A number of conflicting rights scenarios and their potential resolutions have been presented throughout this paper in order to illustrate specific balancing tools. This section of the paper will utilize each of the tools noted above by working through one timely example of conflicting rights: same-sex marriage and civil marriage commissioners. This example has been chosen not only for its currency, but also because it encompasses both the service and employment contexts. There are distinctively different ways to balance the conflicting rights in this scenario, and the outcome will be determined by the extent to which one is guided by either a principled or pragmatic approach or some combination of the two.
For the purposes of this scenario, let us assume that civil marriage commissioners are employed and authorized by the Province to solemnize marriages. A same-sex couple decide to get married at Toronto City Hall. After filling out the requisite paperwork, license in hand, they want to make an appointment for the solemnization. They are told that the only commissioner available that day is, because of deeply and sincerely held religious beliefs, unwilling to solemnize a same-sex marriage. The couple is told that they should return the following day when another commissioner will be able to perform their ceremony. The Provincial Justice Department is aware that some commissioners are refusing to perform same-sex marriages because of their religious convictions and so they have decided to introduce legislation that will require all civil marriage commissioners to solemnize same-sex marriages regardless of personal religious beliefs. Several commissioners have lodged a joint complaint at the Human Rights Commission claiming that their religious rights have been violated. In the meantime, the same-sex couple have also brought a discriminatory service complaint before the Human Rights Commission. The two cases have been joined together.
The questions outlined in Section II of this paper provide the starting point for assessing this scenario. In order to identify if there is an actual conflict of rights, we must begin by asking whether or not the rights claims are characterized appropriately and whether or not they are valid, legally recognized rights. The same-sex couple grounds their claim in the right to be free from discrimination based on sexual orientation in a service context (Section I of the Code)[59]. Since they were explicitly refused service because they were a same-sex couple, a discrimination claim based on sexual orientation is the appropriate characterization of the issue. So, too, this is a valid, legally recognized right found in the text of the Code itself. The marriage commissioners base their claim on a right to be free from discrimination based on creed in the workplace (Section 5(1) of the Code)[60] and the duty of an employer to reasonably accommodate religious beliefs (Section 11(2) of the Code)[61]. The commissioners argue that the tenets of their religion do not permit them to solemnize same-sex marriages and that to do so would undermine their deeply and sincerely held religious beliefs. They want their beliefs accommodated in the same way that the celebration of religious holidays must be accommodated, short of undue hardship. Assuming the commissioners provide evidence of the requirements of their religious beliefs, they appear to have characterized their rights claim appropriately according to the legally recognized right to freedom from discrimination based on creed.
We may now move on to the third question of whether or not the needs of the parties are truly in conflict. In the service context, an argument could be made that the couple’s ‘need’ to get married is indeed being fulfilled, but just not within their preferred time frame. However, it is unlikely this argument will stand up to scrutiny because it amounts to adverse effects discrimination in that preferential treatment is inadvertently given to non-same-sex couples. In effect, to allow this argument would be to accord same-sex couples second-class citizenship. On the other hand, the ‘need’ to adhere one’s religious beliefs is met within the service context because the commissioners simply refuse to solemnize these couples. The commissioners’ religious need directly conflicts with the couple’s solemnization need. The Province, as the employer may have a duty to accommodate the commissioners’ needs, but they absolutely have a duty to provide services without discrimination. It appears that these two needs will not be easily reconciled and that they are truly in conflict.
At this point in our assessment, we may begin to consider the balancing tools and the different outcomes produced by using either a pragmatic or principled approach. In the service context, from a principled perspective, the denial of same-sex solemnization services violates the values underlying the Code. Specifically, the inherent dignity and worth of these individuals is undermined by this refusal. The failure to provide service to this couple is a denial of their equality rights. This, in fact, is the position that the Commission has taken. In his letter to the Attorney General on this issue, the Chief Commissioner states: “The denial of service by a public official to a same sex couple is no less a violation of the Code and the Charter than a denial of this service to an interfaith or interracial couple.”[62] Indeed, allowing marriage commissioners to pick and choose to whom they offer their services potentially opens the door to an endless number of refusals based on religious beliefs. For instance, a practising Catholic may refuse to solemnize the marriage of a previously divorced Catholic. A principled approach in the service context foregrounds the anti-discriminatory mandate of the Code as embodied in the Preamble’s call for “a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community.” As the Chief Commissioner reminds us, “Inclusion is an essential part of equality.”[63]
A pragmatic approach to the service issue would undoubtedly begin by stating the principles and values above and then go on to look at this particular service context. Factors to consider include: the solemnization of marriage by civil officials is a public service; the couple meets the eligibility criteria for marriage, so there is an obligation to provide this service whether or not it conflicts with the views of an individual employee; there is clear evidence of discrimination against an identifiable, protected group; there is no exception section of the Code for the provision of services; case law has determined that the freedom to hold beliefs is greater than the freedom to act on those beliefs when it negatively impacts the equality rights of others, especially in a service context[64]; case law also recognizes that providers of public services must be able to ‘check their personal views’ at the door.[65] Both a pragmatic and principled approach to balancing would agree that under the Code and the Charter there is no doubt that same-sex couples are entitled to equal service. The attitudes of individual employees must not be allowed to ‘poison’ the environment for same-sex couples requesting civil solemnization services. However, the analysis becomes more complicated when the employer-employee relationship is factored into this equality equation.
The most intense conflict in this scenario occurs in the employment context where the debate shifts to a consideration of whether or not a duty to accommodate exists in this particular case. On the national stage, the governments of Alberta and Saskatchewan have taken opposite stances on this issue. Alberta’s Premier Klein has opted for an absolute exception for civil marriage commissioners, stating that, “those who hold social, or cultural beliefs or values, whether religious or non-religious, will be free to express opposition to the change to the traditional definition of marriage and will not be required to advocate, promote, or teach about marriage in a way that conflicts with their beliefs.”[66] This reasoning creates an overarching, extraordinarily broad duty to accommodate. On the other hand, the government of Saskatchewan has refused altogether the duty to accommodate in this particular context, and they have declared that any civil marriage commissioner who refuses to solemnize a same- sex marriage will be fired.[67]
The government of Ontario appears to have taken the middle road in that they have clearly legislated an exception for religious officials who refuse to solemnize same-sex marriages (Bill 171)[68], but have remained conspicuously silent on the issue of civil marriage commissioners. This silence, as has already been noted, signals an implicit refusal to formally accommodate the religious beliefs of commissioners, but it also suggests that the government is relying on the practice of informal accommodation to strike a balance between these competing equality rights. While it is easy enough to achieve this informal accommodation in a large urban center such as Toronto where there are enough marriage commissioners to make equal access to marriage commissioners possible at all times, informal accommodation will not be possible in rural Ontario settings without disrupting equal access to the services of civil marriage commissioners.
A principled approach to accommodating these employees may begin with an examination of the scope of the right. It is crucial to note, however, that this principled approach is intertwined with several pragmatic balancing concerns including an assessment of core versus periphery activities, public versus private entities, and the definition of ‘duty to accommodate’. In this scenario, a comparison to religious officials will be useful. The Commission’s factum to the Supreme Court on the Reference re Same-Sex Marriage notes that, “religious officials acting in an official religious capacity express their religiosity in the performance of their job functions. In contrast, secular service providers that hold personal religious beliefs cannot claim that the performance of their job functions is an expression of their deeply held religious beliefs.”[69] Delineating the proper scope of freedom of religion is aided by this comparative approach in that the two different contexts (secular and religious) highlight core versus periphery religious activities. Core activities will generally receive a much more generous reading of exceptions than periphery activities.
A comparative contextual analysis such as this makes it possible to tease out the extent to which religious beliefs will be protected in specific situations. Similarly, using case law precedents, the public nature of the duties of civil marriage commissioners will tend to mean that their privately held religious beliefs may be held but not acted upon: “The expectation that an individual perform certain job duties may not, at the end of the day, violate freedom of religion if, by virtue of that person’s public office, such duties are essential, and if the failure to perform them violates the Charter rights of others.”[70] Courts have mainly concluded that freedom of religion will not usually be sufficient justification for a conduct that discriminates against others in areas of public life to which human rights legislation applies.[71]
The question of accommodation may not need to be entertained if it is found that the scope of freedom of religion, in terms of acting on one’s beliefs when they conflict with another’s equality rights, does not extend to public officials employed in a public service context. Regardless, accommodation cannot negatively impact the delivery of services: “the obligation to provide the service to the public would set limits on the ability of the service-provider to accommodate employees.”[72]
A principled approach to balancing may focus on Code values in order to determine whether or not a duty to accommodate exists in this particular scenario. Human rights tribunals and courts would need to ask “whether a need that appears to be inconsistent with the Code is less deserving of accommodation than a need that does not conflict with the values of the Code.”[73] A duty to accommodate may not extend to situations in which discrimination against another group is the by-product of accommodating a particular belief. A principled approach to balancing would ask if it is desirable to protect a value that is antithetical to the Code.
A pragmatic approach to the duty to accommodate will also attempt to map out the parameters of this duty, but will focus more on the ‘short of undue hardship’ aspect of accommodation. That is, if same-sex couples have equal access to the solemnization of marriage and the same calibre of service when employees’ religious beliefs are accommodated, then balancing has been achieved. Recognizing that freedom of religion is not absolute, and hence the duty to accommodate religious beliefs is also not absolute, a pragmatic approach would seek to set limits on accommodation only when the rights of same-sex couples are infringed (directly or indirectly), or when a poisoned atmosphere is created by the accommodation of an employees religious beliefs. This pragmatic approach would rely on same-sex couples to ‘police’ their equal access to services and report any discrepancies or inequities. [74]
In this scenario, balancing conflicting rights in the service context showcases a harmonious relationship between the pragmatic and principled approaches to balancing. Both approaches would reach the same conclusion in regards to the provision of services. However, balancing conflicting rights within the employment context of this scenario highlights the different outcomes that each approach may produce. The benefit of a principled approach in the employment context is that it strictly adheres to the underlying values of human rights legislation and it relies on established interpretive principles for Code exception sections. Principled balancing would provide the most certainty for all parties in this scenario in that employees would have the scope of their religious beliefs in the workplace clearly delineated, employers would have ‘either/or’ guidelines for the provision of services and accommodation would be clearly linked to the ability to provide equal, accessible service, and same-sex couples would be assured that service would always be available in an un-poisoned environment. But, the certainty that comes from an analysis grounded solely in principled balancing is also the greatest limitation of this approach. It may not be flexible enough to provide the very mutual respect and understanding that it espouses. It may also privilege ideals and overarching values at the expense of actual, real-world concerns.
On the other hand, flexibility characterizes a pragmatic balancing approach to the employment context of this scenario. Pragmatic balancing focuses on specific contextual questions and is more attentive to the actual working conditions of the everyday. This approach generally embodies a compromise-mentality that attempts to accommodate the needs and rights of all parties. But flexibility and compromises may come at the expense of underlying anti-discrimination values. Pragmatic balancing will tend to rely more heavily on the particular situations of individual actors to assess the extent to which compromise is possible. As noted above, this means that these individuals will be expected to regulate and monitor how well the compromise is actually working.
[59] Section I of the Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability.”
[60] Section 5 of the Code states: “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place or origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.”
[61] Section 11 (2) of the Code states: “The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
[62] Letter to The Honourable Michael J. Bryant, Attorney General of Ontario, 20 December 2004 at p. 2.
[63] Ibid.
[64] Supra note 29.
[65] Supra note 14.
[66]Daniel Girard, “Gay Marriage Fight Over; Alberta to begin issuing licenses. But law to protect opponents’ rights” Toronto Star (13 July 2005), A12.
[67] Gloria Galloway, “Refused gays rites, marriage official expects to get axe” The Globe and Mail (19 July 05) A4.
[68] Supra note 13.
[69] Supra note 43 at 15-16.
[70] Ibid. at 16.
[71] For a discussion of this issue see: Paper prepared by the Canadian Human Rights Reporter for the British Columbia Human Rights Commission, “Human Rights Law in B.C.: Religious Discrimination” (March 2001).
[72] Supra note 43 at 17.
[73] Ibid.
[74] One prominent example of a pragmatic approach to an employer’s duty to accommodate in conflicting rights cases may be seen in the settlement reached in a complaint against Markham-Stouffville Hospital. Seven nurses objected to participating in abortion procedures due to their religious convictions. They filed a complaint with the Commission claiming that their religious rights were violated when the Hospital required them to participate in abortion procedures. Under the terms of the settlement, the Hospital adopted a policy that allows staff with a religious objection to abortions to be excused from directly performing or participating in such procedures, except where the mother’s life is in danger. In this situation, the religious convictions of the nurses are accommodated without affecting a patient’s ability to access abortion procedures. In the particular context of this case it is possible to ensure equal, unaffected access to a public service while concurrently protecting an expansive understanding of freedom of religion. It must be noted, however, that this pragmatic approach to a duty to accommodate does not appear to be the Commission’s current position on civil marriage commissioners. The Commission appears to favour an approach in which employees providing a public service may not be entitled to a duty to accommodate if the right they are asserting is based on the exclusion of others’ rights. For example, if a freedom of religion right is based on the need not to provide certain services or not to serve particular individuals, that right may be less likely to be protected than if it was a positive right to do something such as prayer time during work hours, accommodation for religious holidays, etc.