The florist, the baker and the photographer- religious freedom and small business

One of the most vexed questions in the religious freedom area at the moment is the clash between religious views and support for same sex marriage, and three cases in which this clash has been evidenced all involve people in what might be called the “wedding support industries”- a florist, a baker and a photographer. The most recent is the decision of the Benton County Superior Court in the US State of Washington in the combined proceedings in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015). There Barronelle Stutzmann, proprietor of the business, and her firm, were held liable for breaching the State’s anti-discrimination laws prohibiting denial of a service on the basis of sexual orientation. Stutzmann, who had supplied one of the complaints, Ingersoll, with flowers for some time, declined to do so on the occasion that he invited her to do the flowers for his proposed same sex wedding, on the basis of her Christian commitment and a desire not to support such a ceremony.

Stutzmann’s claim that her refusal to provide the flowers was not based on the sexual orientation of the client (whom she had often served previously), but rather on her desire not to express support for same sex marriage, was rejected by the court. She tried to rely (see lines 12-15 on p 28 of the linked transcript)  on the distinction between conduct and orientation (as to which see my previous post, referring to other cases where this distinction has been not recognised by the courts, and one where it has.) But the court rejected the distinction, saying that there was US Supreme Court authority refusing to recognise it. In Christian Legal Society v Martinez 561 US 661 (2010) at 689, the Supreme Court held that a University legal society could not decline to have as leaders those who engaged in or supported same sex intimacy, refusing to draw a distinction between “status and conduct”. The Washington court held, following the earlier decision in Elane Photography (see below), that same sex marriage was “inextricably tied” to sexual orientation.

The claim that this was in breach of Stutzmann’s religious freedom rights was rejected on the basis that, in accordance with the prevailing judicial interpretation of the First Amendment, Employment Division v Smith 494 US 872 (1990), religious views must give way before a law of “neutral application” not targeted at religion.

The case of the wedding photographer proved influential here. In Elane Photography, LLC v Willock, 309 P 3d 53 (NM, 2013) a wedding photographer who declined to take on the photography duties for a same sex commitment ceremony was also found guilty of sexual orientation discrimination and fined, the US Supreme Court refusing to grant leave to appeal from the decision of the New Mexico Supreme Court.

Across the Atlantic, similar issues have arisen for a firm of bakers, Ashers Baking Company, who declined to produce a cake supporting same sex marriage when requested to do so. See here for more details. This case seems all the more odd, as it was not requested for the celebration of anyone’s wedding; it was simply to bear a slogan in support of introducing same sex marriage into Northern Ireland, which does not yet recognise the institution. While there has as yet been no hearing, the local Equality Commission has brought proceedings against the firm for sexual orientation discrimination.

In each of these cases, the last especially but also in the others, it seems arguable that what is involved is not discrimination against persons of a particular orientation, but a refusal to provide support for an institution (same sex marriage) which is regarded as morally wrong. There does indeed seem to be a valid difference between simple provision of a service (as had often been done by Ms Stutzmann, for example) and the purchase of the artistic skills and talents of a person to celebrate and support the event of a same sex wedding. The courts, if they were minded to, could implement this distinction by finding that refusal to provide artistic support for the event was not in fact unlawful “sexual orientation discrimination”. After all, not all homosexual persons believe that same sex marriage is a good idea. The fact of homosexual identity and support for same sex marriage are not, as the courts seem to think, “inextricably linked”. If the courts are unable to implement the distinction because of previous binding rulings, then legislators could choose to do so. It is suggested they should do so, and provide a clear avenue for recognition of religious freedom in the context of state support for discrimination laws. The comments of the Washington court here, that once same sex marriage had been introduced into Washington State there was a “direct and insoluble conflict between Stutzmann’s religiously motivated conduct and the laws of the State of Washington” (lines 12-13 on p 58), are with respect too pessimistic. There are other avenues where both important interests can be recognised.

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Sexual orientation and sexual behaviour: can they be distinguished?

Should the employee of a religious organisation be allowed to be dismissed because of her sexual activities outside work? A recent Australian decision suggests, somewhat surprisingly, that she may be. I will explain here why I believe the court was correct. In Bunning v Centacare [2015] FCCA 280 (11 February 2015) an employee of a Catholic family counselling centre was dismissed because of her involvement in support for “polyamorous” activities. She claimed to have been discriminated against on the basis of her sexual orientation, but the claim was dismissed.

Distinguishing between orientation and behaviour- previous cases

By way of background, one of the most difficult issues in the interaction between religious freedom and sexual orientation anti-discrimination law arises when a believer makes a decision which is based on a person’s sexual activity, and it is claimed that in fact the decision was based on sexual “orientation”. This dilemma arises because, unlike most other prohibited grounds of discrimination, “sexual orientation” discrimination involves serious ethical dilemmas for those who adhere to traditional religious beliefs on sexual morality. That is, long-standing religious views (not only in Christianity but also in Islam and Judaism, for example) teach that same sex sexual behaviour is actually wrong, and contrary to God’s purposes for humanity. But one of the defining characteristics of a person who is of a homosexual “orientation” is a preference (to use a possibly controversial word) for sexual activity with a person of the same sex.

Sometimes believers, when challenged that their decisions are based on sexual orientation, have attempted to argue that in fact those decisions are based on sexual behaviour. That is, the claim is made that there is no intention to investigate someone’s personal preferences or “inclination”; but that engaging in what the religion regards as immoral behaviour, homosexual intercourse, can be a legitimate reason for making a distinction of some sort. An argument of this sort was run in the UK decision in Bull & Bull v Hall & Preddy [2013] UKSC 73 (27 November 2013). There the Christian owners of a boarding house had enforced for some years a rule that they would not let a double-bed room to any couple who were not married. A same sex couple were turned away from the room on this basis and sued for sexual orientation discrimination. The UK Supreme Court upheld the award of damages against the Bulls. In particular, they commented at one point as to whether it made a difference that it was the “status of marriage” which was the criterion for the decision, or not. (At the time same sex couples could not marry each other in the UK.) The majority of the court held that this did not make a difference. In particular, Lady Hale commented in this way on the argument that one could distinguish a decision made on the basis of sexual behaviour, from one made on the basis of orientation:

[52] Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation. As Justice Sachs of the South African Constitutional Court movingly put it in National Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1) SA 6, para 117:

“While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.”

This view, that sexual orientation requires expression in intercourse, and hence that any distinction based on the behaviour will also be a distinction based on orientation, was also affirmed in a recent Australian decision, Christian Youth Camps Limited v Cobaw Community Health Service Limited and Mark Rowe [2014] VSCA 75 (16 April 2014) (for detailed comment on this case see my previous post and linked articles.) The Court there rejected an argument that in denying a booking to a group that was lobbying for the “normalisation” of homosexuality, the Christian group concerned was not basing its decision on the orientation of the group members, but (impliedly) on their “behaviour” of lobbying for a particular viewpoint. Maxwell P supported comments that had been made by the Tribunal below, which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity. (at [57])

(See also Redlich JA:  “sexual orientation [is] inextricably interwoven with a person’s identity” (at [442]).)

Against this background, it is very interesting to find this recent decision that clearly distinguishes between “orientation” and “behaviour”, and finds against a dismissed claimant on these grounds.

Bunning v Centacare

In the Bunning case, Ms Bunning worked in a Catholic family counselling centre in a senior position. (While operating under the “brand” of “Centacare”, the Respondent’s full name from the case documents was “THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE”, and hence it was clear that Centacare was a direct emanation of the Church.)

The Applicant’s own documents revealed the following (see [7]):

her contact details as a counsellor at Centacare [had been] published on a website for the Brisbane Poly Group. These details had been originally published in or around late 2011, or early 2012, following a request from the group for the contact details of a ‘poly-friendly’ counsellor. The Brisbane Poly Group is a group of people involved and/or interested in the polyamorous lifestyle.

The website details had been brought to the attention of her employer, and on this basis her employment was terminated. Para [11] describes the events in the Applicant’s words:

(e) Furthermore, during the meeting the Applicant was told that the ‘Brisbane Poly Group’ goes against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.

(f) The Applicant was told that she was to be dismissed instantly for gross misconduct.

The claim under the Sex Discrimination Act 1984 (Cth) (“SDA”) was that the Applicant had been dismissed, or else put at a disadvantage, on the basis of her “sexual orientation”, and hence there had been a breach of the Act, s 14. Judge Vasta had to determine whether “being polyamorous” was a relevant sexual orientation. His Honour concluded that it was not. He referred to the Macquarie Dictionary definition of “polyamory” as

“The mating pattern of having a number of sexual partners at the same time” – [41] (emphasis in original)

As such the term referred to a certain type of behaviour. But, his Honour said, the word “orientation” as a “state of being” rather than actual behaviour:

[29] Under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as “sexual behaviour”.

He concluded that the Applicant had shown that she adopted polyamorous behaviour, but had not demonstrated that this was a relevant orientation. In a very interesting passage worth quoting at length, he continued:

[33] In argument before me, the Applicant contends that “behaviour” is a “sub-set” of an orientation and therefore is covered by the definition in the Sex Discrimination Act 1984.

[34] If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result would be an absurdity.

[35] This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation.

Having noted that as a matter of legislative history, Parliament had declined to include “lawful sexual behaviour” as an alternative ground of discrimination, his Honour concluded:

[39]…I am led to the inexorable conclusion that “sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

Hence the claim for sexual orientation discrimination failed, as the Applicant had not shown that the basis of the decision was a “condition” or “state of being” recognised under the SDA as a prohibited ground.

Comments

The decision in this case is interesting, as previously noted, because it seems to run counter to a tendency in other decisions to treat “orientation” and “behaviour” as interchangeable. It has to be said, however, that the implications of the decision are unclear. The Federal Circuit Court is a successor to the court that was previously called the “Federal Magistrates’ Court”. It is not high up in the Australian court hierarchy, and indeed it seems likely that formally its decisions do not form a precedent for any other courts. The decision here could of course go on appeal to the Federal Court “proper”.

In addition, neither of the judgments noted above, Bull and CYC v Cobaw, seem to have been cited to Judge Vasta. However, it should be noted that the case did not concern the question of “homosexual” orientation, and hence did not directly engage the issues which led to the previous comments. Polyamory, of course, as a formal “lifestyle” (as Judge Vasta noted, the term used by the Applicant herself) is not commonly spoken of as an “orientation”. A claim for discrimination on this basis feels more like a claim for discrimination on the basis of “marital status”, which does indeed focus on behaviour. The definition of “marital status” in s 4(1) of the SDA assumes that there is only one other party to the relationship- see e.g. para (e) “the de facto partner of another person” (emphasis added). Presumably if Parliament had intended to protect persons in multiple relationships, it could easily have referred to “person or persons”.

On balance, it seems that his Honour’s decision is correct. Whether the broadly expressed comments about the difference between “orientation” and “behaviour” will be adopted in later proceedings is more doubtful, but it is to be hoped that they are given due weight. Christians, to take one example, are well used to distinguishing between a “propensity” to behave in a certain way, and the actual behaviour. The Bible teaches that all people are by nature inclined to sinful behaviour, but sees nothing inconsistent in urging people at the same time to resist the temptation to do so. In other areas of life even modern Western society recognises the fact that someone may be, for example, an alcoholic, and regularly tempted to drink to access, but can commend and encourage that person not to act on their impulses and to resist the temptation. Whether this situation is analogous to the orientation of a person to have sex with others of the same sex is a matter of great debate. But it does not seem unreasonable that religious believers ought to be able to make the case that there is a difference between the two concepts of propensity and activity, and to argue that in some cases there is a valid distinction to be made between them.

Finally, it should be noted that even if the Applicant had been able to establish a prima facie case of sex discrimination, it seems possible that the Church would have had a defence under s 37(1)(d) SDA, which says that the earlier provisions prohibiting sex discrimination do not apply to:

any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Clearly the practice of having multiple sexual partners at the same time (which of course would mean at least one of them was not married to the Applicant) would run contrary to the moral teaching of the Roman Catholic Church. Since the role of Centacare was to counsel on family relationships, presumably the counselling was designed to be given in accordance with those moral teachings, and it would be a fundamental contradiction of those teachings for the church to employ a counsellor whose lifestyle was a living repudiation of those teachings. No doubt, in addition, many members of the Catholic Church would be offended by a person in this situation purporting to deliver counsel on behalf of the Church. On this basis it seems fairly clear that s 37 would have been engaged and entitled the Church to dismiss the Applicant, even if there had been “sexual orientation discrimination”.

However, as clear as this may seem, it has to be said that there is now some doubt about the application of s 37 since the earlier-mentioned decision in CYC v Cobaw, where it was queried whether a religious organisation’s views on sexual behaviour could be said to be part of their fundamental “beliefs” or “doctrines”. As discussed in my previous notes on the case, however, I take the view that the decision of the NSW Court of Appeal on this issue in OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL [2010] NSWCA 155 is binding on lower courts (as an earlier decision on the point by an appellate court) and should be followed on this issue. Christian doctrines on marriage and sexual behaviour have been a fundamental part of the Church’s teaching from the earliest days and were clearly intended by Parliament to be relevant in these contexts.

Canadian Supreme Court creates right to assisted suicide

Legal issues around the beginning and end of life have a long history of intersecting with religious beliefs on those same fundamental topics. Longstanding debates about abortion and euthanasia involve questions about the limits of the law, and the signals sent by the legal system on these topics. This area came to the fore again yesterday with the decision of the Supreme Court of Canada in Carter v Canada, 2015 SCC 5 (6 Feb 2015), in which a unanimous 9-member bench ruled, on the basis of s 7 of the Canadian Charter of Rights and Freedoms, that Federal Canadian law prohibiting suicide was invalid to the extent that it prevented

physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

A previous SCC decision had ruled in 1993 that there was no such Charter right. But now the court has changed its mind. In other words, despite a clearly enunciated rule on this topic passed under the democratic process by the Federal Canadian Parliament, the 9 members of the Supreme Court have now decided that Parliament got it wrong.

There are two major problems with this decision. One is the way it was made, the other is the substance of the decision. (Apart from that, all was fine…) The way that it was made illustrates the legitimate concerns that many have had in Australia about a “Bill of Rights” which allows courts to immediately substitute their judgments on significant policy issues, for the judgments of elected Parliamentary representatives. I happen to think that there is a legitimate place for a Bill of Rights of some sort in the Australian context. However, if such a thing were to be introduced, it should follow the model of being an “advisory” jurisdiction under which the courts would flag an issue, but there would be no legal consequence until Parliament had chosen to respond.

The problems of the Canadian model, where the courts immediately over-ride Parliament, are apparent here. The Supreme Court, having said that the current Federal law is invalid under the Charter, then “suspends” its ruling for a year to allow Parliament to respond. Why? Because it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is “unendurable”? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things? (In a very brief comment at [132] the Court says that the rights of patients and physicians in this area “will need to be reconciled”.) But one might remark that if it would be inappropriate for the Supreme Court to sully its hands with the gruesome details of implementing a policy, there may be something to be said for the view that they are an inappropriate forum to be making binding pronouncements on such policy.

One feature of the Charter which is not often mentioned may provide a “fallback” position. Section 33, sometimes known as the “notwithstanding clause”, does allow a Canadian legislature to over-ride a court ruling on certain provisions of the Charter (including s 7, the “right to life”, which with extreme irony was the provision invoked here to support a “right to death”), so long as it does so explicitly. Press reports suggest that some are already arguing that this is a case where s 33 ought to be invoked.

Why is the substance of the decision questionable? The arguments about opening up the door to legalisation of suicide generally are fairly well known, as are the arguments against allowing open slather in assisted suicide. But briefly, the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life. Any provision which allows others to make decisions to end human life weakens that value in the community. While the criteria set down by the Supreme Court here sound plausible and reasonable, the problems lie both in the implementation and also in the future development of the law. The implementation issues arise because fallible human beings have to make these decisions, and in many cases they will be under pressure from others. Family members of a dying person may have their own reasons for showing that the person’s illness is sufficiently grave, and their pain sufficiently unendurable, for a physician to assist in death. In many cases someone who is so gravely ill will have impaired judgement, and these decisions will have to be made by others. And once a law like this is introduced, there is an observable tendency in jurisdictions around the world for the grounds on which these decisions are made to be broadened.

All these issues have been long debated, and will continue to be debated. Sadly, the Supreme Court of Canada has decided that it has much more wisdom on these matters than the legislators of Canada, and foreclosed a debate that should be had in full, and with all relevant interests being considered carefully.

Religious organisations and their employees- new US decision

Can a religious organisation hire and fire staff in accordance, not just with their commitment to its doctrinal beliefs, but also on the basis of whether they conform to moral teachings? This was the issue in the background of a recent US decision, and it is interesting to note how this might play out in Australia.

The Conlon decision

The United States (Federal) Court of Appeals, 6th Circuit, has just handed down its decision on appeal in Conlon v InterVarsity Christian Fellowship/USA (No 14-1549, 5 Feb 2015), holding that Ms Conlon, who was dismissed as a “spiritual director” by IVCF, cannot file a Federal (or State) sex discrimination claim against the organisation. IVCF is an organisation that operates on many University campuses in the US, supporting evangelical gospel ministry there. (Full disclosure in case it is relevant: I have been a long time supporter of the Australian Fellowship of Evangelical Students, AFES, a similar organisation in this country which is, like IVCF/USA, a part of a wider global network, the International Fellowship of Evangelical Students, IFES.) Ms Conlon worked from 2004-2011 as a “spiritual director” assisting IVCF staff workers in their spiritual growth. When she started discussing problems within her marriage, and in particular flagged her possible divorce in March 2011, IVCF supervisors put her on paid leave to support her while dealing with this issue. When by the end of 2011 that seemed not to be working, her employment was terminated in December 2011.

The employment conditions for IVCF staff, which were made clear by the organisation from the outset, required that staff annually reaffirm their commitment to the IVCF Purpose Statement and Doctrinal Basis. The court quotes early in their decision a phrase (which I assume comes from the Purpose Statement), to the effect that

IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.”

Presumably the IVCF leaders, although the decision does not make this clear, took the view that Ms Conlon would, if she were divorced, not provide an appropriate model of Christian behaviour in this area. I want to be clear that I am not making any comment on the rights and wrongs of this decision. Despite my general support for IFES and its affiliates, I know nothing about the decision in this case and whether it was godly, wise or justified. In fact, it somewhat disturbs me that the court notes that Ms Conlon alleges that two similarly situated male employees were divorced while working for IVCF, but were not disciplined or terminated (see p 3 of the decision.) But of course there are divorces and divorces, and difficult decision have to be made in these circumstances.

The fact that life can be so messy, and that decisions about who should be employed in spiritual leadership are so dependent on a number of fuzzy criteria, may be partly what lies behind the doctrine of the “ministerial exception” in US law, which was successfully relied on here by IVCF. Formally the doctrine is driven by the First Amendment to the US Constitution, forbidding the Establishment of a state church (and excessive “entanglement” by the state in religious groups) and setting out rights of Free Exercise of religion. The doctrine has been applied by lower courts for a while, but received endorsement by the US Supreme Court for the first time a few years ago in its decision in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012). I discussed this decision in detail in an earlier paper, but in brief the main relevant part is that the USSC held (somewhat surprisingly for a religion clause decision, unanimously) that Federal employment discrimination laws could not apply to “claims concerning the employment relationship between a religious institution and its ministers” (at 705).

Applying Hosanna-Tabor, the 6th Circuit here held that IVCF clearly qualified as a “religious organisation” (not only its name, but its mission statement and activities were all directed to religious ends), and that the position that Ms Conlon held of “spiritual director” satisfied at least 2 of the 4 criteria set out by the SC for an employee being regarded as a “minister” : the title of her role, “spiritual” director, and the religious functions she carried out, being responsible for assisting the “spiritual growth” of other IVCF staff. (See the discussion at pp 7-8: the court did not explicitly find that the other 2 factors were not present, being formal theological training and use of the title in public contexts; they just held that there was not enough evidence to make a finding. But the other 2 factors were, in this case, sufficient.)

The result was that under the authority of Hosanna-Tabor the court could not entertain a claim for discrimination under federal law; and they also ruled that since the decision was based on the Constitutional rights granted under the First Amendment, and it had long been held that the First Amendment applied to the States as well as to the Federal Congress, nor could a claim under State law be made (see pp 10-11.)

Australian law?

How would this matter be resolved under Australian law? I will comment on the application of the Federal legislation, the Sex Discrimination Act 1984 (Cth) (‘SDA’)- I think a similar analysis would apply under most State laws.

Under the SDA there would be a possible prima facie claim that a decision to dismiss someone because of their divorce would be discrimination based on “marital or relationship status”, which is one of the alternative grounds of unlawful discrimination in employment- see s 6, and the definition of “marital or relationship status” which includes the state of being “divorced”. I am not sure, in fact, whether this is a claim that would be possible under US law- the court in Conlon refers simply to the differential treatment of divorced men as opposed to the claimant, who is a woman. Under the SDA that might also give rise to a straightforward gender-based discrimination claim under s 5(1), whereby by reason of

(a)  the sex of the aggrieved person…. the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

Under s 14(2)(c), in Division 1 of Part II, it is unlawful for an employer to discriminate on the basis of marital or relationship status, or sex, “by dismissing the employee.”

While there is no general Hosanna-Tabor principle under Australian law, there are “balancing provisions” in the SDA designed to protect the religious freedom of certain organisations. Under s 37(1) in Part II:

  (1)  Nothing in Division 1 or 2 affects:

                     (a)  the ordination or appointment of priests, ministers of religion or members of any religious order;

                     (b)  the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

                     (c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

                     (d)  any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Should a local student religious group dismiss a staff-worker in similar circumstances to those in Conlon, then it would need to show that the circumstances fell within s 37. It would probably be difficult to establish that a student staff-worker was a “minister of religion” under paras (a) and (b). It is possible that para (c) could apply but that would depend whether a “religious observance or practice” was broad enough to cover not just “rituals” but also the general practice of evangelism and bible studies, for example. Para (d) would probably apply: a group of this sort would be a “body established for religious purposes”, and the “practice that conforms to the doctrines, tenets or beliefs of that religion” would be arguably the policy of requiring staff members to conform to Biblical standards of sexual behaviour, including practices in relation to divorce. Possibly the bar would be set a bit higher in Australian than in the US: whereas under Hosanna-Tabor the court would not even begin to inquire into the religious criteria used, in Australia the organisation might need to make a plausible case that their decision could be justified by a set of doctrines and beliefs that were at least a possible reading of their religious tradition.

There a number of uncertainties, then, as to how an Australian court would deal with these matters. Those uncertainties are unfortunately compounded by the differing views expressed in the Victorian Court of Appeal decision in Christian Youth Camps v Cobaw [2014] VSCA 75, discussed in a previous post. One reading of Cobaw might suggest that matters of sexual behaviour, even decisions about divorce, were not part of the “doctrines, tenets or beliefs” of a Christian organisation (a view I would disagree with.) Another issue is that whether any disciplinary action taken “conforms” to those beliefs, so that the court would be given the task of coming up with an authoritative interpretation of the Biblical material on divorce! (A matter that mainstream Christian churches, and groups within churches, have disagreed on for the last 2000 years…)

In my view, despite what was said in Cobaw, the best approach is for the courts to grant a wide “margin of appreciation” (to use a phrase drawn from European jurisprudence) to religious groups, so that so long as a decision seems to be made in a good faith and consistent interpretation of their own doctrines (not in a “sham” way to achieve a particular outcome), then courts should recognise their freedom to determine who is suitable to work in key positions in these organisations. But whether this is the way that courts go in Australia remains to be seen.