In this issue:
Freedom of religion; accommodation, service or facility customarily available to the public; discrimination on the basis of sexual orientation; bona fide reasonable justification; undue hardship; human rights codes; Charter of Rights and Freedoms; balancing of rights; granting a preference; human rights remedies.
The complainants, Tracey Smith and Deborah Chymyshyn (the "Complainants"), rented a hall operated and maintained by the Knights of Columbus (the "Knights") for a reception to follow their same-sex marriage. The Knights agreed to rent the hall without knowing that the rental would involve a same-sex wedding reception. Upon learning of the intended purpose, the Knights cancelled the rental contract and refused to rent the hall to the Complainants.
The Knights are a Catholic men's organization that has existed since 1882. Its purposes are to provide mutual material support to Catholic men and their families and to promote the teachings of the Catholic Church. The hall was on land owned by the Archdiocese of Vancouver, on which also stands the Lady of Assumption Catholic Church. Beside the hall is a Catholic School. The Knights granted priority to Catholic groups to rent the hall, but also rented broadly to community groups. There was a sign on the hall indicating that it was available for rent.
Following the cancellation of the rental contract, the Complainants demanded payment of $594.59, representing the costs of their wedding invitations and postage and the cost of renting another hall. The Knights agreed to pay this amount but asked for a standard form release to be signed. The parties never reached agreement on the payment or the release.
The Complainants filed a human rights complaint against the Knights and two representatives of the Knights, claiming they were discriminated against on the basis of their sexual orientation. The Knights conceded prima facie discrimination, but argued that they had a bona fide and reasonably justifiable reason for refusing the rental, based on their constitutional right of freedom of conscience and religion. The Knights also argued that section 41 of the B.C. Human Rights Code (the "Code") precluded the complaint.
When is a religious person or organization protected against having to participate in a same-sex marriage when his or its religious beliefs oppose such a union? What is the scope of the protection afforded by section 2(a) and the benefits against discrimination afforded to religious groups by section 15 of the Charter of Rights and Freedoms? To what extent can a court or human rights tribunal inquire into the religious beliefs of the person or organization? Should religious organizations be held to a standard of perfection when operating within their religious beliefs?
The Tribunal panel, comprised of Heather McNaughton, Tonie Beharrell and Judy Parrack, decided and declared that the Knights and one of its representatives discriminated against the Complainants on the basis of sexual orientation contrary to section 8 of the Code. The Tribunal ordered that they pay the Complainants $444.59 as compensation for lost and excess marriage costs plus $1,000 to each of them for injury to their dignity, feelings and self-respect.
The Tribunal recognized that, although the Knights were never asked to participate in the solemnization of the marriage, renting the hall for celebration of the marriage would have required them to indirectly condone the celebration of a same-sex marriage. The Tribunal held that renting the hall to the Complainants for that purpose would be contrary to the Knights' core religious beliefs. The Tribunal concluded that a person cannot be compelled by the Code to act in a manner that is in conflict with a core religious belief. As such, the Knights were justified in refusing the rental.
The Tribunal crafted the remedy referred to above based on its conclusion that while the Knights need not have rented the hall to the Complainants, they were required to accommodate the Complainants to the point of undue hardship. The Tribunal held that the Knights should have taken other steps, such as meeting with the Complainants to explain the situation, formally apologizing, immediately offering to reimburse them for any expenses and perhaps offering assistance to find another location or solution.
The Tribunal's decision raises challenging questions about how far religious organizations and individuals will be forced to conform to a newly created "societal norm" that recognizes same-sex marriage despite religious beliefs to the contrary. From a legal and practical perspective, it helps to answer the question of how to balance the competing rights of individuals and gives an indication as to the approach tribunals and courts will take to deal with this delicate balancing. The decision was not made by a Court, but by a human rights tribunal and it is not usual to focus much attention on the decisions of such administrative tribunals. However, same-sex marriage is an important topic in current Canadian society and a critical analysis of the reasoning is both timely and important. This is particularly so given the apparent contradiction between the Tribunal's decision that the Knights were not required to rent the hall to the Complainants and its ruling that there was discrimination for which the Complainants should be compensated.
The Tribunal had no difficulty in finding that the Knights and its representative who made the decision not to rent the hall had committed prima facie discrimination against the Complainants. (The Tribunal held that the person who communicated the decision to the Complainants, but who did not participate in its making, had not contravened the Code.) Indeed, this prima facie discrimination was conceded by the Knights. It was not contestable that the Complainants had been denied a service customarily available to the public for which they had suffered injury to their human dignity, viewed both subjectively and objectively.
The next question that the Tribunal had to address was whether the Knights had a bona fide and reasonable justification for its discriminatory conduct. In considering this issue, the Tribunal was guided by prior Supreme Court of Canada decisions setting out a three-part test, driven by the "standard" or rule adopted by the Knights in refusing the rental. The Tribunal accepted that the Knights adopted a standard of not renting the hall for purposes that are contrary to their core religious beliefs. This standard was not articulated prior to the Complainants' interaction with the Knights, but that does not preclude the satisfaction of the test. The Tribunal reasoned that the Knights satisfied the three-part test as follows:
1.Did the Knights adopt the standard for a purpose or goal that was rationally connected to the function being performed?
The Tribunal accepted that a sincerely held core religious belief of the Catholic Church is that marriage is a union between a man and a woman, to the exclusion of all others. It further accepted that if other individuals or groups within the Catholic community became aware of a same-sex celebration at the hall, they might have seen the Knights, and this particular Parish Church, as providing tacit support for an event that the Catholic Church opposes. This would undermine the Knights relationship with the Catholic Church. The maintenance of a relationship between the Knights and the Catholic Church was part of the function of renting the hall to public groups. As such, the requisite rational connection between the standard and the function of renting the hall was established.
2. Did the Knights adopt the standard in good faith and in the belief that it was necessary for the fulfillment of its purpose or goal?
The Tribunal had no difficulty finding that the standard was adopted honestly and in good faith.
3. Was the standard reasonably necessary to accomplish the purpose or goal in the sense that the Knights could not have accommodated the Complainants without incurring undue hardship?
This is where the Tribunal engaged in the balancing of the Charter right of freedom of religion and the equality and non-discrimination rights of the Complainants. The Tribunal accepted that section 2(a) of the Charter protects against orders compelling citizens to act in a manner contradicting their core conscientious or religious beliefs. The Tribunal took pains to explain, based on prior judicial decisions, that it is core religious beliefs that attract the greatest protection, since the further a religious belief is from the core elements of that faith, the easier it will be to override the Charter protection.
The Tribunal accepted that the Knights could not permit a same-sex wedding reception at the hall without providing its religious space to be used for an activity contrary to its core religious beliefs. That having been said, the Tribunal added that some hardship on the part of the Knights is justifiable and that the Knights had the obligation to consider if some accommodation of the Complainants was possible. The Knights had to consider the effect their decision would have on the Complainants' right to access a public service. This is how that Tribunal was led to conclude that, despite the justifiable refusal to rent the hall, the Knights ought to have taken steps to alleviate the harm to the Complainants' dignity and their hurt feelings.
The Tribunal also considered whether section 41 of the Code, which permits charitable and religious organizations, inter alia, that have as a primary purpose the promotion of the interests of an identifiable group characterized by religion, to make preferences towards members of that group without contravening the Code. The Tribunal held that since the Knights regularly rented the hall to many community groups, the Knights were not granting a preference to Catholics and could not take advantage of this protection.
As with other cases in recent Canadian jurisprudence, the core of the analysis is in the balancing of competing rights. The rights contesting for dominance are once again freedom of religion and equality or non-discrimination on the basis of sexual orientation. The increased importance of homosexual rights in our national dialogue continues to bring these issues to the fore. This requires courts and tribunals to adjudicate between the claims of homosexuals asking to be accorded a level of respect and inclusion in society and the claims of religious individuals and groups asking to be protected against, and immunized from, a changing societal norm that directly contradicts their religious precepts. How this "balancing" is occurring, however, raises serious grounds for concern.
Same-sex marriage has, in many ways, heightened the level of dispute. This is in part because the collateral fall-out of the state's reconstruction of marriage was not fully debated or considered before the change was made. This case is the first of many that will likely arise in which same-sex marriage presents new and difficult challenges to those citizens (some of them religious people) who wish to continue to enjoy a full public role in the civic affairs of the country and engage in the commercial marketplace, unimpeded by homosexuals wishing to marry one another and obtain recognition and access from those opposed to their beliefs.
The federal Parliament and provincial legislatures could assist greatly in this balancing by providing generalized and explicit protection to religious individuals and organizations that object to same-sex marriage for conscience or religious reasons. The federal government has already established a precedent for such protections. In the course of introducing Bill C-38, dealing with "same-sex marriage", the federal government added specific protections for religiously based charities and recognized in, the recitals to that legislation, that Canada is a country that tolerates a variety of viewpoints on the nature of marriage. These were positive additions but they do not go far enough.
New Brunswick has amended its Marriage Act to protect those who refuse to solemnize a same-sex marriage. The Supreme Court of Canada in the Marriage Reference has held that religious officials should not be pressured into performing same-sex marriages. Yet, at the same time, there is concern that, in some provinces, marriage commissioners, for example, can be required by a province to solemnize same-sex marriages despite personal conscience and religious beliefs to the contrary. The law in this area is a patchwork that needs clarification both on the federal and provincial level. It would be a good development if provincial legislatures, in particular, would fully analyze the impact of same-sex marriage on religious groups. and legislate appropriate protection. Unless and until that happens, courts and tribunals will have to use the limited tools at their disposal to conduct this balancing. The results, like the outcome in this case, may be very confusing and insufficiently attentive to the real nature of a civil society in which people of differing beliefs have to co-exist in a real world of civilized disagreement on matters about which people may hold strong opinions and have the right to disagree.
1. How does Society Weight the Importance of Religious Belief?
Courts and tribunals usually commence their balancing analysis by weighing the importance of protecting the right of freedom of religion. They do not commence with a meaningful consideration of what weight ought to be given to the right of equality or freedom from discrimination, other than to state that no right is absolute. This analytical structure places religion at a disadvantage and fails to examine the whole nature of equality itself. It permits the protection of religious belief or practice to be undermined before the "competing" right is properly considered. If there is to be a true "balancing", both rights and / or claims should be given equal consideration. This is particularly the case because "religion" is one of the protected categories within the equality provision (Section 15) itself. Continued failure to recognize the inclusion of religion as an equality right is a bizarre aspect of Canadian legal analysis.
In this case, the weighing of freedom of religion is made on the basis of whether the infringement that would necessarily occur by ordering the Knights to rent the hall for a celebration of same-sex marriage would interfere with a "core" religious belief. This required the Tribunal to engage in an investigation of the importance of the specific beliefs involving marriage and homosexuality to the overall faith or creed.
The Supreme Court of Canada has, on numerous occasions, highlighted the problems associated with judicial consideration of the validity of religious doctrine. In Syndicat Northcrest v. Amselem (2004), the Supreme Court reiterated that those seeking to invoke freedom of religion do not need to prove the objective validity of their beliefs and, in fact, it is inappropriate for a court to make such an inquiry. The reason for that should be clear: the state has no business adjudicating between competing religious faiths or attempting to determine which is more valid than any other. To permit such an inquiry would allow or require the state to place its imprimatur on some religious beliefs at the expense of others or to specifically censure or criticize specific religious beliefs. This would fundamentally undermine the very nature of religious liberty as an individual right, restricting each person's ability to believe as he or she wishes.
An assessment based on whether a certain belief is "core" to an overall religious creed requires a court or tribunal to assess and weigh not only competing constitutional and human rights claims, but also the very beliefs on which the claim to religious freedom is based. In Syndicat Northcrest, the Supreme Court accepted that it is not the mandatory or perceived-as-mandatory nature of a religious observance that attracts protection. It is the religious or spiritual essence of that observance that attracts protection. By logical extension, it is not whether a belief is at the "core" a religious creed that determines whether it should be protected; it is whether the belief is spiritual or religious in nature.
The Tribunal's reasoning requires it to assess what is at the "core" of Catholic religious belief. In doing so, it involved itself in an assessment of Catholicism. The same thing was done by the Ontario court in determining whether Catholic school pupil Marc Hall should have been able to bring his homosexual boyfriend to the prom. The Court in that case, contrary to the evidence provided by Catholic clergy, determined that precluding a homosexual date from the prom was not required by Catholic teaching. (See: LexView 52.0.) Here, the Tribunal asks itself, and then answers, whether beliefs about the solemnization and celebration of a homosexual relationship are important or "core" to Catholic teaching. As it turns out, the Tribunal accepted that this teaching is a "core" religious belief. The problem is not the conclusion reached by the Tribunal on this issue, but the legitimacy of it engaging the question in the first place.
The Knights' belief was first analyzed to determine how worthy it was of protection. If the Tribunal had concluded that the religious belief was not "core" to Catholicism, it would not have been protected. This would have led to an order compelling the rental and therefore a violation of the religious sanctity of the hall and the Knights' mission. No one can properly define the importance of any precept of a religious faith other than the adherents of that faith. By first defining such importance, Tribunals and courts permit a solid foundation for a claim of unjustified discrimination to be laid on top of freedom of religion.
The harm in the analysis conducted by the Tribunal exists in the risk of forcing persons to act against their religious convictions because someone who does not share that belief concludes that it is not essential.
A superior approach would be for the court or tribunal to question only the sincerity of a religious belief and, assuming that the belief is sincerely held, proceed to weigh the importance of the claims of those wishing to override that belief. At that stage, there would be a proper balancing of the importance of maintaining the ability of one citizen to maintain a religious belief or practice against the importance of undermining it to achieve the commercial objects of another citizen.
Religious groups should object to analyses that are disproportionate by permitting the importance of only one competing rights claim to be assessed. In a case of competing rights, the importance of the Complainants' need to rent that specific hall should be equally considered against the freedom of conscience and religion. Otherwise, a tribunal's misperception of the importance of one religious precept could compel the Knights to violate their religion for dubious benefit to either the Complainants or society as a whole. The same error occurred, interestingly, in the case of the Toronto printer Scott Brockie. There no attention was paid to the real world in which Mr. Brockie alone, as the religious believer, had his religious beliefs weighed against an organization that could and did easily obtain services from other printers who did not share Mr. Brockie's religious scruples about printing materials from a gay and lesbian group. It was the same adjudicator who heard the Knights case and the Brockie case (see: LexView 38.0; overturned, in part, by the Ontario Divisional Court, see LexView 51.0). One hopes for a better analytical framework in similar future cases. On the positive front, various errors in the Brockie decision were not repeated in the same manner in the Knights decision.
The question of whether the Knights had accommodated the Complainants to the point of undue hardship should have taken into account and weighed the contextual benefit to the Complainants of having their celebration in the Knights' hall. As it was, the Tribunal's analysis placed the Knights' freedom of religion on a precipice, the fate of which was defined solely by the Tribunal's perception of the importance of Catholicism's objection to homosexual marriage to the Catholic Church. Only the Catholic Church can, or should be required, to answer such a question and the ease or difficulty of finding alternative venues should form a greater part of the analysis in a case such as this.
2. The Remedy: What is Undue Hardship When it Involves the Violation of a Person's Religious Beliefs?
A peculiar aspect of the decision is the lack of logic that exists once the Tribunal found that the Knights were justified in refusing to rent the hall and its order that there was discrimination for which the Complainants should be financially compensated. This arises out of the Tribunal's acceptance that the Knights owed an overriding obligation to the Complainants, despite their demand that the Knights ignore their own religious beliefs. This is to hold citizens to a utopian standard of conduct not one that makes no sense in the real world.
Once again, this can be analytically traced to an improper assessment of the positions of the two parties engaged in an intended commercial relationship. Human rights legislation imposes obligations on commercial actors (among others) not to discriminate against those requesting employment, services and accommodation (inter alia). There is no corresponding obligation placed on the Complainant to avoid interfering with the rights and freedoms of those from whom they seek employment, services or accommodation. This structure presumes that the person requesting the rental, in this case, is in an inferior commercial bargaining position to the Knights who were offering the rental service. In some situations, that presumption may be appropriate. In others, it is not.
Human rights legislation unfortunately does not permit an analysis of whether there is a truly disproportionate commercial bargaining position. In the result, those seeking societal acceptance of a controversial belief or practice are not differentiated from those who are unable to obtain a service or accommodation in the marketplace. This can lead to the peculiar situation where the person making the complaint has greater commercial power and, in addition, can use the leverage of a human rights complaint to attempt to undermine a private religious belief or practice with which they disagree. This was the case in the Brockie case (above) and is the case here as well.
This is where the constitutional protections afforded by the Charter enter the analysis. Human rights legislation does permit those subject to it to avoid their prima facie obligations if they can establish that they have a bona fide and reasonable justification for refusing the service or accommodation. The Charter limits the actions of government and therefore is an important tool in the interpretation of legislation. (Conversely, human rights legislation is directed only to the regulation of commercial and other relationships.) The ability of a person or organization to meet the test for a bona fide and reasonable justification now clearly envelopes the right of a person to the protections given by section 2(a) and section 15 of the Charter, which provides freedom of conscience and religion. That is, the restrictions placed on a person's freedom arising out of human rights regulation are limited by the constitutional constraints on the government to interfere with religious belief and practice.
This is not to say that the protections granted by the Charter cannot be circumvented by provincial legislation. They can, provided that the appropriate test is met. This is when the balancing occurs and the stage of the analysis at which the Tribunal examined whether the beliefs at issue were at the "core" of Catholicism.
Quite correctly, the Tribunal concluded that the Knights were not obligated to rent the hall to the Complainants for the celebration of their same-sex wedding. Put another way, the Tribunal concluded that the Knights were entitled to discriminate on the basis of sexual orientation because the Code could not properly be read to infringe on their freedom of religion in these circumstances. How then could the Tribunal find a requirement for additional accommodation and therefore find discrimination contrary to the Code?
In order to get this result, the Tribunal had to twist the intention of the Code. The Code precludes the Knights denying the Complainants an accommodation, service or facility customarily available to the public without a bona fide and reasonable justification. Such a justification cannot be made out if the Knights could somehow accommodate the rental request and therefore not deny the accommodation, service or facility. The Tribunal accepted that the Knights were required, by their religious precepts, to deny the rental. As such, and by definition, there was a bona fide and reasonable justification.
There is simply no obligation in the Code that mandates how such denial can or cannot be made. The Tribunal's finding of discrimination is based on harm to dignity arising out of the manner in which the denial of a service was made, not the denial itself. It is a flawed concept of accommodation to find that a denial of a service is justified, but the manner in which the denial is made gives rise to discrimination. In effect, the Tribunal found that the Knights could have taken additional steps to make the Complainants feel better about the denial of a service that was mandated by religious belief. This is, surely, beyond the scope of a proper approach to human rights.
In doing so, the Tribunal went beyond its power to determine if there was a breach of the Code. The Tribunal judged whether it would have acted on the Knights' protected religious belief in a different manner. On this analysis, a religious group may be permitted protection, but its conduct can still lead to an order that it compensate those to whom it justifiably denied a service. In effect, the Knights were still penalized for abiding by their religious doctrine, despite being justified in so doing.
Under this conception of a duty to accommodate, a religious group will never know whether it has been polite enough or bent over far enough to assist someone that is challenging its ability to maintain its religious mission. Once the Tribunal concluded that the Knights were justified in the denial of the rental service, its analysis was complete. There then ought to have been a decision solely in favour of the Knights and an order that the complaint be dismissed. The way in which the case was resolved results in the Knights being punished for maintaining the purity and sanctity of their religious beliefs.
Dictating the manner in which religious groups can deny providing services that would offend their conscience places unnecessary and offensive constraints around religious belief and practice. By distorting the analysis to provide a financial remedy for the Complainants, the tribunal undermines the religious liberty it purported to acknowledge and protect. A robust protection of religious freedom requires a more precise and purposive approach that recognizes that true freedom precludes a state imposed burden or cost. The Knights deserved to have their liberty recognized in a way that protected them from any penalty and none should have been awarded in this decision. The Tribunal committed an error in awarding one.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, editing and writing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.
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LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.
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