Thursday, May 27, 2010

Juridics: Ontario: Canadian court makes important "religious hiring" decision

Stanley Carlson-Thies of the Institutional Religious Freedom Alliance has emailed IRFA's May 27,2k10 newsletter. One of the items in this issue of the newsletter features an important juridical note about a recent development in Ontario regarding indiscriminate hiring by non-church faith-based organizations (many of them are social-service agencies who recruit staff on the basis of commitment to Christian morals and faith).

The court deciding the case, and the rhetoric of discussing the case bandies about the term "discrimination" -- but the Christian defence shoud emphasize the hazards of indiscriminate hiring of people who don't evidence having their heart in the secular realization of the Christian all-of-life concern and mission. Christian organizations have every r+t to discriminate against indiscriminate hiring, and the freedom of association that established the org and operates its financial base, shoud trump individuals who don't have their heart in the Christian basis of the organization's work which may be one of faith and morals.

Of course, most Christian social-service orgs need workers heartfully committed to serving all who come to them for service. In this key sense, being Christian in social service may mean anti-discrimination in regard to those cared for by the org. However, a social-service agency, whether Christian or not, needs to discriminate according to its focal task: for instance, caring for the disabled. Such agencies are not ghettos, and it's precisely the discriminating hiring policy that selects for those who can serve in the task at hand indiscriminately. Clear? Stanley states the case, but I have further questions because of the particulars.  All is not what it seems.

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Unsettling Canadian Ruling About Religious Hiring
Is religious hiring by religious social-service organizations in Ontario legal or not? The answer from an Ontario court last week was: Yes. Puzzled? So was the court.

The case concerned Christian Horizons, an evangelical faith-based organization that runs residential homes for severely disabled people. It serves the disabled without regard to religion, but requires staff to be Christian in belief and conduct. A decade ago, an employee, despite the conduct code, entered into a homosexual relationship, was dismissed, and appealed her dismissal to the Ontario Human Rights Tribunal.

The Tribunal's ruling, in 2008, was pernicious: religious hiring standards could be maintained only by those religious organizations that only serve fellow believers. Churches, which mainly serve their members, can insist that employees be Christian. But parachurch organizations, serving all who are "neighbors"--anyone needing help--are not free to insist that their employees must be faithful believers.

Last week's decision by the Ontario Divisional Court in Toronto reversed the Tribunal's odd decision, but was itself odd. The Court acknowledged that it was because the Christian Horizon staff were committed believers that they served everyone without regard to religion. The religious conduct policy was neither paradoxical nor illegal.

However, the Court added, because the dismissed woman had not been employed to engage in specifically religious activities, such as evangelism, Christian Horizon was not justified in holding her to the religious standard.

Thus: The organization is free to operate a religious employment policy if it so chooses--except that the government may intervene and say that the policy should be restricted to some job positions.

This is illogical and pernicious. Don Hutchison, legal counsel for the Evangelical Fellowship of Canada, has written that the court sought to follow the biblical King Solomon, who famously showed his wisdom by threatening to use his sword to divide a baby who was claimed by two mothers. Solomon knew that the woman who abandoned her claim in order to spare the child was the true mother, and gave her the child. However, Hutchison says, instead of getting to a similarly wise outcome, the court ended up with the baby cut in half. The religious organization is free to hire by faith except where it is not free to do so. This is muddled and wrong, allowing Caesar to make decisions that don't belong to him.
In the case of the Lesbian, it is not her being Lesbian that is at issue in her employment (which she betrayed by not keeping to its defective moral code for employees).

Were it a case were the issue was, hypothetically, her inability personally not to exploit someone in her care; then the parameters for the case woud be different. Caregivers in these days shoud live by a code of not interfering sexually with those under their care. If you're Lesbian in Christian organizational employment, or any other social-service employment (for instance), then you shoud internalize the society's contemporary rule that you do not sexualize the care-relationship, not with someone under your care. That is sexual exploitation, whether it occurs in a Christian, a Jewish, a Muslim, or a secular or govt organization -- schools, colleges, hospitals, nursing homes, freelance psychotherapy and Christian psychotherapeutic orgs, etc. And it doesn't matter that the interference is Lesbian, homo male, or heterosexual interference in such settings.

But the case before the Ontario court was different. Christian Horizons erred in its own moral code which excluded from employment Lesbians in intimate relation, however presumably exclusive and intendedly permanent, denying them and this Lesbian in particular a moral Christian life-practice to be joined with her significant other, in that sphere of her life of non-marriage intimate union (I don't think such unions shoud be termed "marriage" as Ontario law allows, but I do think they shoud be recognized or made room for by Christian orgs like Christian Horizons). She was an evangelical Christian and wanted Christian employment, in a caregiving job, but Christian Horizon's defective Christian morality tried to cut her in half.

No wonder the court was hard-put to solomonize its decision-making. Christian Horizons overstepped its sphere in trying to determine how this Lesbian caregiver in its employ, shoud conduct herself in fullfillment of her need for intimacy when she was in an exclusive and intendedly-permenent relation (see James Olthuis in his two books on troth, and his more recent book on Christian psychotherapy, The Beautiful Risk). The problem in this case is not a faith-based org's r+t to hire according to faith-commitment (the Lesbian worker is an evangelical Christian), rather the problem is that in its determination of its morality for its caregiving workers, Christian Horizons (being human and time-bound, as each of us and all organizations are), tried to determine that Christian faith requires a homophobic morality. Stanley (whose work over decades I admire) refers, somewhat fatuously, to how said org "requires staff to be Christian in belief and conduct." The term "Conduct" here is not sphere-specific. Only the church as institution may mandate "conduct" in a universal sense. But not all Evangelical churches in Toronto are homophobic, so the Lesbian Christ-and-neibor server need not have been in violation of her church's moral code. This is the real issue of Christian Horizons and of Evangelical Fellowship of Canada, and perhaps of Stanley too. That reactionary morality (cf. Dooyeweerd's modal concepts of faith distinguished from morals, vis a vis progressive and reactionary tendencies in history), that reactionary morality is the real problem in this case, rather than something quite different as presented in my hypothetical (above).

Now the court cannot tell Christian Horizons to change its stance morally from reaction to conservative (I accept that Christian Horizons is incapable of becoming morally progressive in its attitude toward its homo caregivers, but it doesn't have to be reactionary). There is another option besides a progressive or a reactionary stance: conserve, but don't cut in half people who want to serve as caregivers in fullfillment of their Christian faith, who outside of work nevertheless can't be fulfilled in an intimacy and sexual expression thereof by a hypothetical heterosexual union that apparently dominates the absolutizing mind of Don Hutchinson, who wields the sword metaphor which Stanley has adopted too.

The court shoud not be in the business of forcing the org to redefine its morality for the org's workers (sphere sovereignty, again), but Christian Horizon shoud use its Christian freedom to at least tolerate workers who have, in another sphere of their lives, a Lesbian or homomale need for intimacy. The org here does not respect sphere sovereignty in the Lesbian's life, and so cuts her in half. This is pernicious because Christian Horizons is no Solomon, nor for that matter is EFC's Centre for Faith and Public Life, whose director and EFC's General Counsel Don Hutchinson, have no grasp of sphere sovereignty. When such a Centre works on cases of Christian religion in churches, it's one thing; when it works on cases of Christian religion in social-service agencies, there are other issues to comprehend. The Centre is harmed by its incompetence, strengthening the cutting in half of a Lesbian between her work, and her intimacy needs and relationship. Thus, Hutchinson is a hopeless reactionary who wants to deny employment in the Christian community's organizations to Christian Lesbians. He is, in short, a homophobe using his legal talents, not for churches, but for excommunicating service-oriented Lesbian Christians. Since he is the protagonist, it is important to point out the obvious: he is a man cutting in half a woman, pure and simple.

-- Lawt

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