Biblical view of sex and gender “worthy of respect” after all

In a good development for religious freedom, the UK Employment Appeal Tribunal (“EAT”) in its decision in Mackereth v Department for Work and Pensions & Anor [2022] EAT 99 (29 June 2022) has ruled that a Biblical view of human sex and gender is “worthy of respect” and may be protected as a religious belief in an appropriate case. Unfortunately for Dr Mackereth, the outcome of the appeal was that the way he had been treated by the relevant Department in response to his protected belief was a “proportionate” and hence lawful action. As I will explain below, I think this part of the ruling may be challenged. But it is good to see common sense on the issue of the status of his belief, which is one that would be shared by many people in the community.

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ACT Discrimination Law “Reforms” Narrow Religious Freedom

The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.

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Religious Freedom Challenges for Theological Colleges in Australia

I am presenting a paper to a seminar for senior leaders in Australian theological colleges, dealing with religious freedom challenges. I comment briefly on some of the current protections provided, but also how those protection have been eroded recently, especially in Victoria (where amendments to the Equal Opportunity Act 2010 (Vic) which I previously commented on have now commenced.) A copy of the paper can be downloaded here:

New book: Law and Religion in the Commonwealth

I am pleased to announce that a new book of which I am one of the editors will be published on 30 June. The book is Law and Religion in the Commonwealth: The Evolution of Case Law (Hart/Bloomsbury, 2022) and my esteemed co-editors are Dr Renae Barker (UWA) and Professor Paul Babie (Adelaide). The book is a collection of studies of law and religion issues from around the Commonwealth of Nations, from established scholars and also from some who are just starting out.

From the publisher’s description:

Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.  

The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria. 

The cases are divided into four sections covering:
– Foundational Questions in Law and Religion
– Freedom of Religion around the Commonwealth
– Religion and state relations around the Commonwealth
– Rights, Relationships and Religion around the Commonwealth.

Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: 
– Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia
– The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia 
– Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights 
– R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.  

The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.

My chapter is an analysis of the key Australian case, Christian Youth Camps Limited v Cobaw Community Health Services Limited and is sub-titled “Balancing Discrimination Rights with Religious Freedom of Organisations”. The book can be pre-ordered here, and will be available from June 30.

More information about the book, and a sample of the first chapter, can be seen here.

Blessing same sex marriages in the Anglican Church in Australia

The question as to whether same sex marriages entered into under Australian civil law can be blessed in an Anglican Church service is one that has generated much disagreement within the church. An important Opinion of the Appellate Tribunal of the Anglican Church of Australia in relation to a question posed by the Diocese of Wangaratta (Primate’s References re Wangaratta Blessing Service, 11 Nov 2020) held that it is lawful for a diocese to approve such a formal blessing. I have now contributed a chapter to a book of essays prepared for the consideration of the forthcoming General Synod discussing the issue, analysing the Majority Opinion and its implications. The chapter is available for download here, for those who are interested. I conclude, in brief, that as a matter of internal Anglican doctrine, the decision is contrary to the “doctrine of the Church”, which finds its ultimate source in the Bible. The Majority Opinion takes a too narrow view of the word “doctrine”, in my view. I suggest that this may have consequences outside the church:

unfortunately the narrow view taken by the Majority Opinion of the Appellate Tribunal may encourage a narrow view of the word to be taken by [secular] courts in the future, with the result that clauses protecting religious freedom may be unduly read down.

At p 47.

From the perspective of the general law of Australia, a church which declined to bless a same sex marriage might be accused of “sexual orientation” discrimination if they would offer such a blessing to a heterosexual couple. But balancing clauses under discrimination law would seem to have the effect that such a decision would not amount to unlawful discrimination, if the decision was:

(d) [an] act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

Section 56, Anti-Discrimination Act 1977 (NSW)

(See also the similar provision in s 37 of the Sex Discrimination Act 1984 (Cth).)

It seems to me to be fairly clear that the “doctrines” of the Anglican Church would prevent the blessing of a same sex marriage. Indeed, the General Synod of the church said as much in a 2017 resolution:

the doctrine of our church, in line with traditional Christian teaching, is that marriage is an exclusive and lifelong union of a man and a woman (emphasis added)

See ‘MARRIAGE, SAME-SEX MARRIAGE AND THE BLESSING OF SAME-SEX RELATIONSHIPS’, adopted 7 Sept, 2017, at https://anglican.org.au/the-general-synod/search-resolutions-of-gs-sessions/?sid=2827  

But the Majority Opinion of the Appellate Tribunal might cast some doubt on that proposition, and as a result needs urgent consideration by the next General Synod.

Law and Religion elective for later year Law students

This is an announcement which may be of interest to readers of this blog who are, or who know, later year Australian law students. Please feel free to pass this on to others who may be interested.

Students in the final 2 years of their law program are invited to consider applying for cross-institutional study with Associate Professor Neil Foster at the University of Newcastle, NSW, who will be offering the course LAWS6095 “Law and Religion” in semester 2, 2022. The course is open to both postgrad JD students and LLB students in their final 2 years of study. (Of course those who are actually studying at the University of Newcastle are eligible, and I hope many will sign up; but this notice is for those who are studying elsewhere!)

If this is a course you would like to complete, please email Neil (neil.foster@newcastle.edu.au ) as soon as possible, and in any event before the end of March 2022. If you would like credit for the course as part of your Law studies, you will then also need to apply to your own University for this.

 The course description is:

“The course offers an overview of the interactions between law and religion. It lays the foundation for the area by discussing the historical connections between the development of the legal system and religion in the West, surveys major world religious perspectives on law, and then explores in more detail the classic issues of ‘establishment’ (to what extent is, or should be, religion given a privileged place in the law?) and ‘free exercise’ (how does the legal system acknowledge and uphold the right of free exercise of religion and balance that with other human rights?). It also explores some of the intersections between religion and other important legal areas such as criminal law and the law of private obligations. Students have the opportunity to develop essential problem solving and communication skills with specialized knowledge and skills for research, which will equip them for high level professional practice and further learning in this important area.”

The course will be taught for 3 hours per week for 12 weeks in semester 2: a 2-hour “live” seminar (with most people in the room, assuming COVID restrictions allow, but also an “online” option for those located outside Newcastle), and one hour of purely online content. Learning outcomes will be:

“On successful completion of the course students will be able to:

1. Demonstrate an advanced and integrated understanding of both the foundational elements of, and recent developments in, the discipline of law as it relates to religious belief;

2. Generate and evaluate complex ideas and concepts at both a concrete and abstract level on law and religion topics;

3. Employ research principles and methods applicable to the both domestic and international law in the area of religious belief, and apply cognitive, technical and creative skills to investigate and analyse complex information and problems to apply the law to solve those problems;

4. Use high level oral and written communication skills to interpret and transmit knowledge, skills and ideas to specialist and non-specialist audiences;

5. Engage responsibly with those who have differing opinions on important issues in a professional and respectful way;

6. Plan and execute a research-based project with a high level of personal autonomy and accountability;

7. Demonstrate an advanced understanding of their own presuppositions and developed skills in critical thinking which will allow them to effectively identify and evaluate the validity of these and those held by others.”

For those who are wondering about the educational benefits of such a course, you can read about them in a recent article published on SSRN: see Witte, John, “The Educational Values of Law and Religion Study (2021)” in William Schweiker, et al., eds., The Impact of Academic Research on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 67-98, Available at SSRN: https://ssrn.com/abstract=3959083 .

Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.

Government amendments to Religious Discrimination bills

Debate in the House of Representatives in the Federal Parliament resumed today on the package of bills dealing with religious discrimination. (For general background, see my initial post on the bills here, and recent update on committee reports, here.) The second reading debate continues on Wednesday, I think, but the government has now released two sets of amendments it will be making to the bills. The most controversial will be the amendment to s 38 of the Sex Discrimination Act 1984; the other amendments to the main Religious Discrimination Bill will mostly be uncontroversial and reflect the recommendations of the two Parliamentary committees which recently reported. While the need for the s 38 amendment will continue to be debated, in my view it is targeted at the specific problem previously identified, and will if read in that context not unduly interfere with the operations of religious schools.

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Parliamentary reports recommend passage of Religious Discrimination Bills

Two committees of the Australian Federal Parliament examining proposed legislation on religious discrimination handed down their reports on Friday 4 February, 2022. Both committees recommended that the Bills introduced in November 2021 be passed by the Parliament, with some minor amendments. The report of the Parliamentary Joint Committee on Human Rights (“PJCHR”) can be found here, and that of the Senate Legal and Constitutional Affairs Legislation Committee can be found here.

While each report mentions a number of objections to the legislative package, it is significant that these cross-party committees both end up by recommending the enactment of the laws in substantially their current form. In my view this is an encouraging sign, that may signal that the legislation might find sufficient support to pass the Parliament before an election is called this year.

(There were “additional comments” made by ALP members of both Committees, but they did not formally dissent from the majority recommendations. There was a formal dissent from the Greens Senator Janet Rice to both reports, joined in the Senate Committee by fellow Green Senator Lidia Thorpe. Liberal Senator Andrew Bragg provided “additional comments” to the Senate Committee report without formally dissenting.)

In this post I will briefly summarise the recommended amendments put forward by the committees, and some other issues that have been raised this week following events at Citipointe college which I discussed in a previous post.

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