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104 Chapter 3
in religious instruction and by example in the case of all teachers. This is
why it is correct to say that the work of typists or janitors is distant from
the religious beliefs of the religious association for which they work, but
that the activities of teachers of non-religious subjects in a religious school
have a close connection to the religious beliefs of the church that runs the
school. On this argument, an exemption in respect of all teachers, even
those not involved in religious instruction, may be justified, but an
exemption in respect of typists and janitors will not be.
Having set out the ‘role model' argument, I confess to being unsure as
to what weight to accord it, for the objection may be raised that it should
not be accepted without empirical evidence. In the circumstances of
Strydom, it may be argued that a court is entitled to expect compelling
evidence to be presented before accepting that a gay teacher who has no
desire to discuss, let alone defend, his homosexual lifestyle will influence
pupils into thinking that his lifestyle is morally acceptable. As the Ontario
Board of Enquiry observed in Garrod, 136
much depends on whether [the] role model theory actually has an effect on
students, particularly given the external forces that inevitably impinge on their
consciousnesses. No evidence of … studies was introduced, counsel
preferring to rely mainly on logical and impressionistic argument. Nor was
any evidence introduced of the force of the connection claimed between
teachers’ personal and occupational lifestyles.
Let us consider a second reason for thinking that the church might be
burdened significantly were it to be prevented from discriminating. The
church expressed concern that to have kept Strydom on in a teaching
position would have given the impression that it condoned homosexual
relationships. 137 If the church is correct that such an impression would be
created, this is a serious concern – one accepted as important and valid by
the majority of the Supreme Court in Dale. The appearance of condonation
would surely undermine the teaching of a belief that active homosexuality
is sinful, as well as sending out a misleading and potentially confusing
message to the community as a whole.
It is an inadequate response to the church's anxiety that, by retaining
Strydom's services after it came to light that he was in a homosexual
relationship, it could be viewed as condoning homosexual activity to say,
as Basson J does, that ‘they [sic] could have stated that it was required by
the Constitution that they [sic] not discriminate on the basis of a person's
sexual orientation when concluding a contract of work’. 138 Basson J's
suggestion is question-begging, for it assumes precisely what the church
disputes and what is at issue in this case. It is the church's claim that the
136 Garrod (n 102 above) para 140.
137
Strydom (n 8 above) para 23.
138 Strydom (n 8 above) para 24.