Challenge to “Gay Marriage Cake” decision dismissed

Some years ago now the UK Supreme Court ruled that a Christian bakery company had not been guilty of sexual orientation discrimination when it declined to produce a cake for an activist designed to convey a political slogan in favour of same-sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018) and my comment at the time. Now, after a long delay, an challenge to that decision by the customer, Mr Lee, has been finally dismissed by the European Court of Human Rights: see here where a copy of the judgment in Lee v United Kingdom (ECHR 4th section, Application no. 18860/19, 6 Jan 2022) can be downloaded. (A short summary is available on this page.)

(A preliminary comment on the nature of this challenge should be made. The details are spelled out clearly in an excellent comment on the decision by Prof Mark Hill QC, available here. This was not a formal “appeal”- the initial defendants, Ashers, were not parties to the case. Instead it was a claim by Mr Lee that the UK government should be held accountable for the decision of the UK Supreme Court not upholding his rights. Still, a finding against the UK would have cast into doubt the legal validity of the decision of the Supreme Court. This comment has been amended since first posted to take into account these matters.)

The grounds for refusing the challenge can be stated fairly shortly. Under the rules of the European Court of Human Rights, if that court is to hear an case based on a breach of the European Convention on Human Rights, the applicant must have raised specific convention rights in his or her claim at the local level. But unfortunately for Mr Lee, none of his claims explicitly raised Convention arguments; he had made his case entirely based on the domestic UK laws. As they said near the conclusion of their decision:

[77]…In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts…

This was the case even though the defendants in the case, the Ashers, had relied extensively on the Convention rights of freedom of religion and free speech. But the ECHR held that this did not overcome the problem that the applicant himself had not raised those issues.

The result is that the challenge has failed, although the ECHR has avoided making any clear comment on the substantive issues as to whether a business owner should be allowed to decline to make an artistic product which expresses a view which the owner fundamentally disagrees with. They do say at one point however:

[73]…What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.

The decision of the UK Supreme Court in 2018 stands as good law, and in my view this is a good thing for free speech and religious freedom. It should perhaps be stressed that the cake concerned was not a wedding cake, it was simply a cake designed to celebrate and support a view on the political issue of recognition of same sex marriage. Lady Hale in the Supreme Court, as the ECHR noted here, pointed out that :

“ … People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.”

Lady Hale, Ashers (2018) at [25], quoted by the ECHR in Lee v UK at [24].

The ECHR summed up the decision in this way:

36. In summarising the court’s position, Lady Hale noted that the defendants would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there had been no discrimination on grounds of sexual orientation.

This remains as true today as when it was stated in 2018.

Clarifying “transgender hate speech”

An important appeal decision in November 2021, Rep v Clinch [2021] ACAT 106 (3 November 2021), provides significant clarification on what amounts to “transgender hate speech”, and what does not, under the law of Australian Capital Territory- and provides a helpful and persuasive set of reasons which may be influential in other jurisdictions. Is it unlawful to say that “a trans woman is a man”? Not according to the Appeal Tribunal in the Rep decision- see [117]. While none of the relevant parties seem to have referred to religious reasons for their comments, the question of what can be lawfully said in public contexts about issues raised by the “gender identity” debates has some importance for religious groups which take the view that religious texts teach that sex is determined at birth, not fluid, and not able to be changed.

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Vicarious Liability of Bishop for abuse committed by clergy

In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), a judge of the Victorian Supreme Court ruled that the Roman Catholic Bishop of the Diocese of Ballarat could be sued as vicariously liable for child sexual abuse committed by an assistant parish priest against the plaintiff DP when he was 5 years old (in 1971). The decision (as noted in a recent online press report) seems to be the first time a diocese has been found vicariously liable under common law principles for the actions of a priest, in Australia. In this note I will suggest that the reason for this is that the decision is wrong, as inconsistent with clear High Court of Australia authority. This does not mean that I think that the organised church ought to be allowed to escape liability for harm committed by clergy to children in its care. To the contrary, as explained below, I think the High Court ought to revisit another area of common law which prevents many such claims at the moment. But the decision in DP is not consistent with the course of development of the law of vicarious liability and will, in my judgment, be overturned if there is an appeal on this point.

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Submission to Parliamentary committee on the Religious Discrimination Bill

The submission of Freedom for Faith to the Parliamentary Joint Committee on Human Rights inquiry into the Religious Discrimination Bill is now available for download here. I prepared the submission with input from other board members. Submissions to this committee can be made at their website here, but only until 5 pm Tuesday 21 December. There is also a short survey that the Committee have released which it would be good for anyone concerned with religious freedom in Australia to fill in before that same deadline.

Expelling students from religious schools based on sexual orientation?

Current press reports suggest that the Federal Government is contemplating a change to the provisions of the Sex Discrimination Act 1984 which allow religious schools to operate in accordance with their religious commitments, in the area of decisions about students. This is being proposed to allay fears that the recently introduced Religious Discrimination Bill will impact on LGBT students. (See here for my overview of the Bill.) Just to be clear, I think this is a terrible idea- the Australian Law Reform Commission already has a reference on this issue and they should be allowed to complete their work by taking into account all the issues. But I make a few comments on the proposal anyway.

The provision in question is s 38(3) of the SDA, which allows religious schools to make decisions in relation to students in accordance with their religious commitments, and for that not to amount to “sexual orientation” discrimination. Actually religious schools very rarely rely on this provision to expel or discipline students- but there are cases where a religious school may lay down a “code of conduct” or the like which may be seen by some as discriminatory on this basis.

If s 38(3) of the SDA is to be amended so that religious schools may no longer make decisions based on “sexual orientation”, then there still needs to be an explicit protection allowing such schools to require students to conduct themselves in accordance with the religious ethos of the school. It is generally accepted that schools are entitled to set up “reasonable standards of dress, appearance and behaviour for students”. A provision to this effect is already contained, for example, in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.

The last time this came up, in 2018, I suggested a possible redraft of s 38(3) which would achieve this outcome: https://lawandreligionaustralia.blog/…/ruddock-report…/. Perhaps it could be called s 38A, and I suggest this is what it might look like:

Possible s 38A Nothing in s 21 renders it unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, in connection with the provision of education or training, to set and enforce standards of dress, appearance and behaviour for students, so long as this is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This would make it clear that decision would not be made on the basis of internal self-identification as “gay”, but on the basis of actual behaviour. A school set up to teach and model the principles of Christianity may want to say, for example, that they do not want to act on student’s internal feelings or temptations, but they cannot support public advocacy and activity which is contrary to the teachings of the Bible.

The Religious Discrimination Bill arrives

After a long wait, the Federal government has released the text of the Religious Discrimination Bill 2021 which is about to be introduced into the Parliament. There has been no general Federal law dealing with detrimental treatment of Australians on the basis of their religious faith and activities, and this is a welcome development, implementing a recommendation of the Ruddock Review which reported in 2018.

The government previously released two “Exposure Drafts” of the Bill (see some comments on those in previous posts, here, and here.) Having promised prior to the last election that he would advance this law, Prime Minister Morrison will now introduce it into the House of Representatives. If passed by the House, the Bill will then need to approved by the Senate, where it seems likely to be referred to (yet another) committee before being voted on there, probably sometime in the New Year.

In this post I will aim to provide an overview of the Bill, and also to indicate briefly where it differs from previous drafts.

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Victorian Religious Exceptions Amendment Bill introduced

As previously foreshadowed (see my analysis of the proposals when first announced here) the Victorian government has introduced a Bill into the Parliament of that State seriously limiting the religious freedom of religious bodies and individual Victorian citizens. The Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) was introduced into the Legislative Assembly on October 27 and the second reading was moved on October 28. The Bill is a serious attack on the religious freedom of Victorians, especially to send their children to faith-based schools reflecting a religious world-view.

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New academic journal on law and religion in Australia

It is exciting to see the start of a new academic journal on law and religion in Australia: the Australian Journal of Law and Religion. The editorial team includes previous guest “Law and Religion Australia” blogger Dr Alex Deagon from QUT, and Dr Jeremy Patrick from USQ. From the website:

The Australian Journal of Law and Religion is the first peer-reviewed, scholarly journal in the antipodes to focus on the interactions of faith and the legal system. Every issue features articles, short essays, and book reviews from a diverse array of scholars from across the spectrum of religions and ideologies. It is published with the support of the Law, Religion, and Heritage Research Program Team of the University of Southern Queensland.

The first issue will not be published until 2022, but this looks like a terrific initiative to support scholarly examination of this important area.

Victorian proposals to further limit religious freedom rights

The Victorian government has recently announced proposals to further limit important protections for religious freedom currently applicable to religious persons, bodies and schools in that State. The recent proposals have been put forward as dealing with the problem of religious schools sacking gay teachers, or expelling gay students: see this comment from The Age: “Religious schools in Victoria to lose the right to sack LGBTQ staff” (Sept 16, 2021). However, the details of the proposals hinted at in the recent “Fact Sheet” provided by the government go much further than this. In short, if the government pursues these proposals, they will

  • remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
  • impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
  • remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.

I described these as “further” limits on religious freedom because the Victorian Parliament has recently enacted provisions concerned “conversion practices” which will substantially interfere with the rights of religious persons to teach the doctrines of their faith. (These provisions are due to commence in February 2022). Victoria, despite being one of only a few jurisdictions in Australia to have enacted apparently broad protections for religious freedom in its Charter of Human Rights and Responsibilities Act 2006, s 14, continues to treat this right as one which can be downplayed and minimised.

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