Religious freedom means permission to disciminate on the basis of religion: a Canadian case

30 Aug

From Andre Schutton in the Ottawa Citizen:

For a democracy to flourish, governments must respect the fundamental freedoms of its citizens, four of which are outlined in section 2 of the Charter of Rights and Freedoms. The first one, freedom of religion, and the fourth one, freedom of association, are especially important in the discussion surrounding the recent decision by Christian Horizons to open its employment to any and all.

Christian Horizons is a Christian charity that provides assistance to people living with special needs, especially those with complex developmental disabilities and challenges. It is the largest of hundreds of different organizations that contract with the Ontario government to provide these types of specialized care services.

Christian Horizons, until this week, limited its hiring to Christian employees as defined by a statement of faith. It should be noted that Christian Horizons actually eliminated their morality and lifestyle code already a few years ago — the decision this week was to remove the statement of faith requirement for front line workers.

The Citizen, in an editorial published earlier this week, suggested that “under no circumstances should a charity that is largely funded by taxpayers be allowed to impose its moral values on everyone else.” I agree with this statement. The question then is this: was Christian Horizons imposing its moral values on everyone else? In my view, it wasn’t. It was only imposing its moral values on itself.

Let me explain: there is a popular perception in law and society that sees institutions, especially religious ones, as something separate from the people they are made up of. But this is an inaccurate view. What is (or, more accurately now, what was) Christian Horizons? Christian Horizons was an association of Christians who came together to engage in a corporate enterprise: to attend to those who suffer in the margins, to walk the walk of Jesus, to serve those who are in most desperate need of help. The work, I’m sure, will continue. The nature of the association will not.

Christian Horizons began as a private religious organization completely funded by Christian churches and individuals. When the provincial government recognized that organizations like Christian Horizons could complete their social service work to the highest standards and for a fraction of the price, the government contracted with these organizations to take over these services and phased out the state-run facilities preferring community-oriented homes.

So, if Christian Horizons, as an effective institution doing good work at a good price, should nevertheless be banned from engaging in the work they do simply because they are a group of Christians (instead of a more nebulous, indistinct group), then what is the deeper implication of such a policy? The implication is that not only institutions but also individuals must leave their Christian (or other faith identity) at the door if they ever want to contract with the government.

But that would be … discrimination. This is where freedom of religion comes in. Each religious individual in Ontario ought to be given equal opportunity to contract with the government as any “non-religious” Ontarian.

So if it doesn’t make sense to ban an individual who identifies according to a certain religious tradition from working for the government, why can’t a group of these individuals come together to work in community with each other? This is where freedom of association comes in. That freedom protects the constitutional rights of individuals when practised in common with others. Freedom of religion does not disappear simply because it is exercised communally.

The staff of Christian Horizons should have been able to define not only who they are, but who they are not. It was their identity that shaped them, and made them good at what they did.

This case is not a situation of “government-funded discrimination”; it is one example of a government policy that contracts with a diversity of organizations to effectively and efficiently serve those who need care. Faith is a part of the beautiful mosaic of services in Ontario, with organizations that identify according to other faith traditions and cultural traditions too. And people choose Christian Horizons as a service provider, one of hundreds of options available, not only because of their high quality of care, but also because of their faith-basis.

Christian Horizons may have good reasons for changing their policy. But I see the change as a loss for Ontario. It seems to me that an excellent caregiver has been forced to compromise its distinct identity and foundational principles. Now Ontario is less diverse for it. Given that these principles birthed this organization, we should not be surprised when the undermining of these principles forces Christian charities to reconsider why they are bothering to provide their service at all. And if that is what the people of this province want, let me be the first to weep.

André Schutten is a lawyer with the Association for Reformed Political Action (ARPA) Canada. He completed the work for his LL.M. degree in Constitutional Law this summer, with a focus on religious freedom and freedom of association.

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