Ontario business owners lack freedom to choose their clients according to conscience, contend supporters of a Toronto printer who was fined for refusing to serve a homosexual advocacy group.
Last week, Scott Brockie, the owner of Imaging Excellence, Inc., appealed to the Ontario Divisional Court to overturn a $5,000 penalty assessed by the province’s human rights commission. A decision is expected in a few months.
Brockie maintains that his Christian beliefs compelled him to reject a request by the Canadian Gay and Lesbian Archives in 1996 to print materials for the group. The Toronto-based CGLA provides a clearinghouse of information about homosexuals and their history.
“Right now there is no provision for any right of freedom of religion or conscience for business owners set out in our human-rights legislation,” said Janet Epp Buckingham, legal counsel for the Evangelical Fellowship of Canada, which defended Brockie in court.
On Feb. 24, 2000, the Ontario Human Rights Commission found Brockie guilty of discriminating against homosexuals according to its code. A board of inquiry appointed under the Ontario Human Rights Code ordered him to pay damages.
“Their position was that you must serve every customer who walks through your door with no exceptions,” said Buckingham.
But the Gay and Lesbian Archives argues that Brockie’s refusal of service is equivalent to racial discrimination.
“If we were black, this would be a case of asking Rosa Parks to get off the bus again,” said the group’s board president, Matt Hughes, referring to the famous incident during the American civil rights movement.
Is being homosexual the same as being black or white? The Ontario Human Rights Commission does not define “sexual orientation” in its code but has adopted a working definition, according to its website: “Sexual orientation is more than simply a ‘status’ that an individual possesses; it is an immutable personal characteristic that forms part of an individual’s core identity.”
The rights commission’s board of inquiry asserted that “it is reasonable to limit Brockie’s freedom of religion in order to prevent the very real harm to members of the lesbian and gay community.” The board added that “Brockie remains free to hold his religious beliefs and practice them in his home and in his Christian community.”
But Buckingham points out that the code, which was established in 1962, requires employers to accommodate the beliefs of their employees.
“It’s unfair to say your religious and conscientiously held beliefs are of no value,” she said.
In 1986, the Ontario legislature amended the code to include protection from discrimination based on sexual orientation. The code says this applies to employment, housing, contracts and services. On its website, the commission states: “It doesn’t matter whether or not discrimination is intentional: It is the effect of the behavior that is important. Sometimes a rule or policy that looks like it is neutral actually causes a disadvantage for a particular group; this can also be discrimination.”
Brockie, nevertheless, has the support of the Canadian Civil Liberties Association. The CCLA believes businesses do not have the right to discriminate against a person on the basis of sexual orientation, but sided with Brockie because the Gay and Lesbian Archives represents a particular cause. People “should be able to refuse to assist causes they don’t agree with,” said CCLA general counsel Alan Borovoy.
“If this had been a gay dentist who had requested a printer to print his stuff, and the printer said, ‘Oh, well, I won’t serve you because you’re a homosexual,’ we’d say the law properly goes after somebody like that,” Borovoy explained.
A U.S.-based group called Gays and Lesbians for Individual Liberty takes a similar philosophical stance. The group’s president, Richard Sincere, said if it were a U.S. case, he would make the argument for Brockie on the basis of freedom of contract.
“You should be able to refuse business to anyone who comes to you,” he said. “It doesn’t matter what your reasons are. If you don’t want to do a job for someone you don’t have to.”
Sincere’s group supported the Boy Scouts of America when the New Jersey Supreme Court ruled in 1999 that a law prohibiting discrimination against homosexuals in public accommodations applied to the Scouts. Sincere said he disagrees with the Scouts’ policy of not accepting homosexuals as troop leaders, but argued that the New Jersey ruling erodes freedom of association, including the right of homosexual organizations to set standards for their own members. In June 2000, the U.S. Supreme Court overturned the New Jersey decision by a 5-4 vote.
“The Gay and Lesbian Archives is arguing that they have a right to exist and hold their beliefs, and we need to recognize that,” said Buckingham. “But they are refusing to recognize that others have a right to their beliefs.”
The GLA’s Hughes agrees that Brockie has a right to his beliefs but insists that those rights go only so far.
“How are we to measure his personal rights?” Hughes asked. “Can I adopt my own religion and expect that it be put into the Canadian Charter of Rights? I mean, what kind of Christianity is he a part of? Is this the Christianity that millions of gays and lesbians belong to, or is it a Christianity only reserved for heterosexuals?”
The complaint against Brockie was filed by the GLA’s then-President Ray Brillinger in 1996. Brillinger submitted a request to print letterhead for the group. Brockie refused, explaining that while he has done work for individual homosexuals, he believed this printing job would help promote behavior that he finds repugnant.
A coalition of groups called the Canadian Religious Freedom Alliance supports Brockie with the argument that the Ontario Human Rights Code protects people, but not social causes, from discrimination.
But the human rights commission’s board of inquiry held that organizations such as the Gay and Lesbian Archives are protected under the Ontario Human Rights Code’s sexual orientation statutes. The board’s legal counsel said such groups are “so imbued with the identity or character” of their members that they must be accorded the same protection as individuals.
Brockie’s backers note that Brillinger was able to go to a nearby printing shop to get his work done. Hughes maintains, though, that this is not relevant. His point of contention is that Brillinger went into Brockie’s store with a reasonable expectation of service but instead was shamed.
“I mean, this is a business called Imaging Excellence, Inc.; it is not called Christian Ethics, Inc., or Christian Printing,” Hughes said. “Mr. Brillinger went in quite innocently. When he was denied (service) he knew that he had been discriminated against, humiliated, and he felt very demoralized.”
Getting business services in Toronto is not difficult, Hughes noted, “but if I lived in a small town here in Ontario, I might have a problem if I were gay.”
If Brockie’s penalty is upheld, Ontario business owners and legal professionals fear an erosion of their right to conscientious objection, Buckingham said. Lawyers with the Christian Legal Fellowship, which defended Brockie, have expressed concern about their freedom to choose between clients, she said.
Defenders of Brillinger argue that living in Canada’s “diverse society” requires compromises. Susan Ursel, legal counsel for the Equality Coalition, which intervened for Brillinger in court, believes the Ontario code strikes a proper balance “between the absolute freedom of conscience to do whatever you want and the requirements of a modern democracy, that people be treated with dignity.”
Buckingham noted that, despite challenges in some provinces, religious organizations in Canada remain exempt from discrimination laws that pertain to homosexuals. Ontario has a specific exemption for religious groups.