Author: neilfoster

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Insulting religion and legal consequences

Two recent news items raised interesting issues of free speech about religion and its legal consequences. One was a comment by Mr Peter FitzSimons; the other a report about an “anti-Muslim” banner being flown at a football game.

1. Peter FitzSimons

Peter FitzSimons, sports and general social commentator, is well known in Australia for his opposition to religion generally. In two articles this week he commented on the decision of a Mormon rugby league footballer, Will Hopoate, not to play or train on Sundays on the basis of his religious convictions about observing the Sabbath: see “Join me on a walk through the minefield of Will Hopoate’s decision not to play NRL on Sundays” (Sydney Morning Herald, 30 March 2016); and “The questions thrown up by Will Hopoate’s decision not to play in the NRL on Sundays” (SMH, 2 April 2016).

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Religious Ethos and Open Membership at Sydney University

A report in the student newspaper from the University of Sydney (Honi Soit, March 13, 2016) records that

The University of Sydney Union (USU) has threatened to deregister the Sydney University Evangelical Union (EU) from the Clubs & Societies program over the latter’s requirement that all members must make a declaration of faith in Jesus Christ.

In other words, a student religious group is being told that they may no longer be registered to use University facilities or receive the financial support other groups receive, because they make it a requirement of membership that someone support that religion. This is a very disturbing development for religious freedom at the University of Sydney, and especially if it presages similar developments around Australia. What is going on here? And is this move lawful, or not? 

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Islam, women’s seating and discrimination

In a very interesting recent decision, Bevege v Hizb ut-Tahrir Australia [2016] NSWCATAD 44 (4 March 2016), the NSW Civil and Administrative Tribunal has found that an Islamic group unlawfully discriminated against a female member of the audience for a seminar they were running, by requiring her to sit in a “women only” area.

In my view the decision is somewhat disturbing, and has the potential, if followed in the future, to undermine the appropriate recognition of religious freedom in NSW. The implications may extend beyond Muslim groups to a range of religious groups. 

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ALRC Freedoms Inquiry on Religious Freedom- Part 1

Today the Australian Law Reform Commission released its final report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129). I am planning on providing some comments myself, but in the meantime I am grateful to my friend Mark Fowler, from Brisbane law firm Neumann & Turnour, who has agreed to provide a very speedy overview of chapter 5 (on “Freedom of Religion”) by way of a “guest post” on the blog. Over to Mark:

General Summary

This update focusses on the findings at Chapter 5 – Freedom of Religion, which concern the extent to which Commonwealth law encroaches upon religious freedom within Australia.

Whilst various submissions to the Inquiry argued for the limiting or total removal of existing exemptions from the operation of anti-discrimination law granted to religious institutions, at paragraph 5.123 of the Final Report, the Inquiry impliedly refuted such submissions. It did this by linking a finding of no significant encroachment upon religious freedom to the ongoing presence of exemptions:

[T]here is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, especially given the existing exemptions for religious organisations.

The conclusion that there is no significant encroachment upon religious freedoms had been contested by various of the submissions made. However, the Report did note that there was a degree of community concern as to that encroachment and recommend that religious freedom protections be considered in any future reform efforts aimed at anti-discrimination laws (at paragraph 5.154):

[C]oncerns about freedom of religion should be considered in future initiatives directed towards the consolidation of Commonwealth anti-discrimination laws, or harmonisation of Commonwealth, state and territory anti-discrimination laws. In particular, further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions.

General Limitations Clause

The ‘general limitations clause’ approach is summarised by the Commission in the following statement:

A broader concern of stakeholders is that freedom of religion may be vulnerable to erosion by anti-discrimination law if religious practice or observance is respected only through exemptions to general prohibitions on discrimination. An alternative approach would involve the enactment of general limitations clauses, under which legislative definitions of discrimination would recognise religious practice or observance as lawful discrimination, where the conduct is a proportionate means of achieving legitimate religious objectives.

Whether such a clause would operate as an effective protection of religious freedom (including as a means to effect the applicable international instruments to which Australia is a signatory, including Article 18 of the International Covenant on Civil and Political Rights) will of course turn on its precise terms. The Inquiry’s Final Report provides at paragraph 5.111 an example of a general limitations clause, as proposed by Professors Nicholas Aroney and Patrick Parkinson:

  1. A distinction, exclusion, restriction or condition does not constitute discrimination if:
    • it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or
    • it is made because of the inherent requirements of the particular position concerned; or
    • it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or
    • it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.
  1. The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a).

Harmonisation of Commonwealth, State and Territory Laws to Protect Religious Freedom

Making reference to the potential for harmonisation across Commonwealth, State and Territory anti-discrimination laws, the Report notes that at ‘present all states, except New South Wales and South Australia, and both territories, have legislation making it unlawful to discriminate on the grounds of religious belief. The definitions of religious discrimination and the scope of exemptions differ. Commonwealth law does not make discrimination on the basis of religion unlawful’. We agree that this is an area warranting further consideration in reform efforts into the future.

Further Information and Next Steps

We continue to analyse the report, but thought this brief summary would be helpful. Further details of the Inquiry’s Final Report can be found online and general links are provided below:

The Inquiry’s Final Report does not represent a Government commitment to reform the law, however, many of the Commission’s past reports have been influential in driving law reform. The Australian Government has not a set a time frame in which to respond to the Inquiry’s Final Report or implement the recommendations.

Mark Fowler | Director, Neumann & Turnour Lawyers

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Free speech and the plebiscite (part 2)

An article in today’s press, “Call to suspend hate laws ‘disgraceful’: Gillian Triggs” reports comments of the Australian Human Rights Commission President Gillian Triggs on proposals to protect free speech in the same sex marriage plebiscite, which I commented on yesterday. As a number of the points made in today’s article were not dealt with in yesterday’s blog, I thought it might be helpful to provide a response. Readers should of course read the previous post first, to get the proper context.

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Protecting free speech in the Same Sex Marriage Plebiscite debate

An article in the The Guardian today, “Override hate speech laws to allow marriage equality debate, urges Christian lobby” reports that Lyle Shelton, managing director of the Australian Christian Lobby, has made proposals urging greater protection of free speech for those opposed to the introduction of same sex marriage in the forthcoming Australian plebiscite on the topic.

Of course, the reader will see that the Guardian headline and my summary of the proposals seem quite different. In its support for same sex marriage, the Guardian and those it quotes describe the ACL proposals as follows: the ACL wants to “permanently override anti-discrimination laws”; the ACL is said to need to justify why it wants to “breach anti-hate laws”; the laws in question are designed to “protect Australians from acts of hatred, vilification and incitement”; the ACL has an “intention to run an ugly and discriminatory campaign against marriage equality”.

I think the Guardian has slanted the ACL views unfairly. (Even more unfairly, the Sydney Morning Herald report on the story features a cartoon of an ACL representative complaining that they can’t be expected to make their case “without expressing hatred and bigotry”.) Let me suggest reasons why the ACL proposal, so far as can be ascertained from these press reports, sounds limited, moderate and sensible. 

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Churches offering sanctuary to asylum seekers

In a high-profile decision of the High Court of Australia yesterday, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1 (3 February 2016), a 6-1 majority ruled that the Australian government is entitled to continue its policy of detaining certain asylum seekers off-shore in the Pacific nation of Nauru. In recent days there has been a lot of publicity on this issue, especially in relation to a group of mothers and their babies and young children who have been receiving medical treatment in Australia, and will now have to be returned to the dreadful conditions in Nauru. Today a number of Christian churches went public with an offer of “sanctuary” for those who are supposed to be returned.

From one of the press reports, “Churches become potential flashpoint after offering sanctuary to asylum seekers in wake of High Court verdict” (A Gartrell, Sydney Morning Herald, Feb 4, 2016):

Ten Anglican churches and cathedrals have invoked the ancient Christian tradition to offer protection to the 267 people – including 37 babies – facing imminent transfer to Nauru after the court on Wednesday upheld the legality of the government’s offshore processing regime.

The movement is being led by the Anglican Dean of Brisbane, Dr Peter Catt, who has declared his St John’s Anglican Cathedral a place of sanctuary.

Dr Catt said if any asylum seekers sought sanctuary in his church he would do his best to keep the authorities out. He said he fully accepts that he and other clergy could be charged with obstruction and potentially even face possible jail time.

It seems worthwhile to comment briefly on the legal issues around “sanctuary” in Australia.

Background to the Law of “Sanctuary”

Most people are aware that church buildings in the past were a place of refuge, where some wrongdoers could seek sanctuary from arrest. As a number have noted, this idea no doubt had its roots in the Bible, where in the Old Testament there are some recorded references to people seeking sanctuary at the altar of the Temple (see 1 Kings 1:49-53, Adonijah, and 1 Kings 2:28-34, Joab; one was allowed to avoid punishment and the other, seen as a deliberate murderer, was not). The law of Moses also saw a system of “cities of refuge” (Joshua 20:1-6) where those who had committed what today would be called “involuntary manslaughter” could seek to flee from revenge at the hands of the family of the deceased. (For a careful discussion of these passages, and other material relating to Old Testament views of “asylum”, see Jonathan Burnside, God, Justice and Society (Oxford, 2011) at 265-270.)

In the early days of the common law of England, this was implemented by a system of sanctuary which applied in local churches in different ways. (For an overview of the history of legal sanctuary in Europe and elsewhere see L Rabben, Give Refuge to the Stranger (Left Coast, 2011), ch 3; for an analysis of the issue at common law see J H Baker “The English Law of Sanctuary” (1990) 2/6 Ecclesiastical Law Jnl 8-13.) With the growing power of the secular monarchy, areas where wrongdoers could escape the King’s justice were increasingly reduced, and in 1624 sanctuary as a common law doctrine was abolished by statute (21 Jam I, c 28, s 7).

Any legal operation of the doctrine, then, was well and truly removed from the common law before the European settlement of Australia, and not part of that law which was “received” into our system. In any event, the continuation of a law which gave special recognition to the status of church buildings was unlikely to have survived the process of Federation, where at least for the purposes of the Commonwealth, no “establishment” of religion was possible under s 116 of the Constitution.

Churches and Civil Disobedience

It seems likely, then, that members of a church who shelter someone who is supposed to be returned to Nauru may be guilty of an offence under s 233E of the Migration Act 1958 (Cth), subsection (3) of which provides:

 (3)  A person (the first person ) commits an offence if:

                     (a)  the first person harbours another person (the second person ); and

                     (b)  the second person is an unlawful non-citizen, a removee or a deportee.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

 While I am not aware of other Australian cases dealing with the meaning of this provision, or of “harbouring”, the general sense seems to be that of providing accommodation and support for someone who is breaking the law. In the United States a decision of the 9th Circuit US Court of Appeals, United States v Aguilar, 883 F 2d 662 (1989) found that a church which had engaged in support for illegal migrants was guilty of “harbouring” under a broadly equivalent provision of US law, 8 USC 1324. (For an article discussing the case, and others, while critical of the decisions, see E Breslin,

“THE ROAD TO LIABILITY IS PAVED WITH HUMANITARIAN INTENTIONS: CRIMINAL LIABILITY FOR HOUSING UNDOCUMENTED PEOPLE UNDER 8 U.S.C. § 1324(A)(1)(A)(III)” (2009) 11 Rutgers Jnl of Law and Religion 214-242.)

While churches usually acknowledge the importance of keeping the law (in line with the Biblical injunction in Romans 13:1), Christian history and the Biblical witness record occasions where their higher loyalty to God has to take precedence over obedience to civil authority. See for example Acts 4:18-21:

18 So they called them and charged them not to speak or teach at all in the name of Jesus. 19 But Peter and John answered them, “Whether it is right in the sight of God to listen to you rather than to God, you must judge, 20 for we cannot but speak of what we have seen and heard.”21 And when they had further threatened them, they let them go, finding no way to punish them, because of the people, for all were praising God for what had happened.

The reluctance of the authorities to punish the apostles, because of their popularity with the general public, is interesting, but the US examples noted above reveal that churches cannot always rely on the Government declining to prosecute!

The relevance of religious freedom

It might be argued, however, that a church determined to provide sanctuary was not necessarily breaking the law, if doing so was necessary to live out the commitments of their religious faith. Section 116 of the Commonwealth Constitution not only forbids the “establishment” of religion, but it also prohibits the Commonwealth Parliament from enacting a law “for prohibiting the free exercise of any religion”. I have discussed the protection of religious freedom on a number of other occasions on this blog previously: see here and here for material and links to a general overview. But this provision, while it has not been fully explored yet, might offer some protection for conscientious action by churches in this area. (I stress that this blog cannot provide formal “legal advice”, and so of course anyone wanting to act in this area should seek such advice from their own lawyer. But I offer here a possible scenario.)

It seems best to deal with what may be two immediate objections to this suggestion.

One would be to say that religious freedom protects a person’s right to believe, and perhaps their right to go to church, or a mosque, or a synagogue; but cannot over-ride a generally applicable law like the migration law. The short answer is that this is not the way a right to “free exercise of religion” operates. It is generally recognised in international law, and in other countries where religious freedom is protected, that it not only protects the area of belief and worship, but also provides at least some protection for action involved in living out one’s faith. In the main Australian case on the issue so far, Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, handed down at the height of World War 2 where it was thought that the Jehovah’s Witnesses organisation were undermining the war effort and so should be banned, the High Court of Australia stressed that religious freedom was a key human right recognised by the Constitution, and involved not simply internal belief but also everyday action. As Latham CJ said:

The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. (at 124)

 Now of course any human right must be balanced in the context of other human rights. The way that Latham CJ put it was that Commonwealth laws must not “unduly” interfere with religious freedom (at 128). In the context of that decision, the court deferred to the Commonwealth Government’s views on what was necessary for national security in the midst of the war, and would have upheld the relevant provisions if they had otherwise been valid. But the case stands squarely for the proposition that this sort of balancing process is necessary.
Another objection to seeing the offering of sanctuary to refugees as a part of an exercise of religion might be that not all churches agree that this is an appropriate response to the situation. It might be said that offering sanctuary is not “required” by the Christian faith. Again, the short answer to this is that protection of religious freedom does not simply extend to parts of a faith that are universally agreed on by all members of the religion. Cases from around the world demonstrate that so long as a belief is genuinely motivated by a sincere religious faith (and the religion itself is not a “sham” or a “hoax”), then it can be taken into account and the balancing process needs to be undertaken.
This can be illustrated from the 2013 decision of the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37, where the Court held that Ms Eweida’s religious freedom had been unduly impaired by a directive from her employer, British Airways, that she not wear a cross at work. It was conceded that not all Christians saw the wearing of a cross as “mandated”, but Ms Eweida’s belief that she should do so was sincere and a part of a tradition in Christianity that would be protected. No doubt churches offering sanctuary could point to strong arguments from the Bible, including the command to love one’s neighbour, as supporting their offers, especially given the emerging evidence of the serious harm to which asylum seeker children in particular are exposed on Nauru, both in terms of the risk of physical and sexual assault, and the danger to long term psychological well-being.
So, these two objections do not mean that an argument based on religious freedom could not succeed. But of course there are still a number of hurdles to be overcome. A court asked to decide the matter would need to address the question whether a prosecution of a congregation for its religiously motivated decision to provide sanctuary to an asylum seeker was an “undue” infringement of its religious freedom (or, which is probably the same question here, the religious freedom of its members.) My previous papers noted above discuss the relatively few cases where this issue has been addressed in the past in Australia, not always satisfactorily.
There is one suggestion that may point to a way forward. In a previous post I noted that the High Court, in the decision of McCloy v New South Wales [2015] HCA 34 (7 October 2015), set out a detailed scheme for addressing the question of whether there had been a breach of the “implied freedom of political communication” found under the Constitution.  In a later post on another case, I suggested that the “McCloy schema” could be adapted to this question of undue infringement of religious freedom. There I suggested:
now that the High Court in McCloy has set up a careful scheme for balancing the implied freedom of political speech with other important social values, it may well be open to applying the McCloy tests, and in particular the questions of “proportionality”, to consideration of what is, after all, an explicit constitutional freedom in s 116. In fact my colleague Dr David Tomkins, in a helpful overview of the McCloy decision (“Developers, Election Funding and the Implied Freedom of Political Communication: the HCA weighs in” (Dec 2015) Law Society Journal 88-89), has suggested that indeed this is one direction that might be taken in the future. Such a balancing process, which gives weight to the importance of religious freedom and the need to only over-ride it in very limited circumstances, would in my view be a positive development.
This would involve a Court considering not only whether the aim to be achieved by the particular provision was a legitimate aim, but also whether the over-riding of any religious freedom considerations was a “proportionate” method of achieving such an aim. It would at least be a matter worth considering.

Conclusion

It is not known yet whether the offer of the various churches to provide sanctuary will be taken up, and if so the attitude of the Commonwealth Government. It is worth noting that, while there does not seem to have been a strong tradition of this in Australia previously, other countries have experienced the phenomenon and dealt with it in different ways. A very useful article by Canadian Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law” (2009) 26/1 Refuge 43-56 discusses the Canadian experience and some of the issues that subsequently arose. One interesting issue he raises is that, when offering sanctuary became a well-established practice, churches had to develop a “screening process” to decide who, among the many candidates, would be offered sanctuary. In doing so, as he points out, they often replicated the sort of process adopted by the Canadian government in deciding who should be granted refugee status. These sort of issues will need to be considered by Australian churches as well, should it become necessary to proceed in this direction. (For those who are interested, there is a Canadian website at http://sanctuarycanada.ca with a lot of interesting material based on the experience of Canadian churches.)

The churches have been warned, both by legal experts and by the Immigration Minister, that they may face criminal sanctions if they go ahead with their proposals. They may respond that the law recognises their right to free exercise of religion, and that as a result they are not disobeying the law. They may accept that they are in breach of the law but choose to go ahead in obedience to a higher law. Complex issues may arise as to who is to be offered sanctuary, and for how long, and whether this will undermine an overall policy which some see as more humane in the long term. But in any event their willingness to stand up and risk their own comfort and safety for the rights of “little ones” who are loved by their Lord Jesus (see Matthew 19:13-14) seems thoroughly commendable.

Update: I have prepared a slightly updated version of these comments in a paper I presented on March 4, 2016 to the Newcastle Lawyers’ Christian Fellowship. The paper contains more details on the background to the law of sanctuary and some more recent comments on the issue from churches. It can be downloaded here.

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Heartbreak, Humiliation and a Death Certificate

“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

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Wedding Venue Owners Fined for Declining Same Sex Wedding

In the latest in what seems like a long series of religious freedom cases involving Christian small business owners in the “wedding industry”, a New York couple, the Giffords, have been fined $13,000 for declining to make their venue available for a same sex wedding ceremony, and a New York State appeal court has now upheld the verdict: see Gifford v McCarthy (NY Sup Ct Appellate Divn, 3rd Dept; 14 Jan 2016; matter no 520410) (the case is also referred to as Gifford v Erwin).

Facts of the case

The Giffords run Liberty Farm in Schaghticoke, Rensselaer County. A large barn has been used as a venue for weddings, where they provide all the services needed except a celebrant. As reported by the Gifford’s lawyers, Alliance Defending Freedom (ADF):

On Sept. 25, 2012, Melisa McCarthy called Cynthia, inquiring about the use of the farm for her upcoming same-sex ceremony. Because of her Christian faith’s teachings on marriage, Cynthia politely made it clear to McCarthy that she and her husband don’t host and coordinate same-sex ceremonies but left open the invitation to visit the farm to consider it as a potential reception site. Instead, McCarthy and her partner filed a complaint with the Division of Human Rights. After the agency ruled that the Giffords were guilty of “sexual orientation discrimination,” it fined them $10,000 plus $3,000 in damages and ordered them to implement re-education training classes designed to contradict the couple’s religious beliefs about marriage.

A New York statute, the Human Rights Law, declares it to be an “unlawful discriminatory practice” for any “owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the . . . sexual orientation . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof” (Executive Law § 296 [2] [a]).

Was the booking declined on the basis of sexual orientation?

The Giffords argued that they had not declined the booking “because of the sexual orientation” of the parties, but because as Christians they could not support the celebration of a same sex “marriage”, believing it to be contrary to God’s word in the Bible. In other words, their refusal was on the basis of the message of celebration that would be conveyed by the event, in which they would have to be intimately involved as hosts of the venue.

The ADF draw a helpful analogy to a different set of facts. As they note, the

law does not require the Giffords to coordinate or host every event that a person…requests. For example, if the infamous Westboro Baptist group asked the Giffords to host an event that would express their false message that God hates people in same-sex relationships, the Giffords would not be discriminating based on religion if they declined the event because they did not want to host expression that violates their belief that God loves everyone…. The statute does not require that they treat all messages equal.

Note that this case, like others of its nature, is not about a right to decline to provide services to gay people because of some form of unreasoned hatred. Instead, the question of whether a service provider whose work is essentially artistic and creative, should be required to use their skills to provide support for, and celebration of, a message that they find clashes with their deep religious commitments.

But the court rejected this argument. Peters PJ, with whom the other judges concurred, said (at pp 6-7):

Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected (see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of the Law v Martinez, 561 US 661, 689 [2010]; Lawrence v Texas, 539 US 558, 575 [2003]; Bob Jones Univ. v United States, 461 US 574, 605 [1983]). The act of entering into a same-sex marriage is “conduct that is inextricably tied to sexual orientation” and, for purposes of the Human Rights Law, we hold that there is “no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct of publicly committing to a person of the same sex” (Elane Photography, LLC v Willock, 309 P3d 53, 62 [Sup Ct NM 2013], cert denied ___ US ___, 134 S Ct 1787 [2014]; accord Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015]). Accordingly, petitioners discriminated on the basis of sexual orientation when they refused to host the McCarthys’ wedding on the premises. (emphasis added)

Readers of past blog posts here will recall some of these cases. In a general post on the “wedding industry” cases I mentioned the Elane Photography decision cited above, which was one of the first where a State Supreme Court upheld a ruling that a Christian wedding business (there a photographer) was guilty of sexual orientation discrimination by declining to offer their services to a same sex wedding. In that post I mentioned the decision in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015), involving a florist. The Masterpiece Cakeshop decision noted above involved refusal to create a wedding cake celebrating a same sex marriage, as did the decision in  Re Klein dba Sweetcakes by Melissa and anor (Commissioner of the Bureau of Labor and Industries, State of Oregon; Case Nos 44-14, 45-14; 21 April 2015) mentioned in this post. Outside the US, in Northern Ireland the Ashers Bakery case mentioned in this post is still before the courts- an appeal is to be heard from February 3.

A common theme in all these decisions is the view that a decision not to provide artistic and creative support for a same sex wedding must amount to discrimination against the persons involved on the basis of their sexual orientation. This is a view which I have suggested is wrong, and in a previous post about an Australian decision, “Sexual orientation and sexual behaviour: can they be distinguished?” I noted that there is at least one court ruling that supports my view. In Bunning v Centacare[2015] FCCA 280 (11 February 2015) the judge commented at para [39] that

“sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

I have also noted previously one US decision recognising the difference, in  Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), where a T-shirt printer escaped liability for declining to print a shirt with a message supporting “gay pride”.

The forthcoming Ashers Bakery case may provide the best opportunity for a superior court to clearly distinguish between support for a “message” and discrimination against a person themselves; the cake in that case was not going to be used at a wedding, but simply as a political statement, and may provide a good chance for the appeal court to stress the distinction between these things.

A religious freedom defence?

To return to the Gifford decision, having found the act of declining to offer their premises amounted to sexual orientation discrimination, the court went on to consider whether the Giffords, whose reason for not wanting to make the premises available related to their religious commitments about the nature of marriage, could rely on a defence based on religious freedom.

Unfortunately the discussion of this point followed the pattern familiar from most of the previous decisions. A claim that the discrimination law amounted to a breach of the Gifford’s “free exercise of religion” guaranteed by the First Amendment to the US Constitution, was rejected on the basis of the currently accepted Supreme Court orthodoxy of Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872, 879 (1990), holding that:

a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment (quoted at p 8 of Gifford)

The local New York version of “free exercise” was held to require a “balancing” of interests, and given the “strong” protection against discrimination under NY law, the court found that the interests of the Giffords were not strong enough. They retained the right to “believe” what they will! A generous concession, but not of course what religious freedom calls for. “SDHR’s determination does not require them to participate in the marriage of a same-sex couple”, Peters PJ said; though since their normal practice was to be heavily involved in all aspects of the ceremony and reception except for the actual celebration, her Honour does not quite explain how this was supposed to work.

A free speech defence?

The court also briefly addressed a “free speech” argument derived from the other limb of the First Amendment, the Giffords having argued that compelling them to host and organise a same sex wedding required them to impliedly assert their support for the institution. As the court summarised their point (at p 10):

petitioners maintain that wedding ceremonies are “inherently expressive event[s]” and that, by hosting a same-sex ceremony on the farm, the Giffords would effectively be communicating and endorsing messages about marriage that are antithetical to their religious views on the issue.

An argument I think that has a lot of weight. Clearly the very point of a wedding ceremony is the “celebration” (in the broad sense) of the relationship by the guests. But according to Peter PJ (at pp 10-11):

reasonable observers would not perceive the Giffords’ provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage…the conduct allegedly compelled is not sufficiently expressive so as to trigger First Amendment protections.

What “reasonable observers” would perceive does not seem to have been the subject of evidence; the court presumably takes “judicial notice” of the perceptions of “reasonable” members of the New York public in the relevant part of the State.

How might the matter be decided in Australia?

Interestingly there have been no reported cases of this sort arising in Australia yet. In theory such a case might be brought. There are laws at both State and Federal levels prohibiting sexual orientation discrimination in provision of services, and the balancing provisions explicitly recognising religious freedom interests are mostly confined to “religious organisations” such as churches and church schools, and do not directly extend to believers conducting a small business generally.

In fact there is one major Australian decision dealing with a somewhat related issue, the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Services Limited [2014] VSCA 75 discussed here and in papers linked from that post. While that case involved the provision of camping services rather than wedding services, there are a number of similarities: the event in question was clearly conveying a message contrary to the religious beliefs of the business owner (the camp was avowedly about “normalising” homosexual activity), and the business owner was said (by the court) not to be a religious organisation. Sadly the same logic used in many of the US decisions noted above was adopted by the majority of the court: refusal of the booking on the basis of support for homosexuality was held to amount to discrimination against the persons involved. There was not even a plausible religious freedom argument involved, as in Australia the protection of s 116 of the Constitution only applies to Federal laws, not to State laws; and at the relevant time the Victorian Charter of Rights which includes at least a nominal religious freedom right was not in force.

Given the increased recognition in recent years of an implied “freedom of political speech” in the Commonwealth Constitution, it is possible that free speech arguments might be made. One could argue, for example, that the question of expressing support, or not, for the institution of same sex marriage is very much a hot “political” topic in Australia at the moment, and that a law which imposed expression of a particular view on the matter contravened the Constitutional prohibition on impairment of free speech on such matters. However, this is so far an untested area in Australia.

For reasons canvassed in my previous papers I believe the Cobaw decision was deeply flawed; unfortunately the High Court of Australia declined to consider its correctness when invited to do so. In my view if a “wedding industry” case were to arise in Australia the principles in Cobaw ought to be reconsidered, and the important value of religious freedom given much more weight than it has been so far, either in Australia or the United States.

neilfoster

Prohibiting Offensive Sermons

A recent decision in Northern Ireland, where an evangelical preacher was acquitted after being criminally charged in relation to a sermon attacking Islam, raises a number of important issues about free speech in a religious setting. 

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