Sometimes a powerful visual image is what is needed to shock us into action. But can an image be so powerful and horrifying that it becomes “obscene” and hence unlawful to use in public? That, it seems, is now the view being taken in Victoria of a particular type of image: pictures of unborn babies who have been killed. While the decision of a Victorian court, it may be followed elsewhere in Australia.
Abortion of course is an incredibly difficult topic to discuss. Those who see it as the termination of human lives are determined to get this message across as clearly as possible. Views will differ, as to whether using visual images of terminated unborn children is an appropriate or helpful way of furthering the discussion.But should those who firmly believe that this is one of the only ways to get their message across, be punished by the law for public obscenity? That is the import of the recent decision of a judge of the Victorian Supreme Court, Emerton J, in Fraser v County Court of Victoria & Anor  VSC 83 (21 March 2017).
The debate on same sex marriage in Australia, and the debate on whether we can have a debate, took some interesting turns in the last week. I have a comment on Mercatornet where I discuss how beer and bibles led to questions about what can be said and who can say it: see “Beer, Bibles and free speech in Australia” .
Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor  FCAFC 41 (8 March 2017) is, No, not without having their service terminated.
I mentioned the earlier decision of a single judge of the Federal Court in these proceedings in a previous post over a year ago: see Free speech and religious freedom even for ADF members (Dec 10, 2015). In that earlier decision Buchanan J ruled that Major Bernard Gaynor’s termination was unlawful, because in applying the relevant regulations the Chief of the Defence Force had breached the implied “freedom of political communication” under the Commonwealth Constitution. Now the Full Court of the Federal Court (Perram, Mortimer & Gleeson JJ) has overturned that previous decision and upheld the termination. The decision and the way that the “freedom of political communication” is dealt with have disturbing possible consequences for free speech in Australia on controversial political topics, many of which are raised these days by religious beliefs which run contrary to “orthodox” opinions in society at large.
There was a recent reference in the excellent “Law and Religion UK” blog to a decision on the liability of a Church of England vicar and Parish Council for an injury suffered in a church hall: see “Church liability: fall from ladder” (David Pocklington, 8 March 2017). Since this case brings together two of my main academic interests, Law & Religion and Workplace Health & Safety (see my book on the topic, 2nd ed 2016, the cover of which is above), I couldn’t resist a comment on how this sort of case may have been resolved in Australia.
Barronelle Stutzman, who runs a florist’s business in Washington State in the USA, has just lost another appeal in court proceedings based on her decision to decline to prepare floral arrangements for a same-sex wedding. In State of Washington v Arlene’s Flowers Inc and Stutzman, (Wash SC, En Banc, No 91615-2; 16 Feb 2017) the 9 members of the Washington Supreme Court upheld an earlier order that she pay damages and also the costs of her opponents, likely to run into hundreds of thousands of dollars. (Note that, of course, this is not a decision of the final court of appeals, the US Supreme Court; whether or not there is an appeal to that court remains to be seen.)
You can see Ms Stutzman speak about the circumstances in a video here. In short, she had catered for one member of the couple by supplying flowers for him for many years, knowing he was gay. But it was only when he asked her to devote her artistic talents to the celebration of a same-sex marriage, a union she saw as contrary to God’s will according to her Christian faith, that she politely declined. She was then sued both by the State of Washington (under the Washington Law Against Discrimination, WLAD, which includes “sexual orientation” as a prohibited ground of discrimination), and in separate proceedings by the couple themselves.
The Arlene’s case is only one of a number of examples of cases involving participants in what might be called the “wedding support industry,” who have been sued for sexual orientation discrimination after declining to devote their skills to the celebration of a homosexual marriage relationship. (I have mentioned this specific case in a previous blog post here, and other cases here.) I dealt with a number of the issues in my article on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5/3 Oxford Journal of Law and Religion 385-430. Following the approach taken in that article, I want to analysis this most recent decision under the headings:
- Is this sexual orientation discrimination?
- If so, is there or should there be some “balancing clause” applicable to recognise religious freedom?
I will then turn to briefly discuss the policy issues that arise in these cases, and address the fear that recognition of religious freedom here would lead to serious impairment of other rights and freedoms.
The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has now handed down its formal Report (15 Feb 2017). I have referred previously to my evidence to the Committee and my response to the remarks of one of the other witnesses: see Why proposed same-sex marriage balancing clauses would be constitutional and right (29 Jan 2017).
The Report contains no major surprises, perhaps to be expected from an area which is so contentious and in which positions of the Committee members and the various witnesses are so far apart on basic presuppositions. But overall it is a well-balanced document which fairly presents the different points of view. As the Committee itself notes, its deliberations are really only relevant for the future, if Parliament chooses to revisit this area. At the moment the current Government’s preferred option, a plebiscite, has been rejected by the Parliament, and the Government has indicated that in line with its election commitments, it will not be moving to a vote in Parliament on the issue.
Nevertheless, it is worth noting some areas of consensus, and flagging the issues on which there still remains substantial disagreement.
In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns  NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.
While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.