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Taking diversity seriously: Religious associations and work-related discrimination 105
Constitution, properly interpreted, requires that religious liberty and
associational freedom should in the present case prevail over Strydom's
right to be free from discrimination.
Is the church's concern valid that it might be viewed as condoning an
actively homosexual lifestyle by retaining Strydom's services? I think there
is reason to take it seriously, given that the church had placed Strydom in
a position of authority and trust relative to students (as typists and janitors
are not), on the basis of its belief that he was not committed to a life of
cardinal sin. For the church to retain the services of an individual in such
a position after it is discovered that he leads a homosexual lifestyle may
well create an impression that it no longer holds the belief that active
homosexuality is a mortal sin. Whether it does so may depend on whether
Strydom's students and the members of the community of which the
church forms a part were aware of his sexual orientation, a matter about
which the Strydom judgment is silent.
There is a further related (and, I think, persuasive) reason to think that
refusing to permit the church to discriminate against a teacher like
Strydom would be burdensome, and disallowing discrimination against
typists and janitors would not. To require that the church not discriminate
against an actively homosexual teacher is to impair its ability to maintain
the ethos of the academy: its religious character and identity. For the church
to keep on an actively homosexual teacher would alter the defining
character of the academy, its prevailing tone of sentiment, which includes
a view that the homosexual lifestyle is sinful. Teachers, even those
teaching only purely non-religious subjects, serve the academy's core
purpose, which is pedagogical; they are defining and representative of the
institution's religious ethos. Parents should be entitled to send their
children to an educational institution with a particular religious ethos and
such an institution should be permitted to require that teachers exemplify
the tenets of the church in their conduct. By contrast, typists and janitors
are not involved with the academy's core pedagogical activity and are not
representative of the academy in the same way: an actively homosexual
typist will not significantly compromise or alter the academy's character or
identity in the way that an actively homosexual teacher might.
A determination that religious associations should be permitted to
discriminate against teachers not tasked with religious education in order
to safeguard the religious ethos of the school accords with the Canadian
jurisprudence examined above: In the three decisions in which courts ruled
that schools should be permitted to engage in employment discrimination
against teachers (Caldwell, Garrod and Kearley), the religious ethos of the
school was an important factor in the court's reasoning. In none of these
decisions was there any indication that the teachers concerned taught
religious instruction.