Another Case, Another Balancing Act

It seems that the Courts have to confront the balancing between religious freedom and the equality claims of gays and lesbians with increasing frequency.  Last month, the issue was whether a gay student could bring his boyfriend to the prom at a Catholic school in Ontario.  On June 17, the Ontario Superior Court of Justice released its much anticipated decision in Brillinger v. Brockie, a case that highlights the need for better protection for those who conscientiously object to advancing a homosexual agenda in their business.

Scott Brockie is the owner and operator of Imaging Excellence Inc., a printing company.  He is Christian and believes that homosexual conduct is sinful.  In April of 1996, Ray Brillinger asked Mr. Brockie to print letterhead, envelopes and business cards for the Gay and Lesbian Archives containing a logo, showing that the organization represented the interests of gays and lesbians.  Mr. Brockie refused because agreeing to do so would be to assist in the dissemination of information intended to spread the acceptance of a homosexual lifestyle.

Mr. Brockie and his company were hauled before the Ontario Human Rights Board of Inquiry for discriminating against Mr. Brillinger and his organization on the ground of sexual orientation.  Notwithstanding Mr. Brockie’s religious freedom under the Charter, on September 29, 1999, the Board of Inquiry found that Mr. Brockie’s actions were discriminatory and ordered that he and his company provide printing services to lesbians and gays and to organizations in existence for their benefit.  It also ordered that he pay $5,000 in damages.

Mr. Brockie appealed the decision, arguing that it violated his freedom of religion under the Charter to be compelled to participate in the advancement of a homosexual lifestyle.  Mr. Brockie’s claim was argued in relief against the rights advanced by Mr. Brillinger to be free from discrimination on the basis of his sexual orientation.  The stage was set and the Court was faced with a stark balancing between these competing interests.

While the Court properly recognized that Mr. Brockie’s freedom of religion was infringed by forcing him to print material promoting a lifestyle with which he has religious objections, the Court went on to find that, in many respects, the infringement was justified. 

Most Christians and other religious people do not compartmentalize their life into religious spheres and secular spheres, permitting their religious beliefs only to have impact on their worship and prayer life.  Most Christians would agree that faith infuses all aspects of one’s life and that belief and doctrine cannot be separated from the day to day decisions that confront everyone in their personal and professional lives.

However, the Court found that “Mr. Brockie’s exercise of his right of freedom of religion in the commercial marketplace is, at best, at the fringes of that right”.  In other words, when a religious person enters the public market, they have to be prepared for restraints to be placed on their religiously motivated decisions.  There was no suggestion that Mr. Brockie did not believe that to print the materials requested would be advancing a homosexual lifestyle and that his religion prohibited his doing so.  But because this was in a commercial arena, his religious liberty claims are easier to ignore.

The Court went on to explain the importance of the Ontario human rights protection, relied on by Mr. Brillinger, calling the prohibition of discrimination because of sexual orientation a pressing and substantial concern.  The Court accepted that Mr. Brockie’s right to freedom of religion caused “harm” to others by infringing the human right to be free from discrimination based on sexual orientation. 

The Court relied on earlier cases to hold that there are limits on religious freedom and that “the further the [religious] activity is from the core elements of the freedom, the more likely the activity is to impact on others and the less deserving the activity is of protection”.  In making this statement, the Court implicitly accepted the role of determining when an activity that a person declares is mandated by his or her religion is part of the core of that person’s religious experience. The Court observed that “service of the public in a commercial service must be considered at the periphery of activities protected by the freedom of religion.”

While the Court’s statements seem dismissive of Mr. Brockie’s rights, its final decision provided Mr. Brockie and others persons of faith with some protection in their commercial lives.  It accepted that if “any particular printing project ordered … contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs”.  On this basis, the Court amended the Board of Inquiry’s order to the extent that Mr. Brockie cannot be required “to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.”

In changing the order of the Board of Inquiry, the Court seemed to accept that religious people cannot be conscripted to advance an ideological or philosophical agenda with which they disagree on the basis of religious belief, even in their commercial lives.  This portion of the decision is a clear victory for religious freedom.  However, the preceding comments about the “peripheral” nature of Mr. Brockie’s religious activity in the commercial sphere lend themselves to arguments that religious belief and practice ought to be cloistered to the private sphere of the home and church.  While the end result of the Court’s decision is not that this should occur, the Court’s reasoning permits this to be advanced in future cases. 

Courts should remain neutral with respect to the tenets of religious faith.  If it contradicts one’s religious convictions to print materials to advance a homosexual lifestyle, that belief should be taken seriously, regardless of whether the person is acting in personal or commercial arena.  This does not permit intolerance towards homosexuals.  It advances a pluralistic society in which everyone can pursue their own view of the “good life” without having to agree with the code of conduct of others. 

In the end, Mr. Brockie still has to pay $5,000.  In the future, he may be able to refuse printing jobs, but only when he can positively prove that the material to be printed uncontravertibly advances beliefs and practices in direct contravention of his religion.  While the Court did recognize that religious freedom issues were implicated, it hardly gave religious liberty a full and robust interpretation.  There are some positive aspects to the Court’s ultimate decision but one would have to be naively optimistic to believe that the Court’s underlying reasoning will not be used in the future against freedom of religion claims.

This article was written by Kevin L. Boonstra, a lawyer who practices in constitutional 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.