Jennifer Graham, THE CANADIAN PRESS

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REGINA - The Saskatchewan government wants the province's highest court to weigh in on proposed legislation that would allow marriage commissioners to not perform same-sex marriages if it is contrary to their religious beliefs.

Justice Minister Don Morgan said Friday that the government is referring legislative options to the Court of Appeal for its opinion on whether the proposals meet the requirements of the Charter of Rights.

"We've given the Court of Appeal two suggested options: one that we grandfather the existing marriage commissioners that are reluctant or refusing to perform a same-sex marriage, and the other one would be to create a religious exemption for those and for future marriage commissioners," he said.

"It would require us to have two pools of marriage commissioners. One that would be willing to perform the same-sex marriage and one that would not."

Whether officials can refuse to marry same-sex couples is the subject of a lawsuit and a complaint before the Saskatchewan Human Rights Tribunal - both of which are being heard by Saskatchewan Court of Queen's Bench.

The complaint arose in 2005 when marriage commissioner Orville Nichols, a devout Baptist, told a gay couple he wouldn't marry them because it went against his religious beliefs.

In 2007, the case went before the tribunal, and in May 2008 it ruled that Nichols discriminated against the couple whom he refused to marry. It found that Nichols was acting as a public servant when he performed marriages and so was obligated to marry them.

Nichols, who has been a marriage commissioner since 1983, was fined $2,500. He has asked the Court of Queen's Bench to reverse the decision.

Two other marriage commissioners, Bruce Goertzen of Prince Albert and Larry Bjerland of Rose Valley, are suing the Saskatchewan government, arguing that they should be exempt from the legislation.

Their lawyer, Philip Fourie, said Friday that he's pleased the government has referred the issue to the Appeal Court and hopes changes can be made to "tolerate both viewpoints."

"In this particular instance it is not about same-sex couples versus marriage commissioners," Fourie said in an interview with The Canadian Press.

"It is about accommodating both bodies. It's not an us versus them scenario. It's accommodating the same-sex couple by saying, 'We're not taking your right away to get married. You can still get married on the time, date and place you want to get married.' That right is not being infringed in any way."

"On the other hand, we're also accommodating the marriage commissioners and saying that, 'If you have a strong religious belief about same-sex marriage, we can accommodate you.' "

Fourie said most provinces allow exemptions for marriage commissioners on the basis of religious beliefs. He said Manitoba and Newfoundland and Labrador do not, but that it would not be an undue hardship for Saskatchewan to make the change for its 300 marriage commissioners.

Morgan said the only other province that has legislated an exemption is Prince Edward Island and that other provinces are doing it on an informal basis.

But those in the gay community said Friday that there are bigger issues at play.

"In this particular case what we're talking about isn't really a gay rights issue at all. It's a question about the right of government officials to refuse to uphold the law," said Nathan Seckinger, executive director of The GBLUR Centre for Sexuality and Gender Diversity in Regina.

"If you talk about it like it's a gay rights issue, then people will get the impression that this is something that only affects a small minority of Canadians. In fact, this is something that should be a concern to everybody because what's being asked for here is the right of government officials to defer their (services)."

"That's a problem."

The onus would be on the province to ensure that there are enough commissioners available willing to perform same-sex marriages. But at this point, Morgan said there appears to be very few that would claim the religious exemption if the Court of Appeal gives the go-ahead.

Morgan said the court could take up to a year to return with a decision.

"We have a duty as a province to accommodate to the best of our ability the religious views that are held by the marriage commissioners. We also have a duty to accommodate the same-sex couple by ensuring that they have full and appropriate services to obtain a marriage commissioner without having to go through a process where they're grilled or cross-examined," he said.

"We think that this legislation will be able to protect both sets of rights. We think it's a reasonable compromise."