Update- Religious Freedom and a Canadian Law School

In a previous post I noted the ongoing controversy over whether Trinity Western University, in British Columbia, Canada, can train lawyers who will be able to practice in Canada. TWU as a Christian University requires its students to agree to comply with a Code of Conduct, part of which bans all sexual intimacy outside the traditional marriage between a man and woman. TWU’s Law program has actually been approved by the Canadian national accrediting body, the Federation of Canadian Law Societies. But as noted previously, a number of individual Provincial Law Societies have now indicated that, due to the Covenant being viewed as discrimination against persons on the basis of their sexual orientation, TWU graduates will not be admitted to practice law in those Provinces.

The first decision in what may be a number of judicial challenges to the refusal of Law Societies to accept TWU future graduates was handed down on 28 January 2015 in Nova Scotia. In Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, Justice Campbell of the Nova Scotia Supreme Court ruled in favour of TWU. (See press summary here.) His Honour held that the NSBS had acted beyond its powers by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federal FCLS, especially as it was accepted that there was no evidence that TWU graduates would unlawfully discriminate against anybody on the basis of their sexuality. In addition, his Honour held that the NSBS in making its decision was under a duty under the Canadian Charter to take into account the religious freedom rights of TWU students and graduates, and had not done so appropriately. Just a minor point- the final ruling is summed up in para [270] of the decision; the version available on the web today I think accidentally omits the word “not” from the final sentence in that paragraph. But the rest of the decision makes it crystal clear that his Honour thinks that

The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives were not reasonably balanced within a margin of appreciation. (word added)

it will surprise no-one who has read my previous paper on the issues that I agree entirely with the Judge’s decision. If I can say so with due respect, the decision is remarkable for both its learning, its clarity and the breadth of the issues covered, while remaining clearly focussed on the relevant issues. I recommend anyone interested in the balancing of religious freedom with anti-discrimination rights to read it carefully.

Protection of Religious Freedom in Australia

Since today is Australia Day, it seems like an appropriate occasion to make some comments about freedom of religion in Australia! Those of us who are blessed to live in this wonderful country have many things to be grateful for, and one of them is a tradition of free exercise of religion. However, this right is not protected here in precisely the same way as it is protected in other jurisidictions which share our common law heritage. In this post I want to outline briefly how the law protects freedom of religion in Australia.

One of the key features of the Australia legal system is that we are a Federation, governed by a written Constitution. The Commonwealth Parliament is given certain specific areas in which it can legislate; the States hold the “residual” powers of legislation, although if the Commonwealth has passed a valid law it can over-ride State law on that topic. This Federal division of powers is an important background to considering how religious freedom is protected.

A. Religious Freedom Protection under Commonwealth law

The Commonwealth Constitution contains a clear restriction on Federal law-making powers, designed to protect religious freedom. This is s 116 of the Constitution:

Commonwealth not to legislate in respect of religion 

  1. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

(Of course s 116 also deals with “establishment” issues, whether the Commonwealth can create or support a religious body, and religious tests. But for today we will focus on the “free exercise” clause.)

The provision is similar to, and was enacted in clear knowledge of, similar words in the First Amendment to the Constitution of the United States of America. But it has become clear in later interpretation that the High Court of Australia, in the few cases where the provision has been considered, will not automatically follow the US Supreme Court. There are only a half dozen High Court decisions dealing with the free exercise clause of s 116; to my mind the most important, and still the best, of these decisions is the WW2 era decision of Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.

Briefly, the issue that arose in that case was one which is still a hot topic today: where do we draw the line between protecting religious freedom, and protecting national security? During World War 2, the theology of the JW’s involved the views that all organised political entities (up to and including the British Empire) were “organs of Satan”, and that it was the duty of all JW’s to not participate in human wars. In addition they would refuse to take an oath of allegiance to the King.

While these views were unpopular even in peacetime, at the height of World War 2, when many Australians were fighting and dying overseas for the British Empire, they were pretty explosive. So much so that under a general regulation-making power given by the National Security Act 1939 (Cth), regulations called the National Security (Subversive Associations) Regulations 1940 had been made, and under those regulations the Governor-General had declared the Jehovah’s Witnesses to be a subversive association, and the Commonwealth had taken over its main meeting centre.

The High Court held  that the regulations were invalid. But interestingly for our purposes, the reason for their invalidity was not that they breached s 116! The court effectively held that they went beyond either the regulation-making power, or else beyond the Constitutional power involved, as being too far-reaching. In particular one of the features that struck the judges concerned was that under the Regulations organisations were prohibited from advocating “unlawful doctrines”, which were defined to include “any doctrine or principle advocated by a declared body”. Since the JW’s were within a tradition that honoured the Bible, their doctrine included such subversive tenets as the Ten Commandments! Overall 3 out of the 5 judges ruled that the regulations were too broad and were, in effect, a disproportionate response to the danger posed by the JW’s.

However, the court did consider the question whether, if the regulations were otherwise valid, they would have been contrary to s 116. I think the best of the judgments on this question was that of Latham CJ, who emphasised the importance of religious freedom, but held that in effect s 116 had to be read as posing the question whether a law amounts to an “undue” infringement of freedom of religion, taking into account other important interests (at 128). Hence a law which impaired religious freedom (as this law clearly did) would still be valid if it was aimed at achieving an important government interest (national security, here), so long as it was not an “undue” infringement of religion taking into account the importance of the interests.

Other judges read s 116 in slightly different ways, and later decisions of the High Court (most of which were comments in passing, rather than directly on this issue) offer a slightly narrower view of s 116. (See e.g. Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1.) But it seems to me that Latham CJ’s decision captures the real importance of the provision, while recognising that it cannot provide “absolute” protection where other important interests are at stake.

An important point to note about s 116, however, is that it does not apply to laws passed by a State, as opposed to the Commonwealth. The wording of the provision is clearly limited to the Commonwealth (and here in Australia our High Court has not made the step that the US Supreme Court took in Cantwell v Connecticut 310 US 296 (1940) of extending the free exercise limb of the First Amendment to the States.) Indeed, there is some academic and judicial debate as to whether s 116 even extends to Federal Territories, which are set up under authority of Commonwealth laws (although I think that there are strong hints in recent High Court decisions that, should the issue come up today, the High Court would apply s 116 to a Territory law- see Wurridjal v Commonwealth (2009) 237 CLR 309, which extended a similar limitation on general Commonwealth law-making powers to govern Territorial laws.)

B. Protection of religious freedom other than through s 116

How is religious freedom protected in Australia, then, where s 116 does not apply (in particular, under State law?) There are a number of possibilities which have been put forward, which I will briefly note.

(a) Protection under International Conventions?

There are a number of important international treaties which protect religious freedom. Probably the most important one, which Australia has undertaken to be bound by, is the International Covenant on Civil and Political Rights (the ICCPR), s 18 of which provides for a broad right of religious freedom.

But under Australian law international treaties are not “incorporated” into our domestic law automatically; Parliaments need to take a further step and pass implementing laws. Unless the Commonwealth or a State/Territory enacts specific legislation, the most that can be said (and this argument has been run in a couple of cases) is that as a matter of judicial discretion in interpreting ambiguous legislation, the courts should presume that Parliament would intend to comply with international law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.) But so far no statute has been found to be sufficiently unclear in the area of religious freedom for this principle to be applied.

Of course international conventions can provide a model to encourage legislation, and as we will see in a moment there is some local legislation which to some extent specifically adopts the ICCPR. But it cannot be litigated on directly in domestic courts.

(b) Common law protection for religious freedom?

While the common law has a long tradition of protecting freedoms in general, there is not a strong common law religious freedom tradition. In fact, of course, the common law developed in a country (Great Britain) where there was an established church, the Church of England, and at various points in history there were legal disabilities imposed on those from other religions. In Grace Bible Church Inc v Reedman (1984) 36 SASR 376 the South Australian Supreme Court held that there was no implied principle of religious freedom constraining State laws.

On this question the most promising angle is the approach seen in a Federal Court decision, Evans v NSW [2008] FCAFC 130, where the Full Court in ruling on the invalidity of some regulations constraining religious comment during “World Youth Day”, that where legislation was ambiguous it would be interpreted so as to favour the internationally recognised right of religious freedom to the maximum extent possible, referring at para [79] to the fact that “[an] important freedom generally accepted in Australian society is freedom of religious belief and expression”.

(c) Protection under specific charters of rights

As most people are aware, Australia has no general Federal “Charter of Rights” (unlike the US or even, today, the UK where the European Convention on Human Rights has to some extent been incorporated into local law.) But individual jurisdictions have chosen to implement such charters, and both the State of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14) and the Australian Capital Territory (Human Rights Act 2004 (ACT) s 14) have enacted general human rights instruments which contain explicit protections for religious freedom.

(d) Discrimination laws and “Balancing provisions”

Freedom of religion is also protected in two different ways under legislation which prohibits unlawful discrimination around Australia. In most jurisdictions (all except NSW and the Commonwealth), one of the grounds of unlawful discrimination is religious belief, so that it would be unlawful to sack someone, or deny them services, on the grounds of their religious belief. Related to this, and also present in the other jurisdictions, are provisions of laws that are designed to “balance” religious freedom with the right not to be discriminated against. So that, for example, while there is a general prohibition on employment decisions being made on the basis of gender, all jurisdictions allow churches or other religious organisations to decide only to appoint male clergy, because that is seen by some religious groups as a key part of their teachings. Agree with these teachings or not, the law takes the view that it reasonably preserves the religious freedom of believers in these groups, and the groups as a whole, to allow their religious freedom to be exercised in this way.

Of course there is a great deal more that could be said about all these areas, but hopefully this will provide a useful overview of religious freedom protection in Australia. On the whole our history has been fairly free from serious religious conflicts, and it is be hoped that we can continue to enjoy the freedom to live in accordance with our fundamental beliefs, while respecting the rights of others.

Article in The Australian on freedom of religion and human rights

There is a brief article in The Australian newspaper today (Friday, Jan 23) by Chris Merritt, “Left hijacks human rights arena”, which quotes me, and some other Australian commentators, on the unfortunate tendency to trivialise freedom of religion (a clearly recognised human right under major international conventions) and to elevate general rights of “non-discrimination”. For those who are interested in further reading, there is an excellent discussion of some of these issues in a chapter by Professor Patrick Parkinson, “Christian Concerns about an Australian Charter of Rights” (in Babie & Rochow, eds, Freedom of Religion under Bills of Rights, Uni of Adelaide Press, 2012) 117-151, esp from p 121. (The book as a whole may be downloaded for free here.)

Beards, prisons and religious freedom

The US Supreme Court yesterday issued an interesting religious freedom decision in Holt, AKA Muhammad v Hobbs, Director, Arkansas Dept of Correction (No 13-6827, Jan 20, 2015). (Thanks to Marc DeGirolami at the CLR Forum for the notice.) A Muslim prisoner wanted to grow a 1/2 inch beard for religious reasons. The State prisons policy required that prisoners have no beards, except that those with certain skin problems were allowed to grow a 1/4 inch beard. Holt, the prisoner, successfully sued the State under the provisions of the Federal Religious Land Use and Institutionalised Persons Act 2000 (“RLUIPA”), 42 USC  §2000cc et seq. The SC held that he had shown that the State rule burdened his religious freedom, and that the rule could not be proven by the State to be in furtherance of a “compelling governmental interest” or to be the “least restrictive means” of furthering that interest.

The unanimous decision of the Court (there were clarifications issued by Ginsburg J and Sottomayor J but they agreed with the outcome) is a nice illustration of how many religious freedom claims are dealt with in the US these days. Alito J provides a helpful “road-map” to the way the issues are raised, at part IA of the judgment (pp 2-4 of the linked decision). This case did not directly involve the right to free exercise of religion under the First Amendment to the US Constitution, because the prevailing view in the SC at the moment seems to be that Employment Division v Smith, 494 US 872 (1990) represents the correct approach to the First Amendment. In effect Smith is read to mean that so long as there is some plausible, non-“religiously hostile”, reason for a Government law then it cannot be challenged under the First Amendment. Following Smith, the US Congress attempted to return protection for religious freedom to a broader basis by enacting two Federal statutes. The first was the Religious Freedom Restoration Act 1993 (“RFRA”), which (it was subsequently held in City of Boerne v Flores, 521 US 507 (1997)) applies only to Federal law. The second was RLUIPA, which applies to specific types of State laws covered by Federal legislative power (according to Alito J here at p 3, the “Spending and Commerce Clauses”.) The particular State laws covered by RLUIPA, as its somewhat odd title conveys, are land use laws and laws governing “institutionalised persons” including prisoners in State jails.

Where RLUIPA applies, as with RFRA in its area, the substantive provisions require that a State law which “substantially burdens” the religious freedom of a prisoner, will only be valid if the State can show that:

imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a).

Here the Supreme Court held that

  • the plaintiff was able to show that he had a sincere and genuine religious belief, not motivated by some other reason (evidence at trial established “hadith requiring beards… are widely followed by observant Muslims” – see p 8), and the Court held that it was irrelevant that growing a beard was neither universally followed by all Muslim men, and also that it was not viewed as a “compulsory” part of Islam. Nor was it relevant that the prisoner was allowed to carry out other religious exercises- the specific issue of the beard mattered to him on genuine religious grounds.
  • hence it was a “burden” to be asked to shave off his beard below 1/2 inch (it may have been relevant that Mr Holt had already “compromised” in agreeing to restrict his beard to 1/2 inch, as he would have preferred to not shave at all).
  • The State was not able to show that its claimed interests were “compelling”. The claim that small dangerous items could be concealed in a beard was doubted by the Court in relation to a 1/2 inch beard (nothing that hair could be grown quite long and would provide a better hiding place!) The claim that the beard could be shaved off and make identification harder was met by the answer that two photos of each prisoner could be taken, a “before” and “after” the beard, which would enable adequate identification (a policy followed in many other prison systems.)
  • Nor could the State show that this was the “least restrictive” method of achieving even these limited aims, for similar reasons. The Court noted that of course the judgment of prison officials warranted a degree of deference by the courts, as they had to deal with the issues daily; but they said that there came a point where deference had to give way:

without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting outcontraband. (at p 10)

  • One factor that counted heavily against the State was that the vast majority of other State prison systems, and the Federal system, had no such rules and was able to manage the concerns about smuggling and identification adequately.

In the end, then, all the Court agreed that Mr Holt’s religious freedom had been unduly burdened by a rule which could not be justified under the RLUIPA standard.

Same Sex Marriage- Comparing the US and Australia

The recent decision of the US Supreme Court to grant “certiorari” (leave to appeal) in a same sex marriage case has brought the matter back to attention in the US. The topic is one with many connections to law and religion, and I thought it was worthwhile to compare the current state of play in the US with the situation in Australia.

The “law and religion” connections are in two main areas. First, the law of marriage in Western societies has been shaped by Christianity, which was the shared world-view of the West for most of the previous two millennia. Proposals to now expand the definition of marriage, to extend the status to same sex couples, are seen by many as radically changing the institution, and hence are objected to by many who share the Christian world-view. Second, a change in the nature of marriage has already produced a number of religious freedom challenges. Should religious clergy who are empowered to conduct weddiings, be required to conduct same sex weddings? Should others who are in the “wedding support industries”, such as florists, cake-makers,or those who hire venues, be required to provide their active support to same sex weddings when they may, on account of sincere religious belief, take the view that these relationships are contrary to God’s purposes and wrong? Once the State authorises entry into same sex marriage, is it legitimate for faith-based schools to teach children that such relationships are sinful? Indeed, is it possible for anyone to say as such in the public square and not be accused of “homophobia”?

One common response to these issues on the part of proponents of same sex marriage is to simply recite the slogan “marriage equality”. But, as I have argued previously, it is not “discrimination” to treat things which are in fact different, differently; not is it discriminatory to deny the conferral of a status on a person or persons when they simply do not meet the accepted criteria for that status. No-one denies that a homosexual person should be able to marry; but what is denied is that a relationship with someone else of the same sex would be a “marriage”, for marriage has never previously meant that.

Nevertheless, the arguments in favour of redefining the institution of marriage to include same sex couples have been made vigorously over the last decade or so, and with some success in a number of Western countries.

Both Australia and the United States have seen this pressure for change. Both countries are Federations, with a Federal legislature with defined powers, and other legislative powers exercised by the various States.

United States of America

In the US, it has commonly been thought that questions of marriage are left to the different States. But the over-riding power of the US Constitution means that a State may not legislate to remove a right or privilege given by the Constitution. Proponents of same sex marriage have been arguing for some years that rights of “equality” to be found or implied in the Constitution mean that no State can choose to deny the right to marry to a same sex couple.

So far this argument has not yet been successful; it is expected that this will be the focus of the forthcoming appeals. Far from being uniformly in favour of same marriage, many individual States have passed laws either through their legislatures, or by referendum, affirming that marriage is between a man and a woman, and rejecting any transformation of the term. (This, by the way, is a more accurate description than that sometimes adopted, of laws “banning” same sex marriage. Something cannot logically be “banned” if it never previously existed! The people of these States, through their democratic processes, have chosen not to adopt a proposed change to the law which has been as it now stands for the entire history of the US.) However, in many of those States, a Federal judge or Court of Appeal has ruled that, despite the will of the people of that State, there is a constitutional “right to same sex marriage” buried deep in the terms of the US Constitution, which over-rides what those people have decided.

Until recently the US Supreme Court had not ruled definitively on the point. In 2013 two high-profile decisions of the Court were seen as supporting a general move to recognition of same sex marriage, but only went a certain way. In United States v Windsor, 570 US __, 2013 WL 3196928, No 12-307 (26 June 2013) federal legislation, the Defence of Marriage Act, which defined marriage for “federal purposes” as between a man and a woman, was struck down as invalid. In Hollingsworth v Perry, 570 US __, 2013 WL 3196927, No 12-144 (26 June 2013) it was held that those in California who had organised a successful referendum in that State defining marriage as between a man and a woman, did not have standing to challenge a decision of a lower court judge that the amendment was unconstitutional (and since the California government would not defend the legislation, the lower court decision remained.)

One point is worth noting. Even commentators who supported the Windsor decision had some problem identifying precisely the legal basis for the striking down of the law! But one of the features of the decision was the “swing” vote of Kennedy J (who provided the majority) where he insisted that it was not only the effect of the Federal legislation that homosexual persons felt denigrated, but in fact that this was indeed the “purpose” or “motive” of those who enacted it- to injure and disparage same-sex unions and those who might form them (see eg 133 S Ct 2693). As Smith points out in his excellent critique, the Court was thereby implying that all of the members of Congress who supported the law, and indeed the President at the time, Bill Clinton, were guilty of an irrational “animus” against homosexual persons. Smith demonstrates convincingly that in fact this charge was completely false, that clear public policy rationales were provided by the supporters of the laws, and he laments the fact that in the debates in this area it seems to be impossible for some to concede that those who disagree with them do so for any but irrational reasons.

As Smith points out, it seems that Kennedy J has adopted the popular view that “to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior human beings” (at p 6.) In a telling passage he continues:

The inference from moral disapproval to ascribed judgments of lesser personhood is not only a non sequitur; it is a pernicious non sequitur. That is because if we are to live peacefully and with mutual respect in a morally pluralistic society, it is imperative that we be able to approve or disapprove of different kinds of conduct, or even of different ways of life, without thereby being deemed to have depreciated the humanity of people who live in ways we disapprove. The invalid inference asserted by the Court in Lawrence and tacitly repeated in Windsor would effectively eliminate that possibility. Logically extended, the inference would inhibit judgments disapproving of racism, sexism, or other forms of bigotry: such judgments would violate the commitment to the “equal moral worth” of all human beings by implying that the people guilty of such offensive and irrational attitudes and actions are themselves somehow lesser or inferior persons.

In more recent developments in the United States, since these decisions a number of State constitutional amendments, or local State statutes, that define marriage as a relationship between a man and a woman, have been challenged and struck down as unconstitutional, on the basis that the implication of Windsor is that the US Constitution somehow contains a federal “right to same sex marriage”.

Indeed, President Obama has now said that this is his own view:

President Obama says he now believes that the Constitution guarantees a right to same-sex marriage in all 50 states but expressed support for the more incremental approach taken by the Supreme Court. Mr. Obama opposed same-sex marriage until 2012, when he came out in favor of letting states decide the issue for themselves and urged them to embrace such unions. In an interview with Jeffrey Toobin of The New Yorker, posted online on Monday, he said same-sex marriage should be a right for all Americans regardless of where they lived. But he added that “given the direction of society, for the court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.” The court struck down part of the federal Defense of Marriage Act last year and, in a separate ruling, effectively allowed same-sex marriage to proceed in California.[1]

Of course, even in the US the legal opinion of the President isn’t binding as a matter of law, but it is an interesting illustration of how public opinion has shifted.

The President’s comment was made in the context of a recent “non-decision” of the Supreme Court. Appeals were filed from a number of the decisions of Federal Circuit Courts of Appeal who had ruled State laws defining marriage in historically traditional ways were invalid. On Oct 6, 2014 the Supreme Court, with no explanation (as is often the case in denial of certiorari) refused appeals from those courts. Commentators argued about what this refusal meant, and why, but no-one really knew.[2] The impact on State laws has, however, was dramatic. In effect all those States whose Federal Circuit courts were under the authority of those appealed from were now required to invalidate a local State law affirming traditional marriage. This means that even in a State where the majority of the voters in the State had supported the historical definition of marriage, those laws were invalid. Same sex marriage is now regarded as being lawful in 36 US States, up by 17 from the number before the Oct 6 ruling.

However, the trend of Federal Circuit Courts of Appeal striking down State laws on these grounds was broken with a more decision of the 6th Circuit, upholding the statutes, which finally resulted in the Supreme Court agreeing to resolve the dispute. The stage is now set for the Court to finally hear argument on the substantive question, which it seems it will do in April. However, what is interesting is the way that the Court has structured the arguments. Time has been allocated for argument on two points: (1) whether there is a “constitutional right” to same sex marriage which would over-ride State laws; and (2) if not, whether a State which does not itself recognise same sex marriage should be obliged to recognise the validity of such a marriage carried out in another State (an argument based, presumably, on the “full faith and credit” clause obliging recognition of other laws within a Federation.) it seems possible that this careful structuring of the issues may mean that the conservative minority on the Court may be able to persuade Kennedy J (whose vote is viewed as the “swing vote” on this issue) that it would be going too far to completely over-ride State discretion on marriage for their own citizens; but that a plausible compromise would require recognition across State borders of a marriage entered into elsewhere. In many ways this would be an interesting outcome- the number of States where same sex marriage is recognised would be reduced to those where the State legislature had consciously chosen to change the law, a fairly small number. But it is impossible to predict exactly what the Supreme Court will decide.


The situation in Australia is that here our Constitution gives “marriage” as one of the topics that the Federal Parliament may legislate on, under s 51 (xxi). It is a “concurrent” power, shared with the States, but where the Commonwealth has exercised its power, then under s 109 of the Constitution Federal law will over-rule any contrary State law. The two quasi-independent Territories, the ACT and the Northern Territory, are also able to make laws on a wide range of topics, but again those laws must give way where the Commonwealth Parliament has spoken.

Here, then, the most natural way to implement same sex marriage would be by way of amendment to the Federal Marriage Act 1961, which has been the exclusive law on the topic since it commenced in 1963. In 2012 an attempted Bill for same sex marriage was defeated in both Houses of Parliament. An attempt by the ACT, a Federal Territory, to go its own way and to enact a same sex marriage law was over-turned by Australia’s final court of appeal, the High Court, at the end of 2013. I have just written an analysis of this decision here which explains its reasoning.

Unfortunately, in my opinion, the High Court’s decision went beyond striking down the ACT law, and offered comments on whether a future law for same sex marriage passed by the Federal Parliament would be valid. As I discuss in my recent note, I regard these comments as unnecessary and unhelpful, particularly as no opposing position was put in the litigation. I think it is still very much an open question as to whether the Commonwealth’s “marriage” power can be used as it stands to support same sex marriage, or whether (as I think) the change could only be made by referendum.

In conclusion, in the US the question whether same sex marriage will be introduced around the country (even over the opposition of large numbers of voters in the various States), or not, will hinge very substantially on what is decided in the forthcoming US Supreme Court decision. In Australia, it seems clear that the matter is one that will have to at least be decided initially by the Federal Parliament, and at the moment the current Parliament shows no enthusiasm for the question. Even if a change should be approved in the future (and this, despite the claims of supporters, is by no means a forgone conclusion- sometimes the “tide of history” goes out again!), there will still in my view be a serious question as to whether the obiter dicta of the recent High Court decision should be accepted, or whether the Court will need to revisit the scope of the marriage power in the Australian Constitution.

[1] Peter Baker Obama Broadens Support for Same-Sex Marriage (New York Times, Oct. 20, 2014) http://www.nytimes.com/2014/10/21/us/obama-broadens-support-for-same-sex-marriage.html?_r=0 .

[2] See, for one of many comments, Suzanne Goldberg, Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples, SCOTUSblog (Oct. 6, 2014, 12:48 PM), http://www.scotusblog.com/2014/10/symposium-the-supreme-courts-opt-out-means-more-marriage-equality-but-continuing-harms-to-gay-and-lesbian-couples/ .

Churches meeting in public schools

Can a church hold its Sunday meetings (or other activities) in a public school building? The issue doesn’t seem controversial in Australia at the moment (my church, for example, does just that.) But it has proved surprisingly difficult to resolve in New York, and where there is a trend in the US in the area of religious freedom it is worth noting for its possible future arrival in Australia.

I first wrote a paper about this particular dispute at the end of 2011. That paper contains some details about the US First Amendment and why it was invoked here. Essentially, a smallish independent church, the Bronx Household of Faith, had been meeting on Sundays in a public school, but the New York City Board of Education objected. The relevant rule they laid down, after some other versions, was that no organisation could use school property for “religious worship services”. They were effectively claiming that by allowing church services to take place, the “wall of separation” between church and state was being breached, and members of the public would see the City as somehow “entangled” with the church.

The dispute has been characterised by trial judges ruling in favour of the church, and the Second Circuit Federal Court of Appeals then overturning the lower court decision and ruling against the church. There have also been strong dissents from one of the judges on the Court of Appeals. As I left matters at the end of my 2011 note, the US Supreme Court had refused to hear an appeal from the Second Circuit, which had ruled that the City’s regulation was not contrary to the “free speech” part of the First Amendment. But as I said in my note, it had become apparent that there were stronger “freedom of religion” arguments that could have been raised, which opened the way for the school to have another go.

After the Supreme Court’s denial of appeal on the free speech point, the church obtained an injunction from the District Court, in Bronx Household of Faith v. Board of Educ. of City of New York, per Preska CJ (see 876 F Supp 2d 419 S.D.N.Y., 2012; June 29, 2012) preventing the city removing the church from the school, this time on “free exercise” grounds (as the particular regulation targeted “religious worship”), and also interestingly on the “establishment clause” ground that the law “excessively entangled” the government with religion (as government officials had to make a judgement about whether what the church was doing was “religious worship” or not!).

 The Court (a single judge) found that the regulation violated the Establishment Clause under Lemon (see the earlier paper for details of this) because it caused the Board’s officials to become excessively entangled with religion by requiring them to make their own bureaucratic determinations as to what constitutes “worship.” (at p 47 of the transcript)

The US Second Circuit Court of Appeals then heard an appeal from this decision on Nov 19, 2012. On April 3, 2014, the majority of the 2nd Circuit ruled in favour of the City that there was no violation of the First Amendment, either the establishment clause or the free exercise clause. An application for an appeal to the US Supreme Court has now been made. The 2nd Circuit on 10 July 2014 issued a “stay order” which means that the church can keep meeting in the school for the moment until the appeal is resolved.

Meanwhile, in May 2013 the New York City Council passed a motion encouraging the New York State legislature to overturn the particular rule: see here. But there is apparently still some doubt as to whether the State legislature will do this, and so it seems that the outcome of the appeal is still important for the issue. The current New York mayor has said that he favours allowing the church to use the school.

The latest report I have read says that, despite the Mayor’s previously expressed views, officials from the City are still proposing to argue the appeal in the Supreme Court. It is also interesting to note that the litigation has been dragging on for so long that church has now managed to put up its own building! But it would still like to use school premises for the occasional extra activities, so it will also continue the litigation.

Those interested in a full account with links to all the relevant court documents can see it at the excellent Alliance Defending Freedom website on the case.

Vaccination and religious freedom

The question of the effectiveness or possible harm of compulsory vaccinations is of course a hot topic in Australia as it is in other parts of the developed world. My own view is that the evidence for the effectiveness and general safety of most standard childhood vaccinations is overwhelming. But how should the law respond when a parent claims that for religious reasons they do not want to vaccinate their children?

This was the issue that was considered recently in a decision of the Second Circuit of the US Court of Appeals in Phillips v City of New York (DN 14-2156-cv, 7 Jan 2015). NY state law requires all children attending public schools to produce evidence of vaccinations, with two exceptions: where there is a clear medical reason that vaccination should not take place, or where the parents can show a genuine religious objection. But another part of the law specifies that where there is an outbreak of a disease against which vaccination is effective, students who are unvaccinated because of such exemptions being granted, may be temporarily excluded from the school.

In this case two of the plaintiffs had been granted a religious exemption, but complained that their children had been excluded from school during a chicken-pox outbreak. The other plaintiff had had her claim for a religious exemption denied, because she could not cite any doctrines of her church (the Roman Catholic Church) that related to the question of vaccinations. The complaints alleged a breach of the freedom of religious exercise right granted by the First Amendment to the US Constitution.

The facts illustrate a common feature of religious freedom cases, that many involve a clash between religious freedom of the plaintiff and some other right of someone else. Here NY officials claimed that the right to be free from infectious diseases (a specific example of what one might call a general right to be free from unnecessary bodily harm) clashed with the right of parents to exercise religious freedom. The Court, correctly in my view, held that the First Amendment rights of the plaintiffs had to give way in this case to public health considerations. While there was no US Supreme Court decision directly on point on the First Amendment issues, the Court cited dicta from a 1944 decision which was highly persuasive:

a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

In addition, the general approach of the US Courts to religious freedom issues in recent years is to read the right very narrowly, so that if there is a “neutral” (i.e. not clearly anti-religious) reason for a law, it will not breach the First Amendment, following the decision in Employment Division v Smith 494 US 872 (1990). (Without going into detail at the moment, I should say that I disagree with this general approach, which seems to read religious freedom far too narrowly. But that will have to be the topic of a future post.) But even if a more generous approach were adopted, such as has been taken in the US Federal sphere in the Religious Freedom Restoration Act (RFRA) 1993,[1] where restrictions on religious freedom have to have a compelling policy justification and be narrowly drawn, it seems to me that this law on vaccination is perfectly sensible. There are clear and scientifically proven detrimental health effects to others from the spread of disease from those who are not vaccinated (and indeed compelling reasons in the interests of children themselves to do as much as possible to encourage parents to vaccinate.) Even if there are religious reasons not to do so, the potential harm caused by the failure outweighs the harm caused to religious sensibilities.

Indeed, one may go further. While it is true that some who oppose vaccinations on general principles are religious believers, many are not. And even among those who are religious, it is arguable that hardly any of the reasons offered for not vaccinating are drawn from religious reasons. The decision records that the plaintiff who was denied a religious exemption, while she claimed she did so as a Roman Catholic,

testified that she did not know of any tenets of Catholicism that prohibited vaccinations.

In other words, while it was not doubted that she had genuine health concerns for her child, those concerns were not really based on religious beliefs. It may be that others can be offered, and I would not want to deny that some objections to vaccination might be based on genuine religious beliefs. But I think the approach of the court here was correct, to test the claim of a religious belief on the topic by asking the plaintiff to spell out her reasons, and where none of the effective beliefs related to her religious world-view, to not accept that they were religiously motivated.

Religious freedom is a fundamental human right which is protected by international human rights instruments and a long common law tradition. But like all other rights, it occasionally has to give way in the wider public interest, and while accepting that the parents concerned had genuine beliefs, the decision of the Court here seems sensible. It will be interesting to see if the matter is taken up the US Supreme Court, as some of the press reports indicate the plaintiffs plan to appeal.

[1] 42 USC ss 2000bb to 2000b-4.