Chapter ten: Freedom of Religion and Non-Discrimination

En español

Given that some religious teachings declare that same-sex sexual conduct is immoral, and some religions condemn not only same-sex sexual activity but also LGBT individuals, conflicts between the right to freedom from discrimination and the right to manifest one’s religion are inevitable.

The work of activists who campaign for LGBT equality is frequently presented as a direct threat to religious values and institutions.^[1] As this Casebook demonstrates, however, their right to demand freedom from discrimination based on sexual orientation or gender identity is protected by international human rights law and by many domestic legal systems. At the same time, international law protects the right to freedom of religion, conscience, and belief. Article 18(1) of the ICCPR affirms that the right to freedom of thought, conscience or religion includes a person’s “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”. Under Article 18(3), the freedom to “manifest one’s religion” may only be subject to limitations that are prescribed by law and “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. A similar right is found in regional human rights treaties and many constitutions.^[2]

Given that some religious teachings declare that same-sex sexual conduct is immoral, and some religions condemn not only same-sex sexual activity but also LGBT individuals, conflicts between the right to freedom from discrimination and the right to manifest one’s religion are inevitable. Some religious individuals and organisations argue that compliance with non-discrimination norms limits their right to freedom of religion;^[3] Some commentators claim that removing religion from the public sphere “closets” religious identity.^[4] Courts are often expected to balance the tension between the two sets of rights. The cases this chapter examines these tensions – in education, employment, medical care, partnership and marriage – and in so doing demonstrate the diversity of circumstances in which the principle of non-discrimination is relevant.

Religiously motivated disapproval of homosexuality may be manifested publicly or privately, by an individual, by religious institutions and private businesses, or by State employees. In two of the cases included here, the conflict was generated by the restrictions that religious institutions imposed on individuals who asserted a gay identity. Hall v. Powers, decided by the Ontario Supreme Court in 2002, concerned a student at a private Catholic high school who wished to bring his boyfriend as his date to the school prom. His request was denied by the school authorities, on the grounds that authorisation would endorse a “homosexual lifestyle” of which they disapproved for religious reasons. The student sought an injunction to restrain the defendants from implementing this decision. In an earlier Supreme Court case, Trinity Western University [TWU] v. British Columbia [BC] College of Teachers, a teachers’ college had successfully argued that it would not be in violation of the non-discrimination provisions of the Canadian Charter if it required students to sign a code of conduct that condemned homosexuality.^[5] The Court considered the issue was one belief and not conduct, stating: “[t]he freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of BC, the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. Acting on those beliefs, however, is a different matter.”^[6]

In Hall v. Powers, however, the Court reasoned that the prom was a social event, not integral to the religious education provided by the school. Granting the injunction would have no impact on teaching in the school or on the beliefs of the Catholic Church, and therefore would not impair the defendants’ freedom of religion. Failure to grant the injunction, on the other hand, would harm the plaintiff by excluding him from an important school social event. The balance thus tipped in favour of the plaintiff and the Court granted the injunction.

The Equality Court of South Africa employed similar reasoning in Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park (2008). The church had terminated the employment contract of a music teacher when it learned that he was engaged to marry another man. It argued that, under Section 15 of the Constitution, its right to freedom of religion exempted it from compliance with laws covering discrimination in employment. The employment discrimination statute and Section 9 of the Constitution both listed sexual orientation as a protected class. The Court engaged in a balancing test. It began by distinguishing between the right to hold religious ideas “hostile to homosexual relationships”, which was protected under the Constitution, and the right to apply those beliefs in employment practices, which was not. It then asked whether compliance with the non-discrimination requirement was an excessive burden on the constitutional right to freedom of religion. The Court held that high-ranking church officials and ministers who were directly responsible for educational content could be required to conform to church standards concerning same-sex sexual relationships. The church was not required to hire ministers who violated its own precepts on homosexual conduct. By contrast, lower-level employees without “spiritual responsibility” had relatively little impact on the church community or its beliefs, and, like the plaintiff, they retained their right to be free of discrimination based on sexual orientation. Essentially, his distance from the content of religious education and his lack of influence over curriculum, meant that he was excused from conforming with religious principles. The Court found that the church had discriminated against the plaintiff when it terminated his employment contract.

In Chamberlain v. Surrey School District, decided by the Supreme Court of Canada in 2002, the issue was whether a public school board could rely on the religiously-motivated objections of parents when it banned books and other resource materials that made reference to same-sex families. The Court held that the school board had failed to conform to the secular requirements of the School Act and that its decision was therefore unreasonable. It stated: “A requirement of secularism implies that, although the Board is indeed free to address the religious concerns of parents, it must be sure to do so in a manner that gives equal recognition and respect to other members of the community.”

Both North Coast Women’s Care Medical Group and Hall v. Bull considered whether an individual’s religious beliefs could excuse the denial of goods or services to gay or lesbian members of the public. In North Coast, decided by the Supreme Court of California in 2008, two medical doctors had refused to perform intrauterine insemination for a lesbian woman because they had religious objections to helping a same-sex couple conceive. The plaintiff had sued under a State non-discrimination statute that included sexual orientation, to which the medical clinic and its physicians had pleaded freedom of religion as a defence. In a 1990 case interpreting the Free Exercise Clause of the federal constitution, the US Supreme Court had held that the right to free exercise of religion did not excuse an individual from compliance with a neutral law of general applicability where that law imposed a minor burden on religious belief.^[7] Applying the reasoning of the US Supreme Court here, the California Court rejected the doctors’ argument.

In Hall v. Bull, decided by Bristol County Court (UK) in 2011, a same-sex couple in a civil partnership was refused accommodation at a hotel owned and run by a devout Christian family. The defendants maintained that rooms were denied to all unmarried couples, whether heterosexual or homosexual, and that they differentiated on the basis of marital status, not sexual orientation. The Court held that the defendants’ right to manifest their religion, although protected under Article 9 of the European Convention, was qualified. In this instance, equality laws that prohibited discrimination on grounds of sexual orientation were a “necessary and proportionate intervention”, to protect the rights of others.

There is much debate about whether it is appropriate to grant religious exemptions from non-discrimination laws.^[8] When the Constitutional Court of South Africa decided Fourie (see Chapter 14), it was careful to note that the Marriage Act protected the right of marriage officers to refuse to solemnise certain marriages.

Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organization to solemnise a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organization.^[9]

When Canada enacted the Civil Marriage Act in 2005, which redefined marriage as the union of two persons to the exclusion of all others, it specifically provided that “officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs”.^[10] Exemption for religious leaders, nevertheless, does not imply that individuals who do not exercise a religious function are exempt from compliance with general anti-discrimination laws.

The applicability of a personal religious exemption from a non-discrimination law was explored in the UK case of Ladele v. Borough of Islington and the Canadian case of In the Matter of Marriage Commissioners. In Ladele, a civil registrar employed by the London Borough of Islington refused to perform civil partnerships because her religious beliefs did not permit her to take an active role in enabling same-sex unions. When disciplinary proceedings were initiated against her, she brought a suit alleging workplace discrimination on religious grounds. The Employment Tribunal found for the plaintiff, but the Employment Appeal Tribunal reversed on appeal. It reasoned that as a civil registrar, the plaintiff was performing a “secular activity carried out in the public sphere under the auspices of a public, secular body”. The prohibition against discrimination on the basis of sexual orientation thus trumped her right to manifest her religious belief.

Following the enactment of federal marriage legislation in Canada, some provinces granted marriage commissioners the right to decline to officiate, primarily through policy statements.^[11] In Saskatchewan Province, three marriage commissioners refused to perform same-sex marriages on the basis of their personal religious beliefs. They filed a human rights complaint alleging an infringement of their freedom of religion, which was dismissed. In a related case, the provincial human rights tribunal upheld a human rights complaint filed against one of these marriage commissioners by a same-sex couple.

As a result of these controversies, the provincial government requested the Court of Appeal for Saskatchewan to comment on the constitutional validity of two possible amendments to the provincial marriage statute. The first would allow a marriage commissioner appointed before the effective date of the marriage statute to refuse to solemnise a marriage if doing so would be contrary to her or his religious beliefs. The second contained no reference to the date of appointment but was otherwise identical. In In the Matter of Marriage Commissioners, the Court concluded that neither amendment would offend the equality provisions of the Canadian Charter.

The Court determined that the purpose of both amendments was to accommodate the religious beliefs of commissioners. Neither amendment had as its purpose the denial of rights under Section 15 of the Charter, but their effect would be to draw a distinction based on sexual orientation. To reach this judgment, it assessed the grounds on which it was justified to limit Charter rights. Under Section 1 of the Charter, limitations were only permissible if they were prescribed by law and demonstrably justifiable in a free and democratic society. Specifically, Canadian case law required that: the objective of the law must be sufficiently important to warrant overriding a Charter right; that the law should be rationally connected to its objective; that the law must impair the right or freedom in question as minimally as possible; and that the law must be proportional to the end achieved.

The Court found that the amendments were not proportional because their positive effects did not outweigh their negative impact. The most significant negative effect was that either amendment would

undermine a deeply entrenched and fundamentally important aspect of our system of government. In our tradition, the apparatus of state serves everyone equally without providing better, poorer or different services to one individual compared to another by making distinctions on the basis of factors like race, religion or gender. The proud tradition of individual public officeholders is very much imbued with this notion. Persons who voluntarily choose to assume an office, like that of marriage commissioner, cannot expect to directly shape the office’s intersection with the public so as to make it conform with their personal religious or other beliefs. . . . Marriage commissioners do not act as private citizens when they discharge their official duties. Rather, they serve as agents of the Province and act on its behalf and its behalf only.

The violation of Section 15 rights was therefore not reasonable and justifiable within the meaning of Section 1 of the Charter and both amendments were unconstitutional.