It's Time to Think About a Good Defence

The political machinations around the redefinition of marriage by the federal government have been fascinating to watch.  The Liberal minority government appears to still be committed to passing the legislation.  Irwin Cotler, the Justice Minister has met with Liberal back-benchers to try and assuage their fears, but at least publicly says that the legislation will pass.  And, if what the Liberals are saying is true, it will pass without many protections for religious people and organizations.

The difficulty is that the federal government has jurisdiction over the definition of marriage but the provinces have jurisdiction over the solemnization of marriage and “civil rights”.  The result is that the federal government can create a societal sea change, without the capability of ensuring that the potential victims of that sea change are protected.  That is left to the will of the provinces.

Because of the apparent inevitability of the redefinition of marriage, religious organizations should be making plans now to ensure that they insulate themselves, as much as possible, from unintended impacts on them.  Some churches already accept same-sex relationships as the moral equivalent of heterosexual ones.  Those churches and other religious organizations that do not should act quickly to prepare themselves.

There are a number of ways in which many religious organizations can be impacted by the redefinition of marriage.  The first is through employees.  This impact is primarily on para-church organizations and religious schools.  If you run such an organization, you should review your hiring practices and employment policies.  Is it important to you that all employees be committed to the underlying religious beliefs on which your organization is founded?  Is it important to you that all employees live their lives in accordance with those religious beliefs? 

If your answer to those questions is “yes”, you should consider if you have communicated that to the employees.  Was it a term of hiring that the employees would live in accordance with a religious code of conduct?  Do the employees understand that?  And, importantly, is that code of conduct tied to the actual job functions of each of your employees? 

The planning that you should take in this regard is not to exhibit your disdain for those who engage in homosexual relationships.  It is intended to maintain the integrity of the religious purpose for which you created your organization.  All organizations are different and it may be that different employees will have to be treated somewhat differently depending on their duties.  Some careful planning with legal input is necessary.

Another way in which your organization can be impacted by the redefinition of marriage is through the use of your facilities, if you make them available for use by the public.  For example, if you run a Christian camp and make it available for public groups to use as a retreat, you should carefully review your rental practices with legal counsel to protect yourself against human rights challenges.  Camp Arnes in Manitoba is already fighting a human rights complaint when it refused to rent Bible camp facilities to an expressly homosexual organization. 

If you run a hall that you make available for wedding ceremonies or receptions, what will you do if you are asked to rent the hall for a same-sex wedding.  The Knights of Columbus refused to rent their hall in B.C. and are now waiting for a decision of the B.C. Human Rights Tribunal in response to a complaint made against them.

If your organization does not have a sound facilities use policy that has been carefully reviewed to ensure that it accords with your human rights obligations, you should not delay in creating one and having it reviewed by knowledgeable legal counsel. 

We are entering some uncharted territory.  Now is the time to tackle some difficult issues to place your organization in the best position to defend itself if it comes under attack.

This article was written by Kevin L. Boonstra, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.