From conflicts over wedding cakes to university admissions to religious schools, the tension between equality rights and religious freedom is often in the news in Canada, the United States and beyond.

Public recognition of diverse family forms, fluid gender identity and a range of sexual orientations has triggered negative responses from some religious communities. As a transformation of social norms takes place, equality rights increasingly conflict with tradition freedoms. That means balances of power have to shift.

The juxtaposition of equality rights and religious freedom featured prominently in a Supreme Court of Canada case about the proposed Trinity Western University law school in Langley, B.C.

At issue was a community covenant requiring students to pledge, among other things, not to have sexual intimacy outside of traditional, heterosexual marriage. The court upheld the administrative law decisions of the law societies of B.C. and Ontario to refuse recognition of the new law school because of the covenant’s discriminatory impact on LGBTQ students.

The university has subsequently made signing the covenant optional for prospective students, although faculty and staff still have to sign.

Teacher’s contract not renewed

A long-time teacher at Surrey Christian School, meanwhile, was recently told that her contract would not be renewed after school administrators became aware she was in a common-law relationship.

The teacher’s employment contract included a clause, common to many religious educational institutions, forbidding sexual activity outside of heterosexual marriage.

Human rights law prohibits discrimination in a range of contexts, such as employment, and in relation to a number of protected characteristics, including sexual orientation and marital status.

However, the British Columbia Human Rights Code contains an exemption: Section 41 allows some organizations to grant a “preference” to members with characteristics central to the purpose of the organization in order to address past disadvantages. Essentially that means that, in specific circumstances, actions that would otherwise be prohibited as discrimination are allowed.

When organizations seek an exemption under Section 41, there must be a rational connection between their preference and the organization’s purpose. The section has been used, for example, to allow an organization serving Indigenous people to restrict candidates for its executive director position to Indigenous individuals.

In a 1984 case, the Supreme Court of Canada held that Section 41 allowed a mandatory “community covenant” for employment at religious schools. This meant that the school could refuse to employ individuals who were involved in non-traditional intimate relationships without contravening human rights law.

Since then, few or no cases concerning employment conditions at religious educational institutions have come before the B.C. Human Rights Tribunal; it appears that claimants have been discouraged from pursuing a claim of discrimination because of this precedent.

Laws change with the times

Law evolves, pushed by social change. Exemptions under human rights law, and their application in contexts of employment at religious schools like Surrey Christian School, are due for a rethink.

First, the equality rights under Section 15 of the Canadian Charter of Rights and Freedoms, which came into force after the 1984 Supreme Court case, established new arguments about how exemptions like Section 41 of the B.C. Code should be understood.

Sexual orientation has been recognized as protected under equality rights, prompting legalization of same-sex marriage and inclusion of sexual orientation under provincial human rights legislation.

Second, a modern approach to statutory interpretation, set out in the 1998 Supreme Court of Canada decision in Rizzo and Rizzo Shoes, provides a more holistic, and socially sensitive, set of principles for interpreting statutes by requiring that courts look not only to the written words of the law but also to the larger context and purpose of the legislation.

This means that courts must regard human rights exemption provisions in light of the legislation’s central goal of equality, a concept that evolves with social progress.

Canadians more accepting

The last three decades have seen significant shifts in public and legal attitudes towards diverse family units and intimate relationships. Canadian society is considerably more accepting of this diversity.

In this light, necessary questions arise about whether human rights law should allow termination of long-standing employees on the basis of family status or sexual orientation, effectively permitting employers to regulate employees’ private lives.

Is such control necessary for the purposes of the religious educational community at stake? Do we want to preserve the ability of religious schools to immunize themselves from the diversity we are otherwise committed to in Canadian society?

We may disagree on the answers to these questions, but asking them is vital to mediating the competing interests at stake under human rights law.

It also bears repeating that laws that conflict with or are contrary to the rights and freedoms guaranteed by the Charter are of no legal force. We are a constitutional democracy; the Constitution is the master rule book. The equality rights under the Charter figure importantly here.

Of course, the Charter also protects freedom of religion and the interests of religious educational communities. Resolving conflicts between equality rights and religious freedom is complex and inevitably fraught.

The path ahead

The way forward entails a reconsideration of the current role exemptions play. An initial acknowledgement that progressive social transformation has costs is essential.

Those who previously enjoyed freedom to exclude or discriminate may be forced to cede some of this privilege. They bear these costs in the name of equality. The precise nature of the costs will vary with context, but the key point is that tradeoffs are necessary.

In cases of tension between equality rights for individuals in non-traditional intimate relationships and religious communities’ rights to religious freedom, the costs to religious communities are clear, and they are not minor.

But a society that prioritizes equality must have the courage to acknowledge that no resolution of such conflicts comes without harm to other freedoms or rights. As scholars Jennifer Nedelsky and Roger Hutchinson argue, the debate is not over whether any right is limited, but, rather, it is about what right is limited and how.

Law must engage with change directly and frankly. Exemptions to anti-discrimination law must be nuanced and rooted in the equality goals that generate human rights law in the first place.

We must acknowledge that as groups shift away from the margins, we must make room for them in places where they’ve not traditionally been present.