Sexual Orientation and Religion in Canada: Litigation and Beyond

• Author: Miriam Smith
• Pages: 349-383

349

Chapter 12

Sexual Orientation and Religion in Canada:

Litigation and Beyond

Miriam Smith*

A. Introduction

      Charter-based1

equality rights involve deep-seated matters of highly personal

individual beliefs. In Canada’s perennial constitutional debates,

-

ing constitutional principles, scholars in political and legal phi-

losophy have puzzled over how to reconcile seemingly irreconcil-



disputes in which each side claims fundamental Charter values.

 Char-

ter

and lesbian, gay, bisexual, and transgender (LGBT)2 rights on the

* The discussion of the Surrey book banning is drawn in part from my pre-

viously published article: “Questioning Heteronormativity: Lesbian and

Gay Challenges to Educational Practice in British Columbia, Canada,”

(October 2004) 3:2 Social Movement Studies 131 [“Questioning Hetero-

normativity”]. The research for that article was supported by a grant

from the Social Sciences and Humanities Research Council of Canada.

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11

[Charter].

 



Miriam Smith

350

other. I present a description of some of the key cases that have

occurred in Canada pitting sexual orientation rights against reli-

gious rights under the Charter, showing how these cases have

most commonly been resolved in the most recent period. While

  

 

of religious rights in relation to claims for protection from dis-

crimination based on sexual orientation. Some of these issues

have included the introduction of reading material depicting chil-

dren with same-sex parents in elementary schools (the Surrey

book banning in BC3); teacher training for public schools (Trin-

ity Western case4); the debate over the recognition of same-sex

relationships and same-sex marriage (1995–2005); the Owens,5

Boissoin,6 and Whatcott7 cases on free speech; cases on employ-

ment discrimination (Heintz8) and discrimination in the provision

of services (Brockie9) in Ontario; and the ongoing case of a Sas-

and “gay” and, instead, identify under the umbrella of “queer”; others



gay. Many lesbians identify with the women’s movement and have not

felt that their interests were well represented in gay politics. The terms

“trans,” transgender, and transsexual are used to refer to gender identity

(which is not the same as sexual orientation).

3 Chamberlain v Surrey School District, [2000] BCJ No 1875 (CA) [Cham-

berlain, 2000] and Chamberlain v Surrey School District, [2002] 4 SCR

710 [Chamberlain, 2002].

4 Trinity Western University v British Columbia College of Teachers, [2001]

SCJ No 32 [Trinity Western].

5 Owens v Saskatchewan (Human Rights Commission), 2006 SKCA 41

[Owens].

6 Boissoin v Lund, 2009 ABQB 592 [Boissoin].

7 Whatcott v Saskatchewan Human Rights Tribunal et al, 2010 SKCA 26

[Whatcott].

8 Heintz v Christian Horizons, 2008 HRTO 22 [Heintz].

9 Ontario (Human Rights Commission) v Brockie, [2002] OJ No 2375 (SCJ)

[Brockie].

Sexual Orientation and Religion in Canada: Litigation and Beyond

351

katchewan marriage commissioner who has refused to perform

same-sex marriages (Nichols10) (see Table 1). In each of these

cases, Christian Evangelicals claimed that their freedom of re-

ligion had been infringed by the assertion of same-sex equality

rights. Two of the cases concerned the moral status of homosex-

uality itself, especially in relation to the education system. Other

cases concerned the status of same-sex relationships and the

legal recognition of such relationships in provincial and federal

jurisdictions. The Owens, Boissoin, and Whatcott cases con-

cerned the publication of statements condemning homosexual-

ity while the Heintz case concerned employment discrimination

on the basis of sexual orientation and the Brockie case dealt

with the refusal of service to a lesbian and gay organization by a

printer.

This debate has more than two sides, however. In both the

“religious” and “LGBT rights” camps, there are multiple voices

with different stances across a range of current policy issues

including education, free speech, and the administration of

same-sex marriage. In Canada, religious opinion on same-sex

marriage is divided, with some liberal denominations arguing in

favour of same-sex marriage and even claiming that their free-

dom of religion requires that they be permitted to perform such

ceremonies as legal marriages while, in contrast, there are Prot-

estant Evangelical, Roman Catholic, orthodox Muslim, orthodox

Jewish, and other religious groups that oppose same-sex mar-

riage. Further, while Protestant Evangelicals have played an im-

portant role in litigation against LGBT rights, adherents of other

religious traditions have pursued other political strategies to

block the recognition of LGBT rights or have intervened in court

cases. In the queer community, there are those who oppose the

campaign for same-sex marriage as normalizing same-sex rela-

tionships and as undermining distinctive urban queer cultures,

10 Nichols v MJ, 2009 SKQB 299 [Nichols].