Even those not familiar with the Bible have some awareness of the famous “split the baby” decision of King Solomon. Two women came before the king claiming to be the mother of one child. Solomon called for a sword to split the child in two, knowing that the true mother would give up the child to spare its life.
The Ontario Divisional Court appears to have made a similar attempt in its decision in Heintz v Christian Horizons. However, in today’s world, rather than that of Solomon’s, they have taken the baby away for five months and returned with two halves.
In the fall of 2000 Connie Heintz left her employment with Christian Horizons after five years as a community living support worker providing care and support for individuals with developmental disabilities. Ms. Heintz self-identifies as an evangelical Christian who, shortly before she left Christian Horizons, entered into a same-sex relationship in violation of the morality and lifestyle statement she had agreed to prior to accepting employment with the Christian ministry.
Eight years later the Ontario Human Rights Tribunal ordered that Christian Horizons could be organized as a religious entity, selective of co-religionists in its hiring practices, but only if it restricted providing its services to those who shared the same faith. In other words, to serve the broader general public, Christian Horizons would have to give up its Christian identity and simply refer to itself as a formerly Christian organization.
In coming to its decision the tribunal had pretzeled its way through existing decisions of the courts — the real courts, from judges sitting alone on a hearing to nine sitting together at the Supreme Court of Canada — to come to a conclusion that flew in the face of Canadian law.
So in that spirit of earlier court decisions, the Ontario Divisional Court, in its decision released this week, said the tribunal had erred. Christian Horizons, and other similar groups, could maintain a religious identity even though the people they served were not co-religionists.
For Christian ministries, this has the potential to be positive. The court decided that Christian Horizons is an organization of co-religionists associated to engage in common action for the good of others, which action would not take place without their association —an association established through a common statement of faith and a lifestyle and morality policy based on those beliefs.
The court noted that in addition to the statement of faith of this ministry organization, the lifestyle and morality policy, referred to in Supreme Court of Canada decisions as the practices that have a nexus with sincerely held religious beliefs, was also acceptable.
So far, so good. But then out came the sword. The Ontario Divisional Court concluded that the job Ms. Heintz was doing was not impacted by her being involved in a same-sex relationship, contrary to the accepted practices of the faith community with which she was serving and contrary to her own signed acceptance of those practices before she started working there. Accordingly, they struck the “same sex relationship” provision from the lifestyle and morality policy of Christian Horizons, concluding Ms. Heintz had every right to work there.
Solomon, at least, never intended to use the sword on the baby. This fine point is missed by the justices in their decision. They have just issued a remedy that violates the very concepts they supported earlier in the decision when they approved of religious communities deciding what they believe and the practices that line up with those beliefs. They have also decided to ignore decisions issued by the Supreme Court of Canada in 2001 (Trinity Western University), 2002 (Syndicat Northcrest v Amselem) and 2009 (Alberta v Hutterian Brethren of Wilson Colony) which clearly state that once the court establishes that a practice has a nexus with a sincerely held religious belief it’s time to stop.
Solomon’s efforts resulted in a clear solution. This decision does not.