The church has been less than forthright with the implications of publicly recognizing same sex marriage, using "...no congregation or minister can be forced to officiate at a same-sex marriage unwillingly" more as an opiate to secure acquiescence without substantive defense for voices of dissent.
Legally the issue is not "discrimination" as any refusal is discrimination, but "whether discrimination by refusal of same sex marriage solely because of gender [sexual orientation] within a religious body which publicly declares recognition of same sex marriage is arbitrary".
The recent Supreme Court of Canada decision Syndicat Northcrest v. Amselem
[2004] 2 S.C.R. 551
http://www.lexum.umontreal.ca/csc-scc/en/pub/2004/vol2/html/2004scr2_0551.html
definition of religious belief as specific to the individual not the
religious body, "freedom of religion...does not require a person to
prove that his or her religious practices are supported by any mandatory
doctrine of faith", offers individuals defense for refusal which is
not arbitrary within a religious body which publicly recognizes same sex
marriage.
Also of interest is the statement "it is not within the expertise and purview of secular courts to adjudicate questions of religious doctrine".
The situation for congregations varies with the specific human rights
legislation of different jurisdictions
http://www.cdp-hrc.uottawa.ca/links/sitescan_e.html
Canadian Charter
of Rights and Freedoms
Canadian Human
Rights Act
Alberta Human
Rights, Citizenship and Multiculturalism Act
BC Human Rights
Code
Manitoba
Human Rights Code
New Brunswick Human
Rights Act
Newfoundland
Human Rights Code
Northwest
Territories Human Rights Act
Nova
Scotia Human Rights Act
Nunavut
Human Rights Act
Ontario
Human Rights Code
Prince Edward
Island Human Rights Act
Québec
Charter of Human Rights and Freedoms
Saskatchewan
Human Rights Code
Yukon Human
Rights Code
Quebec [the only jurisdiction which provides "...no priest or other
minister of religion may, even in judicial proceedings, disclose confidential
information revealed to him by reason of his position or profession, unless
he is authorized to do so by the person who confided such information to
him or by an express provision of law"] verbally permits refusal of
same sex marriage only where the religious body permits congregations to
refuse
http://www.cdpdj.qc.ca/en/commun/docs/charter.pdf
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, color, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Ontario permits only the person registered under section 20 of the Marriage
Act to refuse
http://192.75.156.68/DBLaws/Statutes/English/90h19_e.htm
Solemnization of marriage by religious officials
18.1 (1) The rights
under Part I to equal treatment with respect to services and facilities
are not infringed where a person registered under section 20 of the Marriage
Act refuses to solemnize a marriage, to allow a sacred place to be
used for solemnizing a marriage or for an event related to the solemnization
of a marriage, or to otherwise assist in the solemnization of a marriage,
if to solemnize the marriage, allow the sacred place to be used or otherwise
assist would be contrary to,
(a)
the person’s religious beliefs; or
(b)
the doctrines, rites, usages or customs of the religious body to which
the person belongs
the "doctrines, rites, usages or customs" referenced are those of the religious body, not of the congregation which has no separate status; and the province verbally interprets
refusal to permit use of a sacred place by a recognized person registered
under section 20 of the Marriage Act with inconsistent religious
beliefs to those within the congregation, within a religious body that
publicly recognizes both same sex marriage and the right of congregations
to refuse, is possible discrimination; and
refusal to issue call to ministry personnel based on sexual practice is
employment discrimination only where policy of the religious body forbids
such discrimination.
Alberta interprets marriage as "with a person of the opposite sex".
Other jurisdictions have no provisions for refusal of same sex marriage other than "bona fide qualification" or "reasonable cause".
The Canadian Charter of Rights and Freedoms
http://laws.justice.gc.ca/en/charter/index.html
protects individuals not private bodies such as congregations, making
wording of the refusal critical
draft wording being considered
uses "Elders" not "Session" as the term references
the individual not a private body
"representative of" is expressed in bylaw 135
the wording of the basis is "Pastoral Charge" though the bylaws
recognize "There shall be a Session for the Pastoral Charge. Where
the Pastoral Charge consists of more than one (1) Congregation, there may
be a Session for each Congregation, in which case these Sessions shall
jointly constitute the Session for the Pastoral Charge." [bylaw 140]
"individually and severally" to meet both Charter and
United Church of Canada requirements
"inconsistent with our religious belief" per Charter article
2. (a) "freedom of conscience and religion"
"and not the subject for..." expresses what within the context
of section 18.1 of the Ontario Human Rights Code without being derogatory
We, the Elders representative of _______________ Church, _______________,
Ontario, in exercise of our responsibility for
"oversight of the spiritual interests of the Pastoral Charge"
[basis 5.8.4]; and
"the order of public worship, including the service of praise and
the use of the church edifice" [basis 5.10.1(5)];
do individually and severally find same sex marriage inconsistent with
our religious belief and not the subject for authorization of marriage
by a person registered under section 20 of the Marriage Act or use
of the church edifice for an event related to a same sex marriage within
this congregation.