitute discrimination (para 46) and would not be justifiable pursuant to s. 1 of the Charter (para
101 a).
v
In the essay entitled, “The Canadian Conception of Equal Rights Citizenship”, legal scholar
Bruce Ryder argues that Canadian human rights law has developed a conception of equal religious

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citizenship, under which religious freedoms and religious equality rights are united as a means of
advancing the right of religious persons to participate equally in Canadian society without requiring
that they renounce the tenets of their faith. In essence, society must accommodate the freedom of
individuals to hold and voice religious beliefs and engage in faith-oriented practices unless “doing
so would interfere with the rights of others or with compelling social interests” (Ryder 87). The
principle of equal religious citizenship is advocated by the Constitution and by legal prohibitions
concerning religious discrimination. Section 2(a) of the Canadian Charter of Rights and Freedoms
offers protection to freedom of conscience and religion, with the intention to preclude governments
from enforcing laws or policies without the presence of a cogent justification, that have the
objective or corollary of persuading individuals by means of force to abandon sincerely held
religious beliefs or practices (87). Numerous liberal democracies partake in Canada’s commitment
to the accommodation of religious pluralism within a framework that necessitates respect for the
fundamental values of the state and the rights of others. Perhaps most significantly, religious rights
are not absolute; they must be “balanced against competing claims and interests” (87). Liberal
democracies collectively struggle with the challenge of attaining a state of equilibrium between
advocating equal religious citizenship and the coercive constraints imposed on religious beliefs and
practices so as to safeguard cardinal values or to protect the rights of others (87).
Canadian law adopts a robust approach to equal religious citizenship than can be found in the
human rights jurisprudence of other countries. Under this conception, it is believed that religious
persons should not be forced to choose between obeying the precepts of their faith tradition and full
participation in society. It is necessary to adjust rules and policies that appear neutral, since these
typically have the effect of interfering with religious belief or practice; equal religious citizenship
will not be realized by subjecting every individual to the same rules. A true state of equality
requires that religious diversity be accommodated and that the “coercive pressures of neutral rules

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on religious observances to be avoided” (88). Moreover, the Canadian conception of equal religious
citizenship is not restricted to a private or religious domain of belief, worship and practice.
Alternatively, religious faith is understood as a foundational aspect of a person’s identity that
influences every aspect of life. Following this line of reasoning, religious persons cannot be
expected to limit their beliefs to their private homes or places of worship. These individuals have
the right to participate equally in the various arenas of civic life without renouncing the beliefs and
practices that their faith requires them to observe. In contrast, there are other liberal democracies
that demand that citizens conform to a stricter form of secularism when participating in public
institutions. Under this framework, equal religious citizenship is confined to the private sphere and
must yield to the secular requirements of public citizenship (88).
Ryder asserts that in the text of the Charter and in the traditions of Canadian
constitutionalism, adherence to religious or conscientious belief systems is perceived as a positive
good that is worthy of proper respect and accommodation. Religious and conscientious belief
systems are central to individual identity (93-4). The state must respect the autonomy of a person’s
individual conscience, which effectively enables them to establish their own theological views and
relationships to the transcendent, or other non-theistic, conscience-based conceptions that provide
their lives with a sense of ultimate meaning. Religious and conscientious belief systems are closely
connected to the formation of communities and people’s sense of affiliation within these groups.
These communities act as sources of strength, support and normative authority and provide a
counterpoint to the role of the state in regulating the lives of its citizens. Ryder acknowledges that
harmful, reprehensible acts can be perpetrated under the guise of religion or conscience. However,
the structure of the Charter allows for both a protection of religious rights in s. 2(a) and s. 15 and
likewise presents limitations on those rights pursuant to s.1 “when they harm or pose a significant
risk of harm to the rights of others” (94). In effect, section 1 of the Charter provides a framework

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for determining the restrictions on fundamental freedoms when the exercise of these rights poses a
detrimental effect on society. Such a principle can be applied to the Canadian controversy
surrounding the solemnization of same-sex marriages and the right of marriage commissioners to
refuse to officiate at these ceremonies on religious grounds.
Ryder contends that the Charter has greatly accelerated Canada’s movement from a country
governed according to Christian religious precepts to a state that abides by the notion of secular
pluralism. Such a shift can be noted in the replacement of a definition of marriage firmly rooted in
Christianity, to a conception of conjugality that is more consonant with “the objectives of
contemporary marital regulation” (94). The redefinition of marriage in Canada effectively rendered
same-sex marriages as legal and in so doing, altered the country’s understanding of conjugality to
the extent that it could be perceived as consistent with the norms of a modern liberal democracy.
While the scope of the institution of marriage was broadened to include same-sex couples, this
expansion of rights was accompanied by a series of residual complications, generated by the
conflict between religious freedom and competing claims to equality. Ryder asserts that following
the legalization of same-sex marriage, provincial governments in Manitoba, Saskatchewan and
Newfoundland issued instructions to marriage commissioners stating that they must renounce their
position, if, on religious grounds, they are not willing to solemnize same-sex civil marriages (100).
Commissioners who are unwilling to perform these marriages filed human rights complaints
in Manitoba and Saskatchewan; however, these grievances were dismissed without a hearing. Ryder
argues that religion is occupying the same position as minority sexual orientations; just as the
display of homosexual acts in the Canadian public sphere once invited stigmatization and
persecution, now religious public servants are being asked to make a difficult choice between
remaining employed as marriage commissioners and acting in conformity with their religious
beliefs. Ryder contends that since there is no evidence attesting to “inordinate inconvenience or

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expense” (101), there is no reason in such a situation that the religious rights of public officials and
the equality rights of same-sex couples cannot both be properly affirmed. Canadian jurisprudence
has supported the rights of employees in both the private and the public sector, to oppose the
performance of job duties on religious grounds; employers have an obligation to accommodate their
staff if such an objective can be achieved without undue hardship. Ryder maintains that same-sex
couples have every right to be treated with equal respect; if the access of homosexuals to civil
marriage is compromised, it is fully legitimate that they express their discontent. Public officials
must undertake responsibility to ensure that lesbians and gays are not unduly delayed or
inconvenienced in their pursuit of a marriage ceremony (101).
Ryder’s position strives to achieve a balance between religious and equality rights;
specifically, if applied to the case of the marriage commissioners, governments have the
responsibility to affirm both the religious freedom of public officials and the right of homosexuals
to obtain equal access to civil marriage. Ryder contends that these obligations can be fulfilled by
taking the proper measures, to the point of undue hardship, to accommodate religious beliefs and to
assure that an adequate number of public officials are willing and available to officiate at civil
marriage ceremonies for same-sex couples (101). In the provinces of New Brunswick, British
Columbia, Prince Edward Island and Alberta, governments have adopted the position that civil
servants have a right of conscientious or religious refusal that can be accommodated without
undermining equal access to marriage for same-sex couples. These provinces have indicated that if
necessary, in order to secure the equality rights of gays and lesbians, they will hire additional
marriage commissioners who do not object to the solemnization of same-sex unions. Ryder argues
that the dissenting provinces of Manitoba, Saskatchewan and Newfoundland should be able to take
the steps required to accommodate the religious beliefs of their public officials without
compromising the equality rights of gays and lesbians to be married under civil law (101).

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Although Ryder upholds the accommodation of the religious views of marriage
commissioners, he does assert that the right to religious or conscientious refusal cannot be exercised
without undermining equal access to the institution of marriage. To prevent such an infringement of
the rights of gays and lesbians, marriage commissioners may be obliged to officiate at same-sex
civil marriage ceremonies. In effect, the right to religious freedom is not absolute since it does not
permit the violation of equality rights. The requirement of the state to accommodate religious
beliefs “extends only to the point of undue hardship” (101) and the contravention of the equality
rights of homosexuals qualifies as a form of undue hardship that must be avoided. While this
argument appears to present a fair solution to the problem outlined, the notion of undue hardship
remains largely amorphous. Ryder does not provide concrete examples to illustrate a situation
where the religious beliefs of a marriage commissioner cannot be accommodated due to the
burdensome consequences that this would place on homosexuals who are seeking to be married. In
effect, his discussion does not specify clear instances where the notion of undue hardship would act
as a gauge for determining whether the accommodation of religious beliefs would pose a significant
risk of harm to the equality rights of gays and lesbians.
Although it is recognized that religious freedom cannot trump the claims to equality
enumerated under s. 15(1) of the Charter, Ryder’s model in effect provides sufficient room for
religious freedom to override the equality concerns of minority groups. Ryder arguably affords
religious freedom greater protection, since it is through an appeal to religious beliefs that public
officials may decline the performance of same-sex marriages. Under this scheme, marriage
commissioners are each permitted to operate according to their own system of morality and are
given the ability to decide for themselves which duties they will perform as civil servants. By
advocating for the hiring of additional marriage commissioners who are tolerant of homosexuals
and are willing to solemnize same-sex unions, it appears that Ryder is constructing a neat resolution

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to the problem of competing rights claims. However, such a scheme only cloaks and further
perpetuates any existing discriminatory attitudes against sexual orientation minorities, since it
places marriage commissioners into two camps, dividing those who are liberal and accepting of
homosexuals from those who conscientiously object to the notion of same-sex conjugality. Ryder
contends that it is not discriminatory, now that same-sex marriage has been legalized, for
governments to fill new marriage commissioner positions only with individuals who are willing to
perform “all lawful marriages” (102). Ryder is most concerned with the situation of marriage
commissioners appointed when same-sex civil marriage was not legal. The hasty issuance of a
“blanket directive” (102) informing all marriage commissioners of their incessant obligation to
perform same-sex marriages, even if to do so runs counter to their religious beliefs, prior to the
government considering the possibility of accommodating their views, contravenes religious
freedom and constitutes religious discrimination in employment. In essence, since these directives
do not account for the religious beliefs of public officials prior to the legalization of homosexual
unions, the instructions given to marriage commissioners pertaining to their duty to solemnize
same-sex marriages represents a breach to the Charter, as well as other applicable human rights
legislation (102) that protect employees from unwarranted discrimination.
While such an argument rightfully demonstrates that individuals should not be subject to
wrongful prejudice in the workplace, it provides marriage commissioners with an escape route from
their responsibilities. Ryder seeks to base the refusal to marry same-sex couples on the fact that
certain commissioners were hired prior to the legalization of gay marriage. However, this appeal to
chronology, specifically to the time at which homosexual unions became lawful, does not serve to
justify the right of commissioners to decline the solemnization of same-sex marriages. Public
servants are collectively assigned a set of civic duties that they are obligated to perform while
employed by the state. The timing of a commissioner’s appointment is irrelevant to their ability to

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conduct the full range of responsibilities demanded by such a position. Marriage commissioners
have no direct affiliation with religious institutions and unlike what Ryder claims, public employees
should be required to “leave their faith at home” (102), given that they are working for the secular
state. The scope of a marriage commissioner’s responsibility, as an employee of the government, is
to solemnize civil marriage ceremonies. Such a position does not allow for marriage commissioners
to decide, on the grounds of their personal religious beliefs, which couples they will acceptably
marry. Providing commissioners the right to conscientiously refuse the marriage of gays and
lesbians on the basis of religious belief enables morality to override legality; sexual orientation
becomes framed as a moral category rather than perceived as a legal, analogous ground of equality
worthy of protection under s. 15(1) of the Charter. In effect, affording marriage commissioners
with the option to obtain an exemption from their duties further fosters discrimination against
sexual minorities and does not demonstrate a commitment to the value of equality rights in a
democratic society.
v
In the essay entitled, “Not Only For Myself: Identity Politics and the Law”, legal scholar
Martha Minow discusses the contemporary debate over identity politics and the problems associated
with this school of thought. Minow defines identity politics as the “mobilization around gender,
racial, and similar group-based categories in order to shape or alter the exercise of power to benefit
group members” (Minow 648). Identity politics assist individuals in overcoming a sense of
anonymity while likewise molding perceptions of unequal power and recognition. Identity politics
have had the reputation for generating controversy, primarily by those who claim that it weakens
principles of unity, individualism, or a nationalism rooted in individualism (649). Identity politics
demonstrates a movement beyond the individual that leans toward a concern for others; however,
this sense of solicitude is limited only to those who match a particular identity trait of the individual

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in question. Minow asserts that under the framework of identity politics, one is for others, but only
those who are like themselves. Minow argues that the politics of identity lacks “internal coherence”
since defining those like oneself proves to be a precarious task. Moreover, since identity politics are
responsible for creating divisions between groups on the basis of difference, it has given rise to
unwarranted forms of discrimination and oppression. Such a reality suggests that dangers of
reducing the complexities of these issues along group lines. In such a world, individuals need to be
both for themselves and for others (649). Minow asserts that supporters of a politics of identity
emphasize the value of one person who acts as a representative of the group’s collective identity
(651). Those who remain in opposition to identity politics resist arguments for group-based
representation, regardless of how they may be formulated. Others are sympathetic to identity
politics but nonetheless find actual difficulties pertaining to the political uses of identities.
In the domain of identity politics, three problematic areas have surfaced; the first concerns the
tendency towards an essentialist perspective, which involves the reduction of a complex person to
one trait, which functions to draw that person into membership in a particular group. This trait is
then equated with a distinct viewpoint and stereotype. Such a tendency to essentialize leads
individuals to treat a particular trait as analogous to a specific viewpoint and set of experiences,
regardless that the group trait, “such as race or gender, is at best a rough proxy for those views or
experiences” (653). Minow contends that the selection of one person to represent a given group
reveals the flaws of essentialism. Individuals who share a trait, such as race or gender, may differ in
other ways, including the power harm others who share that same characteristic. The disparity
between the representative who shares the group trait and interests or needs of group members may
lead to debates over the notion of authenticity and “the relationship between identity and
experience” (653-54). These debates directly question the simplistic rendering of the identity
category as mobilization representation. The problem of identity claims rooted in essentialism lies

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in the mistaken assumption that any single trait of an individual determines “viewpoint, experience,
or political [preference]” (654). The essentialist conception of identity likewise wrongly apply a
reductionist perspective to the nature of individuals, simplifying their existence down to one trait
when they themselves believe that other characteristics are of equal weight and importance. While it
is acknowledged that groups may attempt to use single identities to achieve strategic political goals,
the invocation of a shared trait of identity does not assist in producing political unification and
action (654).
Minow asserts that the second difficulty affiliated with identity politics is its tendency to
neglect intersectionality. Such a concept refers to the manner in which any particular individual
stands at the crossroads of numerous groups. Neither gender nor racial identity groupings taken as
isolated entities can describe common experiences, attitudes and relationships with others (665-56).
The recognition of multiple intersections challenges a conception of representation that is rooted in
one shared characteristic. Individuals exhibit not only race and gender but also other traits that form
the basis for potential group membership, including age, disability, religion, immigrant status and
sexual orientation. It is evident that certain intersections generate new identity groupings; at the
very least, the recognition of intersectionality threatens to render identity politics more complex
with a proliferation of a myriad of identity groupings. The notion of individual membership across
numerous, intersecting groups involves a more extensive and profound challenge to the realm of
identity politics, since such a theory ultimately implies that each person alone embodies multiple
characteristics of each intersecting group (656). Under this premise, each individual is a unique
member to various sets of endless groupings, whether they are rooted in the categories of race,
gender, disability, or family.
The third and final complication that arises from identity politics relates to the incoherence of
group identities. The persistent inability of group-based categories to yield uniform and unchanging

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applications suggests that there is an underlying defect in their boundaries, their origins, their
applications and in their ultimate meaningfulness (657-58). The coherence of group identities is
further challenged by the notion of historically shifting boundaries, or by the concept of ambiguity
which renders it a difficult and unstable task to properly delineate borders around racial, gender and
other identity categories (658-59). Regardless of the aforementioned theoretical arguments that
oppose essentialism and support intersectionality, many individuals perceive that their identities are
entangled with experiences of subordination along “simplistic group lines” (664). Oppression
sustains a legacy in the minds of people; it internalizes a sense of inferiority and causes individuals
to assume that human relationships are characterize by the concepts of hierarchy and domination.
Following this, identity politics may strengthen the categories and methods of oppression, as well as
fix people into a persistent victim-based status that can be regarded as a source of meaning for
various groups. It can be argued that identity claims perpetuate the problem of subordination “along
the lines of historical subjugation” (666). This danger arises primarily because people become
heavily involved in their pain and suffering, to the extent that they become preoccupied with their
wounded attachments (667). As a result, identity politics risks directing all energy and attention to
hardship and despair and does not place adequate emphasis on recovery, action and reconnection
with larger communities. Moreover, identity politics tends to locate the problem within the identity
group rather than regarding the external social relations that produce identity groupings as being
responsible for creating discriminatory and prejudicial attitudes (668).
Minow asserts that identity politics provides valuable opportunities for being oneself and to
establish solidarity with others based on the perception of a commonly shared trait. It has likewise
presented significant challenges to exclusionary practices by effectively questioning that which is
falsely portrayed as inclusive. In addition, identity politics seeks to disrupt the repression of historic
and ongoing group-based abuses. However, the politics of identity has not entirely led to positive

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solutions, since it has not effectively helped individuals forge “coalitions across groups, or learn to
understand how these interests are interconnected, or practice talking across differences and
divides” (671). Instead, identity politics has a tendency to generate more systems of the same in,
where the call for unity only produces greater fragmentation. Rather than finding new ways to
achieve common ground, the only point of agreement between those who uphold the importance of
group identities and those who remain in opposition to this idea is the reality of a permanently
established state of division and dissent (671-72). Ironically, identity politics has the propensity to
respond to group-based exclusions by reinforcing delineating boundaries. The problem is not only
limited to the fact that reactions to persecution reiterate the oppressive move of treating identity as a
fixed, immutable category. The potentially manifold, fluid qualities of any individual’s identity
seem to dissolve in the assertion that said identity consists of one overarching trait; however,
considerable power must be “marshaled to accomplish this disappearing act, given the nonessential,
intersectional, and incoherency qualities of group-based identities” (672).
According to Minow, law’s reliance on sharply defined categories further strengthens group
status differences when involving issues related to personal identity. When governmental power is
used to invest group categories with significance and assign individuals to these respective
categories, the use of identity groupings can be both harmful and beneficial. Such a premise can be
connected to the controversy surrounding same-sex civil marriage commissioners. The refusal to
preside over gay marriages is indicative of public servants’ labeling of homosexuals as immoral on
the basis of religious belief. Such a categorization of this identity can only pose deleterious effects
for individuals who are members of this group. Moreover, governmental and personal fixation with
group identity functions to conceal each person’s uniqueness, as well as membership in multiple
intersectional groups (673). This is to suggest that a government’s rendering of identity has a
tendency to adopt an essentialist perspective, reducing individuals down to one commonly shared

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trait. Governments likewise have a propensity to disregard the notion of intersectional membership
across a manifold number of groups. These problematic aspects pertaining to the domain of identity
politics are each applicable to the case of the marriage commissioners and their refusal to solemnize
same-sex unions.
Commissioners are government employees who serve the state by performing a variety of
duties related specifically to conjugal ceremonies. The proposed amendments that Justice Richards
discusses in his decision would provide public servants the right to an exemption from the
solemnization of a same-sex marriage, if the execution of this task would pose an infringement to
their religious beliefs. When viewed through the lens of identity politics, both amendment options
can be said to regard homosexuals in an essentialist manner and neglect to address the existence of
intersectionality. In declining the performance of a same-sex civil union on the grounds of religious
convictions, marriage commissioners are effectively reducing the identity of homosexuals to the
one shared trait that commonly unites them as a group; namely, that of sexual orientation.
Moreover, commissioners fail to acknowledge that the identity of gays and lesbians contains a
higher degree of complexity that moves beyond the category of sexual orientation. While a person
may identify as homosexual, they likewise possess other characteristics related to gender, religion
and race that thereby demonstrate a multiplicity of identities; in effect, such a theory suggests that
intersectionality plays a significant role in the construction of selfhood. In essence, by regarding
homosexuals through an essentialist lens that largely ignores the potential for the intersectionality of
their identity, the basis for marriage commissioners’ refusal to solemnize same-sex unions is rooted
in flawed misconceptions pertaining to the nature and construction of selfhood.
The use of religious freedom arguments by marriage commissioners to justify an exemption
from civic duties represents a clear instance of heterosexist ideology; such an attempt to quash the
full expression of sexual diversity in a democratic society is reminiscent of the historical

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mistreatment and dehumanization of gays and lesbians. The decision of commissioners to decline
the performance of same-sex marriages relegates homosexuals to their past status as disadvantaged,
second-class citizens and in effect constitutes a blatant, unwarranted act of discrimination against a
minority group on the basis of the amorphous category of sexual orientation. Unlike Ryder, who
posits that there should be some accommodation of marriage commissioners who refuse to
solemnize same-sex marriages on the ground of religious belief, Minow’s line of argument suggests
that she would not be in agreement with such a solution. Rather, given the distorted nature of
identity politics, in its inability to account for both the rich array of distinct identities within the
realm of sexual orientation, as well as in its incapacity to acknowledge the complex composition of
identity groups beyond restrictive essentialist definitions, Minow would be in agreement with the
resignation of commissioners who decline the performance of same-sex civil marriage ceremonies.
The right to freedom of religion should not be permitted to override the equality claims of gays and
lesbians. The exercise of such a right represents the faulty, unjustified infringement of a narrow
framework of identity politics into the realm of civic duties.
v
In the publication entitled, Multiculturalism: Examining The Politics of Recognition,
Canadian philosopher and social theorist Charles Taylor discusses the concept of “recognition”,
which he argues to be one of the driving forces behind nationalist movements in politics. The
demand for recognition surfaces in a number of ways in current politics, on behalf of minority or
subaltern groups, in some forms of feminism, and what is today labeled as the politics of
“multiculturalism” (Taylor 25). The demand for recognition is given urgency in these
aforementioned instances by the supposed links between “recognition” and “identity”. The latter
concept refers to a person’s understanding of who they are, of their fundamental characteristics as a

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human being. Taylor’s thesis is essentially that our “identity is partly shaped by recognition or its
absence, often by the misrecognition of others” (25), thus an individual or group of people can
suffer real damage and distortion, if the society around them reflects back an image that is
confining, demeaning or contemptible (25). Non-recognition or misrecognition can inflict harm, and
can be likened to a form of oppression, “imprisoning someone in a false, distorted and reduced
mode of being” (25). Misrecognition not only shows a lack of due respect for a particular group or
individual; it inflicts a severe wound, burdening its victims with a disabling sense of self-hatred.
Thus, Taylor contends that recognition is not merely a courtesy that we owe others; it is a vital
human need (26). The absence of proper recognition can have deleterious consequences for society.
In the chapter entitled “The Politics of Recognition”, Taylor seeks to unearth the
contributing factors that led to the modern preoccupation with identity and recognition. He refers to
two changes that brought about this ideological shift. The first element relates to the disintegration
of social hierarchies in older societies that formed the basis for the notion of honor. Such a concept
was intrinsically linked to inequalities, in the sense that it was seen as essential that not every
individual be afforded honor. Contrasted against this idea of honor, or what Montesquieu regards a
matter of préferences, there is the contemporary notion of dignity; this term is typically used in a
universalist and egalitarian manner, where frequent allusions are made to citizen dignity or the
inherent dignity of human beings (27). Unlike the concept of honor, which was restricted to a
specific rank of persons, the premise that underlies the notion of dignity is that it extends to every
individual rather than to a select group on the basis of hierarchy. It is therefore both inevitable and
obvious that the concept of dignity superseded that of honor, since the former is the only principle
that is consistent with the values of a free and democratic society. Consequently, democracy has
heralded a politics of equal recognition, which has evolved substantially over the course of time;
presently, it has returned in the “form of demands for the equal status of cultures and of genders”

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(27). The significance of recognition has been altered and amplified by the new understanding of
individual identity that surfaces at the end of the eighteenth century. This can be referred to as an
individualized identity; such a notion develops alongside an ideal, known as the idea of authenticity
(28). Such a concept has become embedded into modern consciousness; it refers to the capacity for
each person to exist as a human being in his or her own original way.
Prior to the late eighteenth century, it was not believed that the differences between
individuals had any moral significance. However, the ideal of authenticity asserts that there is a
certain way of being human that is distinctly unique to each person; one seeks to live their life
according to their own convictions, preferences and interests and does not strive to exist in imitation
of others. The ideal of authenticity implicitly suggests an adherence to a sense of truthfulness to
oneself; if one does not remain steadfast to their own set of values and principles, they will miss
developing an understanding of the purpose of their life and will consequently fail to comprehend
what it means to be human (30). Such an ideal possesses a powerful moral quality; it accords a great
sense of moral importance to one’s contact with one’s sense of self, or one’s own inner nature,
which is at risk of being lost due to the presence of forces that apply pressure “toward outward
conformity” (30). The essence of the modern ideal of authenticity involves faithfulness to one’s
originality, which is something that only a person can internally understand and discover (31). Such
an ideal is inextricably linked to the goals of self-fulfillments and self-realization, which are
arguably the twin pillars that form the foundation of any liberal democratic society.
With the development of the modern concept of identity, Taylor asserts that there is a
second factor that has contributed to its evolution. Unlike the politics of equal dignity, which seeks
to establish sameness and universality, providing “an identical basket of rights and immunities”, the
politics of difference, in contrast, demands the recognition of the unique identities belonging to
individuals or groups, highlighting their distinctive traits which effectively set them apart from

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others. The politics of difference is founded upon the idea that it is precisely this inimitable nature
of human beings that has been largely overlooked, minimized and assimilated to a dominant
identity. It is precisely this integration of individual groups into the majority that epitomizes the
“cardinal sin against the ideal of authenticity” (38). Taylor asserts that underlying the demand for
the recognition of distinct identities is a principle of universal equality. The politics of difference
denounces discriminatory attitudes and the notion of second-class citizenship. This suggests a point
of congruence between the principle of universal equality and the politics of dignity; however, it
proves to be difficult to assimilate the demands of this principle within that politics, since it asks
that we provide “acknowledgment and status to something that is not universally shared” (39). This
is to suggest that in some regard, the politics of difference and the politics of dignity are
incompatible due to the fact that the former necessitates the recognition of specificity in individual
identities, while the latter attempts to perceive identity in terms of comprehensive uniformity. An
additional contrast can be seen in the notion that the politics of dignity advocates forms of
nondiscrimination that remain blind to the ways in which citizens are at variance, whereas the
politics of difference often re-conceptualizes nondiscrimination as requiring that distinctions are
made on the basis of differential treatment (39).
The politics of equal dignity is rooted in the notion that all human beings are worthy of
equal respect. There is a particular quality within persons that underpins this command for respect.
Kant was the one of the most notable proponents of dignity; his discussion of the concept was
highly influential and demonstrates a close affiliation between dignity and respect. Ascribing a
rational status to individuals, deeming them capable of “directing [their] lives through principles”
(41), in effect necessitates that they be treated with proper respect. Thus, what is worth noting
within the framework of a politics of equal dignity is the shared capacity of universal human
potential; such a principle ensure that all human beings are accorded proper respect. Taylor argues

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that the politics of difference likewise contains the notion of universal potential at its basis;
however, in this instance, the concept refers specifically to the potential for establishing and
defining one’s distinct identity as an individual and as a culture. Similar to the politics of equal
dignity, such a capacity must be respected uniformly in all persons (41-42). Although it appears that
these two modes of politics possess areas of overlap and agreement, given that they are both rooted
in the notion of equal respect, Taylor contends that both systems possess elements that generate
opposition and conflict. First, it is understood that the principle of equal respect requires the
treatment of persons in a difference-blind manner. To command this respect, the politics of equal
dignity focuses on sameness, whereas the politics of difference encourages the recognition and
fostering of particularity. The reproach that the first model “makes to the second is that it violates
the principle of nondiscrimination” (43), while the reproach the second makes to the first is that it
invalidates identity by forcing individuals into a monolithic mold that does not reflect the true
nature of their being. It is claimed that the ostensibly neutral set of difference-blind principles
belonging to the politics of equal dignity in fact represents reflection of one dominant culture. As a
result, only the minority or oppressed identity groups are being compelled into a state of alienation.
Consequently, the apparently impartial and difference-blind society is not only cruel due to its
suppression of identities, but likewise, in a “subtle and unconscious way”, is itself highly
discriminatory (43).
Charles Taylor’s discussion of the modern preoccupation with recognition and identity is a
theory that lends itself applicable to the case concerning the Matter of the Marriage Commissioners
Appointed Under The Marriage Act, 1995. The redefinition of marriage seeks to recognize the
identity and rights of gays and lesbians; however, such recognition of sexual orientation diversity
conflicts with the views of marriage commissioners, who argue on the grounds of religious freedom
that they should be provided an exemption to their duty to perform a same-sex civil union. This

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presents a dual narrative of both recognition and accommodation which generates obvious tensions
between competing sets of identities: that of civil marriage commissioners who hold religious
convictions versus that of sexual orientation minorities who desire to exercise their right to be
married in a multicultural society. Taylor’s assertion that the concept of recognition is closely
linked to individual identity is exemplified by the dynamics that overshadow the legal case. It is
evident that the identity of a particular group is shaped by recognition or its absence. The marriage
commissioners’ refusal to officiate at same-sex unions represents an instance of misrecognition,
where the identity of gays and lesbians is treated in a demeaning and contemptible manner.
Providing civil servants the right to an exemption from the solemnization of same-sex marriage
ceremonies can prove to be harmful to homosexuals and can lead to further oppression of this
minority group. The refusal of public officials to preside over same-sex marriages constitutes a lack
of due respect to the homosexual identity and wrongfully prejudices lesbians and gays, effectively
withholding from them the benefits that are accorded their heterosexual counterparts.
Misrecognition can burden victims with a crippling sense of self-hatred and can therefore pose
deleterious consequences for society.
Taylor’s arguments concerning the notions of dignity and the ideal of authenticity can be
effectively connected to the controversy surrounding the commissioners’ refusal to officiate at
same-sex unions. Dignity is central to a person’s identity and overall state of being; this concept is
connected to the ideal of authenticity, which necessitates that individuals adhere to a sense of
truthfulness to themselves. It likewise demands that one be in contact with their inner nature and
that consequently, one should resist outward conformity. In a liberal democratic society, the ideal of
authenticity is espoused as a ultimate goal toward which one should strive. All individuals seek to
develop a sense of self that is unique and worthy of proper recognition. Gays and lesbians have
historically encountered numerous hardships and have continually fought with resistance for equal

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rights. Rather than relegating their identity into a closeted, hidden space, they have chosen to act in
accordance with the ideal of authenticity in their refusal to comply with conventional norms
associated with the construction of sexual orientation identity. The proposed amendments discussed
by Chief Justice Richards in his decision, if enacted, would enable marriage commissioners, on the
basis of religious belief, to obtain an exemption from their duty to solemnize same-sex marriages.
While ostensibly, this accommodation appears to support the right to freedom of religion, it does so
at the expense of the equality rights of gays and lesbians. As such, the enactment of either
amendment represents an affront to the human dignity of homosexual and demonstrates a lack of
due respect to their true identity. The misrecognition of sexual orientation minorities presents an
oppressive force that hinders the development of the ideal of authenticity, to the extent that the full
capacity and human potential of homosexuals is undermined and marginalized.
Taylor’s discussion of the politics of equal dignity and the politics of difference as two
distinct systems of thought can be brought into dialogue with the legal case concerning the use of
religious freedom to justify a marriage commissioner’s refusal to officiate at a same-sex marriage.
Taylor forms a comparison between the two modes of politics, where he asserts that the politics of
dignity advocates forms of nondiscrimination that remain blind to the ways in which citizens are at
variance, whereas the politics of difference often re-conceptualizes nondiscrimination as requiring
that distinctions are made on the basis of differential treatment (39). Ironically, although the politics
of difference ostensibly praises diversity of identity groups through its rejection of uniformity, the
practice of differential treatment ironically perpetuates discrimination. The acknowledgement of
difference has not had an entirely positive impact on the gay and lesbian community; while
homosexuals have been granted access to the institution of civil marriage, the expansion of this
legal category has proven to be problematic for marriage commissioners, who, on the grounds of
religious convictions, have declined the duty to solemnize same-sex marriages. Hence, the politics

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of difference, which seeks to highlight the distinctions between individual identity groups, may
ostensibly celebrate diversity; however, it do so at the expense of engendering further
discrimination through differential treatment.
Similarly, under the politics of equal dignity model, gays and lesbians experience additional
oppression. The principle of equal respect demands that persons are treated in a difference-blind
fashion; in effect, the politics of equal dignity focuses on the level of universal sameness in a given
society (43). Critics of this model contend that it invalidates identity by forcing individuals to live
within the confines of a homogenous mold that does not reflect their true nature. Their argument
rests on the claim that the apparently neutral set of difference-blind precepts of the politics of equal
dignity is in fact a reflection of one hegemonic culture. As a result, this compels minority groups to
take on the status of the alienated other. When applied to the case of the marriage commissioners’
refusal to officiate at same-sex unions, lesbian and gay couples that are seeking to exercise their
right to be married are relegated to the level of second-class citizens if they are denied the
performance of this service by a civil servant. In addition, a marriage commissioner’s rejection of a
same-sex couple implicitly suggests that they must conform with the dominant culture and mores of
society. Consequently, homosexuals become estranged and marginalized, which suggests that the
ostensibly impartial, difference-blind society is both inhuman and discriminatory (43).
Marriage commissioners are paid employees of the government who are hired to perform a
variety of services. Since these commissioners are civil servants, they operate as representatives of
the secular state. Bill C-38 allows for religious authorities the right to decline the performance of a
same-sex marriage; however, such an option should not extend to marriage commissioners, given
that their responsibilities are largely civic in nature and have no affiliation with religious traditions.
Marriage commissioners who refuse to solemnize same-sex unions should be asked to resign from
their positions as officers of the state. The right to freedom of religion should not be permitted to

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override the equality claims of gays and lesbians. Although religious freedom possesses a strong
degree of protection in Canadian society under s. 2(a) of the Charter, it should not operate as
pretence for unwarranted discrimination against homosexuals. The provision of access to the
institution of civil marriage for same-sex couples enables the full expression of sexual diversity in
Canadian society and likewise assists in fostering an environment free of stigmatization and
discrimination. The acknowledgment of an array of distinct identities within the realm of sexual
orientation is the force that overrides the attitude of religious intolerance towards minority groups; it
is precisely this recognition of sexual diversity that ultimately seeks to eradicate the dominant
paradigm of normative heterosexism.

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Bibliography
Berger, Benjamin L. “Law’s Religion : Rendering Culture.” (2007) 45 Osgoode Hall Law Journal
277.
Cere, Daniel. “Canadian Conjugal Mosaic: From Multiculturalism to Multi-Conjugalism?” In
Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries
of Civil Law and Religion. Ed. Joel A. Nichols. New York : Cambridge University Press,
2012. 284-308.
Esau, Alvin. “Living by Different Law: Legal Pluralism, Freedom of Religion, and Illiberal
Religious Groups.” In Law and Religious Pluralism in Canada. Ed. Richard Moon.
Vancouver, B.C.: UBC Press, 2008. 110-134.
In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, S.S. 1995, c.
M-4.1
MacDougall, Bruce. “Refusing to Officiate at Same-Sex Marriages.” (2006) 69 Saskatchewan Law
Review. 351-373.
MacDougall, Bruce and Donn Short. “Religion-Based Claims for Impinging on Queer Citizenship.”
(2010) 32 Dalhousie Law Journal. 133-160.
Minow, Martha. “Not Only For Myself - Identity, Politics, And Law.” (1996) 75 Oregon Law
Review. 647-698.
Moon, Richard. “Government Support for Religious Practice.” In Law and Religious Pluralism in
Canada. Ed. Richard Moon. Vancouver, B.C.: UBC Press, 2008. 217-238.
Ryder, Bruce. “The Canadian Conception of Equal Rights Citizenship.” In Law and Religious
Pluralism in Canada. Ed. Richard Moon. Vancouver, B.C.: UBC Press, 2008. 87-109.
Taylor, Charles. “The Politics of Recognition.” Multiculturalism: Examining The Politics of
Recognition. Princeton: Princeton University Press, 1992. 25-73.
Trotter, Geoffrey. “The Right to Decline Performance of Same-Sex Civil Marriages: The Duty to
Accommodate Public Servants—A Response to Professor Bruce MacDougall.” (2007) 70
Saskatchewan Law Review. 365-392.
Weisbrod, Carol. “Family, Church and State: An Essay on Constitutionalism and Religious
Authority. (1987-88) 26 Journal of Family Law. 741-770.