Freedom of Canadians to religiously discriminate

About a store in Toronto ON
refusing services to a gay group

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The event:

In 1996, members of the Canadian Gay and Lesbian Archives (CGLA) needed some letterhead printed. CFLA is a public advocacy group which serves as a clearinghouse for information about gays and lesbians in Canada. Former CGLA president Ray Brillinger asked Scott Brockie, the owner of Imaging Excellence, Inc, in Toronto, ON, to do the printing. He refused. He explained that he had done work for homosexuals in the past. But he felt that if he did this particular job, it would help promote behavior that he finds repugnant.  It would have conflicted with his conservative Christian beliefs concerning the nature of homosexuality.

The human rights complaint:

Brillinger laid a complaint with the Ontario Human Rights Commission. On 2000-FEB-24, the Commission ruled that Brockie was guilty of discriminating against a potential client on the basis of his sexual orientation. A board of inquiry ordered him to pay $5,000 in damages. Commission adjudicator Heather MacNaughton accepted Brockie's testimony that his beliefs were sincerely held. She agreed that:

"Brockie remains free to hold his religious belief and practice them in his home and in his Christian community. [However,] it is reasonable to limit Brockie's freedom of religion in order to prevent the very real harm to members of the lesbian and gay community."

She wrote that, left unchecked, actions such as Brockie's will lead to:

"...the spiral of silence where lesbians and gays modify their behavior to avoid the impact of prejudice. What [Brockie] is not free to do, when he enters the public marketplace and offers services to the public in Ontario, is to practice his beliefs in a manner that discriminates against lesbians and gays by denying them a service that is available to everybody else."

Some comments on the decision:

	Edwards Tompkins, who was then president of CGLA, said that the Commission made it clear where it stood when religious rights were pitted against human rights. He said "It is a mark of an increasingly tolerant society."
	Janet Epp Buckingham, a lawyer at the Evangelical Fellowship of Canada acted as Brockie's attorney. She said: "Right now there is no provision for any right of freedom of religion or conscience for business owners set out in our human-rights legislation. [The Commission's] ...position was that you must serve every customer who walks through your door with no exceptions."
	Matt Hughes, the president of the board of the CGLA argued that Brockie's refusal of service is equivalent to racial discrimination. "If we were black, this would be a case of asking Rosa Parks to get off the bus again." (Rosa Parks is a black woman from Birmingham, AL who refused to give up her seat to a white man and to move to the back of the bus. This triggered the bus boycott of 1955.)
	The Canadian Civil Liberties Association supported the printer! CCLA general counsel Alan Borovoy said that a business owner: "should be able to refuse to assist causes they don't agree with. [However,] If this had been a gay dentist who had requested a printer to print his stuff, and the printer said 'Oh, well, I won't serve you because you're a homosexual,' we'd say the law properly goes after somebody like that."
	The Canadian Religious Freedom Alliance is composed of three conservative Christian groups: the Catholic Civil Rights League, Christian Legal Fellowship and the Evangelical Fellowship of Canada. They supported Brockie. They argued that the Ontario Human Rights Code protects individuals from discrimination, but was not intended to protect social causes. The Board of Inquiry's legal counsel disagreed, saying that such groups are "so imbued with the identity or character" of their members that they must be accorded the same protection as individuals.
	Susan Ursel was the legal counsel for the Equality Coalition, which was made up of the Canadian AIDS Society, the Canadian Association of Elizabeth Fry Societies, the Canadian Ethnocultural Council, the Coalition for Lesbian and Gay Rights in Ontario, the Council of Canadians with Disabilities, EGALE Canada Inc., the Foundation for Equal Families, the Metro Toronto Chinese and Southeast Asian Legal Clinic, the Metropolitan Community Church of Toronto, the Minority Advocacy and Rights Council, the National Association of Women and the Law, and the 2-Spirited People of the First Nations. They had intervened on behalf of Brillinger. Ursel believed that the Ontario code strikes a proper balance: "... between the absolute freedom of conscience to do whatever you want and the requirements of a modern democracy, that people be treated with dignity." On another occasion, she said: "We take certain things for granted in our society, like the right to equal treatment and freedom from discrimination in the public marketplace. Those rights are guaranteed by law. This case is an important opportunity for the court to re-affirm the values of human rights, equality and fairness which are the foundation of our society." 1,2,3,4,5

Implications for the future:

With the legalization of same-sex marriage in Canada during mid 2005, Canadian culture took a giant step towards the acceptance of homosexuality and bisexuality as a normal, natural, and morally neutral sexual orientation for a minority of adults.

Arguments similar to those in this printing case might be successfully argued before a future court in defense of:

	A same-sex gay, lesbian, or bisexual couple who a clergyperson refused to marry, or
	A gay, lesbian or bisexual person who a faith group refused to ordain because of the individual's sexual orientation .

In decades to come, if present trends hold, homophobia ₆ will be considered as reprehensible as racism is today. Courts are sensitive to shifts of beliefs within society. Their intolerance of homophobia may develop to the point where they start to rule against homophobic religious organizations. They might not differentiate between the provision of a ritual by a faith group and the provision of a commercial service by a commercial firm.

There are exclusion clauses imbedded in many pieces of civil rights legislation that are specifically designed to enable faith groups to freely discriminate on the basis of gender, religion, sexual orientation, gender identity, disability, etc. To our knowledge, have never been examined by the Supreme Court of Canada. They might eventually be found to be unconstitutional.

References:

1. "Equality Coalition to present arguments in Brockie case," 2001-DEC-7, Egale Canada, at: http://www.islandnet.com/
2. "Man appeals fine for rejecting 'gay' client. Toronto printer refused to produce promotional materials," WorldNetDaily, 2001-DEC-8, at: http://worldnetdaily.com/
3. "Freedom of conscience debated in Ontario. Christians support right of printer to refuse homosexual group's business," WorldNetDaily, 2001-DEC-17, at: http://worldnetdaily.com/
4. "Company ordered to provide printing services to gays and lesbians," CGLA, 2000-MAR, at: http://www.clga.ca/
5. Janet Epp Buckingham, "Canadian Religious Freedom Alliance Makes Argument in Religious Conscience Case," Christian Legal Fellowship, at: http://www.christianlegalfellowship.org/
6. The term "homophobia" has different meanings for different people. We define it on this website as the desire to oppress and limit the personal rights and freedoms of gays, lesbians, and bisexuals -- including the right to marry. "Transphobia" is the corresponding term for restricting the rights of transgender people and transsexuals.

Copyright © 2003 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2003-AUG-22
Latest update: 2009-FEB-28
Author: B.A. Robinson

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