Mixed Ruling in Case of Lesbian Fired from Evangelical-Run Canadian Charity

Both sides sought to construe victory out of an appeals court's ruling in a Canadian court case that pits religious charities against GLBT employees.

Canadian newspaper the National Post recounted in a Mary 19 story that the evangelical charity Christian Horizons required Connie Heintz, a lesbian, to sign a "code of conduct" that expressly forbade Heintz--under penalty of losing her job--from having sexual relations outside of heterosexual marriage. The code also required Heintz to refrain from reading or viewing pornographic material or from telling lies.

Heintz went to work for Christian Horizons in 1995, but five years later she came out as a lesbian, entered into a relationship with another woman--and was fired for doing so. Heintz took the matter to the Ontario Human Rights Tribunal, which found that Christian Horizons could not practice employment discrimination and ordered the group to pay a hefty fine.

But on appeal, a higher court found that the earlier ruling was incorrect, at least in part; although the appeals court ruled that Heintz should have been able to keep her job, it also found that the lower court had not appreciated what it meant for Christian Horizons to be a faith-based charity. The lower court said that the organization's work consisted of caring for the disabled through its network of group homes and not religion per se, and that Christian Horizons had no true need for a code of conduct by which it requited its employees to abide.

However, the appeals court said that the religious identity of Christian Horizons was inseparable from its work because caring for the disabled was a mission required by the group's Christian tenets, and said that, "it is clear that Christian Horizons ... would not be doing this work of assisting people ... but for the religious calling of those involved."

Even so, the court found that the organization had no true need to ensure that "support workers"--the people delivering the care--shared the organization's brand of faith or moral conduct, on pain of firing, noting that, "from an objective perspective, the support workers are not actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity."

"We have this bold interpretation in terms of respecting the rights of coreligionists to form groups, but when it came down to what standard was needed to have membership, they evaluated from a secular criteria," lawyer Peter Jervis said. "It still leaves questions to the extent to which religious communities can maintain identity and fully participate in the broader public society."

"We have a team of lawyers trying to figure it out. We don't know what it means [in practice] for our groups," added the leader of the Canadian Council of Christian Charities, John Pellowe.

Even so, both sides in the case were quick to assert a victory.

"We live in a pluralistic society where religious freedom has to be respected, which includes that some positions have to be based on religious belief," said lawyer Cynthia Petersen of GLBT rights group EGALE. "But in the case of Ms. Heintz, the court said her duties--bathing and feeding people--would have somehow had to have been operationally impaired by her sexual orientation." Added Petersen, "The court has now set a high bar for religious groups to prove a person's orientation or beliefs would get in the way of their duties."

Meantime, the other side of the debate called the court's ruling a "significant victory for faith-based charities across Canada," in the words of Evangelical Fellowship of Canada vice president Don Hutchinson, who is also the group's general legal counsel, reported anti-gay religious website LifeSiteNews.com. Added Hutchinson, "While [Christian Horizons] must clarify certain governing documents and review certain employment policies, they may largely continue to require employee compliance with both statements of faith and lifestyle and morality policies." Hutchinson said that under the ruling, "Christian charities may continue to serve non co-religionists in society all while maintaining their internal religious ethos and integrity."

Ed Sider, the chief executive officer of Christian Horizons, gave his thanks to those who supported the religious charity, writing, "We are committed to strengthen the spiritual foundation of the ministry. We serve people with developmental disabilities in Ontario because our members, directors and employees have a Christian calling to do so." Added Sider, "Your commitment to this ministry was critical to our appeal and--indeed--will sustain our work into the future."

During the appeal, the National Post gave insight into Heintz's views. In a Dec. 17, 2009, article, the National Post reported that for Heintz, coming out had been a "struggle," largely due to her faith and background. "Speak to any person raised in a fundamentalist Christian background like I was," Heintz told the media. "It is extremely difficult to come to terms with your sexual orientation. You can't flip the switch and decide."

But over time, Heintz reconciled her faith and her sexuality to her own satisfaction. Heintz said that she had no problem fulfilling her duties for the charity organization, tending to the physical and spiritual needs of the disabled while acknowledging the truth of her sexuality. "I never felt like a hypocrite," Heintz told the National Post.

Petersen told the court that if anything, it was Heintz's religious liberty that was being eroded. "It was a restriction to her religious freedom," Petersen argued in court as the appeal was being heard. "They don't have the right to say she's not an evangelical Christian."

Similar Case, Different Province

In a similar case of alleged workplace discrimination targeting a lesbian working for a religious employer, a female music teacher at a Catholic all-girls' school in Vancouver was dismissed following the birth of her and her partner's infant son--an event that reportedly drew the ire of some of the parents of the school's pupils.

Lisa Reimer had been hired as a music instructor by Little Flower Academy, a Catholic all-girls school, for one year as a replacement for a teacher who was away on maternity leave. Reimer had asked for parental leave herself, which the school denied, but she was granted three weeks of personal leave, reported an April 29 Canadian Press article.

But just before she was scheduled to return to the classroom, Reimer claims, she was brought in for a meeting and told that she would not be allowed to resume teaching in the classroom. She claimed that she was told to prepare lessons that could be delivered online. "I have been instructed that all the classes are cancelled and I'm not to come into the school at all or have any direct contact with the students," said Reimer, "but I am to provide all the classes, through Grade 8 to 12, an online written assignment." Continued Reimer, "You wouldn't give a written assignment in a performing arts class to make up an entire term."

GLBT equality advocate group Pride Education Network claimed in an April 28 press release that the principal of the Little Flower Academy had informed Reimer that parents of some of the students were worried "the girls might follow Ms. Reimer's lead." One member of the group, Steve LeBel, used to be a teacher; he said that the school's pupils were being given the message that, "our principal thinks it's fine to let someone go because they're a lesbian."

Instructors at Catholic schools are often contractually required to abide by church teachings; instructors who are not Catholic, as is the case with Reimer, are required to treat the church's doctrines with respect. So-called "Catholicity clauses" stem from a 1984 court case that established precedent in Canadian law that allows non-profit religious organizations to give preference to members of their own faith over non-members, and makes it possible for employees to be terminated if the employer determines that he or she is not following a faith's religious principles, reported The Vancouver Sun on April 29. In the 1984 case, Caldwell vs. St. Thomas Aquinas, a teacher was fired from a Catholic high school after she married a divorced man. That precedent could be invoked today to fire a teacher for living with a life partner out of wedlock, the article said.

The Canadian Supreme Court upheld that legal principle in a 2001 case that challenged Trinity Western University, a religious school, for its mandate that students avoid same-sex intimacy along with other "biblically condemned" behavior.

But the Sun noted that some view the 1984 precedent as out of step with the times. Vancouver attorney Tom Beasley who specializes in employment and labor issues, told the Sun that, "The question in this case is a conflict between the fundamental right of freedom of religion and sexual orientation." Added Beasley, "Society has evolved a fair bit since 1984 and the Caldwell decision. The approach taken by society to human rights matters and the interplay between religion and sexual orientation, as one example, has changed. So I am sure the courts will look at this differently than they did 30 years ago."

Geoffrey Howard, another Vancouver labor and employment lawyer, noted that if Reimer wished to pursue the matter, she might have grounds to challenge the "Catholicity" clause in her contract because Little Flower Academy, while a private religious school, receives government funding. "I think that it is time to revisit Caldwell," Howard told the Sun. "I think this case is very significant. Just see how many societal issues are raised here. Sexual orientation is just a small part of this. Look at the issue of family rights, of parental rights, of other rights."

Freedoms in Conflict

Superintendent of the Catholic Independent Schools of Vancouver Archdiocese Doug Lauson told the Sun, "In this type of issue you are basically fighting the rights and freedoms of religion versus the rights and freedom of an individual. Which one is going to trump the other is the ultimate question." Moreover, "It is the practice of sexuality that distinguishes what the Church will accept and not accept," Lauson said. "So a heterosexual practicing sexual relations out of wedlock is no different than a homosexual practicing sexual relations outside of marriage." That said, however, "When it comes to gay and lesbian people, the Church actually teaches that human dignity extends to all people, whether they be homosexual, heterosexual, short, fat, thin, white, black, it doesn't make any difference," Lauson pointed out.

Such a Catholicity clause was reportedly included in Reimer's contract with Little Flower Academy, but, said Reimer, "I was not made aware that my personal life would be judged by anyone," the Canadian News story reported. Reimer says that she was told that parents of the school's pupils would not accept her being a lesbian with a life partner and a child.

"After she and her partner had this child she wanted to make that a part of the school life and we weren't inclined to agree to that," the head of the Academy's board of directors, Celso Boscariol, said. "After she and her partner had this child she wanted to make that a part of the school life and we weren't inclined to agree to that." Added Boscariol, "It was made clear to her that 'Look, this is not on,' and we had a discussion with her that the best thing to do under the circumstances was that she could complete her assignments from home and we would pay her out to the end of the year because we didn't want to put her in a situation of financial hardship."

However, Boscariol says that the issue of whether parents would accept Reimer or not was not the main issue. "I really didn't deal with any parent concerns and we're not really responding to parent concerns," he told the media, adding, "It's not like a mob of people showed up demanding things be done. We're just conducting ourselves within the tenets of the Catholic faith."

But Reimer denies that she told her students anything about her private life or family situation, and says that at the meeting she was told that parents had reservations about her being in the classroom. Reimer also told the media that when she first asked about parental leave--which the school does not offer in general as a matter of policy--the principal and vice principal advised her that she could take three weeks of personal leave, but if the reason for it were discovered--namely, that Reimer had a female spouse who was giving birth--the school might be compelled to fire her.

Meantime, she said, the students weren't getting the music education that they ought to receive. Moreover, Reimer opined that the school's handling of the matter "sends an archaic message to the youth of our province, I think that's dishonorable." Added Reimer, "I think it tells them it is OK to be bigoted and to be homophobic and that it's OK to make deals behind closed doors with no witnesses," reported The Vancouver Sun in an April 29 follow-up article. "I really care about the girls and am really proud of them and enjoyed working with them."

"I'm certainly concerned about the allegations that were reported," said Education Minister Margaret MacDiarmid, who said that she found out about the issue from news media reports, but added that her office would look into the allegations. "Generally speaking, there are labor laws, there are human rights laws in British Columbia that have to be upheld."

In the United States, the question of GLBT civil protections and the sensitivities of religious institutions have generated sparks on occasion. Earlier this year, two students at a Catholic pre-school in Boulder, Colorado, were not readmitted because they had two lesbian mothers. The Archdiocese of Denver made the claim that, "Parents living in open discord with Catholic teaching in areas of faith and morals unfortunately choose by their actions to disqualify their children from enrollment."