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I would like to understand how, from a legal point of view, the Canadian Catholic Church is still allowed to prohibit women from occupying positions in its hierarchy (for example by becoming priests).
Lucie Marchand
The Catholic Church, which prohibits women from becoming priests, doesn’t that contravene our charters of rights and freedoms which advocate gender equality?
Unfortunately for women who would like to become priests, no. Because charters of rights allow religious organizations to self-regulate their religious practices.
Let’s immediately settle the case of the Canadian Charter of Rights and Freedoms: it applies to our laws, to the decisions of governments and to the actions of the State, but not to the decisions of the Church.
The Quebec Charter of Human Rights and Freedoms applies in various circumstances to the decisions of the Church and other private actors in Quebec (eg employers, restaurants, landlords, etc.).
Except that section 20 of the Quebec Charter expressly allows non-profit religious organizations to exclude people if justified for religious reasons. These exclusions justified on religious grounds are deemed to be non-discriminatory.
Conclusion: the Church can exclude women from the priesthood and this still respects the Quebec Charter. Because this exclusion is based on the religious criteria of the Church, which considers that only men can be priests.
Section 20 of the Quebec Charter protects freedom of religion and freedom of association (section 3), to the detriment of protection against discrimination as well as sex and gender equality (section 10). He defends the capacity of religious organizations to have their own rules in the practice of their religion.
“This allows religious organizations to continue their religious practices with choices that would not be allowed without this religious dimension,” summarizes the Dean of the Faculty of Law at McGill University, Robert Leckey, professor of constitutional law.
According to Robert Leckey, the Church’s ability to ban women from becoming priests has never been challenged in court. Such a lawsuit would have almost no chance of success because it is a “question at the heart of religious practices” protected by articles 3 and 20 of the Quebec Charter, he believes.
For its key positions of a religious nature (eg priesthood), the Catholic Church may only hire employees of the Catholic faith and refuse to hire employees of another religion or atheists.
Another example of the latitude granted to religious organizations in the name of freedom of religion (article 3): they are not obliged to perform same-sex marriages. The Catholic Church does not celebrate any. The Quebec state, for its part, must celebrate civil unions and marriages between same-sex spouses, under the Civil Code of Quebec and charters of rights.
There are, however, limits to what the Church can do in the name of religious freedom.
When providing a public service on behalf of the state, a religious organization can no longer play by its own rules: it must conduct itself without discrimination. An example ? A Christian organization that operates a residence for people with disabilities cannot refuse to hire an orderly on the grounds that she is a lesbian (a “sin” according to the Church), an Ontario court ruled in 20101.
You might be tempted to ask the following question: isn’t celebrating a marriage a public service offered by the State?
Nice try, but no.
In fact, it was the Quebec legislator who decided that all marriages celebrated by competent ministers of religion are civilly valid (article 366 of the Civil Code of Quebec). “We decide to attribute civil effects to a religious activity,” says Robert Leckey. All Canadian provinces have made the same choice as Quebec. But in theory, the legislator is not obliged to endorse on the civil level all religious marriages celebrated by competent ministers of religion. He could have made a different choice.
Quebec also endorses marriages solemnized by notaries, mayors, clerks at the courthouse, and any other person designated as a competent celebrant by the Ministry of Justice. Civil celebrants are obliged to offer this public service without discrimination. They cannot take advantage of the exception in section 20 of the Quebec Charter, which is reserved for religious organizations.
If there are no women priests within the Catholic Church, there are however women priests within the Anglican Church, in Canada as in England. Women can also accede to the priesthood within the Lutheran Church of Sweden: they are even more numerous there than men.
Will women be able to become priests one day within the Catholic Church?
There is no indication that the Vatican will change its mind. Except that Catholic women openly challenge the Church. Women’s Ordination Worldwide advocates for the ordination of women within the Catholic Church. Its members notably organize events and ordination ceremonies not recognized by the Vatican. About 300 women thus became “priests”. They are considered excommunicated by the Church.
The Catholic Church would have every interest in modernizing itself. To accept women and non-binary people as priests. To solemnize marriages between spouses of the same sex.
A person’s faith has nothing to do with their gender or sexual orientation.
We are no longer in 1950.
1. Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 (CanLII)