By David Brown

For a country founded on principles of freedom, liberty and equality, the United States is having tremendous difficulty grappling with same-sex marriage and LGBTQ discrimination.  In fact, even prior to the June 2015 Supreme Court ruling in Obergefell v. Hodges legalizing same-sex marriage, national headlines have included a long stream of cake bakers, florists and pizzerias refusing service to homosexuals. Recently, a Kentucky County Clerk garnered international attention for her termination and imprisonment (for contempt of court) for refusing to issue marriage licences to homosexual couples. The country seems torn on whether the clerk is a modern day Joan-of-Arc fighting for religious rights or whether she’s simply a close-minded bigot.

The topic has been getting attention in Canada as well, with a Calgary bus driver’s very public refusal to drive a city bus painted as a rainbow, and subsequently his very public termination. With so much focus on such a sensitive topic, it begs the question, with respect to service, does religion trump equality?

In Canada, the challenge this question presents is that it pits two fundamental rights against one another. The Canadian Charter of Rights and Freedoms recognizes that everyone has freedom of conscience and religion. Our Charter also recognizes that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”. Finally, every province and territory has their own enactment of the Human Rights Code which specifically prohibits discrimination in employment, tenancy and service on the basis of sexual orientation. There is no doubt that denying service on the basis of sexual orientation is discrimination. The bigger question is whether the discrimination is defensible on the basis of religious beliefs.

Human rights legislation in Canada receives special quasi-constitutional status in recognition of its fundamental objectives.  Across Canada, the purpose of human rights law is to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination.  Further, it is to create a climate of understanding and mutual respect for the dignity and worth of each person so that all feel a part of and are able to contribute fully to the development and wellbeing of the community.

These objectives are deeply ingrained in the Canadian identity. However,  for members of traditionally prejudiced minority groups, a denial of human rights protections is not simply an inconvenience like having to choose a new pizza parlour or bakery. Its an affront to their dignity and their identity. Specific to the circumstances of homosexuals, the Ontario Human Rights Tribunal in Brillinger v. Imaging Excellence, 2000 CanLII 20856 recognized that a failure to protect the rights of lesbians and gays from discrimination results in a silencing of a part of our society and a marginalization of its members. Members of the lesbian and gay community have already been the victims of long-standing social prejudice and economic disadvantage which has resulted in many of them choosing invisibility and privacy as a means of avoiding the effects of prejudice against them.

Compounding that effect is the implicit message conveyed by exclusion and service refusal: that gays and lesbians, unlike other individuals, are less worthy of protection. To quote the Supreme Court of Canada in Vriend v. Alberta 1998 CanLII 816 (SCC), “the potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.” Personally, I can’t imagine a version of Canada where an important segment of our population is forced to deny or hide their identity so as to avoid prejudice. If it’s unacceptable to deny service on the basis of gender, race or religion, the same logic should apply to sexual orientation.

In Canada, the answer as to whether religion trumps equality in service is clear: it doesn’t. While persons have a fundamental right to practice their religion as they see fit, as a society we must recognize reasonable limits on freedom of religion in order to prevent very real harm to members of the lesbian and gay community. Ask yourself this – some personal religious beliefs and customs may also demand refusing service to a woman, a black man or a person of Jewish ancestry. As a society we would not tolerate this discrimination, regardless of the reasons for denial. Sexual orientation is no different.

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact dbrown@pushormitchell.com.

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.