Sexual Orientation and Religion in Canada: Litigation and Beyond

AuthorMiriam Smith
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-
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
 
Miriam Smith
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
6 Boissoin v Lund, 2009 ABQB 592 [Boissoin].
7 Whatcott v Saskatchewan Human Rights Tribunal et al, 2010 SKCA 26
8 Heintz v Christian Horizons, 2008 HRTO 22 [Heintz].
9 Ontario (Human Rights Commission) v Brockie, [2002] OJ No 2375 (SCJ)
Sexual Orientation and Religion in Canada: Litigation and Beyond
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
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].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT