Author: neilfoster

neilfoster

Religious Freedom victory in Nova Scotia

Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.

First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.

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More Law & Religion events and a paper

A number of interesting events are coming up in the Law and Religion area in Australia, and I also wanted to mention a new paper exploring some important issues.

Australasian Christian Legal Convention 2016

The ACLC will be held on Brisbane from 29 September to 1 October. It is specifically a gathering for those interested in the intersections between Christianity and the law.

From the website:

The theme of the Convention will be “Redeeming the law for the kingdom of God in Australia.“ The conference is open to lawyers, law students, persons involved in the administration of justice and those with a concern for justice in our community.

The international key note speaker for the Convention is Mike Schutt from the USA, the director of the Christian Legal Society (CLS) Law School Ministries and of the Institute for Christian Legal Studies, a cooperative ministry of the CLS and Trinity Law School, where he is a Visiting Professor.

There will be a number of other speakers, including <cough> myself. Should be an interesting event.

Religious Liberty Conference ‘Varieties of Diversity’

Coming up more quickly, the University of Notre Dame, Sydney, Law School will be hosting 2 days of material on religious freedom on August 18-19. (See here for a flyer with all the details.) The event opens on the Thursday evening Aug 18:

The Conference will begin with the University’s Annual Religious Liberty Lecture on Thursday 18 August. This year’s lecture will be presented by Iain Benson, Professor of Law at Notre Dame. Iain has also been appointed as an Extraordinary Professor of Law at the University of the Orange Free State in South Africa in recognition of his status as an international constitutional and human rights lawyer, and as a religious liberty expert.

There will be a range of interesting speakers on other topics on the Friday:

Learn how you can protect religious liberty in Australia:

  • How anti-discrimination and same-sex marriage interfere with your freedom to practice your religion.
  • Is it appropriate to think of equality without considering religious equality?
  • How “safe” is the safe schools program?
  • Parental authority and consultation in relation to education.

The Democratic Deficit

Finally, I wanted to flag for those who haven’t seen it yet an excellent recent research paper by Peter Kurti, from the Centre for Independent Studies, entitled The Democratic Deficit: How Minority Fundamentalism Threatens Liberty in Australia. From the summary:

We are faced with a new kind of fundamentalism – call it ‘minority fundamentalism.’ It has all the features of religious fundamentalism, such as ideological fanaticism, intolerance of dissent, and a Manichaean certainty about truth and falsehood. The goal of the minority fundamentalists is to eradicate all forms of discrimination in the name of liberating those deemed to be oppressed. In this age of the new intolerance, punishment by intimidation and vilification is meted out to those who think differently. This leads to what is known as a ‘democratic deficit’ – a growing discrepancy between our expectations and our experience of democratic institutions. This widening of the democratic deficit is indicative of an increasing readiness on the part of self-appointed guardians of the moral and social order to privilege the sensitivities of the minority over those of the majority. Minority fundamentalism poses a threat to the normal political and social functions that we take for granted.

Some very sharp insights here into current debates in Australia and elsewhere.

neilfoster

Some upcoming Law & Religion events

A short post plugging some forthcoming Law & Religion events here in Australia which look to be excellent.

Last year I was honoured to help host the Freedom for Faith 2015 conference. This year there are two conferences sponsored by this excellent organisation, both of which look terrific. “Freedom for Faith”, to quote their website, is “a Christian legal think tank that exists to see religious freedom protected and promised in Australia.”

The first one-day conference, on Friday August 12 in Sydney, is aimed particularly at Christian leaders. Speakers include Dr Michael Ovey (Oak Hill College London), Professor Iain Benson (Notre Dame Law School), Rev Kanishka Raffel (Anglican Dean of Sydney), Dr Megan Best – ethicist, Dr Sam Chan – Evangelist City Bible Forum, Archbishop Julian Porteous – Catholic Archbishop of Hobart, Lyle Shelton – Australian Christian Lobby & more.

The second, on Friday September 23 in Melbourne, features a range of academics and other policy makers.  The theme for this one is ‘Religious freedom in an age of equality’. The keynote speaker is Father Frank Brennan. Other speakers include: Anne Robinson (Founding Partner ProLegis Sydney), Prof. Iain Benson (Notre Dame Law School Sydney), Mark Sneddon (Melbourne Bar), Prof. Patrick Parkinson (Sydney University Law School), Asssociate Prof. Patrick Quirk (Australian Catholic University Law School).

As I say, both look to be great events and would be good value for anyone interested in Law and Religion issues in Australia.

neilfoster

Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

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Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

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Homosexuality and “hate speech”

Simply expressing opposition to homosexuality from a religious perspective, not accompanied by incitement to violence, should not be classified as unlawful “hate speech”.

The terrible events at the Pulse gay nightclub in Orlando, Florida, where 49 people were killed by a man claiming to act in the name of the so-called “Islamic State” group, have naturally generated much heated comment online and in the news media. As others have noted, this was almost a “perfect storm” of hot-button controversies in the world today: Islam, homosexuality and gun control being some of the main ones.

In this comment I want to narrow the focus to the issues surrounding speech, and to consider how in the light of these events the law ought to deal with public comments about homosexuality. One of the reasons for this is that it has been suggested that part of the background to these events were previous comments made by Farrokh Sekaleshfar, a senior Shi’ite Muslim scholar who had visited Orlando in March, to the effect that homosexuality was a moral offence which warranted the death penalty. (It should be noted that while Mr Sekaleshfar had indeed made these comments, the recording in question dated back to 2013 on a different occasion, and there seems no suggestion that he actually said anything on the topic in his Orlando visit.)

And oddly enough there was then a direct connection with Australia- Mr Sekaleshfar was at the time of the Orlando events giving lectures at an Islamic centre in Australia. The Sydney Morning Herald reported:

Mr Sekaleshfar said in a lecture in Michigan in 2013 that in an Islamic society, the death penalty should be carried out for homosexuals who engaged in sodomy.

There was then some suggestion that Mr Sekaleshfar’s visa would be revoked on account of his comments, a course that in the end proved unnecessary when he voluntarily returned to the UK. It should be noted that the report also mentions that:

Mr Sekaleshfar told Reuters on Monday he condemned the Orlando shooting as a “barbaric act of terror that was in no way justified”.

The question of Muslim views on homosexuality hit the headlines in Australia again shortly afterwards. The Prime Minister, Malcolm Turnbull, hosted an “iftar” dinner (a traditional event held at the end of a day of fasting in Ramadan) for a number of leaders of the Muslim community at Kirribilli House, the official Prime Ministerial residence in Sydney. As reported by The Australian (June 17, 2016):

Four days after 49 people were shot dead in a gay nightclub in Orlando by Islamic State supporter Omar Mateen, Sheik Shady Alsuleiman was among dozens of Muslim leaders invited to the first ever Iftar — the evening meal at which Muslims end their daily fast during the holy month of Ramadan — to be staged by an Australian prime minister.

Sheik Alsuleiman, who was elected president of the Australian National Imams Council last year, arrived at Mr Turnbull’s Iftar dinner alongside Grand Mufti Ibrahim Abu Mohammad.

“What’s the most common disease these days?” he said in a sermon uploaded in YouTube in 2013. “HIV, Aids, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming.”

He said it was “homosexuality that’s spreading all these diseases”.

The article goes on to note that other Muslim leaders present at the meal said that homosexuality was a sin under Islam, “but it does not mean go kill them”.

In a more recent report in The Australian (June 18, 2016) other Muslim leaders re-affirmed that the death penalty was appropriate for homosexuality under Islam.

Imam Yusuf Peer, the chairman of the Council of Imams Queensland, who is a member of the national peak body, told The Weekend Australian yesterday that it was “not permissible” to be gay and Muslim.

“But we do not have a problem with the people themselves, just the act and ideology,” Imam Peer said. “But this is what the sharia law says and we have to follow that. There is no way around that. When we are talking about gays, we have to be confident (they are gay) and there must be a lot of ­investigating.”

When asked if sharia ­required death, Imam Peer said: “Yes.”

Imam Peer said because a “proper process” involving “committees” applied, it prevented the “random bashing and killing” of homosexuals: “Nobody can implement Islam­ic sharia on their own. There is a procedure, there is arbitration, there is a committee.”

Building on these events, the Opposition Leader Bill Shorten was reported in an online debate as using these comments as an example of “hate speech” likely to be encouraged by the plebiscite on same sex marriage promised by the Coalition Government to happen after the next election.

Opposition Leader Bill Shorten has linked the planned plebiscite on same-sex marriage to the Orlando massacre and the murder of British MP Jo Cox, suggesting the campaign could “give haters the chance to come out from under the rock”.

In the midst of this hyperbole, it might be worth reminding ourselves of some facts about homosexuality, religious perspectives, and the idea of “hate speech”. I’d like to offer five propositions, and comment on them briefly:

1. Homosexual behaviour is seen as immoral by some religions

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

4. There is “hate speech” which ought to be made illegal

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

1. Homosexual behaviour is seen as immoral by some religions

Mainstream religions around the world have long regarded same sex intercourse as contrary to their religious beliefs. In Islam, the primary source, the Qur’an, Sura 7:81 explicitly condemns homosexual behaviour. This article and this one link to other more detailed comment in the Hadith and other sources which make this quite clear.

In Christianity the prohibition on homosexuality is found in the Old Testament in Leviticus 20:13 (and 18:22), and is repeated in the New Testament in Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10. In the Lev 20 verse, the death penalty is laid down for those who engage in same sex relations.

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

However, modern believers in both Christianity and Islam do not intend to say that they “hate” someone when they report that the person’s behaviour is immoral. Indeed, as far as Christianity is concerned, the fact that someone has rebelled against God and is hence a “sinner”, is a fact that is said to be true of all human beings (see e.g. Romans 6:23). Christians are urged to do good to all, including sinners (since all fall into that category!) And the best known verse in the Bible, John 3:16, reports that God “so loved the world” that he sent his Son Jesus to die for its salvation.

So a judgement, on the basis of revealed truth, that behaviour is wrong does not on its own imply “hatred” for someone else.

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

However, it does have to be said that Islam as a religion finds it more problematic to speak of behaviour which is immoral, and not at the same time illegal.

Christianity has a long history of recognising that wrongful behaviour may not need to be punished as such by the State. Indeed, there is a crucial truth about the relationship between Christianity and the laws of the Old Testament that must not be forgotten in these debates.

The simple fact that there is an “Old” Testament (comprised of the Hebrew Bible) and a “New” Testament signals something very important about Christianity. Without exploring the complexities of the debates here, broadly speaking Christians believe that the arrival of Jesus Christ as the promised Messiah of Israel saw a radical change in the way that God related to humanity. In the Old Testament the people of Israel were designed to live both as a political entity and a religious entity, a body politic with laws and punishments and authority structures mostly centred on the area of land known as Canaan or Palestine. With the arrival of Jesus, however, it became clear that the laws which had governed the political State of Israel were no longer applicable to the new people of God, who were now defined as those who had put their faith in Jesus as Lord.

This apparently arcane religious debate has massive ramifications for the way that the Old Testament laws are treated today by Christians. While there have been debates and alternative views taken over the centuries, the mainstream Christian view has been that the laws of a modern political entity do not need to replicate the laws applicable to Old Testament Israel. Jesus, for example, in a startling passage of teaching, told his disciples that all foods were clean (see Mark 7:19), overturning all the OT teaching on clean and unclean foods. He told his disciples that there were certain matters that were the province of “Caesar” (the secular government) and where their rules should be respected- see Matthew 22:21. The apostle Paul taught that Christians were not “under the law” (Galatians 5:18).

Hence no mainstream modern Christians believe that the death penalty ought to be applied by the State for all sinful behaviour prohibited in the Bible, even if that penalty had been imposed by the Old Testament. All Christians believe that some OT ceremonial laws are not applicable at all today; most believe that the moral principles spelled out in OT laws are still applicable but the legal penalties are not. This is not simply a “let’s pick the ones we like and ignore the others” policy, it is a result of detailed unpacking over many centuries of the clear teaching of the New Testament. (See also this recent comment refuting the suggestion that Paul’s letter to the Romans calls for the civil death penalty for homosexuals.) So while the famous episode in the “West Wing” where President Bartlett attacks a “conservative” for opposing homosexual behaviour but not executing children for disobedience may have made amusing TV, it bears no connection to the reality of arguments made on this point by religious conservatives.

Islam, however, tends to have a strong mainstream strand which sees it as a religious duty to work towards the application of Islamic religious (sharia) law to the whole community. Christian philosopher Richard Shumack, in an important work discussing fundamental differences between Christianity and Islam, The Wisdom of Islam and the Foolishness of Christianity (2014) quotes an influential Muslim thinker, Abul Ala Maududi, who says:

The chief characteristic of Islam is that it makes no distinction between the spiritual and the secular in life. Its aim is to shape both individual lives as well as society as a whole in ways that will ensure that the Kingdom of Allah may really be established on earth and that peace, contentment and well-being may fill the world. (from Shumack, p 197, quoting Maududi, “The Islamic Concept of Life.”)

This explains why serious Muslim speakers will continue to argue that the death penalty is an appropriate penalty for homosexuality in certain circumstances- in particular, in a society which has committed itself to full implementation of sharia law. In an ABC TV interview with Farrokh Sekaleshfar before leaving Australia, he explains the remarks for which he has been attacked as being made in an academic discussion of this sort, about a theoretical society where sharia law is implemented, and in relation to a “public” act of homosexual sex.

However, even in the case of Islam is just not true to say that mainstream Islamic teaching requires the death of homosexuals in a Western country. The view that homosexuality is wrong, even the view that in an Islamic society it ought to be punished, may be, and indeed is, offensive to many. But should someone who holds such a view be punished for saying so?

4. There is “hate speech” which ought to be made illegal

There has been a long debate about the validity of laws which forbid so-called “hate speech”. But before we discuss this issue it seems a good idea to define this term. What is it?

Perhaps in popular terms it means “speech which is motivated by the speaker’s hate”. But this is not the way that the term is usually used in legal contexts. The appropriate definition of “hate speech” has to do with its effect on the hearer, not the subjective motivation of the speaker. “Hate speech”, in broad terms, means speech that incites the listeners to “hate” a person or group of people who are the topic of the speech.

One example can be seen in the NSW Anti-Discrimination Act 1977, s 49ZT, which makes it unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of homosexuality. There are various defences that apply to this provision in the interests of free speech. Under s 49ZTA, however, where this incitement is accompanied by a threat of physical violence, or by incitement of others to such violence, then it is a criminal offence and those defences do not apply. These seem to be appropriate laws.

In a previous post discussing the related (though not identical) issues of “religious vilification laws”, I commented as follows:

I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society

So, I think there is a legitimate place for laws prohibiting the incitement of violence against same sex attracted persons.

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

But- not all comments conveying disapproval of homosexual behaviour fall into this category. I have posted before about the unwise nature of laws that prohibit mere “offence”, and supported a proposal to make it clear that open debate on the merits of same sex marriage should never of itself be grounds for legal complaints about “hate speech”. (See “Protecting free speech in the Same Sex Marriage Plebiscite debate” and a follow-up post here.)

In short, the value of free speech as both a fundamental human right and a tool for making sure all views are heard in the search for truth, means that we ought not to use the law to shut down the views of others who are “causing offence,” if that is all they are doing.

Of course, as noted above, I support making unlawful (as they already are) calls for direct violence against same sex attracted persons. But, to draw a line that is foreshadowed above, I do not think such a call is heard when a Muslim scholar suggests what law should be applied in a society governed by sharia law, while acknowledging that Australia is currently not such a society.

Of course, as a Christian I regard such a prospect (an Australia governed by sharia law) as bad, and will argue whenever I have the opportunity to do so that such should not happen. As a Christian I will argue with Muslim scholars that their views on this issue are wrong. But I do not think that expression of these views (outside the context of a call for direct violent action) should be shut down by the legal system. For one thing, I want Australians to be fully aware that Muslims believe this, when considering whether or not to adopt Islam as a religion. I do not want these views hidden from view, but rather to be out in the open where they can be critiqued and challenged.

If there is to be an ongoing and fruitful dialogue with genuine representatives of the Muslim community by leaders in government, it would be unhelpful to draw lines too sharply as to who will, and who will not, be consulted. While the views noted above as being held by the Muslim representatives at the iftar dinner will be deeply offensive to many, they do not represent calls for active violence against same sex attracted persons. Those views may be challenged from many directions, from a shared commitment to diversity and tolerance in a liberal society, to a critique of Islam from other religious perspectives. But open discussion of such views needs to take place in a context where the law allows free speech which does not directly incite violence.

 

 

neilfoster

Religious Instruction in schools and “soliciting”

Press reports today (e.g.”Qld govt to review religious education“, Courier-Mail, 7 June 2016) indicate that a school Principal in Queensland has written to parents at his school indicating that he is cancelling the usual Religious Instruction (RI) classes, on the basis that he has discovered the lessons involve “proselytising” (a term which he says refers to “soliciting a student… to change their religious affiliation”). The Queensland Government in response to the press reports has indicated that it will be reviewing materials used to ensure they comply with relevant rules.

Does this mean a radical change has recently taken place in a program which has been operating for many years allowing parents to send their children to RI (elsewhere sometimes called “Scripture” or “Special Religious Education”) classes for a short period each week? Actually, no. It seems that the Principal has misread the relevant provisions, and the Queensland Government really doesn’t need to react to the misleading interpretation.

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“Exemptions” in discrimination laws applying to churches

Australia is in the midst of a Federal election campaign at the moment (thankfully, one which will end on July 2, unlike the one being endured by our friends in the United States, which seems to stretch on interminably!) But law and religion has now emerged as one of the election issues.

This time the question is not about same-sex marriage (SSM), although the various parties’ views on that topic are well-known (at the moment, the Australian Labour Party (ALP) has promised to introduce SSM within 100 days if elected, and the Liberal-National Party Coalition, currently in power, has promised to put the matter to a plebiscite after the election if they are returned.) But the latest question has been raised by a minority, but increasingly influential, Greens Party, which has included as part of its election platform a promise to remove “religious exemptions to federal anti-discrimination law“.

At the moment the Opposition ALP (which is fairly closely aligned to the left-wing Greens on many points) has not made a similar promise, but has noted that it will

review the carve-outs in Australia’s anti-discrimination laws, with [Opposition Leader] Bill Shorten leaving open the door to removing further exemptions for religious institutions.

The official ALP electoral platform contains the following promise (in Chapter 9, on p 139):

196. Labor believes that no faith, no religion, no set of beliefs should ever be used as an instrument of division or exclusion, and condemning anyone, discriminating against anyone, vilifying anyone is a violation of the values we all share, a violation which can never be justified by anyone’s faith or belief. Accordingly, Labor will review national anti-discrimination laws to ensure that exemptions do not place Australians in a position where they cannot access essential social services.

In this post I want to briefly review what “exemptions” are being mentioned here, and argue that watering down or removing this provisions (these “balancing clauses”) would be unnecessary to achieve the ALP’s stated aims, and in general a bad idea.

Balancing Clauses in Discrimination Law

Since the current issue has arisen in a Federal election, I will mainly focus on Federal law (although the issues and their resolution are similar in most States and Territories.) In fact, the primary “exemptions” that the Greens and the ALP are referring to are those contained in one Act, the Sex Discrimination Act 1984 (Cth) (SDA). (Interestingly, there are few if any religious balancing clauses in the other Federal discrimination legislation, prohibiting discrimination on the basis of race, disability, and age. These have not been areas where mainstream religions have usually sought exemptions.)

Terminology

First, a question of terminology. What their opponents tend to call “exemptions” to discrimination law are, in my opinion, best described another way. To explain this I would like to quote some extracts from a paper I presented at a conference in Oxford in 2015:

 [R]eligious freedom is recognised in the International Covenant on Civil and Political Rights (art 18):

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his [or her] choice, and freedom, either individually or in community with others and in public or private, to manifest his [or her] religion or belief in worship, observance, practice and teaching.

While it is clear that the “internal dimension” of religious freedom is absolutely protected, it is equally clear that the “external dimension” of the freedom, that is, the freedom to manifest one’s religion and act on one’s religious beliefs, may be subject to limitations in certain circumstances. A fundamental feature of “rights” of any sort, of course, is that, where they are given to more than one person, there is the potential for conflict. Any “freedom” given to a person to do something, will usually involve a “duty” on another person’s part to allow them to do it, even if it interferes with some other freedom or right of that person. Whether it is appropriate for one person’s right to be protected over and above another person’s right or interest requires a consideration of how competing rights and interests are to be appropriately balanced. The need for limitations in certain circumstances on the right to externally manifest one’s religious belief and the need for freedom of religious freedom rights to be balanced with the rights and interests of others is reflected in the ICCPR (art 18(3)):

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The nature of any human rights system, then, is that it must allow the appropriate “balancing” of rights which may occasionally come into conflict. But there is under international law no “hierarchy” of the fundamental rights protected in the ICCPR, all are equal, including both the right to free exercise of religion, and the right not to be unlawfully discriminated against. So it is not helpful to speak of provisions designed to balance these rights as “exemptions” or “exceptions”. As I go on to say in the paper I mentioned above:

Rather than seeing these “defences” as concessions “wrung out” of a reluctant legislature by some powerful lobby group, as they are sometimes painted in the press, it seems to be a better analysis to see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.

Balancing provisions in the SDA

What, then, are the “balancing provisions” contained in the SDA? There is a good summary of these in the report of the Australian Law Reform Commission on “Traditional Rights and Freedoms”. In Chapter 5 the Commission sums up the relevant provisions in the SDA as follows:

5.80     Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:

  • s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;
  • s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’; and
  • s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.

These balancing clauses will operate to delimit the area of unlawful discrimination under the SDA, so that behaviour which falls within those provisions will not be unlawful.

The purpose of the various provisions is not spelled out in the legislation, but seems to be as follows:

  • The s 23(3)(b) provision for accommodation recognises the fact that certain religious bodies have a tradition of running single-sex colleges and residential institutions. They do so partly because they have a conviction, based on their religious beliefs, that sex between men and women outside the bond of marriage is wrong, and hence they provide single-sex accommodation to reduce the temptations to engage in wrongful sexual conduct.
    • (It is worth noting in passing that since amendments in 2013, s 23(3A) provides that the exemption of religious organisations in para 23(3)(b) “does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth-funded aged care”. Hence a religious aged care institution cannot choose to offer single sex residential accommodation, nor can they choose to decline to accept a couple who are living together but not married, or a same sex couple. It is fairly clear that these changes represented an attempt to undermine the general balancing clause provisions by focussing on a purported problem which, to be frank, does not seem to have actually been causing any issues. Still, this “exemption to balancing” provision is now there.)
  • The s 37 provision has mainly been seen as allowing the Roman Catholic Church, and those branches of other churches who read the Bible’s teaching on the point in this way, to decline to appoint women as priests or pastors over congregations. It would also have allowed a religious organisation to decline to appoint to a position of spiritual leadership an unmarried person in a “de facto” relationship (an action otherwise forbidden as “marital status” discrimination), again on the basis of the Bible’s prohibition of sex outside marriage. Since amendment of the SDA in 2013 to add “sexual orientation” and “gender identity” as protected grounds, it will allow a church to decline to appoint to such a position a person in a same sex sexual relationship (based on the Biblical teaching that homosexual activity is sinful), or someone who is of one biological identity but “identifies” as of another gender. (For a recent overview of why many Christians regard transgender identification as theologically problematic, see this piece by Russell Moore from the Ethics & Religious Liberty Commission of the US Southern Baptist Convention.)
    • (Note again that s 37(2) now qualifies this balancing clause in relation to “acts or practices” where the “act or practice is connected with the provision, by the body, of Commonwealth-funded aged care”. Since most of the examples given in the debate on this issue revolved around the provision of accommodation in aged care institutions, it is hard to know whether s 37(2) adds anything above s 23(3A).)
  • The s 38 provision specifically applies to religiously based private schools, and would allow such schools to decline to engage teachers or staff (either as employees or contractors) where doing so would cause injury to injury to “the religious susceptibilities of adherents of that religion or creed.” Putting aside the somewhat patronising reference to “susceptibilities”, which one may assume is intended to refer to religiously based conscientious objection, this would seem to allow a Roman Catholic school to decline to hire (or to fire) a teacher who was in a de facto relationship, a same sex relationship, or was actively pursuing a gender transition. Under s 38(3) the school would also be allowed to decline to accept an application for enrolment from a student in one of these situations. It would also, presumably, be entitled to insist that students conduct themselves in accordance with Roman Catholic moral standards in behaviour at the school.

Are these provisions justified?

Some will immediately say that the examples provided above show why these provisions should not be allowed to operate. Refusing to employ, or sacking, a teacher because of their private moral choices sounds discriminatory. So does allowing a church to decline to ordain women, or sexually active same sex attracted persons, or transgender persons.

But it seems to me that the provisions are justified on the basis of the strong religious freedom rights recognised in international law mentioned above. If we are concerned about “human rights”, we cannot pick and choose only the ones that make us feel comfortable. Indeed, it is the human rights that have become unpopular and applicable to minorities, which will require all the more careful protection.

Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.

As Paul Kelly has commented in The Australian (May 18, 2016)

The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.

The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.

Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.

Implications for the political platforms

From what I have said above, I clearly do not support the draconian demands of the Greens to remove all balancing clauses reflecting religious belief from sex discrimination legislation. Religious organisations ought to be able to choose who they appoint as leaders, and who will teach at schools they set up to pass on their religious world view to those who attend. As others have pointed out, the Greens should not be required to appoint someone who is a climate change sceptic as a research assistant or indeed a front desk receptionist. In this area they need to accept that religious beliefs can be just as strongly held, and passionately followed, as political beliefs.

The only area of plausibility that is lent to these claims is where the Government may have chosen to provide some essential social service to members of the public through a religious group, which may then decide to not make that available to a member of the public on the basis of a religious belief. But while this would present many problems, it has to be said that it seems to be a classic “straw man” argument. No homeless person has even been turned away from a religiously run shelter because they are homosexual. No transgender person caught in a natural disaster has ever been refused assistance by the Salvation Army on the basis of their “gender identity”. While religious organisations will naturally seek to employ staff that share the ethos of the group, they are not in the business of denying help to needy people.

For this reason, it seems that the ALP policy is already satisfied, and no change to the law is needed to meet their concerns about “essential social services” being provided.

Conclusion

Religious groups, motivated precisely by their deep commitment to transcendent values, regularly engage in service to the vulnerable members of the community. They establish schools to pass on their deeply held values and moral commitments to the next generation. They run hostels and accommodation designed to reflect the moral values of their members and supporters.

If our society makes it impossible for believers to undertake these activities, by demanding that they conform to the majority views on gender equality and the new sexual identity politics which requires “affirming” sexual choices that their religion says is wrong, then we run the risk of driving believers out of the public square altogether. In doing so we will be denying the fundamental human right of religious freedom, and also losing the value added to our community by believers who serve the needy.

neilfoster

The Bathurst Diocese decision and legal personality of churches

Today at the Law and Religion Scholars Network (LARSN) Annual Conference (5 & 6 May, 2016) at the Cardiff University School of Law and Politics, Cardiff, Wales I presented a paper discussing a recent Australian case on the “legal personality” of churches and how they are held accountable for debts. The paper, “The Bathurst Diocese decision and its implications for the civil liability in contract and tort of church institutions”, can be downloaded here. Those who are interested can also see the Powerpoint presentation that was meant to go along with the paper here: Bathurst Diocese case presentation.

The abstract is as follows:

In the NSW Supreme Court decision of Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 (10 Dec 2015) (the Bathurst Diocese case), a single judge of the Court held that a large amount of money which had been lent to institutions in the Anglican Diocese of Bathurst, and guaranteed by a “Letter of Comfort” issued by the then Bishop of the Diocese, had to be repaid by the Bishop-in-Council, including if necessary by that body “promoting an ordinance to levy the necessary funds from the parishes”. The lengthy judgment contains a number of interesting comments on the legal personality of church entities and may have long-term implications for unincorporated, mainstream denominations and their contractual and tortious liability to meet orders for payment of damages. The paper discusses the decision and some of those implications.