About Neil Foster

I am an evangelical Christian, an Associate Professor in law, a father and a grandfather. I have qualifications in both law and theology and teach “Law and Religion” as an elective to later year law students.

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68 thoughts on “About Neil Foster

  1. Hello Neil,
    I heard about you via the ACL webpage.

    All these homosexuals sueing Christian service providers, I would in return sue them for descriminating
    against them not being able to have freedom of religion and to be able to follow it including it’s moral judgements.

    I have never heard of any of these cases folowing this line which has a very good counter-arguement.
    What have you heard on this and what do you think?

    Regards,
    Greg

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    1. Hi Greg, nice to hear from you. In theory you are correct, that in these cases there is a situation where both parties have had a “right” interfered with, on one side a right not to be discriminated against, on the other side a right of freedom of religion. These arguments have indeed been put in various cases. In the case I mentioned on the ACL website, the florist, her lawyers did try to argue that there was a breach of her religious freedom, but the judge held that since the law in question was a generally applicable law her religious freedom could not prevail. I think there are other ways this could be looked at, and so it will be interesting to see if this goes on appeal to a higher court. Sadly it is true that very often in these cases religious freedom rights have been downplayed and read too narrowly. However, not always. In NSW a few years ago the courts held that the Wesley Mission, a Christian group which organises placements of children into foster care, was allowed to have a policy of not placing children with same sex couples because of their religious beliefs. So there is some hope that courts will give due recognition of religious freedom in appropriate cases. Regards, Neil

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      1. Neil, I just read your post on Kim v Davis

        Australia is for the most part a secularist society. Outside the boundaries of your own property is secular. The only Religious freedom is within your own Property.

        Kim never acted within the law. She defied a court judgment and a court order. She broke the law, clear and simple.

        If your a county clerk, a cop, a judge, a baker, an electrician etc you leave your religious beliefs at home.

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      2. Dear Andrew;
        With respect, while your views are shared by many in Australia, I have to say that they are not legally correct. Australia is not defined as a “secular” country if by that you mean we exclude all religion from the public sphere. I agree that a religious view alone is not justification for a law, but we do have a legal system that allows people the right to express their religion in various ways. It is certainly not the case that all religion has to be kept “indoors”. Section 116 of the Constitution provides that the Commonwealth shall not unduly impair “free exercise” of religion. While this does not give religion the right to “trump” other rights, it does give religious belief a weight and it must be taken into account. I try to explain in my post on Kim Davis why she was not necessarily a law-breaker, because the US law itself recognises a right to religious freedom which will in certain circumstances allow someone to act in accordance with their beliefs where it will not unduly interfere with important rights of others.
        Regards
        Neil

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      3. Regardless of your opinion on Kim Davis, the fact of the matter is no same-sex couple who wanted a marriage license was able to get one while Davis kept up her “religious freedom” fight. Your suggestion that no one’s rights was unduly interfered with seems laughable in this regard.

        I’m a strong believer in equal protection. If societies want to give exemptions to the Kim Davises of this world to reject same-sex couples, they should also be happy to allow atheist clerks to refuse licenses to Christian couples. (I’m assuming you support this too.) If Christian bakers can refuse to cater to same-sex weddings, I want to see the same rights extended to bakers to reject Christian weddings too. In fact, it would be a good idea to get lots of people to do this so that Christian couples can understand first-hand what a society who’s organized according to “religious freedom” principles like this would feel like, and then people can decide if they want a truly libertarian commercial space, or one with the guiding hand of public accommodations laws.

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      4. Thanks for your comment, Mike. On the Kim Davis issue, your comment about “no same-sex couple who wanted a marriage license” being able to get one is only correct if limited to those who would not travel to the next county, as I understand it. So it was slightly more inconvenient for them.
        You suggest that “equal protection” implies that atheist clerks should be able to refuse licenses to Christian couples. To equate the situations you would have to imagine a world in which the definition of marriage which had been in place for centuries had just been changed, and that atheist clerks who had been used to not being required to issue licenses to Christians were now being required to do so, contrary to a sincere and conscientious objection (not just because they hated Christians). It seems to me that the motivation matters here. I reject a situation of a hate-based refusal of service to same sex attracted people as reprehensible, and I wouldn’t want to see the law support that. But if someone has a genuine and not sham world view which leads to them suffering the harm of going against a serious matter of their conscience, then it is arguable that society should allow accommodation of that. As in the Kim Davis an accommodation was achieved when it was later agreed that the clerk’s name did not need to appear on the certificates.

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  2. Greetings Neil,

    I would be interested on your opinion on whether independent churches should incorporate or are better to be unincorporated associations. What do you see as being the legal pros and cons?

    Thanks

    Ken

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    1. Hi Ken. Briefly, I think that an independent church should become an incorporated association. There are a number of reasons. One is that I think most insurance companies will require this for public liability and workers comp insurance, which you should have if you of any moderate size and certainly if you engage paid staff. (While clergy are not “employees”, there are deeming provisions which allow workers Comp law to apply.) Also if the church is not incorporated there can be liability issues for the governing board. Incorporation also provides assurance to businesses that deal with the church that there is some formal regulation of its affairs, and regular annual reports to the Department of Fair Trading provide a level of financial accountability. All in all I think a church with regular meetings and say 20 members or above should usually get incorporated.

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  3. Hi Neil,
    I’m a Pastor who’s taking a break for a while (I think), to finish off a LLB. I stumbled upon your blog via Facebook. You’ve got some great stuff here. Thanks. My Uni doesn’t offer a subject in Religion and Law, but I’d love to learn more about this stuff. Is there any chance you could tell me what texts (if any), you use and any journals that may be of interest? I think that this area of law is going to become more important as time goes on.

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    1. Hi Sheree. The two main textbooks I use for my course are
      • Evans, C M Legal Protection of Religious Freedom in Australia (Sydney: Federation Press, 2012)
      • Sandberg, R Law and Religion (Cambridge UP, 2011).
      Sandberg is UK based but there are lots of relevant comments about the issues which are similar in many ways in Australia. Good journals include the Oxford Journal of Law and Religion, the Ecclesiastical Law Journal (which is more general these days rather than, as it may sound, being too heavily based on “canon” law), and the Journal of Law and Religion which is published by Cambridge UP these days. Yes, I agree an important area. Regards, Neil

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  4. Hi Neil. Thanks for the paper on balancing religious freedoms and discrimination. I found it thought provoking and a little disturbing because I am an evangelixal Christian.
    I would like to put a hyperthetical to you regarding some of the cases mentioned in order to understand how the two parties interests could have been better served.
    in the CYC campsite case might the campsite have been better served by not refusing the booking but making it a condition of the booking that they be allowed to present their deeply held views in sessions during the camp in equal measure to the views of those booking the campsite. That way there would be no refusal of service but a certain balancing of views that would be beneficial to both parties.
    It would simply be a matter of terms and conditions of the provision of a service.

    Similarly in the case of the provision of a cake decoration supporting same sex marriage could the provider of the service have made it a condition of providing the service that they in the interests of balance would add a message to the cake indicating a message of opposition to same sex marriage.
    How do you think these approaches would be viewed by the courts? These approaches appeal to my common sense or what a “reasonable person” might think. However i am a layman in terms of the law and i would be interested in your opinion.

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    1. Thanks Geoff. Interesting ideas. Your suggestion is that a person who is opposed to the message they are being asked to support by providing a particular service, provide the service on condition that they be allowed to make their view of the message clear. I will need to think about it some more, but it may be one possible response. In the camp situation one could imagine a general condition of hire: “if the purpose for which the camp is hired is to convey a message contrary to the Christian Faith, the owners will require that time be set aside to allow them to express their opposition”. It is possible still however that this could be viewed as “indirectly discriminatory”, so it may not insulate the service provider from liability. It will be interesting to see if this strategy is adopted.

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  5. It is always good to read your insightful commentaries, Neil. I have no legal knowledge at all, but have been possibility-thinking into the future should SSM be legally required to be conducted without discrimination in churches. Churches could pull out of the marriage business altogether. If church ministers who are licenced to perform marriages were to hand in their licences, then everyone including Christians would have to be legally married elsewhere. Thereafter, those Churches could offer religious ceremonies to bless already legally married heterosexual couples only, without being accused of legal discrimination. Gay marrieds would have to find a pro-gay church for their blessing ceremony, if they were that keen, but could not mount legal challenge against other churches. Somewhat like the decisions around Baptism as offered today, whereby different churches have different filters of requirement for eligibility. What do you think?

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    1. Dear Brenda;
      Thanks for your suggestion, you may have noticed it is being discussed in the press today. I do not favour this option. I will explain why in a blog post I hope to put up shortly.
      Regards
      Neil

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    2. its always possible that Christians could be themselves as a solid commitment to uniqueness and diversity implies. The equality imperative forces us all, like sheep, into the same pen – an nice simple idea whose popularity is understandable but which is intellectually impaired and doesn’t work , The myth that our society can have the blessed cake and eat it too ( marriage and family ) would be practically challenged if the cake turned into bureaucratic crumbs and annoying unproductive means of trying to address growing complaints of ” disadvantage “. Don’t have more than 2 children or they might outvote you .

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  6. Hello Neil, do you have a legal opinion on the Kentucky county clerk case which has been in the news? I read arguments saying Kay Davis is defying ‘a legal law’, and then that she is defying ‘an illegal law!’ I also read she asked an unanswerable question, questioning which law has she broken? She is looking at the Kentucky State Law of I think it is 2004, whereas she is judged as ignoring the Supreme Court decision on interpretation of legal marriage. (Not to doubt that she is talking a moral and religious stance.) As a Christian I admire her tenacity, and her faith in standing for God’s righteous laws, but I am feeling unsure as to whether she has taken the best way forward, or whether there would be another solution. Thanks very much. I did appreciate your views about my previous question.

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    1. Dear Brenda;
      I share your uncertainty here. I think that this lady ought to have a right to decline to issue these licenses so long as someone else in the office is available to do so. I am less clear that it is reasonable of her to order other people in the office not to issue licenses. I want to look into the case a bit more before making a judgment!
      Regards
      Neil

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  7. Thanks for that. I look forward to your thinking on this. I didn’t hesitate for a moment on the cakes and flowers and B&B folk! It is seeing the logic that makes the difference I suppose, not just going with the emotion.

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  8. I did quite a lot of work in the appeals court where traditionally the idea of a broad case AGAINST the pedants– mostly in “higher courts ” ( excuse me if I offend anyone) was considered something GREAT — something of a jewel in the crown of good legal practice.
    Quite seriously , the pedants seem to have usurped this by using VCAT and other means to play silly games with the law inn these “lower “word play courts – esp say with discrimination and planning .I would think many lawyers of the past would be aghast. Can highre courts be used to put this poor use of the law in its place . Be interested in your thoughts.

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    1. Hi John. I wouldn’t like to say that all tribunals at the lower level get it wrong, but I would agree with you that there has been something of a trend that these decisions go too far. In the “Catch the Fire” case a few years ago the tribunal decision was over-turned on appeal to the Victorian Court of Appeal, and something similar happened in the “Ov and OW” case in NSW. So sometimes the higher courts are exercising a good supervision of tribunals. Not always, though.

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  9. Hello Neil,
    Will you be posting onto Facebook your article which came today discussing the suggestion to ban all religious groups in Australan schools because of Islamic radicalisation? I think this is a pivotal time for people, Christians or not, to have clear perspectives presented on such issues which may not have bothered them much one way or the other in past times.
    If you do not post these articles yourself on FB (which I could then link to), would you mind if I copied the article (in its entirety) for my timeline?
    Thanks, appreciatively,
    Brenda

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    1. Hello Brenda; I see from a subsequent message from you that you discovered this, but just in case others are wondering, there is a “Facebook share” icon at the bottom of each post which allows easy sharing on Facebook. There is also a public “Law and Religion Australia” Facebook page which people can “like” and get regular updates from. Regards, Neil

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      1. Thanks, Neil. Yes I found and Liked the page, that’s great. Please keep speaking into the issues of the day, invaluable for the rest of us to be able access views from the angles you present them. And to share them with FB friends.

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  10. Dear Neil

    Reading your paper “Unscrambling the Curate’s Egg- the High Court’s
    ACT Same Sex Marriage Decision,” I’m a little baffled by the idea you put forward that no legislature in Australia has the power of confer the status of marriage on a same sex couple.

    Even if the High Court had ruled that the Marriage Power in Section 51 of the Constitution only extended to Marriage as understood and defined in Hyde v Hyde, I had thought it was already established as a point of constitutional law that powers not vested in the federal parliament fall to the states as residuary powers.

    The State Constitutions all provide the State Parliament with the power to make law for the peace order and good government of the state. I was under the impression that the case of Union Steamship Company of Australia Pty Ltd v King had ruled that these were not words of limitation, and they did not confer on state courts the power to strike down legislation as such.

    My understanding of the position of the state parliaments is that they originally had powers as plenary and ample as the Parliament of Westminster – that is Parliamentary Sovereignty. The power to make law on any topic subject to no higher power. The only limitations on this power are those express and implied in the Commonwealth Constitution itself, and limited Manner and form provisions. I fail to see why it does not flow from that, that legislating for gender neutral marriage is not within the scope of this plenary power.

    With the utmost respect I’m wondering if you’re view on the portion of the High Court’s decision is coloured by you’re own objections of Marriage Reform as the decision rules out legal challenges that may otherwise have been open to opponents should a future Parliament legislate for gender neutral marriage. Even if the question of marriage reform is political charged, determining which parliaments constitutionally has the power to legislate on the topic is rather technical.

    I also find it odd that you would footnote Hollingsworth v Perry for no apparent reason that to suggest that you’re unhappy with the result. My understanding of the US constitution is that it doesn’t give any special status to state referendums – no matter how a state law or constitution is passed or amended, the supremacy clause still holds that the constitution itself, statutes passed by congress and valid treaties are superior to State laws and constitutions and contrary provisions in state laws and constitutions are “notwithstanding.”

    I also want to contest the implication you make in that footnote. California isn’t correctly characterised a “liberal state” because it still has a large number of more conservative areas outside the major cities and the central valley. It’s also likely that it voted democratic in Presidential elections because of high number of black and Latino voters whom while tended to vote for democratic candidates also tended to oppose marriage reform. It’s also worth that as of 2012 opponents can no longer expect with win with appeals to populism.

    In four US states voters either supported Marriage reform or rejected proposed bans on same sex marriages in ballot measures and in Ireland, generally noted to have a high Catholic population (perhaps in the same vain as you refer to California as liberal) voters supported reform in a constitutional referenda. The exception is perhaps Slovenia where voters did vote against reform, thou only with about a 36% turn out, but I’m not convinced that Slovenia is comparable to Western Nations like Ireland, Australia and the US for opponents to believe the result is replicable in the west.

    The reason generally that the referendum is opposed is simply because it’s unnecessary. The High Court’s decision has made it clear that the power to reform the marriage act to include LGBTI Australians rests with the Federal Parliament, so Parliament should simply legislate on it. If the Government feels it needs a mandate it can simply take the question to an election. There are other arguments based on costs and the potential for division. To my knowledge the only other times plebiscites have been held at the Commonwealth level on non-constitutional questions is on conscription twice during the first and second world wars and the National Song. And all of those votes came with problems.

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    1. Dear Julia;
      Thank you for your thoughtful comments. My apologies that I had not previously “approved” it to appear here, this was not (though you will have to take my word for it!) that I disagree with you (though I do!), but merely because for some reason I had missed the email notification that it needed approval.
      I respect your opinion, which is of course held by many others. But I do maintain my view that there are some matters on which no Parliament in Australia has authority to make a law. The analogy with the Parliament of the UK is not exact, because of course they do not operate under a written Constitution. We do, and in short my view is that because the present Constitution gives the whole topic of “what can be called a marriage” to the Commonwealth Parliament, then (1) no other jurisdiction in Australia can start calling relationships “marriage”; (2) since the word “marriage” has a core meaning of man/woman, the Commonwealth Parliament itself cannot change that core meaning, and such a change ought legally be carried into operation only through a referendum. In that sense we are a sovereign country, but the only institution that can introduce this change is the sovereign will of the Australian people expressed through a referendum to change the written Constitution.
      No doubt my views (as, with respect, your views) are influenced by my policy preferences. But I think my view is correct. (Otherwise I wouldn’t hold it!) And so far I have not been persuaded by compelling arguments to change it.
      Thanks again for your comments on the matter.
      Regards
      Neil

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      1. Dear Neil

        Thanks for replying to my comment.

        I would like to follow up a point with regard to the first limb of your view that because the “present Constitution gives the whole topic of “what can be called a marriage” to the Commonwealth Parliament, then (1) no other jurisdiction in Australia can start calling relationships “marriage”.” My understanding of section 51 powers were that they were concurrent powers the Commonwealth shared with the states. This is sort of implied by the fact that sections 52 and 90 specifically provide certain powers to be exclusive to the commonwealth and in the case of 90 the power that’s made exclusive, duties of customs and excise is already granted in s 51 – the section only confirms it’s exclusivity implying section 51 doesn’t make the powers listed exclusive. Also the Marriage act only came into operation in 1961. Before then marriage was left to pre-existing colonial/state marriage – would under the exclusivity view those laws have been unconstitutional due to lack of legislative power to pass them. Does your view extend to other heads of power – would states be unable to call something a bankruptcy, a copyright or an old age pension.

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      2. Dear Julia;
        You are right to point out that most s 51 powers are concurrent. However, where the Commonwealth has chosen to legislate on a topic in a way which makes it clear it has “covered the field”, then under s 109 of the Constitution State laws on that topic would be inoperative. The Commonwealth has clearly expressed its intention to cover the field of what can be called a “marriage” in Australia under the 1961 Act. I would also say that it has covered the field of copyright under the Copyright Act 1968, so there can be no separate State law on copyright these days. Similarly with bankruptcy I would think, though I know less about that area. It will in each case be a question of looking at how the Commonwealth has chosen to use its power.
        Regards
        Neil

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      3. Regardless of your policy preferences on same-sex marriage, this idea that “marriage” has at its core a one-man-one-woman definition is just historically accurate. As you are not a professional in this area, perhaps you can be forgiven for your misunderstanding of this simple historical fact.

        The definition of marriage has changed many times throughout history. The vast majority of marriages in the pre-modern era were, in fact, polygamous in nature. This is not contested by either professional anthropologists or historians, even if it is contested by lawyers with an evangelical bent. Many societies were also comfortable with marriages that we would now consider illegal. In particular, men of all social strata regularly married girls that we now consider underage. Prior to roughly two centuries ago, the doctrine of coverture also reigned supreme either explicitly through law or implicitly in practice, which meant among other things that women were legally subordinate to their husbands in a marital union.

        So, whatever your policy preferences, I hope you have the intellectual honesty to admit that marriage has never had a core meaning. At times it has meant one-man-many-women, at others an older-man-and-young-underage-girl, and for most of human history a superior-husband-with-subordinate-wife. Governments and societies have constantly re-evaluated the premises of their marital arrangements and changed them as social consensus has changed. This is why we do not now allow for child marriages, why we insist that women and men have joint claims to marital property, and that women can initiate divorces just as men can.

        Before we even get to a policy discussion of same-sex marriage, I think people’s judgment about your intellectual honesty will come down to whether you are willing to admit you are simply wrong on this point. I never understood why people like you see the need to invent history on this point. Why not simply argue that same-sex marriage is a bad idea? Without introducing fake history into the process?

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      4. Dear Mike;
        I would be happy to see links or references to provide evidence for your claim that “the vast majority of marriages in the pre-modern era were, in fact, polygamous in nature”. Of course there have been changes in what counted as marriage in various societies. But the essential nature of marriage as a relationship between people of different sexes seems undeniable. Polygamy of course is a different debate (and I would still like to see the evidence on that). But even in a polygamous marriage, the relationships are between the one man and separately each of the individual women. I would be very surprised if homosexual relationships between the various wives were tolerated; far from it, I imagine.
        Regards
        Neil

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  11. Neil

    In the UK religious organisations can only discriminate in employment where there is a Genuine Occupational Requirement (GOR) in relation to religion for the post in question. The main issue about a GOR is that it has to be genuine, not merely a made-up excuse to exclude people of the ‘wrong’ faith (or non-faith). So it obviously applies for (eg) ordination, but almost certainly not to (eg) employment as the gardener.

    So in Hender v Prospects for People with Learning Disabilities [2008] ET/2902090/2006 and Sheridan v Prospects for People with Learning Disabilities [2008] ET/2901366/2006, an overtly-Christian charity attempted to impose a requirement that staff that all roles except cooking, cleaning, gardening, maintenance and relief work were now subject to Christian profession as a GOR because those in post might have to lead prayers or give spiritual guidance – but it didn’t carry out a job evaluation for every vacant post. The Employment Tribunal held that, absent a proper evaluation, Mr Sheridan had been constructively dismissed and Mrs Hender had been denied promotion on improper grounds. Was that unreasonable?

    I don’t think that the GOR has caused any serious problems in the UK and we’ve had it since 2003, so I wonder how much of a problem your Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is going to cause. Possibly there’ll be the occasional glitch, but the system seems to work fairly satisfactorily over here.

    Frank

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  12. When I was teaching at a Christian School (here in Australia) we had staff devotions each morning; the groundsmen and bus drivers took their turn in leading the devotions.

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  13. Dear Frank;
    Thanks for this information. I think we might disagree here about the policy issues. I will need to go and read the cases you mention, but going on what you have said I don’t see why a specifically religious charitable organisation should not decide that its work, as part of its overall religious mission, requires that all staff be committed to that mission. Your examples, to my reading, are very helpful because they illustrate why I think a “genuine occupational requirement” provision is not a good idea! But obviously many others would agree with you. Thanks again for your helpful information about the area.
    Regards
    Neil

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  14. The cases on GOR over here have tended to centre on employees who have found themselves subjected to a particular religious requirement after they have been in post for some time: ex post facto. That an employer should not have an unfettered discretion to change the terms of a contract of employment unilaterally strikes me as not unreasonable – but that, of course, doesn’t just apply to matters of religion.

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  15. Regarding your article “Is Same Sex Marriage a “Human Right”?”

    The view that “that the bearers of that right are identified as “men and women” leads naturally to the assumption that this article concerns the usual form that marriage has taken throughout human history, the union of a man and a woman who will raise the children of their sexual union together” was rejected by the South African Constitutional Court in Minister for Home Affairs v Fourie:

    http://www.saflii.org/za/cases/ZACC/2005/19.html

    Their interpretation of the use of the terms Men and Women in Article 23 was that:

    “The reference to “men and women” is descriptive of an assumed reality, rather than prescriptive of a normative structure for all time. Its terms make it clear that the principal thrust of the instruments is to forbid child marriages, remove racial, religious or nationality impediments to marriage, ensure that marriage is freely entered into and guarantee equal rights before, during and after marriage”

    They also rejected the view that the statement “the family is the natural and fundamental group unit” to be read in a heteronormative manner – indeed this would be inconsistent with the fact that Same Sex couples do raise children:

    “The statement in Article 16(3) of the UDHR that the family is the natural and fundamental group unit in society, entitled to protection by the state, has in itself no inherently definitional implications. Thus, it certainly does not confine itself to the nuclear monogamous family as contemplated by our common law. Nor need it by its nature be restricted intrinsically, inexorably and forever to heterosexual family units. There is nothing in the international law instruments to suggest that the family which is the fundamental unit of society must be constituted according to any particular model. Indeed, even if the purpose of the instruments was expressly to accord protection to a certain type of family formation, this would not have implied that all other modes of establishing families should for all time lack legal protection.”

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    1. Thanks for noting this decision. While the SA court is entitled to its opinion, the view offered is not consistent with the interpretation of the right offered by the UN itself or with the reading provided by the European Court of Human Rights for the similar provision in the ECHR. So I maintain it is still correct to say that there is no generally accepted “human right” to same sex marriage. Regards, Neil

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      1. I am curious if you think there is a generally accepted human right to “marriage” in general? If not, then sure, I find your position consistent: there is no general right to marriage, including same-sex marriage. I’m not too worried about what courts think about same-sex marriage because I think the battle is won or lost in the court of public opinion, and not in the actual judiciary. This was evident in the Irish referendum, and equally true in the American case.

        On your recent post about Arlene’s Flowers, here are some questions for you. You take care to mention that not all denials of service for religious reasons are legitimate, although you seem to think in Stutzman’s case that it was. So here’s my question. How do you distinguish between a Christian florist who will not make a flower arrangement, from a Christian real-estate agent who will not broker a deal for a gay couple, from a Christian hotelier who will not rent rooms to a gay family? All three can claim that providing services goes against their sincerely held religious convictions; all three can claim that the gay couple can simply find another baker, another realtor, another hotel; all three can claim they do not have animus against gay people, only that they do not wish to act against their religious convictions. These are all real cases, as was the case of a Christian doctor who cited her Christian faith in declining to treat the daughter of a lesbian couple. I’d like to see you take a stab at this question, because I think U.S. courts will never side with “religious freedom” advocates until you can distinguish these cases. There’s a reason Stutzman hasn’t convinced a single federal judge.

        In a broader sense, I think LGBT advocates should be perfectly happy to let this argument go on because it demonstrates so well the hypocrisy of Christian activists who are unwilling to countenance any disagreement with their own Christian lifestyle that they have to ask for special rights in the commercial space.

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      2. To answer your question as to a distinction between the cases of the florist, the real-estate agent, and the hotelier, I do indeed think there is a sensible distinction that can be made. Simply supplying a service to someone does not send a signal of support of all that person’s moral choices. But to be asked to dedicate artistic talents to a task, the sole purpose of which is to celebrate a union between two persons of the same sex, when your religious beliefs tell you that this union is contrary to God’s will, is a very different thing. I would think that a Christian doctor who declined to treat the daughter of a lesbian couple is behaving wrongly, and I would have no problem if the law made that decision unlawful. (Do you have a link referring to this case? Did it go through the courts or was it a press report?) But I think the dragooning of someone into support for a same sex union through dedication of their artistic talents to this, is a very different thing.

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      3. “Simply supplying a service to someone does not send a signal of support of all that person’s moral choices.” OK, so I want to be sure I’m understanding you correctly. You think it should be unlawful for a Christian doctor to refuse service to either the daughter of LGBT couples or to gay people generally. You also think it should be unlawful for Christian hoteliers and Christian real estate agents to decline service even if they have conscientious objections because you do not think Christian hoteliers and real estate agents, by providing the services that they do, are compelled into endorsing any particular message. If Stutzman were selling pre-made flowers (off the shelf), she could NOT refuse to cater those to a gay wedding; the only instance in which she can raise an affirmative defense to non-discrimination laws would be if she were asked to create flowers arrangements from scratch that were not already available or made. This is a fair summary of your position, yes?

        Some follow up questions. The whole point for Stutzman is that she doesn’t want to “participate” in a ceremony that she deems sinful.

        1. What message do you think Stutzman sends by providing flowers arrangements to a same-sex wedding? Now, I’m not sure about you, but I’ve been to many weddings, and not once have I looked at floral arrangements and thought: “Gee, this florist must really have approved of Tom and Sarah’s wedding!” I suspect everyone understands the flowers are there as part of a contractual arrangement in which money changes hands. Do you honestly think that the florists/musicians/caterers/dancers/singers/etc. who are hired to do their jobs are “endorsing” the wedding in any substantive sense? Does that mean the last baker who sold you your child’s birthday cake was also participating in and celebrating in your child’s birthday? I’m sorry, but isn’t that just a tad bit stupid? Are we expected to embrace – whether legally or commonsensically – association claims of this nature?

        2. Your claim that flower arrangements constitute speech are equally unpersuasive. There are religious liberty cases in which compelled speech claims do in fact arise but this is not one of them. A guest looking at a flower arrangement of geraniums and roses and tulips isn’t going to be able to discern a message from it. Not one iota of speech, Neil. Flowers, after all, are neither pro or anti gay marriage. They’re just flowers. We used to know that. But maybe you can tell me exactly what the speech content is in a floral arrangement. I’m genuinely curious. This also undercuts your attempt to distinguish between the three cases I gave you. If a floral arrangement of roses and tulips constitutes speech, why not the special Victorian architectural layout that a Christian hotel owner poured his heart out to design? What’s the difference? Why are you OK with the former refusing service and not the latter? I don’t know if you’re a lawyer but this is a very loose understanding of speech within the context of the First Amendment.

        3. I just want to reiterate that if Christian florists can decline service for gay weddings, the Equal Protection Clause guarantees that florists can also decline service for Christian weddings. The laws that are put in place to protect gay couples also protect Christian ones. The U.S. has a stronger tradition of public accommodations laws because of its unique history. Not all Western societies think about commercial spaces in this way. And that’s fair. There are plenty of people who have problems with Christian weddings and find Christian weddings immoral. As long as all groups are treated equally in terms of their ability to decline service, I’m actually OK with that.

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      4. Dear Mike;
        Thank you for taking the time to spell out the distinction I was making. Yes, you have summarised it well. My response is this: you and I, were we florists (or bakers or photographers) may have no problem at all with catering for a wedding of which we disapprove strongly on religious grounds. But the bottom line is this- is the interest at stake for the same sex couple (the annoyance of knowing that someone disagrees with them on this issue, the minor inconvenience of having to find another service provider) really strong enough to over-ride the religious freedom of the service provider involved? My view is that violation of conscience by being forced to do what one (plausibly) sees as endorsement or support, is a serious matter. You can call this “stupid” if you like, but I think a healthy and tolerant society allows people a wide range of conscientious choices in these sort of areas.
        I did not try to develop a fully fledged “speech” First Amendment point. I didn’t mention it in my blog, but if you have read the Washington Supreme Court’s decision you will know that they deal with this claim and reject it. I won’t comment further – I am a lawyer, though not a US lawyer, and I will pass on some of the arcane mysteries of the free speech clause for the moment.
        You say that the “Equal Protection” clause means that an (atheist?) florist can decline service for a Christian wedding. Of course I have no problem with that at all. Perhaps there is something we can agree on after all.
        Thanks for thoughtful comments.
        Regards
        Neil

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      5. This is in specific response to your point here: “But the bottom line is this- is the interest at stake for the same sex couple (the annoyance of knowing that someone disagrees with them on this issue, the minor inconvenience of having to find another service provider) really strong enough to over-ride the religious freedom of the service provider involved? ”

        So, here’s my question for you. Assuming I am sympathetic to your argument about the liberty interest of the Christian service provider, what I want to know is if you see any problems with declining service if there were no other service providers. In urban areas, I doubt there would be problems with finding alternative service providers. But what about in rural, less densely populated areas, which also are usually of a highly conservative bent? In these highly conservative rural areas, it is not uncommon for there to only be one service provider for one particular kind of service. So my question is do you weigh this liberty interest differently this time, in favor of the gay couple having access to services without having to drive 60 miles away? Or does the liberty interest of the Christian service provider always win, regardless of context?

        I’m trying to figure out if you actually believe in the framework you propose, or if it’s just a convenient front for a “Christian always wins” bias. Put another way, assuming I am sympathetic to your argument, what are some situations in which Christian service providers ought to lose? Or are there none?

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      6. Dear Oliver;
        Thanks for your comment and question. In relation to this question, I would like to stress again that I support a legal exemption for wedding industry businesses in this area, should SSM be introduced into Australia, not simply because they are being asked to serve gay people, but because they are being asked to provide their artistic skills to celebrate a relationship they see as contrary to God’s will. In terms of whether such an exemption should apply in a community where the Christian service provider who objects is the only option, then I would again want to see a weighing of the respective harms. Still, I concede that in that case it would be a close call. One could draft a “balancing clause” which contained an exception where no other equivalent services were reasonably available in a reasonable amount of time. It would be rare, in my view, given the usual lengthy lead time and planning that goes into most weddings, where other services could not be accessed. But I would be happy to see such an exemption included were the law to be drafted in this way. In Australia, of course, this is an issue which should be debated and resolved by the Parliament, and one of the problems with the current processes is that Australians are being asked to support a model for fundamental change without seeing what form the religious freedom protections will be provided.
        Regards
        Neil

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  16. Hi Neil. A non-lawyer here who nevertheless has been greatly interested in your analyses over the years. And a question regarding the Victorian ‘obscenity’ case. I have no need for this to be published as a comment, but couldn’t find any other way to communicate it to you!

    If I were a lawyer for a tobacco company, would I right now be planning to take the government to task for the ‘obscene’ images on cigarette packages in Victoria? I might have missed it, but it looked like the broad definition of obscenity came with markedly insufficient controls…

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    1. Hi Anthony. A very interesting question! Yes, the pictures on cigarette packages are certainly designed to be “shocking” and so seem to possibly come within the broadening of the word “obscene” by the court here. However, the legislation requiring them to be posted on the packets is Federal law and would over-ride any State prohibitions on obscenity. But I do agree with you that widening the definition of “obscene” to cover non-sexual images seems to be an unwise move.

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  17. Hi Neil,
    You mentioned in your article on Religious Freedom in Australia that in the Hoxton Case, the government had not imposed a funding requirement. Do you think if there had been a funding requirement in the AEA for funds to only be provided to schools with religious instruction, and if the purpose of the law was to promote security/health, would this necessarily have run afoul of s 116?

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    1. Dear Jenny;
      I am not sure where in the recent Religious Freedom paper in my discussion of the Hoxton Park case that I say “the government had not imposed a funding requirement”? However, let me answer your question in the second sentence. If the Commonwealth government provided funds only to schools with religious purposes (and I can’t see that as a real possibility) then there would be a serious question in my view whether they were to some extent “impairing free exercise of religion” by atheists. Even if (and again this is a stretch) one could somehow argue that government funding for only religious schools was aimed at promoting security somehow, in my view there would still be a serious issue of impairment of free exercise. Still, I may not have understood your question, so please feel free to seek clarification. regards, Neil

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  18. Hi Neil

    I am no lawyer and my reason for writing is that I would like to get your views on the following points.

    In both the current Marriage Act (MA) and the proposed changes to the MA, the word “union” is used and retained.

    Most, if not all, cultures thru out the ages accept that “marriage union” means, implies, includes, among many others:
    joining of both parties’ resources (financial, assets, time, efforts, etc)
    joining to procreate
    joining to parent children
    joining/connecting/coupling sexually, an act that is only potentially, inherently and naturally possible between a biological male and biological female

    Can 2 people (other than a man and woman) contemplating marriage pass the “marriage union” test if both cannot fulfill the requirement of sexual union?

    Can it be challenged in the High Court that a marriage of 2 people (other than a man and woman) is invalid or that it falls outside of the proposed MA on the basis that it is not and “cannot be a union”?

    Is it too far fetch to request the High Court to interpret and clarify what “union” means, implies, includes and excludes?

    Regards

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    1. Dear Steven;
      I think there is a lot to be said for the view that “marriage” as a head of Constitutional power at its heart must mean a union between a man and a woman, not a union between parties of the same sex. While the High Court in 2013 said that the marriage power extends to same sex unions, I maintain that this view was (1) not necessary for resolution of the case it was dealing with, and (2) wrong. If you are interested in reading why, here is a link to a paper in which I discuss the issues. paper

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  19. Hi Neil

    Thanks for your reply and pointing me to your article which without doubt offered an incisive analysis of the key issues of the case.

    It seems that marriage has been reduced to a contract between 2 people, whatever their genders are.

    Why did the lawmakers choose to retain the word “union”? Wouldn’t it be more appropriate to replace the word “union” with some other words, e.g. contract, etc, etc in the proposed changes to the marriage act?

    If I recalled correctly, the Irish referendum to legislate for same sex marriage used the word “contract” to give meaning to marriage.

    (To avoid any misperception, I am on the side of NO of the “Great Marriage Divide”.)

    Regards

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    1. Steven, I don’t think the terminology of “union” makes much difference. In the Irish referendum they did use the word “contract” as a verb but they still called the relationship “marriage”. The provision reads as follows: “4. Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
      Regards
      Neil

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  20. Dear Neil, how are you, my name is Yana, Im writing to you in case you can provide me with some link or advise – can you be so kind to answer my enquiry or direct me on some Legal existing cases examples around this matter?
    Im a social work student on placement in the multicultural agency. I have been asked to research by one of the case workers a specific question and I thought you will be able to advise me around this please. The client is wanting to divorce her husband, she is a refugee from Iraque, who then went to Iran and got married in a religious muslim ceremony. She is in Australia now for over 5 years and like to become an Australian citizen.
    She need to divorce her husband, however her marriage was only a religious ceremony overseas and not accepted here in Australia. She wants to apply for a divorce before she applies for Citizenship but as her marriage is not recognised officially here – she does not have any certificate of her Religious marriage ceremony back in Iran. She can not divorce legally here.
    Please, Neil may be you can assist me in my question, or do you know how and where Legally that can be worked out around this situation? thank you and anticipating to hear from you, sincerely Yana

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    1. Dear Yana;
      This is a complex legal question and I think the client will need formal legal advice. I would hope that she would be eligible for legal aid and I suggest you guide her in that direction. I am not sure from your comments why she thinks she needs to “divorce” her husband to become a citizen. But in any event the question whether she is married under Australian law or not is complicated, and is not automatically resolved just because it was a “religious marriage”. If you cannot find legal aid for her, email me privately and I will see if I can recommend some other avenues.
      Regards
      Neil

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  21. HI Neil, I greatly appreciate your contribution in relation to the SSM debate. I was at the Lower Mountains Anglican Parish( Glenbrook) where you presented a very helpful paper on the legal implications of same sex marriage for Christian life and ministry.As I understand it the situation is that there is no legal discrimination against same sex couples. Recently I was told there has been an article, which I have not seen that claims that there is legal discrimination. I wonder if this so called discrimination is in relation to same sex couples being in defacto relationships?
    Your comment would be appreciated.
    Regards
    Ray

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    1. Dear Ray;
      In my view there is very little remaining difference in the treatment of same sex de facto couples from the treatment of traditionally married couples. There are one or two minor examples which some of these articles refer to, but as far as I can see they are all matters which could be quickly resolved by a change to State law, and do not require a major revision of the law of marriage.
      Regards
      Neil

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  22. I am liberal and support gay marriage, and I am curious why so many people are against Christian service providers declining service to gay couples. I support these types of exemptions because I think they will instead be used against Christians, ironically enough.

    We are already seeing it happen. Hotels are refusing to allow Christians to book events arguing against same-sex marriages. Christian groups that want to host small discussions at public spaces are being chased out by gay owners once the Bibles are brought out. This is precisely the reason that I support “religious exemptions.” Having some gay couples be denied a wedding cake or wedding flowers is a very, very small price to pay for what would effectively be the marginalization of Christianity through the denial of platforms in the public sphere.

    The law will cut both ways, and “religious exemptions” will only hasten the sense (in a secular society) that it is only fair to deny Christians service, if Christians can also deny gays service.

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    1. Dear Oliver;
      I found to hard to work out your reasons for supporting legal exemptions here. On further re-reading it seems that you are hostile to Christianity and you think that it is a good thing that Christians are being refused events and tossed out of cafes. I disagree, of course. When you say that it is “only fair” that Christians be denied services, if Christians can deny gays services, you see to be equating religious belief and sexual orientation. The law (and common sense) treats these attributes differently. In any event I am not supporting a general right of Christians to “deny gay people services”, as I say in my reply to your other comment. I support an exemption relating to not demanding religious wedding service providers being required to express and celebrate support for relationships they see as contrary to their beliefs.
      Regards
      Neil

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  23. I have found this page by accident whilst researching views on ssm.Much of what you say resonates with me as I have felt confused by my seemingly lack of empathy toward gay marriage.Trying to work through these feelings is difficult when there appears to be no real leadership anywhere.Thank you .

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  24. Hi Neil. It would seem to me to be a fairly simple requirement for the law and society in general to allow those who believe, for 2000years, their God ordained the word marriage as a union between a man and a woman, and not as a union between a male and a female or any combination thereof where another word meaning exactly the same as marriage could be used.
    It appears this will not be the case. So my question is this; can you suggest any reasons why the law especially and society in general seems unwilling to solve this antagonism by the simple adoption of a suitable synonym and leave the age old societal definition of “marriage” as it has always been- between a man and a woman?

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    1. Dear Roy;
      I think the answer to your question is this: “marriage” is a highly respected social institution. It has been so because, on the traditional view of marriage, it involved a determination to live with a person from another sex all your life, to stay faithful to them, and to support any children who were born as a result of that relationship. The supporters of “same sex marriage” want to use that word because it signals social approval. But it gained social approval because it was a particular form of relationship, and those characteristics are not usually shared by same sex relationships. So I and many others think the word is inappropriate. Nevertheless, Parliament will now make the change.
      Regards
      Neil

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      1. I’ve heard a version of this argument many times by “No” supporters. Would you support reserving the word marriage only for long-term monogamous heterosexual couples? By which I mean, if you are a straight man and you divorce, your second wedding to a woman can only be registered as a civil union, but not as a marriage. You can only get married “once” – if you fail that test, and many straight couples do, their subsequent couplings can’t be marriages.

        I am guessing you would support this law since you think marriages must be entered into to the exclusion of all others for life.

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      2. Hi Mike, no I don’t support that view. Marriage in my view should be entered into with the intention that it be for life, but even the Bible recognises some legitimate grounds for divorce. So long as the intention is there at the beginning it is a legitimate marriage.

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  25. I haven’t read the Paterson bill, but even as a supporter of same-sex marriage, if what you say is true, I think I could come around to supporting those amendments if they were viewpoint-neutral. The section that says people should not be penalized for declining to provide services to same-sex weddings should be modified so that anyone can decline any services, for any reason, for any weddings. So this would cover an atheist who was morally opposed to Christian weddings and believed that Christian marriages was not truly “marriage.” It should also cover the extremely small minority of people who decline to serve at inter-racial weddings.

    If the amendments are viewpoint neutral, I support them. Otherwise, we are simply privileging one minority viewpoint over another minority viewpoint.

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  26. At the current moment, can a secular school whose code of values embrace LGBT equality in all spheres fire a teacher if he’s against same-sex marriage? I always assumed this was possible because religious schools that received government funding had the right to fire gay employees based on their own code of values.

    But my friend who works in education says that’s not true. Which position is correct?

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    1. A good question which is a bit complicated. In general terms an employer usually has the right to dismiss an employee whose views they disagree with, so long as they follow relevant “unfair dismissal” provisions. I will put the unfair dismissal provisions to one side for the moment and concentrate on questions about views on same sex marriage. For a school that operates on religious principles the law allows it to operate in accordance with those principles in this area- see s 38(1) of the Sex Discrimination Act 1984. That principle is there because there are recognised international human rights protections for religious freedom, and also because s 116 of the Constitution requires the Commonwealth to not interfere with free exercise of religion. I am not sure when you refer to a “secular school” you mean a government school or a secular private school. In any event, if such a school decides that it will fire a teacher who announces their concern about same-sex marriage, are they behaving legally? In part this will depend on whether the view is taken that the motivation of the dismissal is the religion of the teacher. Or is it based on the teacher’s “political opinion”? Not all States and Territories prohibit such discrimination. So the answer will vary across the country. Regards, Neil

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  27. Neil, I consider myself both a strong supporter of same-sex marriage as well as of religious freedom, and I think your positions exemplify exactly why “religious freedom” is losing ground. I have worked on a religious freedom commission, and the greatest threat to religious freedom aren’t “rainbow activists” but people like you, because you don’t seem to have a principled yardstick for balancing conflicts. You’re choosing the winners so long as they are Christian. That type of hypocrisy cannot be accommodated if we are to win the cultural battle.

    Based on your responses above, you agitate strongly for the right of Christian service providers to decline service to gay couples, but you don’t agree that secular businesses can reject Christian events. Why? Even Bernardi and Kevin Andrews have admitted that either we agree to exemptions that work both ways, or we agree to none. If we want to maximize religious freedom, we must maximize the ability for those businesses who disagree with Christian precepts to exercise their consciences too. The Christian conscience isn’t more valuable than a non-Christian one.

    Can you also explain why you don’t support the firing of that lady by her employer for posting against gay marriage? How is this not a society where only one side gets special protections? So if you’re a religious school, you can fire gay employees, but if you’re a non-religious school with your own deeply held values, you can’t fire conservative Christian employees?

    I think the balance of your responses suggests that you do not, in fact, believe in religious freedom. What you believe in, is Christian religious freedom to the exclusion of others. And that, sir, is a shame.

    As a religious freedom advocate, I think people like you do the biggest damage to our cause.

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    1. Dear Mr Laycock;
      I am not sure where you draw these alleged positions of mine from in previous comments, but let me clearly respond to them as you put them.
      (1) “you agitate strongly for the right of Christian service providers to decline service to gay couples, but you don’t agree that secular businesses can reject Christian events”. My position is not that Christian service providers have a general right to deny service to gay couples, and I never said that; I’d be interested if you could provide an exact quote from my previous comments to this effect. Be that as it may, I hereby unequivocally reject such a position. A restaurant owner who is a Christian should have no general right to deny a meal to a gay couple. But there is a difference when what is being requested is not simply a general service, but the application of artistic skills to the celebration of a relationship, at the heart of which is sexual behaviour which is condemned by the Christian faith. In those circumstances it is my judgment that the balance of harms being done to different rights lies in favour of allowing the Christian person to politely decline to engage in artistic endeavour expressing support for a relationship contrary to the teaching of their faith. So, should a secular business provider have the right to “reject Christian events”? Yes, it seems to me that a business owner who fundamentally objects to Christian doctrines on different issues should have the right, if their belief is a “religious” belief, to decline a booking from a Christian organisation. That would defend their religious freedom. Similarly a Muslim group should be entitled to decline to book their premises to a Christian or Jewish or atheist organisation.
      (2) “So if you’re a religious school, you can fire gay employees, but if you’re a non-religious school with your own deeply held values, you can’t fire conservative Christian employees?” Did you actually read my most recent response to this question? The answer legally depends on whether the ground of dismissal is a “protected attribute” under discrimination law, and whether there are “balancing clauses” protecting the human rights of the non-religious school. The law does not currently protect every deeply-held conviction. Like it or not, that is the legal situation. If you are asking me what the law *should* be, I think it would be reasonable for a school with deeply held convictions on specific matters to be able not to employ someone who disagrees with their position. A “school for Greenies” (if there were such a thing) ought to be able to not employ someone who denied that anthropogenic climate change was a thing.
      Regards
      Neil

      Like

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