What Choice Does Religion Give You?

The Divisional Court of Ontario is being asked to decide whether a religious organization has the right to fire an employee who does not conform to its moral code. Christian Horizons runs a home for people with disabilities. Public funds are provided since this is a valuable service for the community. The organization has its employees sign an agreement when they start work that they will conform with specified moral rules, including that sex must happen only within a marriage between a man and a woman.

One employee signed the agreement in 1995 but about 2000 decided she was lesbian and entered a relationship with another woman. The organization fired her. The Ontario Human Rights Tribunal found that the firing violated her human rights. The organization has appealed.

According to the press story, Christian Horizons says it has only two choices: insist on its values among its employees, or stop providing the service to the community. (The Tribunal accepted that it could insist on its morals if it provided service only to members of the particular religious belief, or if its purpose was to give instruction in its religion – the reason why Catholic schools can fire teachers who divorce.)

The Divisional Court may find that there is in law at least a third choice: continue to believe what it will (the part about homosexuality being immoral), and continue to provide the public service as an expression of its beliefs (the part about ministering to the needy) but do not require employees providing a public service to conform to those beliefs.

Such a result – that promoted by the Tribunal – does not seem to me to be a violation of the separation of Church and state, as suggested by a commentator on the National Post blog. On the contrary, it is a consequence of the connection between the religious organization and the society around it (In any event Canada does not have a separation of Church and state; it has freedom of – and from, if desired – religion, as one value among several equally protected values.)

Is the organization in a stronger or weaker position than an individual asserting a right to conform with a religious principle against the policy of the place where they are? I think of marriage commissioners who refuse on religious principles to marry same-sex couples, a refusal that has been debated in Saskatchewan and England.

Likewise there is discussion whether medical personnel should have to participate in abortions in institutions that employ them. (It is not clear to me that any have been so compelled against their consciences, though some argue that they should be so compelled if the availability of the service depends on their participation.)

It seems to me that the individual cases are similar to the organizational case. A person has a right to believe that same sex marriage is wrong, and thus not to enter personally into a marriage with someone of the same sex. That person does not have the choice to dictate to his or her employer or to the public whether a service will be made available or not. The “third choice” is to do one’s work or leave the job.

I can see an argument that the woman working for Christian Horizons would have been better to resign when she discovered her sexual orientation was inconsistent with the agreement she had made (in good faith at the time, so far as one can tell). However, I think the Tribunal was right in saying she did not have to do so.

Freedom of expression is in my view a different case: thus the Alberta Court of Queen’s Bench got it right when it decided that a former pastor could speak publicly against homosexuality, short of inciting violence. He was not directly discriminating against them in offering a public service.

A letter to the Globe complained that this decision would not have been made if the pastor had been railing against some other protected group, such as people of another religion, or of another race. Certainly homosexuality is still a flash point, because a lot of people believe it is immoral. It is not immoral to be a particular race, or to have a particular disability, or to be in one of the other protected classes. Also, the social consensus on the other groups is just a whole lot wider. That’s our context. The question is whether we can assert principles that work well in the face of the debate.

As for being in a different religious group, common-law countries’ legal systems (and others’, of course) have a historical memory of internal religious war (mainly in Tudor and Stuart times) that has led (very slowly) to official tolerance. But consider the marriage commissioner who refuses to marry a couple because one of them is divorced, or because they are of different religions. Either case may violate the commissioner’s personal religious beliefs, but few people would find a refusal justified. The social consensus has moved on beyond those distinctions.

No doubt there are somewhere people who believe that a mixed-race marriage is immoral. Would the holder of such a belief ever be excused from performing a marriage? I would be shocked to think so.

Human rights law requires religious people to have a third choice, despite Christian Horizons’ argument. They don’t have to exercise it, but it is a choice. The courts should not be swayed by the suggestion that they do not have it.

Whether individuals have a choice in their religious beliefs is a harder question. People change their beliefs, convert, stop believing, start believing – so religion is not immutable, as is race or sex (short of radical measures) or national origin. But the law is right not to make people change because their belief requires reasonable accommodation by others. It is also right to draw the line at public services. Knowing what services are ‘public’ for this purpose raises definitional questions beyond the scope of this note.