Discrimination and Opposition to Same Sex Marriage in Tasmania

There are press reports (see also here) that the Roman Catholic Archbishop of Hobart is being sued under s 17 of Tasmania’s Anti-Discrimination Act 1998 for causing “offence” or “humiliation”. This was alleged to have been done by the Archbishop causing to be sent to Roman Catholic schools in his diocese, a booklet outlining the church views on marriage, and in particular expressing the well-known opposition of the church to the introduction of same sex marriage. A copy of the booklet, “Don’t Mess with Marriage”, can be downloaded here. It seems clear but also very respectful, and keen to condemn any ill-treatment of those with a same sex sexual orientation.

It seems hard to imagine that it was a surprise to parents sending their children to a Roman Catholic school that they would be receiving teaching on the church’s views on moral issues, especially on a matter of such great public interest in Australia at the moment. Nevertheless, a number of parental complaints were made when the booklets first came out. Complaints were made that the material was “discriminatory”. Yet, as the booklet itself points out:

Justice requires us to treat people fairly and therefore not to make arbitrary, groundless distinctions…if the union of a man and a woman is different from other unions – not the same as other unions – then justice demands that we treat that union accordingly. If marriage is an institution designed to support people of the opposite sex to be faithful to each other and to the children of their union it is not discrimination to reserve it to them.

The provision of the Tasmanian legislation being relied upon is essentially an “anti-vilification” law, presumably in its application to “sexual orientation” discrimination. It relevantly provides:

17 (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16..(c)… in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

I have written a lengthy paper analysing Australia’s anti-vilification laws as they relate to religion, and many of the comments I make there relate also to what we may call “sexual orientation vilification laws” such as s 17, as it is being used here. In particular all such laws raise serious issues as to how they protect the important value of free speech, while balancing this with the right of persons in protected categories not to be the subject of “hate speech”. One of the cases I discussed in that paper was a decision from the Supreme Court of Canada, Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (27 Feb 2013), dealing with sexual orientation vilification. As I noted, in that decision the Supreme Court upheld a provincial law dealing with “hate speech”, but as part of its decision the Court struck down the sections of the law that targeted the mere causing of “offence”, as contrary to the Canadian Charter right of free speech. To be precise, the Court agreed that the prohibition on “exposing someone to hatred” was valid under the Canadian Charter of Rights and Freedoms, but ruled that the words “ridicules, belittles or otherwise affronts the dignity of” were invalid and should be struck out.

I also noted in that paper decisions of the High Court of Australia which also strongly upheld the value of free speech, and noted that a provision penalising “offence” could be contrary to the implied freedom of political speech under the Australian Constitution- see in particular the decision in Monis v The Queen [2013] HCA 4 (27 February 2013), where, while there was a division within the court over how the legislation in question should be read, all members agreed that the bar for “offence” should not be set too low.

To come to this Tasmanian case, it seems clearly arguable that s 17, in preventing the mere causing of “offence” or “insult”, goes too far in restricting free speech, certainly insofar as it relates to political issues. As Hayne J said in the Monis decision:

[222] The conclusion that eliminating the giving of offence, even serious offence, is not a legitimate object or end is supported by reference to the way in which the general law operates and has developed over time. The general law both operates and has developed recognising that human behaviour does not accommodate the regulation, let alone the prohibition, of conduct giving offence. Almost any human interaction carries with it the opportunity for and the risk of giving offence, sometimes serious offence, to another. Sometimes giving offence is deliberate. Often it is thoughtless. Sometimes it is wholly unintended. Any general attempt to preclude one person giving any offence to another would be doomed to fail and, by failing, bring the law into disrepute. Because giving and taking offence can happen in so many different ways and in so many different circumstances, it is not evident that any social advantage is gained by attempting to prevent the giving of offence by one person to another unless some other societal value, such as prevention of violence, is implicated.

There seems little doubt that comments on whether same sex marriage should be adopted, or not, are matters of a “political” nature in current Australian society. So even if the suggestion that the definition of marriage should not be changed, causes offence to some, it may be doubted that a law which prohibits such speech on that ground alone would be valid. The constitutional implied freedom of political communication, of course, applies both to State laws as well as to Commonwealth laws, as it is an implication arising from the general structure of the Constitution which establishes both the Commonwealth and the States.

One might have thought that the prohibition of speech on such matters as these by a church leader would also amount to a restriction of religious freedom. It is true that s 116 of the Commonwealth Constitution does not limit the power of State Parliaments (see my earlier post on the general structure of religious freedom protection in Australia for elaboration of this point.) Indeed, it is interesting that a recent decision of the Tasmanian Anti-Discrimination Tribunal, Williams v Threewisemonkeys and Durston [2015] TASADT 4 (30 June 2015), dealing precisely with a sexual orientation vilification claim under s 17, makes this point in response to a self-represented litigant’s claim of religious freedom.

However, unusually for Australian State Constitutions, the Tasmanian Constitution Act 1934 contains a religious freedom protection provision, in s 46

 (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Sadly this provision is, so far as I am aware, untested in the courts. I am not even sure whether it should be read as over-riding “ordinary” Tasmanian legislation, as one would usually expect in a provision of a Constitution. However, it may provide another reason to suppose that the Tasmanian Parliament may not have intended, by enactment of s 17, to prohibit the free expression of the Roman Catholic Archbishop’s belief, which of course would be a part of his (or the church’s) “profession and practice of religion”.

If there is, as seems suggested at the moment, to be a plebiscite on the question of recognition of same sex marriage, it is to be hoped that respectful public debate can be carried out without a polite statement of one side of the case being “shut down” as offensive or insulting simply because it makes a case which some disagree with. In any event it seems likely that Australia’s Constitution protects robust political debate on these matters.

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Paper on churches withdrawing from marriage if same sex marriage is introduced

We had what seemed to be a very well-received conference on Religious Freedom in a Multicultural World on Friday; we hope to make audio and possibly some video available soon, which I will mention here. In the meantime, for those who are interested, the paper I presented is available here. I hasten to add that regular readers of this blog will experience, as the recently deceased Yogi Berra used to say, “deja vu all over again”, because much of the content was taken from some blog posts and interaction with my friend John McClean. But I have added some more material at the beginning setting the scene, and hopefully bringing it all together into one spot will be useful.

Religious Freedom in the Newcastle Herald

Today I had an opinion piece in the Newcastle Herald entitled “Free to live by one’s beliefs“. The issues raised here are among those to be discussed at the Religious Freedom in a Multicultural World conference to be held at Newcastle University this Friday September 25. If you would like to come, see the website here for details and a link to register. (By the way, if you are a pensioner or in receipt of Government assistance generally, you can register at the Student rate of $25 rather than the full rate!)

After the conference I will be posting the paper I am presenting on this blog, and I hope that the other talks will be recorded so we can share them more generally.

Jail time for Kentucky County Clerk

Summary: Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law.

The internet is full of reports and comments about Kim Davis, the Kentucky county clerk who has been sentenced to jail for contempt of court in refusing to issue marriage licenses. Ms Davis’s objection stems from the ruling in the US Supreme Court decision in Obergefell finding a constitutional right to same sex marriage. As a devout Christian she regards same sex marriages as contrary to the Bible’s teaching on God’s purposes for humanity, and she does not wish by her actions in issuing marriage licenses (whether for same sex or heterosexual marriages) to be complicit in supporting such a system.

Even some normally conservative Christian commentators have responded negatively to her decision, which involves not only not issuing these licenses herself, but also directing the other 6 clerks in her office not to issue the licenses. While at first this seems very odd, the explanation for the direction seems to lie in the fact that as Rowan County Clerk, under Kentucky law her name will appear at the foot of all licenses issued by her office. The latest news available at the time of writing suggests that deputies have issued licenses, while Ms Davis is in jail, although there is some doubt about whether the licenses bear Ms Davis’ name.

Questions raised by this incident are similar to those being raised all over the Western world in countries where same sex marriage has been recognised. To what extent should the religious freedom of those called on to celebrate or support such marriage ceremonies be recognised? This blog won’t be able to answer all those questions, but I would like to set out some considerations that I think policy and law makers should take into account, and to comment briefly on this decision. (For those interested a more in-depth consideration of a range of religious freedom issues, including some raised by the possible recognition of same sex marriage in Australia, let me remind you that the University of Newcastle, here in NSW, is running a one-day conference on these issues on Friday September 25- and the “early bird” registration has been extended now to Sept 7!)

  1. Religious freedom is a fundamental human right, not some excuse made up to allow homophobia. It seems bizarre to have to say this, but occasionally one comes across the view represented by the second clause in the previous sentence. Perhaps one reason that some might suspect this, is that religious freedom debates have mostly been fairly minor in Western societies until recent years, and where they occurred they often involved minority, non-Western religious groups. The reason for this may be that up until recently most Western societies have operated on a broad moral consensus which was shaped by Christianity. In the area of sexual behaviour, for example, while since the 1960’s increasingly many people have not behaved in accordance with Christian norms that sex should only be enjoyed in a married relationship between a man and woman, many of those people have at least conceded that this was an “ideal” to which it would be good to aspire. But in recent years the successful work of homosexual activists in transforming the societal consensus on this question has led to a number of challenges for those who wish to live in accordance with Biblical principles. Christian views on appropriate sexual behaviour can now be attacked, not merely as out-dated or archaic, but as positively evil and harmful. Yet those views, as with some other controversial views which differ from the mainstream of society, may be deeply held and based on fundamental religious convictions which are not new, but often go back many thousands of years.
  2. Of course this means that sometimes a person’s religious beliefs will impact on the way they conduct their “secular” job. In the private sphere this raises issues about whether an employer should provide “accommodation” (a term which in this context doesn’t mean, “a place to live”, but means “some adjustment of the usual requirements to allow religious freedom”.) The view that if a religious person doesn’t like what their job requires, they should just quit their job, has occasionally been put forward in the past. But in more recent years courts have recognised that where accommodation is possible, it should be provided if it can be without unduly impacting on others in the workplace- just as in the area of sex discrimination, we recognise that accommodation should be provided where female employees need leave to have babies, or “family friendly” arrangements so that they can continue in the workforce when a baby has arrived. An example of this was the UK case of the British Airways employee who wanted to wear a visible cross despite a blanket “no jewellery” rule by her employer. When the case of Nadia Eweida reached the European Court of Human Rights, that court held that a reasonable accommodation could have been provided to employees with strong religious views about wearing religious symbols. I have discussed other similar cases in the past, some to do with the wearing of a head scarf at work.
  3.  Religious freedom is about more than the right to hold certain beliefs internally, however; it is about a right of “free exercise” of religion which will mean that a person will live out their religious beliefs in everyday life. Indeed, it is a fair criticism of someone who claims to be a believer that their life does not match their claimed religious beliefs. All of us are grateful when people with deep religious beliefs live out those beliefs in caring for the poor and marginalised, in generous giving to worthy causes, and in looking after people in their local communities. So we need to resist the occasional “reframing” of religious freedom in terms of “a right to worship”; it is much more than that.
  4. Do these same principles apply, then, to a public servant? Or must we require all public servants to park their fundamental religious freedom rights at home when coming to work? The answer is that public servants do have, and should be allowed to exercise, religious freedom. It is not a question, as some have put it in recent days, of a public servant being “allowed to disobey the law”. The law should contain, and in most Western countries does contain, recognition of religious freedom rights, and relying on such a provision means that one would not be disobeying the law, one would be acting within the law.
  5. An example, closely analogous to the current matter, can be found in the case of Ms Lillian Ladele in the UK. Ms Ladele was employed by Islington Borough Council. In the UK, many registration functions are devolved to local Councils. The UK introduced legislation allowing parties to register a “civil union” (not at the time a “marriage”, but a formal procedure for recognising a same sex relationship which provided similar ancillary benefits.) Ms Ladele, an evangelical Christian, took the view that this type of procedure was authorising sexual behaviour contrary to the Bible, and she asked to not be placed on the list of registrars who would deal with these requests. She had joined the Borough long before this legislation was introduced, and there were other registrars who could easily have done the job.
  6. Despite the fact that no member of the public was in any way disadvantaged by her objection to dealing with such requests, Ms Ladele was fired for refusing to do so. Unlike Ms Eweida, the airlines employee noted previously, when Ms Ladele’s case went to the European Court of Human Rights the court by majority ruled that the Council had been entitled to dismiss her for not complying with their “equal opportunity” policy. The case has been criticised for failing to give due weight to Ms Ladele’s religious freedom.
  7. The point to note in the current context is that she was not acting “illegally” in the sense of high-handedly defying a clear law. She argued that regulations in force at the time provided that her religious freedom rights under art 9 of the European Convention on Human Rights should be taken into account. And indeed the European Court agreed that she had such rights, although they ruled in the end that these rights should, in the circumstances, be over-ruled. But she was not a “defiant lawbreaker”, because she believed on plausible grounds that she had religious freedom rights, which were part of UK law, which she could rely on.
  8. Let’s come to the case of Ms Davis. The main court decision here is the decision of Judge Bunning, in the Federal District Court, in Miller v Davis 2015 WL 4866729 (E.D.Ky.) (12 Aug 2015). Ms Miller, one of the various couples who had approached the clerk’s office to be told they could not have a license to marry, was suing Ms Davis in the Federal (not the Kentucky State) Court because she claimed that pursuant to 42 U.S.C. § 1983, a provision of Federal law, she as an official of the State was “subject[ing].. [the plaintiffs to] the deprivation of any rights, privileges, or immunities secured by the Constitution”; the “right” in question being the “right to same sex marriage” identified by the US Supreme Court in Obergefell. She sought an injunction to require Ms Davis to issue licenses for such marriages.
  9. Ms Davis in her defence spelled out a number of legal reasons which would justify her action; again, she was not claiming in a high-handed way the right to ignore the law. Her arguments referred to the fact that any constitutional right may be subject to being over-ridden in a particular case due to a sufficiently compelling State interest; that her own rights of freedom of speech and freedom of religious exercise, granted by the First Amendment to the US Constitution, were being unduly interfered with by the Governor of Kentucky’s order that all clerks personally issue same sex marriage licenses; and that her rights under Kentucky’s Religious Freedom Restoration Act were being breached. In this already too-long post I can’t adequately deal with all these arguments, although it seems to me that some indeed had much more merit than would be suggested by Judge Bunning’s dismissal of them. But I would like to comment on one in slightly more detail, the Kentucky RFRA.
  10. I have mentioned this type of legislation in a previous post here recounting controversy in the State of Indiana, and interestingly this very piece of Kentucky legislation was involved in a previous case mentioned here where a printer of T-shirts was allowed to decline to print a T-shirt supporting a “gay pride” march. The law, a State law and so clearly applicable to the decision of the Kentucky Governor to order clerks to issue licenses, provides that:

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest (Ky.Rev.Stat. Ann. § 446.350)

  • In other words, before the Kentucky Governor required every county clerk in the State to issue same sex marriage licenses, it would seem reasonable that he have considered whether this would impose a substantial burden on religious freedom, whether this burden was justified by a “compelling governmental interest”, and whether there was a “less restrictive” way to achieve this interest. In this situation it seems fairly clear to me that this legislation should have applied in Ms Davis’ favour:
    1. While different believers may agree or not with the view that she would be “complicit” in same sex marriages by issuing licenses, there seems no doubt that this was a genuine belief strongly held on plausible religious grounds. The State should not be in the business of making up the minds of believers about these things; it seems reasonable where someone can articulate a plausible belief, that it be regarded as worthy of respect. One feature of the law here, noted above, is that every marriage license must have the name of the clerk who issued it, at the bottom of the license- not just the office, but the actual name. This as mentioned explains the otherwise odd fact that Ms Davis objected to other clerks issuing the licenses as well- for they would all have borne her name as the county clerk.
    2. The State no doubt has a “compelling interest” in allowing its residents to enjoy a constitutional right declared by the Supreme Court. One may perhaps doubt whether “compelling” is a good way to describe the interest in allowing people to get marriage licenses in their home town rather than merely driving half an hour to another town, but that can be conceded for the moment. (Note that a license once issued somewhere is good for the whole of the State, so the parties concerned would not have been prevented from holding a ceremony in their home town once they had got the license from elsewhere.)
    3. Still, there seems absolutely no doubt that a less restrictive means of furthering this interest could have been found. The law could be changed to allow licenses to be issued from an office, rather than personally under the clerk’s name. Once it became clear that some clerks would have problems, it may even have been possible to set up an online application system for issue of marriage licenses. Other solutions would no doubt present themselves, as has been made clear for example in Utah and other States.
  • Yet in his judgment on the issue, Judge Bunning glosses over the RFRA provisions far too quickly. In one paragraph he asserts that Ms Davis’ religious objection is misconceived, and in any event she can still go to church!

Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.

  • With due respect, the Judge’s comments suggest he does not really understand the religious freedom issues. He is taking on himself the question whether Ms Davis’ religion really means what she says it means. As already noted, even other religious believers may agree that it is not “condoning” same sex marriages to issue a license; but the belief is a genuine one and should have been accommodated rather than being belittled (especially as the competing interest expressed by the couples is a “preference” for a marriage license to be issued in their local town, which on the most generous view seems not quite as heavy as a genuine conscientious objection which would lead one to prefer jail rather than issuing the license.) And the comments about her continuing freedom to go to church demonstrate a staggering mis-understanding of “free exercise” as limited to worship activities.

In other words, to conclude this lengthy discussion, Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law, in a country which claims to recognise free exercise of religion at both the Federal and State level. It seems likely that her religious freedom should indeed have been recognised by the court, and it is to be hoped that other courts will correct what seems to have been a grave injustice in sending her to jail for contempt of court, when she was in fact acting within her rights.

Her case also demonstrates the importance that needs to be given to consideration of religious freedom issues if same sex marriage is to be recognised. In Australia that is a debate we are still having, and it is to be hoped that if this happens here, we can learn some lessons from cases like this to do a better job of recognising legitimate religious freedom claims when changing the law of marriage.