Contractor dismissed due to views on same sex marriage

In the context of the current postal survey on changing the law of marriage in Australia, press reports in the last few days indicate that a contractor who had been working for an ACT-based children’s entertainment business has lost her position solely due to her indication of support for a “No” vote in the current postal survey on the issue being conducted in Australia. (See here for a detailed report on the incident quoting both sides.)

It seems worth commenting on the legal implications of the decision to terminate the contractor, especially in light of the “Safeguards” legislation that was recently passed by the Federal Parliament, and on which I recently posted

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Some in-depth reading on same-sex marriage issues

An academic colleague suggested the other day that it would be good to post some recommendations for academic commentary on the same-sex marriage issues, for those who are interested in reading that goes a bit more in-depth than a standard blog post or opinion piece.

I thought this was a great idea. I have compiled the following list of reading from recommendations of legal colleagues who, like me, have serious concerns about the proposal to introduce same-sex marriage. In that sense it is not a ‘balanced’ list. Those who want to find enthusiastic academic support for introducing the reform will not find it hard to do so elsewhere. But some of these pieces may not be so widely read, and deserve to be better known. Some are quite recent. 

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Free speech and vilification in the marriage law postal survey

Australia is involved in a debate about whether same sex marriage should be introduced. The question is being put to the electors in the form of a voluntary postal survey, the question in which is simply: “Should the law be changed to allow same sex couples to marry?”

The original intention of the current Government had been to put this question to the people of Australia in a compulsory plebiscite. This option being defeated twice in Parliament, the postal survey has been designed to be run without explicit authorising legislation. However, once it was decided that the survey would proceed, concerns were expressed that the debate might contain misleading and deceptive advertising, which would usually have been dealt with under the electoral laws (but since the survey was not being run under those laws, no such protections applied for the survey.) In addition, concerns were expressed about hateful and harmful speech on both side of the debate.

In response to these concerns, the Commonwealth Parliament today (in a rare example of swift bipartisan action) saw the introduction and enactment of the Marriage Law Survey (Additional Safeguards) Act 2017 (which has now received the Royal Assent, and become Act No 96 of 2017). The Act will come into operation on Thursday 14 September, 2017 (tomorrow, as I write.)

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Press release of the Wilberforce Foundation- full text

In the ongoing debates about same sex marriage in Australia (shortly to be the subject of a voluntary postal survey conducted by the Australia Bureau of Statistics, if it survives a High Court challenge), a number of professional organisations have decided to weigh in, in support of the “Yes” vote. The most recent such statement was issued by a combination of lawyers and doctors (see a press report of August 19 here, and the full text of the joint statement, by the NSW Bar Association president Arthur Moses, president of the Law Society of NSW Pauline Wright, and president of the NSW division of the Australian Medical Association Brad Frankum, is here.)

A number of lawyers around Australia, myself included, were concerned that this statement was not made after consultation with members of the various organisations, and in fact was misleading precisely at the point where one would expect a statement from lawyers to be accurate, in its statements about the law. The “Wilberforce Foundation”, an informal coalition of practising lawyers and legal academics committed to the preservation and advancement of common law values, rights and freedoms, has issued a press release expressing our concerns about the combined statement. The essence of the concerns are summarised in this press report of August 31. For those interested in the full text of the statement, it can be found here: Wilberforce Foundation Media Release .

It should be noted that the Australian Medical Association also issued a similar statement of support for the “Yes” case, which has also been subsequently challenged by a number of senior medical professionals as wrong on its assertions about a lack of peer-reviewed research on outcomes for children of same sex couples. As with the combined medico-legal statement, this AMA statement was not issued after consultation with members.

Finally, speaking of a lack of consultation, as I prepare this post I see that WordPress seems to have decided to add a “rainbow banner” to the top of my page, without asking me if I would like such. This of course is currently seen as a symbol of support for same sex marriage. As would be well-known to regular readers, that is not a cause I support. I trust others will not be confused by the banner (I am not sure whether it will appear on platforms on which the blog is read or not.)

The main event associated with the rainbow in the Bible, of course, was God’s judgement on humanity for its rebellion against his will (Genesis 6-9), and offer of salvation to those who chose to join themselves to his chosen Saviour. That is a message I am very happy to support, and so while it is imposed on me, that is the message I will choose to see in the rainbow.

The Christchurch Cathedral saga and religious freedom- guest blog

Introduction (Neil Foster)

One of the aspects of religious freedom that is sometimes overlooked is the freedom of churches, mosques and other religious groups to own, maintain and control the buildings that they regularly use for meetings. Sometimes this issue has come up in recent years in controversies over the building of mosques- I reviewed an excellent book on this topic by Noel Villaroman a few years ago.

In New Zealand, however, the issue has arisen in what might be said to be an unexpected way. The city of Christchurch, of course, was hit by a devastating earthquake more than 6 years ago. One casualty was the Anglican Cathedral which had given the city its name. But now there is a fierce debate between the Anglican church, which in the interests of current ministry and care for the poor, would prefer to demolish the remains of the building; and the local city authorities, who in the interests of the preservation of the heritage of the city, want to see a rebuilding project. For more background, see here and here.

My friend and fellow “law and religion” fan, Professor Rex Ahdar from Otago University, has provided this “guest blog” to bring us up to speed on the issues, and to offer his perspective.

Is the church really the one to say what its building should be?

Guest blog by Rex Ahdar

The Christchurch Cathedral saga has had so much written about it one hesitates to add to the interminable debate. My purpose is to explain a dimension to the controversy that perhaps has been neglected.

The right of religious freedom is a very broad concept. It is recognised under sections 13, 15 and 20 of the NZ Bill of Rights Act 1990. One of religious liberty’s most important strands is the right of religious groups to organise their own affairs—the claim to self-regulation. A group asserts the right to choose its members, leaders, the content of its doctrines and so on. Yet another of these is the right to establish and maintain places of worship.

Now if the state completely denied a faith community the opportunity to build a church, mosque or temple that would be a clear violation of that body’s religious liberty.  If the state refused to allow it to modify its existing building to reflect the changing needs of its followers (because, say, the congregation had grown or shrunk) that would also look like a blatant infringement.

Yet, the right to religious freedom has never been absolute under the law, and the government may lawfully restrict it where the activity or practice would pose a serious threat to public order, health or safety or would interfere with the rights of others. After all, a worship centre might tower above all the other dwellings, be made of inferior materials, lack proper emergency exits, sufficient parking and so on, and thus intervention is warranted. Now I come to the rub (at last you say!). Can the state limit the right of a religious community to modify its place of worship in the interests of preserving the building’s outstanding historical, architectural or civic characteristics?

Here the case for limitation is, I suggest, much weaker. If a church decides that its current needs dictate the modification of an existing structure, or even its demolition to make way for a smaller (or larger) building, or one in a different location—perhaps incorporating different design features to reflect the church’s current mission (a different shaped cross, a bright (well, not too bright) neon cross, or no cross at all)—then it seems difficult to deny the faith community this.  The present building, no matter how beautiful or ancient or useful to the surrounding community for civic events, just no longer serves the needs of the faithful. The state seeks, nonetheless, to assert its right to keep the building as is. The preservation of historic landmarks is, the authorities claim, more important. Too many have gone under the bulldozer of late. A city’s traditional iconic structures cannot be altered or destroyed, say the city’s leaders or prominent citizens. We must keep what is unique to our town lest we look like every other place. Prince Charles where are you?

Unsurprisingly the clash between the right of church autonomy and the claims of historic preservation has led to court battles overseas. The results have not always been in a church’s favour. For instance, in Boerne, a town close to San Antonio, Texas, the Catholic church was initially not allowed by the city council to expand the historic stone 1923 mission-style St Peter the Apostle Cathedral to accommodate a growing congregation. Why? Historic preservation regulations and zoning laws mandated that the original design of buildings in this historic precinct be kept. An appeal to the Supreme Court by the church was unsuccessful. Eventually, a compromise between the city and the church was reached and a new bigger sanctuary was constructed—but not without it having cost the diocese and the city a half-million dollars each in legal fees.

Perhaps the religious nature of the building in question is just plain irrelevant. If the structure is architecturally significant or an integral link to the city’s past, then it stays—whether it be a town hall, museum, art gallery, school or church. It is a shame that the church cannot use its building for its purposes anymore, but there are greater things at stake. It is regrettable that the church building is no longer serving the needs of the flock, and its upkeep is prohibitive for them, but it is a truly beautiful example of a fading genre of architecture, the likes of which must be preserved.

It is easy to forget that the Cathedral is first and foremost a place of worship and a dwelling designed to serve the liturgical and pastoral needs of the adherents of that faith. It is not a museum, art gallery or palace. If we usurp the right of the religious group to determine the present and future purpose of a building designed by them for them, then we need, I suggest, a pretty compelling reason.

If we reach an impasse where the church does not want to keep or fully restore the former structure then the last thing we should be doing is coercing them into doing so. When did the state (in the guise of local government) become such a tyrant? Are we such an increasingly secular society that historic or architectural values can so easily trump the rights of a church to control its own place of worship?

The principled path is for the Anglicans to decide what they want. In truth, it is their decision, from first to last. If demolition and replacement with a modified contemporary-style building is the outcome of the Synod deliberations, then more drastic steps by the indefatigable preservationists will no doubt eventuate. Perhaps it would be best to sell the site and let the architectural aficionados design a glorious civic masterpiece that will, like the Sydney Opera House, become a new beacon for Christchurch. If this happens—who, on Earth, can say?—try not to forget that, along the way, the original architects simply wished to worship, pray, meditate, and sing in a sanctified dwelling. They have graciously sacrificed, or been forced to sacrifice, something they prized. They yield if they must, but the yielding is with sadness.

(Originally published on the New Zealand website Pundit- see https://www.pundit.co.nz/content/the-cathedral-saga-and-religious-freedom .)

Religious Freedom protections in new same sex marriage proposals: too few, too narrow

The debate over same sex marriage in Australia has been re-ignited by news that some members of the federal governing Liberal/National Party (LNP) coalition are proposing, contrary to their party’s policy, to introduce legislation in Federal Parliament this coming week to redefine marriage to extend it to same sex couples. In particular, press reports today indicate that a new Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will be introduced, one feature of which is that it contains legislative protections for religious freedom, designed to encourage support of the legislation by believers. In my view the protections to be provided, if press reports about the proposal are accurate, are far too few and far too narrow, and the proposal cannot be seen as providing adequate protection for this fundamental human right.

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Religious Freedom Protection in Australia- 2017 update

I recently presented a paper surveying general religious freedom protections available in Australia, based on a similar paper I presented in 2015 but updated with some more recent developments. The paper can be downloaded here.

Near my conclusion I note:

I would like to suggest that, given the “patchwork” protection for freedom of religion noted above and in the attached papers, it is past time for consideration to be given at the Commonwealth level for protection of religious freedom to be the subject of specific legislation. The Commonwealth has undertaken to provide serious religious freedom protection by acceding to the ICCPR and under art 18 in particular. It would be appropriate that this commitment be translated into law. Apart from other sources of Commonwealth power, it would seem fairly clear that the external affairs power would support implementation of the international human right to free exercise of religion, limited in the specific ways provided under art 18 but not in other ways that currently narrow its scope.

Hopefully the paper will be a useful resource in this area.