A judge of the Federal Court of Australia, Justice Jagot, handed down a decision recently in which her Honour said that a Tribunal’s reasoning, based on the assumption that a person could never change their sexual orientation, was “affected by illogicality of the kind required to constitute jurisdictional error”- para . The decision, in Abboud v Minister for Immigration and Border Protection  FCA 185 (2 March 2018), was a sharp reminder that bureaucratic decisions must be based on evidence and not pre-conceived policy stances. The comments may have wider implications for arguments that are often unthinkingly presented about the possibility of someone changing their sexual orientation.
I presented a paper at a conference on “Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms” on Thursday 15 Feb. The paper, “Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues” is linked here for those who are interested: Freedom of Religion or Belief paper Foster .
I argue that, while some religious freedom rights are protected under the amended marriage law, there are some serious gaps in protection for some involved deeply in the celebration of same sex weddings, and also a failure to deal with a range of other issues, such as the ability of faith-based schools to operate in accordance with their fundamental commitments in both engagement of staff and teaching pupils, and whether people who conscientiously believe that same sex relationships are not best for human flourishing will be penalised in the workplace or elsewhere. I note that at least one State in the US has enacted legislation to deal with these issues, which has survived one challenge in the US Supreme Court, and I recommend that Australia seriously consider also legislating in this way.
A recent decision by a California Superior Court Judge holds that a bakery cannot be required by discrimination law to make a same sex wedding cake, where the owner has a religious reason for declining to do so. In Department of Fair Employment and Housing v Cathy’s Creations Inc (Cal Sup Ct, Kern Cty; BCV-17-102855; Lampe J, 5 Feb 2018) Judge Lampe refused an injunction against Cathy Miller, proprietor of Tastries Bakery, which would have required her to create a wedding cake for the same sex wedding of Mireya and Eileen Rodriguez-Del Rio. The basis for the decision was the free speech clause of the First Amendment to the US Constitution, the judge holding that creating a wedding cake was a constitutionally protected form of “free speech”.
The Religious Freedom Review Panel, chaired by the Hon Philip Ruddock, has invited submissions from all Australians on the protection of religious freedom in Australia. Submissions are being accepted until 14 February 2018. I attach a copy of my submission here: Submission on Religious Freedom Protection for RF Review Expert Panel (with permission of the Review Panel), and one of its attachments: Foster Attachment 1- Religious Freedom in Australia overview 2017. (There is a second attachment which I will release later, as it is a copy of a paper I am presenting at a conference in a couple of weeks.) Those who are interested in the area may find it helpful to see the sort of topics that I think ought to be addressed.
A student Christian group at the University of Iowa has been reinstated as a registered student organisation by a US Federal District Court Judge, after previously having its status revoked by University authorities. The student group, Business Leaders in Christ (“BLinC”), had been penalised because it would not agree to appoint to its leadership a same-sex attracted student, who said that they would not undertake to comply with the group’s commitment to Biblical sexual values. The University claimed that this was a breach of its Policy on Human Rights, forbidding discrimination on the basis of, among other things, sexual orientation. BLinC claimed, however, that the issue was not the student’s orientation, but their express refusal to modify their behaviour to accord with Biblical norms. The case illustrates a number of important issues in this area.
There have been a number of “wedding industry” religious freedom cases arising in the United States and the UK over the last few years. On 28 December 2017 the Oregon Court of Appeals, in Klein v. Oregon Bureau of Labor and Industries (CA Or; Dec 28, 2017, — P.3d —-, 2017 WL 6613356; 289 Or App 507 (2017)) upheld a $135,000 fine levied on the Kleins, wedding cake makers, for declining to make a cake for the wedding of Rachel and Laurel Bowmen-Cryer. The case is another example of religious freedom (and, arguably, freedom of speech) being over-ridden in the name of “dignitary harm” to same-sex couples. It is a good example of the issues being presented to the current Ruddock Inquiry into Religious Freedom being conducted in Australia at the moment.
Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?
These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved.