Panel from I’m Crazy, a graphic novel by Adam Bourret.
Can a commercial printer invoke religion in order to refuse services?
Local author Adam Bourret recently wrote a 126-page graphic novel, I’m Crazy. It’s autobiographical and, to quote his website, deals with “histories, secrets, obsessive compulsive disorder, drugs, gay romance, hallucinations and insanity.”
Though Bourret—the boyfriend of a Torontoist staff member—is serializing the novel online, he wanted to make a few hundred print copies. He approached Harmony Printing for an estimate, but it balked after looking at his sample pages:
Unfortunately due to the content I am going to have to respectfully decline. The reason is we have a lot of long standing clients who are religious organizations. They are in our facilities all of the time and cannot risk having this content out in the open during production. Please understand that this is not a slight against your artwork or the message that you are trying to convey to your audience. I wish you all the best and I hope you can understand our position.
Bourret noted that the company’s website does not mention such a practice, and that it seemed unusual to allow some clients to see print jobs being run for other clients. Harmony’s email also left it unclear why its religious clients might object to Bourret’s work, leading him to be curious about whether his sexual orientation might have been a factor.
We got in touch with Harmony, which clarified to us that its refusal was unrelated to the sexual orientation of the author or the material, noting that it recently printed a story about two married men raising a daughter as part of a magazine celebrating the diversity of families in Toronto.
Instead, it said that it refused to serve Bourret because its employees and other clients, including religious organizations, might be discomforted by images of people having sex [NSFW?], and that its clients frequently visit its facilities for press checks and meetings.
Was Harmony’s action legal?
A good place to start any discussion about the legality of refusing services is the Ontario Human Rights Code, which guarantees the right to equal treatment with respect to services, goods, and facilities without discrimination because of certain characteristics. After much struggle, sexual orientation was added as a characteristic in 1986.
The flip side, however, is that equal treatment isn’t guaranteed if the characteristic isn’t listed. (Exception: a court may choose to “read in” a new characteristic that has been unconstitutionally omitted, but this is rare.) So a magazine can refuse to print ads for escort services, and a club can have a style code, because the Code doesn’t prohibit discrimination in the provision of services against prostitutes or the unstylish.
If you accept Harmony’s defence—that it feared a backlash from religious clients who would object to images of people having sex—then Harmony is probably in the clear. The characteristic of “having sex” is not listed in the Code, and it is (highly) unlikely to be read in. You may think that the printer is being unduly sensitive, and Bourret suggests that it “comes as a sting that anyone would find images from my own life that offensive,” but Harmony is most likely acting legally.
Alternatively, if you don’t accept Harmony’s defence—finding instead that it feared a backlash from religious clients who would object to images of two men, as opposed to a man and a woman, having sex, and that it also shared an objection to such images on account of a sincerely held religious belief—things get murky. Despite the Code’s guarantee of equal treatment, Ontario case law seems inconclusive on whether a private-sector service provider may, in certain narrow circumstances, cite religious beliefs as a justification for discriminating against gays and lesbians.
Consider a different case involving a Toronto printer who refused to print letterhead, envelopes, and business cards for a customer from the Canadian Lesbian and Gay Archives. After the customer filed a complaint, the printer defended his actions by saying that he found homosexuality “detestable” on religious grounds, and that his refusal to print the materials was constitutionally protected.
The human rights tribunal hearing the matter sided with the customer. Although it acknowledged that providing the services would infringe the printer’s freedom of religion, it found that the infringement was justified: the Code had a legitimate objective in promoting equality of treatment, and any impairment to the printer’s religious beliefs was minimal.
The printer—with the support of the Canadian Civil Liberties Association—appealed to the Ontario Divisional Court. Although the court upheld the original decision, it speculated about a possible distinction between routine services (like printing business cards) and services contravening “core elements” of religious belief (like printing materials promoting gay marriage). The court opined that a printer had to provide the former, but not the latter.
You might ask whether this distinction makes sense, whichever side you’re on. You might also think that the distinction—made at the lowest level of the court system—is vulnerable to being refined or even overturned by a higher court in the future. That said, the British Columbia Human Rights Tribunal cited and applied it in a 2005 decision, so acceptance of it may be growing, at least at the bottom rungs of the human rights system. And the Supreme Court of Canada has ruled, in a case involving slightly different issues, that freedom of religion coexists with the right to be free of discrimination based on sexual orientation.
Let’s assume that this distinction holds up, and let’s apply it to Bourret’s work. Do images of two men in bed contravene “core elements” of religious belief?
If they don’t, a printer would be on shaky ground in invoking religion in refusing to serve him. If they do, a printer could try to invoke religion as a reason for refusing service, though it’s by no means clear that it would succeed.
Bourret seems unlikely to pursue this particular matter further, having found another printer who’s happy to serve him. And absent smoking-gun evidence that Harmony has no qualms about printing images of straight people having sex, it’s unlikely that this matter will go anywhere.
Still, the encounter raises some interesting questions about religion and the refusal of service. We might just have to wait a bit longer for the test case that will develop the law a bit further.
All images courtesy of Adam Bourret. Hat tip to Karen Whaley.