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Much of the passionate and often heated debate over the recent legalization of same-sex marriage in Canada is emblematic of the difficulties that accompany the balancing of conflicting rights. Bill C-38 raised concerns about how to best ensure a balance between freedom of religion and sexuality equality rights. Opponents of same-sex marriage worried that freedom of religion would be trumped by sexuality equality rights, and they argued for stronger legislative guarantees that would protect the beliefs and practices of religious officials and institutions. On the other hand, proponents of same-sex marriage generally agreed that freedom of religion must be respected, but differed in their assessments of how far the protections of the Charter of Rights and Freedoms (the “Charter”) should extend.
In many instances, the conflict between competing rights is settled through a delineation of the scope of the right at stake. It seems clear, for example, that freedom of religion and religious equality rights will allow religious officials to solemnize only those marriages that they believe adhere to the doctrines or tenets of their religion. This type of activity would fall squarely within established cultural and legal understandings of freedom of religion. The need for balancing arises only when the edges of two rights bump up against one another. That is, actual conflicts occur in the murky area of overlapping interests.
In the context of same-sex marriage, many difficult conflicting rights questions reside in this murky territory on the borders of rights. Should, for instance, the religious beliefs of civil marriage commissioners be accommodated in the workplace? Should religious organizations maintain their charitable tax status if they refuse to perform same-sex marriages? Should groups who are affiliated with religious organizations be given the protection of freedom of religion guarantees in, for example, the rental of their facilities for same-sex marriage celebrations? Should a religious organization be permitted to refuse to accept the valid civil marriage of any employee on the grounds that its own view of marriage is different?
In order to answer these questions, adjudicators must undertake a complex balancing of the rights at stake. The debate surrounding Bill C-38 is simply the latest instalment in an ongoing struggle to craft a paradigm for balancing conflicting rights in the human rights context. Undoubtedly, many of the issues raised by the legalization of same-sex marriage will eventually make their way to the Ontario Human Rights Commission (the “Commission”) in the form of human rights complaints, so it is imperative that the Commission identifies the factors involved in balancing these conflicting rights.
Conflicts of rights are, of course, not limited to the grounds of religion and sexual orientation. Over the years, the Commission has dealt with competing rights claims across virtually all of the protected grounds under the Code. The Commission is sensitive to the need to find an appropriate balance between the different rights protected in the Code and the Charter. Previous briefing notes and policy documents produced by the Commission have outlined the tools used by tribunals and courts in the balancing of rights. These documents provide a useful starting point for a more detailed inquiry into the benefits and limitations attached to the balancing approaches taken up in previous cases.