SAME SEX MARRIAGE: WHAT CHURCHES AND RELIGIOUS ORGANIZATIONS
CAN DO IN RESPONSE
By Terrance S. Carter, B.A. LL.B., and Esther S.J. Oh, B.A.,
LL.B
A. INTRODUCTION
This Charity Law Bulletin (“Bulletin”)
provides a brief overview of recent developments in the law
with respect to the proposed federal legislation regarding
same sex marriage, as well as a brief summary of relevant
human rights legislation and related cases. This Bulletin
also outlines steps that churches and religious organizations
may want to consider in responding to the issue of same sex
marriage. To this end, this Bulletin provides general
comments concerning the importance of specific constitutional
documents for churches and religious organizations, as well
as recommendations concerning proposed policies and other
constitutional documents in order to determine whether those
documents comply with applicable human rights legislation.
Finally, this Bulletin outlines the importance of educating
clergy and religious organizations concerning their legal
rights on this issue.
For ease of reference, the term “churches” in
this Bulletin refers to all forms of religious organizations,
including temples, mosques, synagogues, etc., unless otherwise
indicated. In addition, the term “constitutional documents”
is used in this Bulletin to refer to organizational
documents for churches and religious organizations.
It should be noted that the law involving same
sex marriage is highly complex and rapidly changing. The comments
that follow, therefore, are of a tentative nature only and
are subject to change as the law continues to evolve. In particular,
readers should note that the recommendations contained in
this Bulletin are being made pending the introduction
of proposed federal legislation and a reference regarding
same sex marriage that is before the Supreme Court of Canada.
While the proposed federal legislation provides religious
officials with an exemption from solemnizing same sex marriages,
it does not recognize the rights of religious organizations
to refrain from solemnizing same sex marriages. As such, recommendations
in this Bulletin that are aimed at enabling religious
organizations to take advantage of the exemption from having
to perform same sex marriages (which are based on the assumption
that the Halpern case described below applies), may
not be available if the proposed federal legislation is enacted.
This issue is discussed further in this Bulletin.
It is also important that churches and religious
organizations obtain legal advice before implementing any
of the suggestions in this Bulletin. The comments contained
in this Bulletin are of a summary nature and are not
intended to provide legal advice that can be relied upon.
B. THE DEVELOPMENT OF THE LAW ON SAME SEX MARRIAGE
1. Case Law Developments Regarding Same Sex
Marriage
The following is a brief summary of recent cases
that are relevant to a discussion involving same sex marriage:
a) Cases Relevant to the General Rights of
Same Sex Couples
In Vriend v. Alberta [1998] 1 S.C.R.
493 (S.C.C.)(QL), the plaintiff attempted to file a complaint
with the Alberta Human Rights Commission on the grounds that
his employer had discriminated against him because of his
sexual orientation. However, the plaintiff was unable to file
a complaint because the Individual Rights Protections Act
(Alberta) (“IRPA”) did not include sexual orientation as a
prohibited ground of discrimination. The Supreme Court of
Canada ruled that the exclusion of “sexual orientation” as
a protected ground of discrimination under the Alberta IRPA
was unconstitutional.
In M. v. H. [1999] 2 S.C.R. 3 (S.C.C.)(QL),
the plaintiff, who had been formerly involved in a same sex
common law relationship, made a claim for spousal support
under section 29 of the Family Law Act (Ontario). The
Supreme Court of Canada ruled that the opposite sex definition
of “spouse” under the support provisions of the Family
Law Act (Ontario) was unconstitutional.
In Hall (Litigation guardian of) v. Powers
[2002] O.J. No. 1803 (QL), the Ontario Superior Court ruled
that a grade 12 Catholic high school student was permitted
to bring his boyfriend to his high school prom. Notwithstanding
the formal position of the Catholic Church in the Church’s
Catechism that “…homosexuality is contrary to natural law
and can under no circumstances be approved…”, the Court in
Hall relied upon the Supreme Court of Canada decision in Trinity
Western University v. British Columbia College of Teachers
(2001), 199 D.L.R. (4th) 1 (S.C.C.) for the principle that
“the freedom to hold beliefs is broader than the freedom to
act on them.” As the court stated, “At the heart of the Trinity
Western (supra) decision lies a distinction between holding
a discriminatory view and actively discriminating against
someone”.
b) Cases Relevant to the Specific Issue of Same
Sex Marriage
A number of recent cases have challenged the
constitutional validity of the opposite-sex requirement of
marriage, including the B.C. case of Equality for Gays
And Lesbians Everywhere (EGALE) v. Canada [2003] B.C.J.
No. 994 (B.C.C.A.)(QL), and the Ontario case Halpern v.
Canada (Attorney General) [2003] O.J. No. 2268
(O.C.A.)(QL).
In the EGALE and Halpern cases,
the respective Courts of Appeal ruled that the then existing
common law definition of marriage as the “union of one man
and one woman” was unconstitutional.
In the Halpern decision, the Ontario
Court of Appeal reformulated the common law definition of
marriage to read as “the voluntary union for life of two persons
to the exclusion of all others.”
In the Quebec case of Hendricks v. Quebec
(Attorney General) [2002] J.Q. No. 3816 (QL), the Quebec
Superior Court found that the statutory opposite-sex requirement
for marriage in Quebec violates s. 15(1) of the Charter. This
case is currently being appealed to the Quebec Court of Appeal.
c) Application of the Canadian Charter of
Rights and Freedoms
Section 15 of the Canadian Charter of Rights
and Freedoms (“Charter”) does not specifically guarantee
equality based on an individual’s “sexual orientation”. However,
the courts in the above-mentioned cases have generally found
that “sexual orientation” is an analogous ground to those
protected in section 15 and by implication is therefore protected
by the Charter.
2. Proposed Federal Legislation
In the summer of 2003, the federal government
confirmed that it would not appeal the decisions in the B.C,
Ontario and Quebec cases referenced above.
Later in October 2003, the federal government
submitted its factum to the Supreme Court of Canada in support
of a reference to determine the constitutionality of its proposed
legislation. It is not expected that this reference will be
heard until early in 2004.
The proposed federal legislation entitled Proposal
for an Act Respecting Certain Aspects of Legal Capacity for
Marriage for Civil Purposes begins with a preamble that
reads as follows:
“marriage is a fundamental institution
in Canadian society”; and
“access to marriage for civil purposes
should be extended to couples of the same sex” in accordance
with the Charter.
The specific wording of the proposed legislation
is as follows:
Section 1: “Marriage, for civil purposes,
is the lawful union of two persons to the exclusion of
all others.”
Section 2: “Nothing in this Act affects
the freedom of officials of religious groups to refuse
to perform marriages that are not in accordance with their
religious beliefs”
Changes to other federal statutes will need
to be made as a result of this proposed legislation, assuming
that it is passed in its present form.
3. Impact of Bill C-250 (Hate Crimes) on
Same Sex Marriage Issues
When considering how to address the topic of
same sex marriage, churches will need to be aware of Bill
C-250, which had proposed amendments to the Criminal Code
provisions regarding hate propaganda, since statements opposing
same sex marriage might in some situations be considered as
hate crime offences.
Although Bill C-250 recently died on the order
paper in the Senate, it might still be relevant to a discussion
of same sex marriage issues, since there is a distinct possibility
that Bill C-250 may in some form be re-introduced by Parliament
in the future. For further details and background information
regarding Bill C-250, please see the seminar materials from
a presention by Bruce Long found at:
http://www.carters.ca/pub/seminar/chrchlaw/2003/index.html.
4. Brief Overview of the Ontario Human
Rights Code
When responding to the issue of same sex marriage,
churches and religious organizations need to be aware of the
application of human rights legislation. The following is
provided as a brief overview of applicable human rights legislation
and relevant case law.
a) Statutory Law
i) The Ontario Human Rights Code
Statements made against same sex marriage may in some situations
violate the Ontario Human Rights Code (“HRC”). In
this regard, Part I of the HRC enumerates the contexts
within which individuals are guaranteed the right to be
treated equally and without discrimination. The applicable
provisions are:
Section 1 which states as follows, regarding the provision
of services:
1. 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, same
sex partnership status, family status or disability.
[emphasis added]
Section 5 which states the following regarding
employment:
5(1) Every person has a
right to equal treatment with respect to employment without
discrimination because of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, sex, sexual orientation,
age, record of offences, marital status, same sex partnership
status, family status or disability.
Section 24 of the HRC, however, permits discrimination
in the context of employment where the following limited
conditions apply:
An example of a bona fide requirement under Section 24
of the HRC would be where a minister is required
to subscribe to the church’s statement of faith and charitable
objects as a condition of his or her employment.
Section 11(1) of the HRC extends the prohibition
of discrimination into areas that are not contemplated by
Part I of the HRC where the discrimination results
in the exclusion of an “identifiable group” as set out in
the HRC. A general exception to section 11(1) may
apply when the requirement, qualification or factor is reasonable
and bona fide in the circumstances.
ii) The Canadian Human Rights Act
Some religious organizations may also be subject to federal
human rights legislation. Section 3 of the Canadian Human
Rights Act lists the following as prohibitive grounds
of discrimination:
For all purposes of this
Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex,
sexual orientation, marital status, family status, disability
and conviction for which a pardon has been granted.
These prohibited grounds are different in certain respects
from those contained in the Ontario HRC. Unlike the
provincial HRC, the Canadian Human Rights Act
does not prohibit discrimination based upon “same sex
partnership status”.
As well, section 5 of the Canadian Human Rights Act
provides for the following in relation to the provision
of goods and services:
It is a discriminatory
practice in the provision of goods, services, facilities
or accommodation customarily available to the general
public(a) to deny, or to deny access to, any such good,
service, facility or accommodation to any individual,
or(b) to differentiate adversely in relation to any individual,on
a prohibited ground of discrimination.
b) Related Case Law
The following is a brief summary of excerpts
from key cases involving the Charter and various human
rights legislation relevant to same sex marriage:
i) Trinity Western University v. British Columbia College
of Teachers (2001), 199 D.L.R. (4th) 1 (S.C.C.) – Supreme
Court of Canada
In its decision in Trinity Western, the Supreme
Court of Canada held as follows:
“The freedom to hold beliefs
is broader than the freedom to act on them. The freedom
to exercise genuine religious belief does not include
the right to interfere with the rights of others.”
ii) Ontario (Human Rights Commission) v. Brillinger
[2002] O.J. No. 2375 (QL) Ont. Sup. Crt.
In the Brillinger case, a Christian who owned a
printing shop had refused to print certain materials on
the basis of his religious beliefs, since he believed that
he could not assist in the distribution of information intended
to spread the acceptance of homosexual lifestyles. However,
he had not refused to serve homosexual customers.
In finding the owner in violation of the Ontario HRC,
the court relied upon the Trinity Western case and upheld
the “right to be free from discrimination based on sexual
orientation in obtaining commercial services”.
C. WHAT CHURCHES AND RELIGIOUS ORGANIZATIONS
CAN DO IN RESPONSE
1. The Importance of Organizational Documents
a) Explanation of The Legal Nature of Religious
Organizations
Most churches and religious organizations operate
simultaneously in two distinct realms: the first being the
church law realm, which is generally governed by the church’s
understanding of scripture, and the second being the civil
law realm, which involves the application of the relevant
statutory law and relevant cases to churches. Although church
law and civil law are separate in many respects, they also
overlap. When overlap occurs, church law will generally not
be permitted to violate civil law.
Within the church law context, the identity
of a church is generally derived from scripture, i.e. a literal
understanding of the New Testament by evangelical Christians
or a reliance upon the Canon Code by Roman Catholics.
Within the civil law context, the legal nature
of a church is characterized as a voluntary association of
persons who come together for a collective purpose as reflected
in the church’s constitutional documents.
Where individuals have voluntarily decided to
associate together in order to fulfill the religious objectives
of a church, the courts have generally recognized the existence
of and the right of a church to fulfill its religious objectives.
However, churches must ensure that their identity
that is derived from the church law context is adequately
articulated within the civil law context so that it can be
protected at civil law. The primary means through which a
church articulates its church law identity in the civil law
context is generally through its constitution. The need for
a clear articulation of a church’s identity and beliefs in
its constitution is particularly important in the context
of same sex marriages.
b) The Need for Churches and Religious Organizations
to Articulate Their Identity and Beliefs Through a Constitution
Within a civil law context, since a church legally
is nothing more than what the individuals who comprise it
determine it to be, it is essential for churches to clearly
articulate what their identity and beliefs are, and where
relevant, to relate those beliefs to the understanding of
scripture followed by the church.
If a church or religious organization fails
to articulate what it is and what it believes, then by default
the courts will be called upon to determine the church’s beliefs
and identity based upon the materials that are available for
review by the court. If this occurs, the church may then be
left more vulnerable to challenge under proposed federal legislation
dealing with same sex marriage and human rights legislation
than if it had carefully articulated its identity and its
beliefs in its constitution.
For unincorporated churches, a constitution
is generally a single internal organizational document that
is not issued or specifically sanctioned by any government.
For incorporated churches, a constitution usually consists
of a collective of the following documents:
-
The letters patent issued by the Federal
or a Provincial government, which is generally analogous
to the birth certificate of the church;
-
The general operating by-laws of the church,
which sets out the structure of the church; and
-
Policy statements, implemented from time
to time to document the practical position of the church
on a particular issue.
As indicated earlier, for the purposes of this
Bulletin, when the term “constitution” is used, the
term means the constitution of a church or religious organization,
whether it is incorporated or unincorporated.
With respect to recent developments in the law,
it would be opportune for unincorporated churches that are
considering incorporation to do so sooner as opposed to later,
since their incorporation documents and accompanying policy
statements could be drafted to reflect their theological position
on marriage in general terms and specifically with respect
to same sex marriages, where applicable.
2. Possible Options Regarding Specific Constitutional
Documents
In response to developments in the law and in
particular with regard to the proposed federal legislation
regarding same sex marriage, churches may want to consider
taking the following steps to review and/or amend their constitutional
documentation. However, it should be noted that given the
complex and evolving nature of the law, none of the steps
listed below on their own necessarily ensure compliance with
applicable case law, human rights legislation or the proposed
federal legislation, since the circumstances of each church
would need to be individually considered with the assistance
of legal counsel.
a) Statement of Faith
Churches should ensure that their beliefs are
clearly articulated in a statement of faith or similar doctrinal
statement reflecting their particular interpretation of scripture,
since an understanding of scripture is often subject to differing
interpretations. A more literal and/or orthodox interpretation
will generally be more consistent with a position that is
not in support of same-sex marriage. As such, where a church
does not wish to support same sex marriage, the church’s statement
of faith will likely need to reflect the church’s theological
belief in a more literal and/or orthodox interpretation of
scripture.
General scriptural passages, such as those contained
in the Apostle’s Creed, can be inserted in a statement of
faith. However, scriptural passages that might be construed
as promoting hatred against an identifiable group may leave
a church open to civil liability. According to the decision
of Owens v. Saskatchewan (Human Rights Commission)
[2002] S.J. No. 732 (QL), certain scriptural references, such
as Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10,
may in some situations be found to be promoting hatred.
For federally incorporated churches, the church’s
statement of faith could be inserted in its letters patent.
In Ontario, a provincially incorporated church, however, can
only have its statement of faith included in its general operating
by-law instead of its letters patent.
b) Charitable Objects
The charitable objects of a church are contained
in its letters patent and should clearly indicate a religious
purpose with references, to scriptural mandates where possible,
such as “propagating the Gospel of Jesus Christ”.
The charitable objects of a church should also
include upholding the church’s statement of faith, where applicable.
c) General Operating By-law
The general operating by-law of a church should
define “membership”. The definition may contain conditions
for church membership, which could include:
-
adherence to the church’s constitution
and statement of faith;
- agreeing to be subject to the authority of the church;
-
a requirement to sign a membership statement
by which a member would agree to comply with the church
constitution and its statement of faith; and
-
individuals leading or participating in
church programs, as well as key employees, could collectively
be required to be members of the church.
The by-law could also contain a provision authorizing
the directors to establish and implement operating policies
for the church, together with an effective discipline procedure
to enforce church policies where applicable.
d) Policy Statements
Policy statements can be of assistance in articulating
a practical manifestation of the church’s beliefs. In this
regard, a church should state that its policy statements are
to be applied in accordance with its statement of faith.
As indicated in section (c) above, the authority
of a church to adopt policy statements would be derived from
the church’s general operating by-law, which may require membership
approval for the policy statement prior to its adoption. However,
policy statements must be prepared in a manner that is consistent
with applicable human rights legislation.
Some examples of policy statements that a church
might adopt with regard to same sex marriage are as follows:
- A policy on the use of the church facilities could include
the following provisions:
-
Restricting the use of church facilities
to church programs and/or use by members but only for
purposes that are consistent with the statement of faith
and constitution of the church.
-
The drafting of a facility use policy
would have to be consistent with the requirements of human
rights legislation and could not exclude an “identifiable
group” contrary to applicable human rights legislation
as explained above.
Churches are cautioned to draft their policy
statements utilizing neutral wording where possible and avoid
negative or pejorative wording, as well as wording that distinguishes
an “identifiable group”. Churches are also cautioned from
implementing conduct or lifestyle statements if to do so would
result in distinguishing an identifiable group contrary to
applicable human rights legislation.
Churches must ensure that their policy statements
are enforced in a consistent manner; otherwise, either or
both of the following may occur:
-
A church may be found to have waived its
ability to enforce policies in the future because they have
neglected to do so in the past.
-
A church may become vulnerable to allegations
of discrimination where the church inconsistently enforces
its policies. For example, where a church neglects to enforce
provisions contained in a conduct statement with regard
to one activity, i.e. prohibition on drinking, but enforces
prohibitions on another matter, i.e. adultery.
In this regard, a church should adopt a procedure
for church discipline in its by-law reflecting approved principles
of natural justice. For further details in this regard, please
see an article on church discipline at http://www.carters.ca/pub/article/church/1995/discplin.pdf
entitled "A Legal Analysis of Church Discipline in Canada
and Church Discipline Update".
3. Review of Existing Constitutional Documents
If the church has an existing constitution and
is drafting additional clauses for inclusion dealing with
same sex marriage, the constitutional documents should be
reviewed by a lawyer in order to determine whether the documents
are consistent with recent developments in the law. In addition,
the church could determine whether it has a statement of faith
in its constitutional documents and/or appropriate policy
statements.
4. Conducting a Legal Audit
Given the severity of liabilities for non-compliance
with changes in the law, churches should consider conducting
a legal audit of all of their policies and constitutional
documents, as well as their liturgies and teaching materials.
The purpose of a legal audit would be to do
the following:
-
Review whether the church’s existing constitutional
documents may be inconsistent with applicable legal requirements
under human rights legislation, as well as proposed federal
legislation on same sex marriage; and
-
Review whether such documents reflect possible
discrimination or the promotion of hatred against an identifiable
group.
5. Education of clergy concerning their legal
rights
As well, it would be prudent for both local
churches and/or denominational organizations to educate clergy
of their legal rights in relation to the carrying out of their
ministerial duties and in relation to the operations of the
church as a whole.
Churches should be aware that while the proposed
federal legislation recognizes the rights of officials of
religious groups to refuse to perform marriages contrary to
their religious beliefs, the proposed legislation does not
recognize a similar freedom for religious groups as contemplated
by the Halpern case described above. It is therefore
important that local churches and/or religious denominations
be aware of the need to educate clergy regarding the rights
of clergy, as well as the rights of the church in general.
D. CONCLUSION
In summary, given the recent developments in
the law and proposed federal legislation concerning same sex
marriages, churches and religious organizations may want to
consider some or all of the following in conjunction with
advice from legal counsel:
-
Where applicable, a church may want to articulate
its adherence to a literal and/or orthodox interpretation
of scripture.
-
This adherence could be reflected in the
constitutional documentation of a church, including its
charitable objects, and should, where applicable, encompass
a clear religious purpose to uphold the statement of faith
of the church.
-
A church should avoid scriptural references
in its statement of faith if such scriptural passages may
be construed as promoting hatred against an identifiable
group.
-
The church’s general operating by-law should
define membership, authorize policy statements and establish
a procedure for church discipline.
-
Individuals involved in leading church ministries
or programs, as well as key employees, should also be required
to be members.
-
Policy statements may be of assistance to
a church in articulating a practical manifestation of the
beliefs of the church.
-
If the church does not wish to support same
sex marriage as a result of a literal and/or orthodox interpretation
of scripture, a policy statement on marriage could contain
a statement recognizing marriage as a holy sacrament or
institution of the church and defining marriage as being
between one man and one woman in accordance with the church’s
statement of faith.
-
Policy statements should be drafted using
neutral wording and avoiding negative or pejorative wording
or wording that distinguishes an identifiable group contrary
to applicable human rights legislation.
-
A policy on marriage and/or facility use
policy could be prepared, where applicable, but with the
assistance of legal counsel in order to ensure that the
church is in compliance with applicable human rights legislation
with respect to same sex marriage.
-
Churches are cautioned against implementing
policies on conduct or lifestyle that may be construed as
discrimination against an identifiable group contrary to
applicable human rights legislation.
-
Churches should ensure that their policy
statements are enforced in a consistent manner.
-
Consideration should be given to conducting
a legal audit of all existing and proposed policies and
constitutional documents in order to determine whether those
documents are in compliance with recent developments in
the law.
-
Local churches and/or denominations should
educate their clergy regarding the legal rights of clergy,
as well as those of the local church.
In light of the recent developments in the law,
churches and religious organizations will need to carefully
re-evaluate their constitution, as well as their operating policies,
in order to give consideration to the potential impact of proposed
same sex marriage legislation, and to avoid being found in breach
of the existing human rights legislation and proposed federal
legislation on same sex marriage.
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