A former Manitoba marriage commissioner who argued the courts were creating a "hierarchy of rights" by requiring him to perform same-sex civil unions or turn in his licence has lost his appeal in Manitoba's top court.
The Court of Appeal dismissed a court challenge earlier this month from Kevin Kisilowsky, a Stonewall Christian missionary evangelist who wanted to perform opposite sex, Christian marriages only and argued a requirement to do otherwise infringed upon his religious freedoms guaranteed under the Canadian Charter of Rights and Freedoms.
In November 2016, he lost his bid to have Manitoba's Court of Queen's Bench declare that his religious freedoms were violated by Manitoba's requirement that all civil marriage commissioners agree to perform same-sex marriages. On Feb. 12, the Appeal Court also ruled against him.
Both levels of court considered that Kisilowsky can still perform civil marriage ceremonies by getting a temporary licence, which he has done, or he could become an ordained minister or establish his own religious denomination so that he could perform religious marriage ceremonies, which would give him the ability to select, based on his religious beliefs, the couples he would marry.
But as a licenced civil marriage commissioner for the province, he was bound to follow anti-discrimination laws, Court of Queen's Bench Justice Karen Simonsen ruled in her 2016 decision.
Simonsen's analysis of the case "clearly indicates that a balancing of rights occurred, as opposed to the creation of a hierarchy," Court of Appeal Justice Diana Cameron wrote in the Feb. 12 decision.
"The fundamental issue in this case concerns the applicant's ability to exercise his section 2(a) (charter) rights by solemnizing marriages for persons of his choice. He continues to be able to do that," Cameron wrote.
Kisilowsky, who previously told the court he ministers to outlaw motorcycle gang members, inner-city youth, street people, prison inmates and people who shy away from organized religion, got his licence to perform civil marriages in 2003. At the time, he was placed on a private list of marriage commissioners whose names weren't shared publicly. That private list no longer exists.
On Sept. 16, 2004, the province changed its definition of marriage from a union between a man and a woman to "the union of two persons, to the exclusion of all others," based on a Manitoba court ruling.
That same day, the provincial Vital Statistics branch sent all marriage commissioners a letter notifying them of the change to the law, saying they acted on behalf of the province and were expected to comply with the new definition.
"In the event you are opposed to performing marriages for same-sex couples, please return your certificate of registration to solemnize marriages so we may cancel your registration," the letter stated.
Kisilowsky refused to turn in his licence, and it was revoked when he tried to renew it in 2005.
He launched a human rights complaint, but it was eventually dismissed due to insufficient evidence. He filed this charter challenge in Court of Queen’s Bench in 2014, arguing his licence should be reinstated, and he should be allowed to choose which couples he will marry. He took the challenge to the Court of Appeal after it was dismissed in 2016.
Katie May reports on courts, crime and justice for the Free Press.