Mike McLoughlin's Blog :: Time to protect Religious Freedom for Public Officials at work in Canada

The time has come for Canada to legislate protection for the religious freedom of public officials. According to a CP article, "Ottawa can't ensure religious protection in all same-sex fights: Cotler", Justice Minister Irwin Cotler stated "it is beyond his legal reach to protect provincial marriage commissioners" from sanction if they refuse services to homosexuals because of religious conscience.

Previously, Prime Minister Paul Martin had said, " "No church, no temple, no synagogue, no mosque, no religious official will be asked or forced to perform a marriage that is contrary to their beliefs."

However, when it comes to marriage commissioners it is clear there is no protection. The BC Catholic Newspaper reports that the BC Vital Statistics Agency is now requiring that provincial marriage commissioners agree to perform civil marriages for homosexual couples. Otherwise they must give up their licenses to marry people. Also, the Saskatchewan Justice Minister, in a question about the status of marriage commissioners who refuse to perform civil marriages for homosexual couples in his province has stated, " We'd have to investigate the circumstances and potentially remove their power to perform civil marriages because they weren't willing to administer the law as it stands."

Simply put, it looks as if people of faith who serve as public officials will be subject to religious discrimination if they do not agree to abide by laws that are in violation of their religious convictions.

As an example of how this might play out please see a decision the BC Human Rights Tribunal with respect to a Gay Pride Declaration by the Mayor of Kelowna. On March 23rd, 2000, the Tribunal ruled that Mayor Walter Gray of Kelowna, BC was guilty of violating the BC Human Rights Code because he omitted the word "pride" from a 1997 declaration of Lesbian and Gay Day. These are his reasons:

"He testified that he did so in this case for two reasons. The first was that, although he did not dislike or object to homosexuals and wanted to help the lesbian and gay community, he did not approve of homosexual behaviour and did not want to appear to be supporting, approving or endorsing a homosexual lifestyle. It was his evidence that he changed the proclamation to wording he felt comfortable with and that would also be politically acceptable. He said that he wanted to show support to the homosexual community without violating his personal convictions, and he thought he had arrived at a compromise."

In arriving at her decision, Carol Roberts, Tribunal Member, ruled with respect to the Mayor's right to free speech under the Charter,

"[119] Charter protection is available to private citizens or corporate bodies when faced with state infringement of the freedoms protected by the Charter. The Mayor, in refusing to issue the proclamation in the terms sought, was acting in his capacity as Mayor, not as a private citizen. Although the Mayor is the CEO of the municipality, that status is not akin to a CEO of a corporate body. Municipalities are creatures of statute, and mayors are publicly elected officials. I find that the Mayor, when acting in the capacity of a municipal government official, cannot claim the protection of the Charter for his actions.

[120] As Ms. findlay submitted, the Mayor "cannot communicate personal disapprobation and then claim that he has a protected right to do so." The Charter is not intended to protect the acts of public officials who, in the course of public duties, fail to uphold principles outlined in the Charter and human rights legislation. I adopt the reasoning of the Board in Hill:

"It is also noted that the Mayor is a municipal government official whose position was created by the New Brunswick Legislature. That same Legislature created the Act which prohibits discrimination on the basis of sexual orientation in the provision of services. It is surely incumbent on government officials to respect and uphold the laws of the very Legislature that has created their positions. To utilize the Charter, which was designed to restrain government action which infringed on individual rights, to the advantage of a government official, even though that official in the present case may have private beliefs which conflict with the complainants' beliefs, would not fulfil the objectives for which the Charter was designed. (at D/374)"

In summary, the Tribunal ruled that Mayor Gray, while acting in his capacity as a public official, is not entitled to Charter rights guaranteeing freedom of speech when that speech is required with respect to his job as a public official.

My understanding of this situation is that a person of faith employed in a public position requiring them to act in a public capacity will not be entitled to exercise their freedom of religion or conscience when they perform public duties such as making proclamations or performing civil marriages.

This raises these questions:

1. Will Seventh Day Adventists be required to work on Saturdays if they are employed by the government and it is a required public duty?

2. Will Sikh's be allowed to wear turbans and carry ceremonial knives if they are employed in government departments with strict dress codes while performing public duties?

3. Will Jews be allowed to read Torah at work when working at a public capacity?

4. Will Muslims be allowed to interrupt their public duties to wash their feet in public washrooms at government offices before saying prayers?

5. Will Christian nurses at public health centres be allowed to pray with their patients even if requested to do so?

6. Will postal employees be allowed to listen to Christian music at their desks during working hours while performing public duties?

7. This may sound ridiculous but taken to the extreme, will Catholic Army Chaplains be allowed to wear crosses while performing public ceremonies?

Essentially, will people of faith be required to check their faith at the door when they enter into a public workplace to perform public duties?

Same Sex Legislation, while attempting to defend the rights of one minority has the potential to limit the rights of many other minorities. Therefore, we need legislation to protect the religious freedom of public workers in Canada.

Some blogs that are following the Same Sex Debate and religious freedom at work are Victor Marciano's Cotler stops lying about one part of the same sex marriage debate.; Small Dead Animals: 'Slowing down on same-sex marriage ; Angry in the Great White North: Cotler fails to deliver and people will lose their jobs; Paul Albers Column: In Grits We Distrust; and Liberty and Virtue.

Resources and information on Religious Discrimination in the Canadian Workplace can be found at:

Human Rights Research and Education Centre: Religious Discrimination

Workplace Accommodation In Human Resources Development Canada

Preventing Discrimination Page at the Canadian Human Rights Commission.

Keywords: WorkplaceDiversity, SameSexMarriage, ReligiousFreedomAtWork, Justice

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Re: Time to protect Religious Freedom for Public Officials at work in Canada

by Anonymous on Wed 29 Jun 2005 10:20 AM PDT | Permanent Link

You say this as though it was unreasonable to expect a level of separation between the individual and the office. For example if a Jehovah Witness were a public health official, say the administrator of a local hospital, would it be proper for them to ban blood transfusions from being performed in the hospital?

The Bible states that marriage is just between a husband and a wife. So by the logic that people should be too horrified and insulted religiously to perform same-sex marriages, they should be refusing to marry couples who have had sex before marriage either with each other or with others. Does this happen?

The answers are clearly no. It would be understood by the individual that that is part of their job. If they are wanting to have that job they have to separate themselves into two compartments. The government has to represent all citizens, not just those who work for it.

Re: Time to protect Religious Freedom for Public Officials at work in Canada

by Mike McLoughlin on Wed 29 Jun 2005 05:30 PM PDT | Profile | Permanent Link

Your example of a JW Health Officer is a silly example. It would not happen. However there are Catholic marriage commissioners who are employed by the Provincial government to marry people. They ought not to be compelled to marry same sex couples against their conscience. Also, their jobs should not be threatened because the law has changed while they were in office. So they should not be forced to sign statements stating they would marry same sex couples.

There is no separation between the individual and the office. The individual occupies the office. In the office, they do not become a robot performing actions that as an individual would violate their conscience. If we want to create official structures that operate without consciences than we have the problem of the Corporation (see my post).

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