Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?
These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved.
Religious freedom and groups
It is worth, however, setting out a few general principles to start with. When the language of “human rights” is invoked it is often assumed that we are talking about the right of the individual against the “collective”. And it is true that “human rights” in an important way function as a way for an individual to resist oppression from the state. But the fact is that, certainly in the area of religious freedom, such rights can be asserted both by individuals and by groups of believers.
After all, a common characteristic of religious beliefs is that they join people together in groups. In Christian theology, for example, believers become part of the “body of Christ” (1 Cor 12:12-13), and express their trust in God in part by meeting together with other believers for mutual encouragement and upbuilding (e.g. Heb 10:24-25). Collective gatherings are common to pretty well all other faiths.
The collective nature of religious freedom rights is being increasingly recognised in academic literature. A good example is an article by Professor Nicholas Aroney “Freedom of Religion as an Associational Right” (2014) 33/1 University of Queensland Law Journal 153-186. Professor Aroney opens his piece with the following quote from another excellent academic discussion of the area:
Religious liberty is not only individual …
[Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism(Oxford University Press, 2010) 317-8.]
Whether the recognition of the religious freedom rights of groups should be regarded as one of the mechanisms for protecting the rights of members of the group, or whether there is in one sense a separate “group” right independent of those enjoyed by group members, it has become increasingly recognised that, as with other areas of human existence, “no man is an island“.
A key aspect of recognising collective religious freedom rights is the right of a religious group to organise its life in accordance with its fundamental beliefs and ethos. As Professor Aroney comments in discussing the application of s 116 of the Constitution, if religious freedom involves:
conducting religious services, disseminating religious teachings, determining religious doctrines, establishing standards of religious conduct, identifying conditions of membership, appointing officers, ordaining religious leaders and engaging employees, then these practices and manifestations are all protected, whether engaged in by individuals, associations or corporations.
Of course all these rights are subject to the appropriate limits on religious freedom, that it not be used to inflict violence or hatred on others. But in relation to the rights of a religious group to organise its own internal affairs, and to choose those whom it designates to represent its view to others, then these rights ought to be strongly protected: for almost always, any disagreement with the views of the group can usually be resolved by the person concerned leaving that group.
This is illustrated in the decision of the Full Court of the Federal Court of Australia in Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia  FCAFC 26, where the Full Court held that a member of the Church did not have a right to demand that the church provide services in his own language, rather than in English. (See here for a linked paper discussing this case in more detail, from p 18.) There the Full Court supported jurisprudence of the European Court of Human Rights in saying:
in the case of dissent from Church rulings, an individual’s freedom of religion is protected by the right to leave the Church. Thus, in Sindicatul “Pastorul Cel Bun” v Romania(2014) 58 EHHR 10 (“Sindicatul “Pastorul Cel Bun” v Romania”), the Grand Chamber, overturning a controversial and earlier decision, reiterated (at  to ) that:
The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of these communities as such but also the effective enjoyment of the right to freedom of religion by all their active members. Were the organisational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable …
In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his [or her] freedom to leave the community (see Mirolubovs and Others v Latvia, no 798/05, § 80, 15 September 2009).
Of course it can be argued that the situation of an employee of a religious organisation differs from that of a simple member of a church. Where someone’s salary is being paid by a religious organisation, can that organisation ask that they share their beliefs and live in accordance with those beliefs? The answer is that in most juridisctions it is recognised as a part of the religious freedom enjoyed by a religious group, that it not be required to employ someone whose beliefs or actions will undermine the mission of the group. The three cases discussed here illustrate that this longstanding policy may be under challenge.
Case 1: Teacher at Christian school (Australia)
The first case is not one that has reached a court, but has been discussed in high-profile media coverage (see e.g. this TV report on the national public broadcaster’s 7:30 Report, 6 Dec 2017). Craig Campbell was working as a relief teacher at South Coast Baptist College at Rockingham, in Western Australia. (He had been a student at the school previously, so presumably was very familiar with its orthodox Christian position on appropriate sexual behaviour.) One report indicates that he had told the school authorities about his boyfriend and that he was gay. He also posted a picture of himself on Facebook which made it fairly clear that he was gay, and some students of the school then saw the picture. He was then told that he would not be offered any more work.
The school’s decision seems to have been lawful under Western Australian law. The Equal Opportunity Act 1984 (WA) prohibits “sexual orientation discrimination” under Part IIB, but provides a general principle in section 73 allowing religious schools to operate in accordance with the religious ethos of the school:
73 . Educational institutions established for religious purposes
(1) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
This provision replicates other “balancing clauses” that are contained in almost all Australian discrimination laws allowing religious bodies, especially schools, to operate in accordance with the tenets of their faith. (See here for a linked paper I have written which provides an overview of these laws around Australia.)
Even though teachers like Mr Campbell may not be employed to teach a specifically “religious” subject, faith-based schools often operate on the basis that the whole educational experience is designed to support and reinforce the religious world view of those who have set up the school, and parents send their children to such schools knowing that this is the case. The Bible’s teaching on sex and marriage is that sex is only appropriate within the context of a man/woman marriage. It can plausibly be argued that open defiance of the Bible’s teaching on this point by a respected figure like a class teacher will undermine the teaching on these issues being conveyed by parents and the school.
A number of commentators have expressed outrage at the decision. In light of the comments regularly made during the debates on same sex marriage, that the change would have no impact on religious freedom, it is interesting to read the following comment:
LGBTI advocacy group spokesman Brian Greig, a former WA Democrats senator, has called on the WA government to close a “loophole” in the state’s Anti-Discrimination Act.
“The loophole allows private and church schools to sack gay teachers for no reason,” he told AAP, pointing out those schools relied on government funding.
“We are now in the absurd situation where LGBTI staff in private schools will soon be able to legally get married under federal law and then legally able to be sacked the next day under state law.”
Mr Grieg’s comments can be challenged at a number of points. This provision is not a “loophole”, it is a key feature of the architecture of discrimination law around Australia, designed to balance religious freedom rights with the right not to be unjustly discriminated against. It is not true to say that gay teachers can be sacked for “no reason”- the reason in this case is that Mr Campbell’s publicly celebrated sexual conduct was contrary to the teaching of the Bible. Our country has chosen to provide government funding to independent schools around Australia specifically without requiring those schools to have a uniform world view; that is again a deliberate feature of the system, to use taxpayers money (some of which is provided by parents who send their children to independent schools!) to support diversity in education.
There is some truth, however, in pointing out the irony that what is lawful as marriage under Federal law, can be a ground for someone to be dismissed from a faith-based school. But supporters of traditional marriage were assured during the debates on the change that a change in the marriage law did not imply change to the laws on religious freedom, and so far the law on discrimination still allows religious organisations to apply their religious ethos.
Indeed, those who are calling for Western Australia to change its long-standing law on this point, seem to have forgotten that the Commonwealth Sex Discrimination Act 1984 section 38(1) contains an an almost identical protection for faith-based schools. Where Commonwealth law clashes with State law on the same topic, then under s 109 of the Constitution the Commonwealth law will prevail. I discussed this issue in the paper noted previously, at pp 23-27, and concluded:
To sum up, in general, in those areas where the prohibited grounds of discrimination set out in the Commonwealth SDA and State laws overlap- particularly in the specific areas of sex, sexual orientation, marital status, and gender identity – any State laws which provide a more restrictive set of criteria than the Commonwealth law, would remove a liberty given to religious organisations by the Commonwealth law, to make hiring and firing determinations in accordance with the criteria of their actions “conform[ing] to the doctrines, tenets or beliefs of that religion” or doing what is “necessary to avoid injury to the religious susceptibilities of adherents of that religion”. These State laws would would impair the operation of the Commonwealth law, and in respect of those overlapping grounds would be inoperative in accordance with s 109 of the Constitution.
Hence it would be no use amending the WA legislation alone to remove this religious freedom protection; it would also be necessary to amend the Commonwealth law.
Case 2: Teacher at Orthodox Jewish pre-school (UK)
In a note that has already become too long, I will try to briefly summarise some cases from overseas where similar issues have been raised, and indicate why the resolution provided in those matters was unsatisfactory.
In Ms Z De Groen v Gan Menachem Hendon Ltd  UKET 3347281/2016 (14 November 2017) Ms De Groen was a teacher at an Ultra-Orthodox Jewish nursery school. The school had a very strong view that sex was only appropriate for marriage between a man and a woman. Ms De Groen was living with her boyfriend, and this became known to the school management. She had an embarrassing interview with some senior ladies from the school management, who it seems suggested at one point that all would be well, even if she continued to live with her boyfriend, if she just lied and told everyone that she was not!
In the end she was dismissed. Her claim here was brought under the UK Equality Act 2010, for what she said was religious discrimination and sex discrimination, as well as sexual harassment. The Tribunal ruled in favour of Ms De Groen and said that she had been directly discriminated against on the grounds of her religion and her sex, indirectly discriminated against on the grounds of her religion, and wrongfully harassed.
The case has a number of odd features, and (with respect) may be successfully appealed under the relevant UK law. From an Australian perspective, one would have expected such a case to have been made on the basis of discrimination on the grounds of “marital status”, which under Australia law includes the status of being in a de facto relationship. But the UK Equality Act does not have a “prohibited characteristic” of marital status as such- there is a section 8 prohibited characteristic of “being married or in a civil partnership” but this does not fit the case here.
Instead, the claim of religious discrimination seems to have been successful here on the basis either that (a) Ms De Groen’s view that extra-marital co-habitation was acceptable was seen as a “religious” view (perhaps because “religion” includes “lack of belief” under the Act)- see the somewhat confusing discussion at paras -; or (b) that the decision was taken on the ground of the school’s religious belief, and a case for religious discrimination can, it was argued, succeed where a decision has been taken on the ground of the decision-maker’s religion! (See paras -.)
In any case, there is the disputable statement made that, to allow a religious body to apply its view of its own religious ethos, would be to “permit theocracy within religious organisations. They could dismiss employees for not, in the view of the organisation, following each and every belief and practice which the organisation considered to be part of the religion” (at .) To which my only response would be: “and your point is?” The highly negatively charged word “theocracy” is of course wrong when applied to the State as a whole; but the point of religious freedom is that voluntary religious groups should be allowed to set up agreed religious standards, and those who do not share those standards cannot complain when they can no longer work for the group.
Having found prima facie discrimination, the Tribunal was then required to consider a defence available in relation to dismissal from employment under Schedule 9, para 3 of the Equality Act. This allows a person or body with a “ethos based on religion or belief” to impose a requirement on an employee “to be of a particular religion or belief” if it is an “occupational requirement” of the position, and a “proportionate means of achieving a legitimate aim”. It seems to have been assumed that the “particular religion or belief” requirement here was a belief that pre-marital cohabitation was wrong under Jewish law (on the part of the school), or the “lack of belief” in this proposition by Ms De Groen- see the alternative framing of the question in para  at point 1.
The usual application of the defence here seems to have been prevented by the unusual facts. So in considering the question whether an “occupational requirement” was imposed, at para  point 2(a) the Tribunal suggests that it was not: no requirement not to cohabit was clearly spelled out in any employment documents, and more importantly “the respondent’s case is that it was not concerned with her [the applicant’s] private life, all that it wanted was the appearance of compliance”. In other words, the evidence that the school would have accepted Ms De Groen living with her boyfriend so long as she publicly lied about it, undermined this defence fatally. Other parts of the defence also failed for similar grounds.
The case then, while raising many of the issues discussed above, is not a satisfactory general analysis of the issues. It may be noted, however, that if the Schedule 9 defence were properly reached, a number of the comments made in passing by the Tribunal would lead to serious concerns. For example, in para [86.3.1] they say that the “genuine occupational requirement” provision means that any requirement to hold a particular religion or belief must be “legitimate and justified- an objective assessment for the tribunal”. They go on to say that: “The occupational requirement must be connected directly to the claimant’s work. Lifestyles and personal beliefs are almost always excluded for the scope of an occupational requirement”.
These are incredibly narrow readings of the provision. In particular, if the “genuine occupational requirement” provision is read this way, it implies that the secular tribunal is given the job of working out what a religious group should, or should not, find necessary in accordance with their own faith! I have previously noted similar problems with proposed amendments to the discrimination laws in Victoria which were designed to introduce an “inherent requirements” proviso to balancing clauses in that State. The narrow reading given to the UK “genuine occupational requirement” provisions here demonstrates that concerns over the Victorian proposals were entirely justified, and their defeat in the Victorian Parliament a good outcome. Proposals to introduce such qualifications to current balancing clauses ought to be resisted in the future.
Case 3: Protestant German church body
Finally, the third of our cases demonstrates again the problems with this sort of interference by State actors with the running of religious bodies. In Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.  ECJ C-414/16 (discussed here by Frank Cranmer at Law and Religion UK) a German Protestant church was advertising for a person to prepare a human rights report for them. They declined to employ Ms Egenberger because she was not a member of their church.
She claimed unlawful religious discrimination under the Charter of Fundamental Rights of the European Union. The case is being heard by the European Court of Justice (not, it should be noted, by the European Court of Human Rights, though the ECJ commented at  that it would usually seek to apply the same principles as are applied under the European Charter of Human Rights by that court.) The ruling linked here is a preliminary advice from Advocate-General Tanchev, which is not a binding court decision but, like most such rulings, will no doubt be influential in the final decision.
The ruling is very complex, but the one point that I want to draw attention to is that, just as the UK Employment Tribunal said that determination of “occupational” requirement was an “objective” matter for the secular tribunal, the Advocate-General expressed a similar view of the effect of the various provisions of European law. A provision of domestic German law, the Allgemeine Gleichbehandlungsgesetz (General Law on Equal Treatment, or “AGG”) para 9(1) provided that whether something was a “justified occupational requirement” was to be decided “having regard to the employer’s own perception” (see para ). But according to AG Tanchev, at para , the relevant over-riding provision of European Law, art 4(2) of Directive 2000/78/EC meant that instead:
an employer, such as the defendant in the present case, or the church on its behalf, may not itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos. (emphasis added)
A later elaboration noted that the courts would have to determine whether an occupational requirement was “appropriately adapted to protection of the right of the defendant to autonomy and self-determination”, and that what would be relevant would be “the proximity of the activities in question to the defendant’s proclamatory mission” – see para  points (iv) and (v). In other words, it seems that it would be legitimate to require that someone who is a “preacher” or “evangelist” or “religious studies teacher” be of the relevant faith, but not perhaps those whose work did not directly involve “proclamation” of the doctrines of the faith.
Perhaps it is worth noting in passing that the AG points out the fairly astonishing (to me) fact that “church related institutions are reported to be the second largest employer in Germany” (at para ). This certainly will have an impact as to whether religious views can be taken into account in employment decisions. On the other hand, the German people themselves had enacted the protective provision in AGG para 9(1), and it may be doubted whether the European authorities are a better judge of this balance between employment rights and religious rights than the country’s own processes.
The question whether a religious organisation can require that its employees share and support its religiously based views is an important one. It seems to me that the current majority approach under Australian law, of providing a wide balancing clause allowing organisations to make their own decisions as to what is, and is not, a part of their religious life, is the best approach. Modern management theory seems to tell us that organisations flourish when all workers are “signed up” to the organisational goals and vision. No less is it clear that an organisation with a religious ethos will function best (and in many cases, serve the community at large best) when it is allowed to implement a similar policy. Some of the cases here, however, suggest that organisations who wish to require such adherence to a shared ethos and behaviour (especially in sexual matters) would be wise to avoid confusion by spelling this out in employment contracts.
In particular, the imposition of an “occupational requirement” focussed on specific positions as being “religious” or “non-religious” misunderstands the view that most religious groups would hold, that religion is a matter that touches on all aspects of life, not just a “religious studies” class. For the religious freedom rights of both individuals and the groups they form to be protected, decisions about what is important in the life of the group cannot be made by state actors with no commitment to, or proper understanding of, the ethos of the group.