Author: neilfoster

neilfoster

Schools, Scripture and Book Banning in NSW

There has been quite some concern in Christian circles in my home State of NSW over the last few days, over bureaucratic action to “ban” some books from being used in Special Religious Education classes. While events are still unfolding (the relevant Department has so far made no general public comment on the matter, which seems to be promised for the coming week), it seems worthwhile to set some of this dispute in legal context.

Schools and the Separation of Church and State in Australia

Perhaps it is best to start off with the background in NSW, and in Australia, on the question of the relationship between “church and state”. That is because many even in Australia have the impression that all Western countries have erected a high “wall of separation” between the two spheres, getting that impression from US TV shows and comments from the US on the internet.

The fact is that even in the United States the theory that there is this high wall (said to be mandated by the First Amendment to the US Constitution, which says that “Congress shall make no law respecting an establishment of religion”) has been seriously challenged by many scholars. Still, the effect of the “establishment clause” in the US has been felt in decisions holding that there can be no public prayer offered in public schools, for example.

But, while s 116 of the Commonwealth of Australia Constitution seems at first glance to be similar, there are a number of important differences between the way that the Australian provision has been interpreted by the courts here, and the reading of the US First Amendment offered in that country.

Section 116 provides, on this issue:

The Commonwealth shall not make any law for establishing any religion..

The history of interpretation of the provision makes it clear that, unlike the US, this is not a prohibition on State, as opposed to Federal, action (so in theory a State is free to even “establish” its own religion, although in fact such a decision would not be politically acceptable today.) In addition, the important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.

The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools. This has been regarded as the settled meaning of the term for many years, which is presumably why, for example, when the “school chaplaincy” scheme was challenged in the High Court over the last few years, those making the  challenge did not even attempt to argue that the “establishment” clause was breached by the Government providing funding to private religious organisations to allow the placement of “chaplains” in Government schools. (The cases challenging the scheme, Williams v Commonwealth [2012] HCA 23, (2012) 86 ALJR 713 and Williams v Commonwealth of Australia (No 2) [2014] HCA 23, were successful in that they led to the Court declaring the schemes invalid as then constituted. But the invalidity was on the grounds of the direct funding arrangements that had been adopted, not on a breach of s 116, despite some inaccurate press reports of the decisions.)

(It is of course possible that in the future the High Court might give a slightly broader reading of Australia’s “establishment clause”. Those with an interest in the academic issues can see some very interesting analysis and suggestions along these lines in some recent articles:

  • Barker, Renae “A Critical Analysis of Religious Aspects of the Australian Chaplaincy Cases” (2015) 4 Ox. J Law Religion 26-53
  • Beck, Luke “Dead Dogs? Towards a Less Restrictive Interpretation of the Establishment Clause: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)” (April 18, 2013), available at SSRN: http://ssrn.com/abstract=2253260
  • Beck, Luke “THE ESTABLISHMENT CLAUSE OF THE AUSTRALIAN CONSTITUTION: THREE PROPOSITIONS AND A CASE STUDY” (2014) 35 Adelaide Law Review 225-250
  • Mortensen, R “The Establishment Clause: A Search for Meaning” (2014) 33 Uni of Qld Law Jnl 109-129

But unless and until some change happens, the view summarised here is the current interpretation.)

Banning books in “Scripture” classes in schools

So we come to “Scripture” in schools, the popular name for what is formally designated “Special Religious Education” or “SRE”. For some years the law of NSW has required that a small amount of time be set aside each week in public schools for SRE. It is a voluntary system, in that parents are free to remove their children from the classes if they so choose. It is not meant to be general information about the concept of religion and “world religions”- that is “General Religious Education”, to be provided by the ordinary class-room teacher. (Under s 30 of the Education Act 1990 that is classified as part of the “secular education” which is to be provided by the schools.) But s 32 of the Act allows representatives of various religions to come into the schools and provide religious instruction from their own faith perspective, to children whose parents are willing to allow this.

32 Special religious education

(1) In every government school, time is to be allowed for the religious education of children of any religious persuasion, but the total number of hours so allowed in a year is not to exceed, for each child, the number of school weeks in the year.

(2) The religious education to be given to children of any religious persuasion is to be given by a member of the clergy or other religious teacher of that persuasion authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(3) The religious education to be given is in every case to be the religious education authorised by the religious body to which the member of the clergy or other religious teacher belongs.

(4) The times at which religious education is to be given to children of a particular religious persuasion are to be fixed by agreement between the principal of the school and the local member of the clergy or other religious teacher of that persuasion.

(5) Children attending a religious education class are to be separated from other children at the school while the class is held.

(6) If the relevant member of the clergy or other religious teacher fails to attend the school at the appointed time, the children are to be appropriately cared for at the school during the period set aside for religious education.

In general, SRE has been an accepted part of life in NSW schools for many years. But recently there have been voices expressing opposition. One development saw complaints by parents who withdrew children from SRE classes, that they were not doing useful work. The suggestion was made that there should be an alternative class offered in Ethics, from a non-religious perspective. This has been happening, authorised by s 33A of the Act, where it is “reasonably practicable” to offer the alternative class. (This will usually depend on there being motivated and qualified local volunteers willing to take the classes.)

But a more recent development has seen a campaign to remove SRE from public schools altogether. It seems these latest events are part of this campaign.

A press report of Wednesday May 6 suggested that a textbook being used in SRE promoted the messages of “sexual abstinence outside a “lifelong relationship” and the doctrine of male headship and female submission.” That a Christian organisation should want to present standard features of Christian doctrine which have arguably been there in the Bible for millennia seems to have been a surprise to some of those quoted. The book which was most strongly challenged was one called Teen Sex by the Book, produced by Patricia Weerakoon, a highly qualified Christian sex expert and lecturer on the topic at the University of Sydney. This book was not, in fact, actually on the official reading list for SRE classes. It was published by the same organisation that published the SRE materials, but it was not an SRE text. Yet the article misleadingly suggested, if it did not quite state, that it was part of the formal curriculum. A representative of a lobby group was quoted:

“We call on the (DEC) to remove all of these materials from schools immediately and conduct a parliamentary review into how this damaging curriculum was able to become available to SRE teachers,” she said.

Few who read the article would have predicted how alarmingly quickly this call was to be heeded by an apparently compliant Department of Education and Communities, the body responsible for schools. On Thursday May 7 it was reported that SRE teachers arriving at schools to teach their classes were abruptly informed by local school principals that the Department had sent around a warning about three books: one of them the Teen Sex book, and two others: You, by Michael Jensen, and A Sneaking Suspicion, by John Dickson. Both of these authors are currently serving Anglican rectors but also well-known Christian authors. (Actually there was some confusion as to whether the books themselves were to be “banned”, or the study guides which accompanied the books, but the intention seems to have been to ban both.) It is still as I write not precisely clear why the two latter books were targeted, although the most obvious reason is that they formed the basis for some of the courses taught to high school students, and generally supported Christian morality on sex.

This sudden censorship was, frankly, astonishing. As far as can be determined from the authors concerned, and from the body administering SRE on behalf of the Anglican church in Sydney, there had been no consultation or discussion on the matter. An extract from one of the emails received by the schools says that:

SRE-directive

The letter then continued:

SRE-directive2

It seems likely that this action was contrary to the way that the SRE system was meant to work. As noted above, s 32(3) of the Act specifies that it is the religious education provider which is to determine the content of what is offered in these classes. The Department’s internal policy says:

NSW DEC Religious Education Policy

§1.3 Curriculum for general religious education is provided as part of the Board of Studies NSW syllabuses.
Curriculum for special religious education is developed and implemented by approved providers.

Another Departmental document indicates:

Responsibilities of providers

Lesson content

It is the responsibility of an approved provider to:
• authorise the materials and pedagogy used by special religious education teachers
• provide an annual assurance to the NSW Department of Education and Communities that authorised teachers are only using materials and pedagogy authorised by the provider
• make lesson content accessible on a website or at least provide a program outline and curriculum scope and sequence documents

In other words, the content of lessons and how they are taught are meant to be the responsibility of the SRE provider, not the Department! It can hardly be supposed that with all these responsibilities carefully set out, the intention of Parliament, or even of the Department, was to allow a single bureaucrat to decide without warning to “ban” the use of certain texts in response to a one-sided press report, with no consultation. Yet this seems to be what has happened.

It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be. While one can perhaps imagine that a prescribed text which urged, for example, believers to immediately wage war on, and kill, unbelievers, could be the subject of such urgent action, it beggars belief that matters of Christian morality which have been taught for millennia could overnight have become so immediately harmful that they had to be withdrawn without due process and opportunity for explanation.

Even if this odd decision is rescinded, the very fact that someone in the bureaucracy could contemplate that this was a lawful action says much about the change in perception of issues of morality in recent years. As I have already noted elsewhere, we have gone in a short space of time from the church and its teaching on appropriate sexual relationships being thought merely “old-fashioned”, to these views being painted by many as positively evil. Hopefully the very extreme action that was taken here will cause many in the community to reflect on the merits of these issues once again.

For further comments on these events, see here and and interview with one of the authors, here. I will aim to update this post if there are further developments.

neilfoster

Employment status of clergy

An important recent decision of the Court of Appeal in England and Wales, Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 (30 April 2015) deals with the issue of the “employment status” of members of the clergy. Is a rector, or a priest, or a pastor, or an imam, an “employee”? If so, who exactly is their employer: the local congregation? the governing board of the congregation? a bishop? the local diocese? These are important issues which are mentioned in the case.The question may be important for a number of reasons: for example, for the rights of members of the clergy who believe they have been wrongly dismissed, or the rights of members of the public to take an action against the church or religious body, which may depend on the whether the cleric is an “employee” or not.

The answer offered in England will not be precisely the same as the answer in Australia, but there are many similarities. In this note I will deal with the situation of Christian ministers primarily, although the same issues can be raised in relation to other religions.

In most situations where the question of whether or not someone is an employee has to be resolved, the standard Australian common law tests will provide the answer as to whether someone is an employee or not: ie the “control” test, the Stevens v Brodribb (1986) 160 CLR 16 indicia as supplemented by some of the considerations discussed in more recent cases such as Hollis v Vabu (2001) 207 CLR 21. However, the situation of clergy is unusual and warrants more detailed comment.

In the main Australian recent case in this area, Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 the majority judgment pointed out that even within the broad Christian tradition, practices and terminology may differ vastly:

[7] No assumption can or should be made that the organisation or institutions of the church and community in and with which the appellant worked in Australia was necessarily similar to the organisation or institutions of the churches of the western or Latin tradition. To take a seemingly small example noted by the Industrial Magistrate, the witnesses before him spoke of the “consecration” of priests but the “ordination” of bishops, reversing the customary usages of the western or Latin tradition. This is no more than one example of the error that may be made if there is an unthinking application of the practices of one tradition to another. Especially is that so if the questions concern the structures of church governance, the relationship between clergy and laity, or the relationship between the community and whatever may be the group or institution that is identified by that community as the “church”.

The difference there referred to was that between the “Western” branch of Christianity (which, until the Reformation owed allegiance to the Pope, the Bishop of Rome) and other “Eastern” versions such as the Greek Orthodox Church, which was being discussed in that case.

The decision in Ermogenous provides an excellent overview of this whole area for Australia, and we may take the different categories discussed there as a guide to some of the different options for legal recognition of the status of clergy. Broadly speaking, the position of a minister of a church may be seen as (1) not governed by legal principles at all, as purely “spiritual”; (2) governed by law but as a public law “office” rather than as a contract; (3) established as a contract but under the category of “independent contractor”; or (4) set up as an employment contract.

(1) The relationship may be purely “spiritual” and not intended to create legal relations

In some circumstances the courts in the past have concluded that the role of the minister in charge of a local congregation is simply not intended by either party to create obligations that are enforceable by the “secular” legal system at all.

Most of these cases have come not come from the “established” church in the UK; as we will see cases involving the Church of England or the Church of Scotland raise slightly different issues and are usually regarded as at least “legal”. But there are cases where the courts have found that the “spiritual” nature of the duties concerned mean that (on the classic contractual analysis) there was no “intention to create legal relations” include, for example, President of the Methodist Conference v Parfitt [1984] 1 QB 368, Rogers v Booth [1937] 2 All ER 751, and Davies v Presbyterian Church of Wales [1986] 1 WLR 323.

These decisions were followed in NSW in Reverend Howard Ian Knowles and The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 (22 April 1999), holding that a minister of the Anglican church was employed on a “spiritual basis”.

A number of decisions to similar effect are cited by the High Court majority in Ermogenous at [19], as relied on by the Full Court of the Supreme Court of SA in its decision. The facts of Ermogenous are that Archbishop Ermogenous had been engaged (to use a neutral word) by the Greek Orthodox Community of SA Inc (an incorporated association) to undertake a range of duties, which included acting as Archbishop of the Greek Orthodox Church in SA, conducting religious services and carrying out other clerical duties. Having been removed from his position in 1994 after working in it since 1970, he claimed that he ought to have been paid annual leave and long service leave owed to him as an employee of the Association.

The Industrial Magistrate at first instance found in favour of the Archbishop, and a judge of the Industrial Relations Court of South Australia upheld this decision. But on appeal to the Full Court of the Supreme Court of SA, the decision was overturned on the basis that there was a long-standing “presumption” that a church and clergyman did not have “intention to create legal relations” under contract law.

The decision of the High Court was that in general it was no longer appropriate to rely on such a presumption (or indeed on other “presumptions” relating to “intention” in this area), and hence that the matter had to be sent back to the Full Court for further consideration of the actual intention of the parties in the relevant circumstances. There were a number of features of the case pointing to the parties all believing that legal obligations were involved, including PAYE deductions and reference to the Archbishop’s “salary”. (See below where we discuss the difference between “salary” and “stipend”.)

The Court also noted that the Association had a high degree of control over the decisions of the Archbishop, even those of a “spiritual” nature- see [17]. Hence the need to revisit the question. In the end, having looked at the matter again, the Full Court on remittal from the High Court held that there was no sufficient reason to overturn the decision of the Industrial Magistrate at first instance, and hence the outcome of the litigation was that the Archbishop indeed was an employee of the Association- see Greek Orthodox Community of SA Inc v Ermogenous [2002] SASC 384 (26 November 2002). Still, as Doyle CJ said, the facts of the particular case were fairly unusual, and it would not be appropriate at all to conclude that henceforth all clergy in Australia were employees.

[9]The issue of whether the contract between the appellant and the respondent is one of employment is not an issue that warrants the grant of leave to appeal. The issue involves the application of well established principles. Although well established, their application to particular circumstances can give rise to difficulty. If anything, that is a reason for caution in granting leave to appeal to raise such a point. Admittedly, the circumstances to which those principles are to be applied in the present case are out of the ordinary. But, to my mind, no general principle will be established in this case for cases involving a contractual relationship between a minister of religion and a church or an entity that in some way retains a minister to exercise his or her ministry. Each case will turn on its own facts, and the most that can be determined in this case is the correct application of the relevant principles to the facts of this case. And, for what it is worth, I think it likely that cases involving the key elements of this case are unlikely to occur at all often. In short, a grant of leave to appeal will involve a close examination of the application of established principles to particular facts, and will not lead to the establishment of any relevant or helpful general principle. That in itself is a reason not to grant leave to appeal, or to rescind leave to appeal. (emphasis added)

In cases where churches, and sometimes other institutions, have been concerned not to signal an employment relationship, sometimes the word “stipend” has been used instead of salary. The word has been regarded as implying a regular payment made for support that does not involve an obligation of “obedience” to orders of the person paying. One of the features of the relationship between a minister and the congregation in which they are placed, of course, is that it is unlike a traditional employment situation, since on most views of the matter, the minister is supposed to provide “spiritual leadership” of some sort, and not just take the orders of the members of the congregation. So, to take an example from the New Testament, see Hebrews 13:17:

 Obey your leaders and submit to them, for they are keeping watch over your souls, as those who will have to give an account. Let them do this with joy and not with groaning, for that would be of no advantage to you.

The view that congregational leaders or elders are to be respected and submitted to, of course, does not preclude the view that they ought to receive some money so that they can devote their time to the ministry (see eg Paul writing in 1 Corinthians 9:1-14.)

So the result of Ermogenous seems to be that in Australia, at any rate, it will not normally be assumed that a clergyman simply has a “spiritual” and not legal relationship with the body that engages him or her, or controls their work. Hence it is interesting to see that Mason P in Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 said:

[32] …[It is not] necessary to decide whether a priest in the Roman Catholic Church who is appointed to a Parish is an employee in the eye of the law or otherwise in a relationship apt to generate vicarious liability in his superior.

[33] Patten AJ observed (at [67]) that Lepore alone would not prevent the Trustees being directly and vicariously liable for a failure to institute and maintain proper systems and controls. I am prepared to proceed on a similar basis, although I would express it slightly differently so as to allow for the argument ventilated in this Court about a limited reading and application of Lepore. I shall therefore assume that there is factually and legally an arguable case that Father Duggan’s superiors in the 1970s (including the Archbishop of the day) might on some basis be vicariously accountable for his intentional torts. I shall also assume that members of the Church hierarchy (including the former Archbishop) who were responsible for Father Duggan’s appointment and supervision and for processing complaints of misconduct would arguably have been personally accountable in law for their alleged neglect. See generally Stauffer and Hyde, “The Sins of the Fathers: Vicarious Liability of Churches” (1993) 25 Ottawa Law Rev 561. It is wrong to see holding an ecclesiastical office as necessarily incompatible with a legal relationship capable of giving rise to some incidents of an employment relationship (see generally Ermogenous  v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28).

However, in the circumstances of Ellis it was not the previous Archbishop who was being sued, it was the current Archbishop, who had no connection with the priest at the time; and the Property Trust had no control over the priest’s actions and was clearly not his employer. So while this carefully worded paragraph leaves open the possibility of “some incidents of an employment relationship”, it by no means decides that priests all work under contracts of employment (or, indeed, under contracts at all.) And these concessions did not lead to liability of the Archbishop or the Property Trust in Ellis’s case. (For more comment on church liability for child abuse, see my previous post on this topic.)

The view that some ministers may have a purely “spiritual” and not “legal” relationship with their church is, however, supported by the a decision involving Methodist ministers in the UK, The President of the Methodist Conference v Preston [2013] UKSC 29 (15 May 2013). Some brief background in previous decisions is necessary, however, before we come to Preston itself. The case is part of a trio of top-level decisions in the UK concerning the employment of clergy, two of which involved the Methodist Church and one the Church of Scotland.

In President of the Methodist Conference v Parfitt [1984] 1 QB 368, the first decision, involving the Methodist Church (a “non-established” Protestant denomination having its origins in the ministry of John Wesley), the House of Lords held the minister concerned was not an employee. Reasons differed but at least one of the significant factors was the “spiritual” character of the work.

In Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 the plaintiff was an “associate minister” of the Church of Scotland (which is something like the “established” church in Scotland, and corresponds to what in Australia we would call the Presbyterian Church), and wanted to bring a sex discrimination claim under the relevant legislation. The legislation did not hinge on the standard “employee” criterion- it was a bit broader, referring to someone who “contracted personally to execute any work or labour”, and so the decision could be confined to that specific phrase. Nevertheless, the House of Lords reviewed the history of the employment status of clergy and explicitly held that there should be no “presumption” that a minister held a non-contractual position; that each case needed to be resolved by a careful review of the specific arrangements. In Ms Percy’s case the details of her job offer and other conditions meant that it was a contractual arrangement.

Finally, then, in Preston, the issue of Methodist ministers came up again. The Supreme Court did not directly depart from Percy, but it has to be said that the feel of the decision is quite different. The majority (Lady Hale dissented) looked carefully at the various documents and arrangements under which Ms Preston had been appointed as a Methodist minister in charge of a local church, and concluded that when viewed together they did not show a contract had been entered into. A candidate for the ministry had to be ordained by a Session of the church and was then “stationed” where the Church needed them to operate. Formally they could be sent anywhere they were required, the Church not needing their consent to the posting. They could not resign their “connexion” at will, needing permission of a central Church body. Their ordination was to a “life-long presbyteral ministry of word, sacrament and pastoral responsibility”- see [17].

The comments at [19] reflect the difference between “salary” and “stipend” noted above:

Section 80 of the standing orders provides for the “support and maintenance” of ministers. Under standing order 801, all ministers in active work and all stationed probationers are entitled to a stipend throughout their ministry, including periods of unlimited duration when they may be unable to perform their duties on account of illness or injury. In addition, they are entitled under standing order 803 to a manse to serve as a home and as a base for their ministry. Neither the stipend nor the manse are regarded by the Methodist Church as the consideration for the services of its ministers. They regard them as a method of providing the material support to the minister without which he or she could not serve God. In the Church’s view, the sale of a minister’s services in a labour market would be objectionable, as being incompatible with the spiritual character of their ministry. (emphasis added)

As noted previously, Lady Hale dissented. It has to be said, I think, that it is more likely that her Ladyship’s view would be followed in an Australian court, than that of the majority. As she notes, while it can be conceded that the work of a minister is of a “spiritual” nature, that is not inconsistent with there being legal relationships in place- eg see [36]. She also notes that it would be unthinkable that if a minister were denied payment of his or her stipend at all, or were threatened for no reason with eviction from their “manse” (church provided accommodation), that the courts would not come up with a legal remedy. While Lord Sumption (for the plurality) at [28] dismissed this argument as irrelevant to the present case, suggesting that probably some remedy would be found in the law of trusts, I think her Ladyship is correct to say that the existence of legal remedies in this area do point to a contractual basis for the arrangement.

So, in sum, the argument that clergy enjoy only a “spiritual” and not a legal basis of engagement may be supported in some cases; though it seems a bit hard to believe that an Australian court today would, in light of the comments in Ermogenous, rule the same way except in a very unusual situation.

(2) The position may be an “office” subject to public law, not private law obligations

Another possibility is that a clergyman might be viewed as the holder of an “office”. Lord Sumption probably provides the best recent overview of this concept in Preston at [4]:

 [The] distinction between an office and an employment… is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder. But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates [1912] 2 Ch 563. The position of other ministers was taken to be analogous. In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister “is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.” In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee. They held that his duties were derived from his priestly status and not from any contract. Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment.

In general it seems unlikely that cases in Australia would be decided on this “public law” basis, as neither the Anglican Church nor any other church is “established” in the sense that the Church of England is. Interestingly the High Court in Ermogenous did seem to use the word “office” in perhaps a more generic sense in the following comments:

[31] In the present case, any conclusion that the appellant was appointed to an office, let alone an ecclesiastical office, would depend upon the conclusions that are to be reached, first about who it was that appointed or engaged him, and secondly, about what was the entity or organisation within which the “office” existed. Both of those issues require consideration of the structures of the organisation in which the office is said to exist. In the Curates Case and in Paul those issues were readily resolved – by reference, in the former case, to the structures of a church by law established and, in the latter, by reference to the internal rules of the church under which the authority of an assistant minister derived from the licence given to him by the presbytery concerned. By contrast, the question for decision in the present matter required examination of whether “the church” was to be regarded as separate from the respondent and whether the appellant was appointed to an office identified and regulated only by the internal rules of that “church”. It should go without saying that those matters of church structure and governance may very well differ in the present case from those that exist in other churches and communities and that there can, therefore, be no automatic translation of what was decided in the Curates Case or Paul to the present. Whether a conclusion that the appellant had been appointed to an ecclesiastical office would preclude a conclusion that he served in that office under a contract of employment is a question we need not explore.

The final suggestion, that even in some sense a minister held an “office” under the internal rules of an organisation, that would not prevent the minister from being employed under a contract, seems to be the direction that the courts generally are leaning. Even in England, in Preston, Lord Sumption in the majority commented at [8] that “offices and employments are not always mutually exclusive categories”.

To similar effect is the conclusion of the English Court of Appeal in JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012). This is a decision some aspects of which I disagree with; but on the point of employment it seems to be right. The decision concludes that a Roman Catholic priest was not an employee of the local bishop- see eg:

 [29]       Although it is perhaps trite to say it, these cases appear to me to establish that the following approach should be followed:

(1) each case must be judged on its own particular facts;

(2) there is no general presumption of a lack of intent to create legal relations between the clergy and their church;

(3) a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract will be whether there is a religious belief held by the church that there is no enforceable contractual relationship;

(4) it does not follow that the holder of an ecclesiastical office cannot be employed under a contract of service.

[30]       Applying those principles to the facts in this case, I am completely satisfied that there is no contract of service in this case: indeed there is no contract at all. The appointment of Father Baldwin by Bishop Worlock was made without any intention to create any legal relationship between them. Pursuant to their religious beliefs, their relationship was governed by the canon law, not the civil law. The appointment to the office of parish priest was truly an appointment to an ecclesiastical office and no more. Father Baldwin was not the servant nor a true employee of his bishop.[5]

A similar outcome was held to follow in the recent case of Sharpe, mentioned above. The case involved the classic example of an “office” under English law, a “beneficed” clergyman. This meant that Rev Sharpe had not been simply appointed to his position by a resolution of the local Parish Council or decision of the Bishop; he was an “office-holder”, holding a “benefice”, which is a parish appointment under a system dating back many centuries in which a local land-holder, the “patron”, has the right to nominate a member of the clergy to the position in the parish. There is a fascinating review of the law of “advowsons” (an “advowson” was the old name for the right to nominate a clergyman to a parish) and how it has changed over the years in the judgement of Lewison LJ. He notes that:

Historically the incumbent’s income came from the glebe. Some benefices were richly endowed and gave their patrons considerable powers of patronage and advancement. In Pride and Prejudice Mr Collins fawns on Lady Catherine de Burgh because she had the gift of the living.

In the circumstances where Rev Sharp had only been appointed after nomination by the local “patron”, where he had signed no agreement with the Bishop or the Parish Council, and where most of his duties were prescribed by the law of the church rather than by agreement with anyone, the Court of Appeal held that he was not an employee, and indeed had no contract with anyone. He had legal obligations, flowing from ecclesiastical law, but no contractual obligations. Hence he was unable to rely on the provisions of unfair dismissal legislation relating to employees and “workers”, in complaining about events which led up to him being forced (as he said) to resign from his parish.

There is an excellent overview of the decision from Russell Sandberg on the Law and Religion UK blog which provides more details. He notes that the decision, while it reaffirms in the particular circumstances the unusual status of a beneficed clergyman, essentially reaffirms the approach which has developed in clergy employment cases in the UK in recent years: that there is no longer any broad “presumption” that a cleric cannot have a contract or be an employee; that the particular circumstances of each case need to be considered. He notes:

Twenty-first century cases have shown that ministers of religion can be employees: it all depends on the facts. This means that the traditional placing of ministers of religion on a list in employment law textbooks of those offices that are not usually regarded as “employees” is now questionable. Ministers of religion are now in the same position as anyone else who wants to prove employment status: they need to point to a contract of employment and, since at least Percy, it has been clear that the simple facts that they are “employed by God” or hold an ecclesiastical office would not on their own mean that they would not be found to be employees.

As we will see, this is now very close to the situation in Australia.

(3) The minister may have a contract, but not a contract of employment

The High Court of Australia in Ermogenous was very clear that a minister of religion may well operate under a contract, even if they have “spiritual” duties.

[37] That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract…

In the circumstances the High Court concluded that the Industrial Magistrate had been entitled to find that a contract was in place. They reserved their opinion on whether it was a “contract of employment” or not- see [46]- although as we have noted that issue was decided in favour of the Archbishop really by default because the Full Court on referral deferred to the Industrial Magistrate’s findings of fact.

Acknowledging that it seems likely that an Australian court would find today that a minister of religion was engaged under some sort of contract where there were formal arrangements in place for salary, tax, accommodation, etc, does this mean that all ministers are employees? In my view this is by no means the case. The fundamental “indicia” of employment still start with consideration of the notion of “control”. It may seem unlikely that a congregation that a minister was meant to be leading could be said to exercise “control”. Even denominational officers in general do not exercise a great deal of supervision over their ministers. So it seems to me unlikely that most ministers of religion would be regarded as employees.

Perhaps an example of this, although it is not precisely on this point, is the fact that in Sturt v The Right Reverend Dr Brian Farran Bishop of Newcastle [2012] NSWSC 400 (27 April 2012) Lindsay J, having referred to the cases discussed above, was not able to conclude on the evidence provided of “normal parish work” by the two priests concerned that they were employees of the Bishop. However, this was not crucial to the resolution of the case- the fact that the priests were not employees did not imply that their challenge to the disciplinary procedures could not be heard; that challenge proceeded on the basis that they had the equivalent of a “property” right in their office of priest, and hence had a sufficient interest to challenge the relevant procedures.

(4) The minister might be an employee

I said previously that I thought it unlikely that most ministers of religion would be regarded as employees. One decision of the Victorian County Court, however, goes against this view. In McDermid v Anglican Trusts Corporation for the Diocese of Gippsland & McIntyre [2012] VCC 1406 (20 December 2012) the issue was whether a priest working in the Anglican Diocese of Gippsland could sue either his Bishop or the Church Property Trust for statutory compensation for psychological harm he claimed to have suffered due to bullying. Success depended upon him establishing that he was a “worker” under the Accident Compensation Act 1985 (Vic).

The County Court Judge, O’Neill J, reviewed the arrangements for the priest to be licensed by the local Bishop. He agreed that the Property Trust, which arranged for payment of his stipend, could not be his employer as it exercised no control whatsoever over his appointment or activities- see [42]. His Honour also regarded as irrelevant the fact that s 12 of the Act allowed certain persons to be “deemed” to workers of a religious organisation if regulations were made. (To be frank, this alone in my view is reason to doubt the correctness of the decision. The section clearly seems to assume that at least some religious personnel will not be “workers” under the common law definition of employee. But his Honour said that it left open the option that ministers could be employees at common law.)

His Honour correctly cited Ermogenous and Percy for the proposition that clergy could be said to enter into a contractual relationship. However, having reviewed the circumstances of the appointment and the nature of the bishop’s relationship to the priest, his Honour concluded not only that there was an intention to enter a contract, but also that it was a contract of service which made the priest an employee- see eg para [80]. I must say that it seems to be that, while formally separating the two issues of “contract” and “contract of service”, his Honour could be said to run the two issues together very closely. My view would be that this decision is probably wrong.

In particular a problem can be seen from paras [81] ff: if the priest was an employee, who was his employer? It was not the Property Trust who paid him; it was not the Appointments Advisory Board, which had recommended his appointment to the Bishop. It was not the Bishop’s Advisory Board, nor could it be said to be “the Diocese” or “the local parish” – these were non-existent entities, of course, as unincorporated associations (all the Anglicans in Gippsland, or all the Anglicans in the area covered by the local parish.) While his Honour explicitly said at [85] that it was not “a process of elimination”, the fact is that the Bishop was the only other plausible legal person once the others were discounted!

Once a blind alley like this has been reached, it might be suggested that a wrong turning was taken a few corners ago. The difficulty in identifying an employer to my mind illustrates the problems with the conclusion that the priest was an employee.

This is not to say that the view might not be reached in some cases that a minister is an employee, of course. An example from the UK is the decision of the Court of Appeal in New Testament Church of God v Stewart [2008] ICR 282. This of course involved a non-established church officer and was hence much more amenable to a contractual analysis.

To sum up, in Australia at least it still seems likely that a cleric in charge of a local congregation will not usually be an employee. In churches where the local governing body is clearly a legal “person”, through incorporation, then if there are agreements in place it seems likely that there would be a contract, though usually not a contract of employment. In the “traditional” denominations there may still be some lack of clarity. A court would probably, however, be reluctant to conclude that obligations seriously entered into had no legal effect at all, and so would probably aim to find some entity whom it could hold responsible for carrying out duties such as payment and supervision. There will be increasing pressure in the future, no doubt, for even the major “episcopal” denominations to provide a clearly identified “legal person” who can assume responsibility for the actions of clergy.

neilfoster

Cakes, t-shirts and religious freedom- an update

A brief note about two decisions illustrating radically different approaches to religious freedom developing in the context of laws prohibiting sexual orientation discrimination, both from the United States.

One case, 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) is in the “genre” of the wedding industry cases I have previously commented on. The owners of a small-town cake shop were asked to make a wedding cake. When they discovered that this was for a same sex “commitment ceremony” (at the time same sex marriage was not legal in Oregon), they declined on the grounds of their Christian beliefs. Soon word got around, they were besieged by protests and in fact had to shut down their shopfront business. In this decision the Commissioner has ruled, on the basis of a previous finding of liability for sexual orientation discrimination, that they should pay $135,000 in damages to the couple concerned for “emotional suffering”.

The argument that the refusal to provide a cake was not based on the sexual orientation of the customers, but based on the fact that the cake was designed to send a message contrary to the shop-owner’s religious beliefs, was rejected. The Commissioner ruled that holding a same sex wedding ceremony was “inextricably linked” to the complainant’s sexual orientation, and “The Respondents’ refusal to provide a wedding cake for Complainants because it was for their same sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation” (p 38, lines 14-16).

Nor was a religious freedom argument accepted. Applying the US Supreme Court decision in Smith (1990), the law in question was a “valid and neutral law of general applicability” and hence the First Amendment “free exercise of religion” right did not assist- see e.g. p 57, lines 1-3. Oregon has no RFRA law designed to restore an earlier, more expansive, view of religious freedom.

The imposition of the fine by the Commissioner is subject to further review, and of course to a potential appeal. Interestingly, a public appeal for funds to pay the fine started on an internet site used for this sort of purpose before, but was then cancelled as the host of the site met complaints that the funds would be supporting “campaigns in defense of formal charges of heinous crimes, including violent, hateful, or sexual acts.” Presumably the act of politely declining to bake a cake was a “heinous” act of “hate”.

The other case could hardly be more different in outcome, though sharing many features with Klein. 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) a printer of T-shirts and promotional materials had declined to print advertising for a “Gay Pride” march. The company had been found by the Human Rights Commission to have discriminated against the local Gay and Lesbian Services Organisation in its refusal.

Judge Ishmael overturned the finding of discrimination. His Honour noted that the company had operated in accordance with the Christian principles of its proprietor for some years, and had declined a number of previous printing jobs on the basis of the messages being conveyed (for example, shirts promoting a strip club and others containing a violence related message- see p 9). He also noted that the former president of the GLSO, who had filed the complaint, does not identify as gay and is actually married to someone of the opposite sex. It was a particularly clear case where the refusal of the job was based on the message, and not the sexual orientation of the customer.

In reviewing the Commission’s decision the judge applied Constitutional principles as well as disagreeing with the finding of sexual orientation discrimination. The decision of the Commission was said to breach the company’s First Amendment freedom of speech, because the Commission was in effect requiring them to speak a message they did not support (see p 9). As his Honour said:

HOO’s declination to print the shirts was based upon the message of GLSO and the Pride Festival and not on the sexual orientation of its representatives or members. (at p 10, emphasis in original)

In addition, the Commission’s finding was a breach of religious freedom rights. Here the judge did not need to find his way through the barrier of the Smith decision, because Kentucky statute KRS 446.350 was a State-based version of the RFRA discussed in previous posts. This provision required a Government showing that a substantial burden on religious freedom could be shown to be in furtherance of a “compelling governmental interest” and was the “least restrictive means” to further that interest. Here there was a clear burden in requiring a Christian printing firm to support a message they saw as contrary to the Bible. (In light of the Supreme Court decision in Hobby Lobby (2014), the RFRA provision in referring to “person” should be read as including corporate persons like the company HOO- see p 14). The Government could not demonstrate why it was necessary to do this to further any interest it had- as the judge noted, the complainant organisation had no problems in getting their printing done by another company. (Indeed, HOO in its dealings with the GLSO had offered to find another company who would do the job at the same price that they would have charged, if the organisation had had any problems in doing so.)

Why the different results?

These cases offer similar situations: a commercial service provider who, because of their Christian beliefs concerning sexuality, cannot in good conscience provide their artistic talents to the support of a message favouring same sex relationships, and is alleged to be guilty of sexual orientation discrimination. In my view the second decision was correct, and the first decision ought to have been decided in a similar way. But there are differences that may have made a difference. The differences may lie in:

  • different complainants: in the Klein case homosexual persons, whereas in the HOO case the person requesting the job did not identify as gay;
  • different purposes for which the job was required: in the Klein case the celebration of a wedding between the parties, which of course carries all the sympathies of those who love weddings; whereas in HOO the issue is a public parade;
  • different degrees to which the issue is about “speech”: the HOO case looks to be all about a message, and the US courts are traditionally very keen to support free speech; the Klein case is about a form of speech, when analysed carefully (the celebration of a relationship), but appears on the surface not to be;
  • and the legislative context: it seems that this is one example where the presence of an RFRA made a difference- in Klein the Smith decision (which on top of everything else was about facts which arose in Oregon) receives priority, whereas in HOO the judge applies what is in effect the pre-Smith line of cases reflected in the local RFRA.

Still, it is good in my view to see a judicial decision recognising the strength of the free speech and freedom of religion arguments in these cases, and it may be hoped that this case provides support for a better analysis in other cases.

neilfoster

One step forward, two steps back: religious freedom, vaccination and RFRA’s

I couldn’t help noticing some disturbing features of the debates over religious freedom in the last few weeks. The pattern: a government body makes a decision to improve or uphold religious freedom, and for some reason it then does a “back-flip” so that we arguably end up worse off than before. The two examples: Indiana’s RFRA law and Australia’s guidelines on vaccinations.

Example 1- Indiana

Like many others interested in this area, I previously posted about the proposals to enact a Religious Freedom Restoration Act in the US State of Indiana. In brief, this law was part of a number of similar laws that had been enacted at Federal and State level to provide greater protection for religious freedom, in the face of a very narrow reading of the “free exercise” clause of the First Amendment to the US Constitution. (Incidentally, this week was the 25th anniversary of the decision setting up that narrow reading, Employment Division v Smith, marked by an excellent piece noting it as “Justice Scalia’s Worst Opinion“.)

The law was, as previously noted, the subject of a massive campaign against it in the media, and in the political sphere, with the spectre of mass boycotts of the whole State. (And the incredible tale of a small-town pizza store, the subject of “entrapment” by a local TV reporter, led to answer “No” to the question that presumably no-one had ever asked anyone before, “would you provide your pizzas to cater for a same sex wedding?” The resulting internet “firestorm” saw an online threat to burn down the store, along with a large amount of money donated to the store to encourage them to stay in business.)

The “pizza wedding” furphy, of course, arose because one motivation behind the enactment of increased religious freedom protection is an attempt to deal with the clash created when Christian bakers, photographers and florists are faced with penalties for not wanting to devote their artistic skills to supporting an institution they believe to be contrary to the Bible’s teaching on marriage and sex.

Here, however, is where the back-flip comes in. The Indiana government decided to amend the new law (not even in force yet) to respond to the online discourse that their act was a “license to discrimination against gays”. In doing so they have ended up, according to a number of commentators in the US, with a situation that now restricts religious freedom in this area to a greater degree that had previously been the case. Now the law will make it clear that Indiana citizens who have strong religious beliefs about support for the new institution of same sex marriage may not, apparently, choose to decline to provide their skills in support of this institution. Two steps back.

Example 2- vaccination in Australia

Again, I posted about this recently. The Australian Federal government has decided, to create more incentives for all parents to vaccinate their children against common childhood diseases, to withdraw key social security benefits from those who do not do so. Their initial announcement, which I applauded, included an exemption for those who had religious objections to vaccination.

Now we hear that this religious exemption will not be preserved. In fact the number of groups to whom it would apply was already very small- the main one seems to have been the “Church of Christ Scientist”, usually called “Christian Science”. There is an excellent review of religious objections to vaccination around the world here, which reveals that this and some parts of the Dutch Reformed Church are the only religious groups which can be plausibly said to have genuine religious objections to vaccination.

Even this author concedes, however, that an exemption granted to those with genuine religious objections could arguably be limited enough not to have a major impact on the “herd immunity” factor needed to protect those who cannot be vaccinated for health reasons.

A community can afford to have a small number of conscientious objectors to immunization. (at 2019)

In Australia it seems clear that the number of active members of the Christian Science church is small, around 1000. In fact, the press report noted above suggests that the leaders of the church in Australia had indicated that they no longer objected to their members being vaccinated. So it may be that in practice the new policy will not affect many people. But in my view it is a bad precedent. Australia’s constitution, s 116, requires the Commonwealth Parliament (and, by implication, guidelines and regulations made under authority of legislation passed by the Parliament) not to unduly impede the free exercise of religion. (See my previous post summarising religious freedom protections in Australia.) Withdrawal of a benefit of this sort, which many parents rely on, without allowing at least a theoretical exemption on religious grounds, arguably amounts to undue interference.

I am not so naive as to ignore the possibility that if such an exemption is available, those who object to vaccination on other grounds might try to misuse the provision by making false claims of membership. But as I noted in my previous post, there are clear ways that courts and government bodies can test such claims. Does the person have a history of attending meetings of this organisation before the relevant change of law? Will a respected leader of the organisation testify to their membership? Is there a plausible argument that this is indeed what the religion teaches? Is it a genuine religion? A religious exemption process would involve investigating these matters, but it would allow a better balance between religious freedom and community health concerns than a proposal to ignore religious freedom altogether. Again, we have moved from a situation where there was a religious freedom exemption, even if rarely relied on, to where there is now none. Two steps back.

Is there a lesson to be learned from these two examples? To be honest, I am not sure. Perhaps one clear message is that arguing for the preservation of religious freedom is difficult in a climate where many are cynical about religion, and where it is easy not to spend the time looking into the real harms being done to believers by sidelining their genuine concerns. Even where religious freedom has been gained one day, it can be lost very easily!

neilfoster

Vaccination and religion in Australia

This week has seen the Australian Prime Minister announce that the government will be cancelling some social security benefits for parents of young children who cannot show that the children have been vaccinated. From that report:

Parents who refuse to vaccinate their children will miss out on government benefits of up to $15,000 per child under a new measure announced by Prime Minister Tony Abbott.

Under current laws, families with children who are not immunised can still receive annual childcare rebates and other benefits if they have a personal, philosophical or religious objection.

Mr Abbott said the rules would now be tightened to only allow a small number of religious and medical exceptions.

This post will not be about the debates over vaccination; I have made my own views clear in a previous post dealing with claims for religious exemption in the US, that the science as far as I can tell is sound and that children ought to be vaccinated. But it has been interesting to see the responses to the “religious exemption” which the Government has made clear that it will retain. Some have complained that it is present at all. Others have lightly suggested that objectors will just “sign up” to some pretend religion to get the exemption.

In my view the Government has it about right here. On the one hand, there should be provision for a religious exemption. Arguably this would be consistent with s 116 of the Constitution, which supports “free exercise” of religion, and the case-law on that provision which says that it requires the Commonwealth not to impose an “undue” burden on religion. It would of course be possible to remove that exemption altogether if there were overwhelming public health reasons to do so, but my impression is that so long as the only people who are exempted are those with genuine religious reasons, then this will be a fairly small group, and the fact that their children are not immunised should not dramatically impact the desired “herd immunity” which is necessary for effective vaccination protection.

But on the other hand, to implement this policy and for that reason, the exemption should be one which is tested and shown to be genuine. In my view those who can take advantage of the exemption ought to be able to satisfy the following criteria:

  1. They are genuine adherents of
  2. a specific religion
  3. which provides plausible reasons from within its tenets as to why vaccination should not be allowed.

The requirement for “genuine” belief will be needed to exclude those who would simply “tick a box” and not have any real connection with the religion concerned. The “specific religion” requirement is simply to say that it is not good enough to claim a “generic” religious objection. And the “plausible” requirement means that someone who accepts the fundamental beliefs of that faith must be able to explain why its tenets lead to a demand for no vaccination, rather than just baldly assert that fact.

An example of a religious claim for exemption which justifiably failed can be found in the previous post I mentioned. There, as I noted,

the plaintiff who was denied a religious exemption, while she claimed she did so as a Roman Catholic, testified that she did not know of any tenets of Catholicism that prohibited vaccinations.

Interestingly, following the Prime Minister’s announcement, the Social Services Minister was asked which groups might be able to claim the exemption, and (sensibly I think) declined to be specific, on the basis that he didn’t want to generate a flood of false claims. Of course there will some who will still think that they can “beat the system”, either by making a false claim to belong to a genuine religion, or even by signing up to a “sham” one set up for evasion purposes. But the government should be able to weed most of these claims out by requiring relevant evidence of the existence of the religious group, and the fact that a claimant has been a genuine adherent.

Notice that I do not suggest that the government needs to be satisfied of the truth of the particular religion’s claims. That of course would be to go well beyond what a sensible policy of religious freedom requires. But testing the genuineness of a religious claim is by no means impossible. There is an excellent academic piece on this topic, “Questioning Sincerity: The Role of the Courts After Hobby Lobby” (2014), which debunks many of the popular myths that a “religious freedom claim” will open the door to any old fabrication that comes along. That is also why governments, in my view, need to be a lot clearer in rejecting the claim of the so-called “Church of the Flying Spaghetti Monster” to privileges such as wearing headgear on driving license photos. To state the obvious, this is a group that has clearly been set up, not as a genuine religion, but as an act of “political satire” to undermine freedoms given to genuine religions. But it shouldn’t be too hard to expose their recent and satirical origins, and to reject any spurious claims to exercise religious freedom.

Of course there is always the danger that where the government has to test the genuineness of a religious belief, decision-makers will sometimes stray over the line into assessing the desirability of such a belief, or set themselves up as the arbiter of what a correct reading of the religion’s doctrines should be. (I have previously suggested that this is sadly what happened, in part, in the decision in CYC v Cobaw.) However, the dangers of simply accepting all claims to “religion”, however spurious and invented, are such that this is a price we may have to pay. So long as government departments and courts remind themselves that their task in the first place is not to assess the truth of a claim, but rather its status as a genuine religious claim, the balance between religious freedom rights and the public health interests of the community should be able to be kept.

neilfoster

Indiana Laws and the Raiders of the Lost Freedom

Probably the most likely context in which most Australian readers will have heard of “Indiana” is in the famous movie series from the 1980’s, alluded to in my cringe-worthy blog title! But the internet has been alive in recent days with headlines trumpeting the fact that this otherwise innocuous American State seem to be suddenly riddled with gay-hating “homophobes”. As exalted a figure as Tim Cook, CEO of Apple, describes recent legislation enacted there and elsewhere as “Pro-discrimination ‘religious freedom’ laws“. His reference to “days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms” implies that such laws are somehow authorising behaviour the moral equivalent of the worst sort of racial discrimination practised in the Deep South before the civil rights era. Even an article in the local Sydney Morning Herald tells us that under this dreadful law “a bar could use the law to refuse service to gay clientele” and it is “a licence to discriminate.”

All of this sounds horrible, and it would be- if it were remotely attached to reality! But the fact is that both the origins of the law, and its actual legal effects, have been misrepresented in these articles and other internet coverage- misrepresented so seriously that it is hard to avoid the conclusion that those running the “campaign” against the law in the US are doing so intentionally. I’d like to try and set the law in context, describe how it might operate, and offer a few comments about similar issues that may arise in Australia in the future.

The Indiana Legislation and its background

Others on the internet have already done a good job of outlining the background and operation of the Indiana law, here, here, here and especially here. But it may be helpful just to run through it again.

First, the Act itself. Despite what you might think from reading about it on some websites, it is not called the “License to Discriminate Act” or anything similar. Here is a link to the whole thing- it isn’t very long. It is the “Religious Freedom Restoration Act”, due to commence operation on July 1, 2015, as chapter 9 of the Indiana Code. The legislation sets up the principle that if the Government or some other public entity of Indiana wants to interfere with religious freedom, then they have to show that there is some compelling reason, and that they have chosen the least burdensome way of dealing with it. The core provision is s 8:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Is this a radical new idea? No. Some 19 other States of the US have enacted similar legislation, most of them called by the same name, RFRA. The reason for the name is that this State legislation is modelled on Federal legislation which was enacted back in 1993 by the US Congress (almost completely unanimously, and signed with great celebration by President Clinton and Vice-President Gore.) That legislation was thought to be needed because in a very narrow interpretation of the “free exercise of religion” clause in the First Amendment to the US Constitution, the US Supreme Court in Employment Division v Smith 494 US 872 (1990) had held that there would be no protection for freedom of religion when Congress had enacted a “neutral law” (i.e. one not specifically targeted at religion) of general application. This effectively removed a lot of protection for religious freedom that had previously been applied by the Supreme Court, and the RFRA was designed to “restore” this previously enjoyed religious freedom. (See my previous post on the “Muslim prisoner beard” case which describes the operation of similar legislation.)

The effect of the legislation, then, is to provide some protection for people who have serious religious objections to complying with a law that otherwise applies to everyone in the community. An Amish person, for example, may not want to have their photo taken because they believe this breaches prohibitions on making “graven images”; their right here will have to be balanced against the State’s general interest in identifying drivers through photo licenses.

The Indiana RFRA does go slightly beyond some of the other State laws of a similar nature, though not radically so. First, it provides protection for religious freedom of some corporate entities, as well as for that of individuals. Under s 7 the definition of “person” extends to companies where persons who have “control and substantial ownership of the entity” have shared religious beliefs. In doing so it departs from all but one other State RFRA. However, most of those other Acts were passed before the US Supreme Court handed down its decision in the Hobby Lobby case in 2014, where a majority of the court held that the word “person” in the almost identical Federal RFRA extended to include “closely held corporations”, where religious beliefs of the corporate owners could be identified. So in effect the Indiana RFRA is really mostly recognising the reality of the way all the similar legislation will have to now be interpreted, since the US Supreme Court has provided that authoritative ruling.

The second point of distinction for the Indiana law is that it can be invoked as a defence in litigation between private individuals, not just in a case against the government. Section 9 provides that a person whose religious freedom is burdened

may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

(The drafting is a bit odd here. While s 9 seems to indicate religious freedom can be a “claim” in actions involving private parties, s 10 of the Act when describing the result of such an action simply says that the court “shall allow a defense against any party”, while adding that other remedies such as an award of damages may be sought from a “government party”. I think on balance the “defence” operation is what is intended here in private party cases.)

The application of the RFRA to private party cases is only explicitly provided for in one other State RFRA. However, other State courts have interpreted their laws to allow such actions, so again it is not unique.

Allowing bars to deny service to gays?

What, then, does all that have to do with “anti-gay” laws and refusing service in bars? Well, not very much. But it is true that the law might apply in some cases involving gay couples. In a previous blog post I discussed a series of cases involving “wedding service providers”, where it has been suggested or found that someone declining to provide photography, florist or baking services to support same sex marriage was guilty of “sexual orientation discrimination”.

Proponents of the Indiana law do think that this legislation might allow a better balancing of “freedom of religion” with the right to “freedom from discrimination” than has previously been provided in these cases. Where a wedding service provider with a genuine religious belief that same sex relationships are sinful, is asked to provide support and celebration to such a relationship, it does indeed seem to be a substantial burden on their religious freedom. To support the validity of such a rule, the government would need to show that the law furthered a “compelling government interest” and did so in a way which was the “least restrictive means”.

There is no guarantee, of course, that the provider would win their case. The court will still have to weigh up these important issues. However, it would seem to be at least arguable that, where there was no real shortage of such services elsewhere in the community, presumably from providers who would actually provide a better service because they genuinely wanted to assist in the celebration of the union, it would seem to be burdensome and achieving no real gain to dragoon a believer into reluctantly providing the service (or else giving up their livelihood).

But notice that the effect of the law, even if were applied in this way, is incredibly limited. It does not authorise wholesale denial of services to gay persons! (Indeed, there is quite some irony here in the fact that Indiana as a State does not have any general prohibition on sexual orientation discrimination anyway. So at the moment, in most of the State, there is no obligation to serve a gay couple to which the RFRA would provide a defence. Still, some local city laws do have such provisions, so the issue is a live one in some areas of the State.)

No- the provision would only operate where there was a genuine religious belief (and courts are more than capable of making judgments about these things), and where there was a plausible case that what was being requested went against the belief. No religion that I know of requires bartenders to refuse to serve homosexual persons! Indeed, there is a very important threshold issue in all the “wedding provider” cases, that to decline to support the institution of same sex marriage may not of itself amount to discrimination against homosexuals. Many “straight” persons support same sex marriage; some gay persons do not. Arguably refusing to support the institution is not relevant “discrimination”. (This argument was rejected in two of the cases mentioned in my previous post, but I think it still ought to be considered.)

So- the Indiana law is not the “anti-gay” monster that it has been painted. It would take another blog post to properly analyse the reasons why it has been so painted, and the way that the mainstream media picks up on distorted views of the law without checking for themselves. But that seems to be the situation. Of course persons of good will may still disagree about the balance to be struck in these areas. But it would be nice if arguments were made in light of the facts, instead of being put forward from mere prejudice. The “lost freedom” of free exercise of religion is being diminished to the point of vanishing in some of this discourse.

Australia and similar issues

Finally, then, how are these issues being dealt with in Australia? And how might they be resolved here?

As I have previously noted, there is no over-arching religious freedom protection in Australia. A Federal prohibition on sexual orientation discrimination, if it was thought to be breached by a wedding service provider, might in theory be challenged under s 116 of the Constitution as an “undue” infringement of religious freedom (to quote Latham CJ from the JW’s case noted in the previous post.) However, the interpretation of the free exercise clause here has in the past been just as narrow as the Smith approach in the US, so it is quite unclear whether this would be useful.

At the State level some States have a Charter of Rights which provides some protection for religious freedom. And most States, where they have discrimination legislation, include some type of “balancing clause” to protect such freedom. However, in most such legislation that protection is extended to “religious organisations”, not to individuals. (Interestingly, such a provision in the NSW Anti-Discrimination Act 1975 was held to allow an evangelical group, the Wesley Mission, to decline to place a child for fostering with a same sex couple, in OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).)

One notable exception to the rule that most “balancing provisions” apply to religious organisations is Victoria, where s 84 of the Equal Opportunity Act 2010 (applying to “persons” generally) provides:

Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

While the provision seems at first glance very broadly worded, any fears that it might prove a “license to discriminate” against gay people can probably be laid to rest in light of the decision of the Victorian Court of Appeal in the CYC v Cobaw (2014) case, noted previously. There the Court read the provision so narrowly that a group called “Christian Youth Camps” and their manager were not able to rely on their commitment to a conservative view of Biblical sexual morality in declining to take a booking for a week whose stated aim was to “normalise” homosexual behaviour to a group of young people.

While there have so far been no reported cases in Australia involving “wedding industry” religious believers declining commissions to assist in celebration of same sex ceremonies, this may mostly relate to the fact that same sex marriage is still not recognised in Australia. (For good reasons, in my view.) Should it become legal, or should there be some move to formalise “de facto” same sex relationships with “wedding-like” ceremonies, then these questions may arise. In my view it would be sensible for Australian governments to consider enacting religious protection laws which would allow appropriate balancing of rights. Of course the furore over the Indiana laws may discourage politicians from daring to do so (as indeed may be its purpose). But I would encourage those responsible for lawmaking to remember their commitments to govern for the good of all the citizens in a democracy, not just those with the loudest voice in the media.

neilfoster

Evaluating the evidence for the resurrection of Jesus from a legal angle

I sat down to post something about religious freedom, and will do so pretty soon. But I was reminded by some posts from other friends what this Easter weekend is about, and decided to start by posting about something a bit more important.

As the Western world celebrates Easter this weekend, any intelligent person should be asking: is all this a fantasy? Could someone rise from the dead? The testimony of Christians from the earliest of times was: yes! And if not, then the whole faith is folly and we should give it all up. See 1 Corinthians 15:14-20:

14 And if Christ has not been raised, our preaching is useless and so is your faith. 15 More than that, we are then found to be false witnesses about God, for we have testified about God that he raised Christ from the dead. But he did not raise him if in fact the dead are not raised. 16 For if the dead are not raised, then Christ has not been raised either. 17 And if Christ has not been raised, your faith is futile; you are still in your sins. 18 Then those also who have fallen asleep in Christ are lost. 19 If only for this life we have hope in Christ, we are of all people most to be pitied.

20 But Christ has indeed been raised from the dead, the firstfruits of those who have fallen asleep.

How does that relate to “Law and Religion”? Because our legal system has at its heart the law of evidence which assists judges to work out “what happened back then?” I have written a paper which analyses the evidence for the resurrection of Jesus using the techniques used by courts to assess the validity of testimony in court cases today in Australia. I encourage you to download and have a read, or pass it on to others.

I am fully persuaded, by this evidence, that Jesus of Nazareth rose from the dead in the 1st century; and that fact was the turning point of history. If you haven’t made up your mind about this yet, or even if you decided long ago without really looking into it as an adult, I invite you to read and consider carefully.

neilfoster

Church Liability for clergy child abuse

As in other parts of the Western world, the church has been in the spotlight over the last few years in Australia as the scope and impact of sexual abuse committed by clergy, and in some cases covered up by church leaders, has become more apparent. Here the Royal Commission into Institutional Responses to Child Sexual Abuse is doing what seems to be an excellent job in encouraging victims to come forward and report harm they have suffered in this way. It is painful for Christians and others who have supported community organisations like the YMCA to hear the stories of what has happened to vulnerable children who should have been cared for, but instead were in some cases exploited for sexual gratification. But it is vital for the truth to come out about these events, so that victims can feel that they are finally being heard, and where possible receive compensation for the harm they have suffered.

As well as teaching “Law and Religion” as an elective, I teach “Torts” to first year law students. Torts is about civil liability, “suing people for stuff” as I sometimes summarise it. The question of the liability of churches for the sexual abuse suffered by children at the hands of members of the clergy provides one area where two of my main academic interests co-incide. Recently I was invited to deliver a paper on the question of holding churches responsible for damages in this area, to a local law firm, Kelso’s, who are acting on behalf of a number of clients who have been harmed in this way. (The firm runs an excellent “unofficial” website connected with the Royal Commission.) The paper can be found here for those who are interested in exploring some of the legal issues.

neilfoster

Prison for “husband” in under-age marriage

It has just been reported that a 27-year old man has been jailed here in Australia for 10 years after pleading guilty to “persistent sexual abuse of a child”. The man, from Lebanon, had seen a 12-year-old at his local Newcastle mosque and began “pursuing” her to marry her. The leaders of the mosque he attended quite rightly told him that they would not perform the ceremony, as it was illegal under Australian law, but he managed to find another self-described “cleric”, Sheikh Muhammad Tasawar, an Iranian based at a different mosque, who agreed to perform the “ceremony” at a local house. Disgracefully, the girl’s father agreed. The man took his “bride” to Sydney and had sex with her on a number of occasions.

I commented about this case in a press report in February 2014, when at the time it had been reported that the “groom” had been arrested but there was no mention of the liability of the “cleric”. I noted at the time:

Section 100 of the Marriage Act 1961 makes it an offence for a person to “purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.” Anyone who carried out a wedding ceremony involving a 12 year old girl in Australia would have “reason to believe” that the marriage would be void, as they would be aware of the age of the child. They should be aware because s 42 of the Act requires a “notice of intended marriage” to be provided, which must be accompanied by a birth certificate for each of the parties. Section 99 of the Act also makes it an offence for an “authorised celebrant” to solemnise a marriage without requiring such a notice.

As it turned out, even on the day my opinion piece was published (so that I can’t take credit for it!), the police had already arrested the cleric. The latest article notes that

In March 2014,  Tasawar, 35, pleaded guilty to the offence of solemnisation of a marriage by an unauthorised person. He was fined $500 and his religious leader visa was cancelled.

The sentence of the husband was not for his breach of the Marriage Act 1961, although as I noted he had indeed breached that Act. But it seems a sensible decision to charge him, as was done, with the more serious offence of sexual relations with a minor. Sadly the report notes that the 12 year old girl was later hospitalised with an ectopic pregnancy, and miscarried. It is good to see that the court handed down a serious sentence for this terrible behaviour.

I concluded my previous note as follows:

Is this an interference with the right to free exercise of religion? Yes, it is to some extent. The right to religious freedom is a fundamental and important right, recognised in international law under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. Religious freedom under Commonwealth law is also recognised by the important s 116 of our Constitution. But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.

The authorities in Australia should be concerned if any religious group is conducting “marriage ceremonies” leading to relationships that are not regarded as valid marriages under Australian law. Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought. Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct “looks like” a marriage service but cannot lead to a recognised marriage under the law of Australia. As well as the under-age “marriage” involved here, another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions to evade the Australian law.

It is good to see that leaders of the major Islamic organisations have unreservedly condemned the alleged “marriage”. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted to send a clear message about the law, and in the interests of the vulnerable children or women who may be harmed by entering what they think are marriages, but are not.

neilfoster

Can there be rational reasons for not supporting same sex marriage?

For many people in Australia the “battle” over recognition of same sex marriage seems, in popular opinion at least, completely over. Tim Dick in the Sydney Morning Herald on 1 March tells us that the “public argument is won” and we are now just up to the stage of deciding whether or not to allow “latecomers” to join the party. We are often told that those who do not support extending the legal status of “marriage” to unions involving same sex couples are on the “wrong side of history”. Their stance is often characterised as “homophobia”, a word which has in common parlance (despite its etymology) nothing to do with “fear” and everything to do with an irrational hatred of, and desire to harm, homosexual persons.

In this post I would like to suggest that these comments are wrong. I want to put forward reasons why a sensible, rational human being might hold the view that changing the law to “legalise” same sex marriage is not a good idea. I would challenge those who think that it is impossible that anything could be said on the other side of the debate, to at least recognise that there can be reasons offered to oppose the introduction of same sex marriage which do not stem simply from irrational hatred or invincible stupidity. I would also like to offer reasons that do not require a commitment to a specific “religious” world view, such as Christianity, Judaism or Islam. The reasons I want to offer here could be shared by any person who thinks carefully about human society. That such arguments might be possible is illustrated, for example, by the fact that some prominent gay commentators continue to express their opposition to changing the law to allow same sex marriage.

The best way to address this question, I think, is is to consider some of the arguments that are made in favour of this legal change, and to provide responses.

1. Isn’t recognition of same sex marriage simply a matter of “Marriage Equality”?

The first and in some ways one of the strongest arguments is framed under the deceptively simple heading of “equality”. If heterosexual couples in Australia are entitled to be married, then isn’t it simply a matter of basic equality and non-discrimination that homosexual couples should also be allowed to marry?

Perhaps one of the first things to note here is that it is odd, if this change were simply a matter of non-discrimination, that our Federal government law on discrimination doesn’t already do the job. The Sex Discrimination Act 1984 (Cth), for example, already makes it unlawful to discriminate against persons on the basis of their sexual orientation. But s 40(2A) specifically provides that this law does not impact the law on marriage. The Federal Parliament doesn’t seem to think the debate is concluded simply by reference to “discrimination” as a category.

Indeed, a Federal Court decision on the question, decided under the law as it stood before there was a prohibited ground of discrimination based on “sexual orientation”, held that State Registrar-General’s offices did not “discriminate” on sex or marital status grounds by refusing to register same sex marriages- see Margan v Australian Human Rights Commission [2013] FCA 612 (18 June 2013), esp at [48]:

where State agencies refuse to register same sex marriages because of requirements mandated by the definition of “marriage” is s 5 of the Marriage Act, as a matter of law this cannot involve an “act” or “practice” within the definition of “unlawful discrimination” in s 3 of the AHRC Act.

To put it simply, it is not “discriminatory” to not allow same sex marriage, because for there to be unlawful discrimination in denying a status or benefit to somebody, the person who seeks to gain such needs to fit the standard criteria for that status or benefit. I cannot complain that company A does not pay me a salary, whereas it pays a salary to my friend, when I do not work as an employee for A, and my friend does! The essence of the status “employee of A” is having a job there and doing work for the company. If I don’t do that, it is not “discrimination” to refuse to pay me.

Similarly, under our current law it is not discriminatory to refuse to marry a same sex couple to each other, because they do not currently satisfy the criteria set out in the law of Australia, which is, as Griffiths J notes in the quote above, that under s 5 of the Marriage Act 1961, they be a “man and a woman”. So the question is this: should the law of Australia be changed to allow same sex couples to marry each other? (For more exploration of the “discrimination” argument see my previous paper on the point.)

Of course the “equality” argument would be stronger if same sex couples who are unmarried miss out on privileges and benefits provided to heterosexual married couples. But a series of amendments to various laws over the last decade means that it is very hard find any such areas of law. Most benefits are extended to “de facto” couples, whether heterosexual or homosexual. The remaining arguments are, in essence, about the “label” and the social recognition conferred by the formal status of “marriage”.

What reasons are offered for making the change?

2. Shouldn’t we allow same sex marriage on the basis of “equal love”?

One of the most plausible justifications for changing the law to allow same sex marriage is the argument that all persons are entitled to have their love for their partner celebrated by a marriage ceremony. However, it seems clear that we can’t accept this argument unless we know what purpose the law of marriage serves. It can’t simply be about celebration- we don’t stage a marriage ceremony when someone graduates, for example. There must be some reason why the marriage ceremony is the celebration we choose for a particular couple. After all, discrimination is only wrongful if it is on irrelevant grounds; so to know what is irrelevant, we need to know what is relevant.

One of the difficulties in this area is that there are range of possible functions which are served by the legal institution of marriage. It seems that most people would agree that these at least include:

  1. A celebration of the love that two people feel for each other.
  2. “Authorisation”, in some sense, of a sexual relationship between the parties, under community standards.
  3. A commitment of those people to be faithful to each other, and only each other, in their sexual relationships, with the aim that this commitment will last for a lifetime.
  4. A joining together of the two separate families of the parties, so that they are now connected in ways that they weren’t before.
  5. Providing a stable committed partnership within which children of the parties can be nurtured, by their biological parents, until they are ready to stand on their own as adults.

These are the most important of the functions that the institution has served over most of human history, and in pretty well all human cultures. A public recognition of the commitment of the two partners who are authorised to have sex together provides the context for the future arrival of children, should that happen (as it often does following heterosexual sex!) Of course it may be that not every marriage meets all these initial goals. Some are terminated through divorce. Some, whether by choice of the parties or through unavoidable other circumstances, may not result in children. In some the parties may not be able to have sex together. The parties may have no other living relatives so the wider family connections may not be made. But the core functions of the institution are as above, and the fact that a particular marriage does not fulfil all of those functions does not make it any less of a marriage.

Those who have religious beliefs may see other purposes for marriage. Christians who take the Bible seriously, for example, are told that the joining together of husband and wife plays an important role in reflecting aspects of God’s character and his relationship to his people (see Ephesians 5:31-32.) But the reasons mentioned above are ones that have been shared by human societies since the dawn of humanity. The different functions provide support and encouragement for different persons. The first enables the love-struck couple to invite others to share their joy in each other. The second provides community sanction for their sexual activity together. The third, historically speaking, has provided protection for the wife against the well-known tendency of husbands to seek sexual satisfaction as broadly as possible. A social norm and legal system which penalises adultery makes it harder for husbands to abandon their wives, and in fact also makes it harder for a young woman to be seduced by an older man and then abandoned. The fourth function provides stability for inheritance of property and connections across families. The fifth, which may in the end be the most important of all, provides the security for children to be raised by their biological parents in a stable household.

Sadly, in recent decades in the West (even before the movement towards same sex marriage) the first function of marriage seems to have been given higher priority and, in some eyes, to have completely eclipsed the others. The expense and pomp of the wedding ceremony have become for some the most important part. The second has become less important as the community has come to accept the idea of “free love” and the principle that sex is now widely available to all. The day is now said to exclusively be “the couple’s day”, and so the role of other family members is downplayed or ignored. The importance of the commitment to life long monogamy is diminished to “lip service”, and there is now a social expectation that faithfulness is too demanding, and that minor problems may provide a ground for quick divorce. The role of children in a marriage can sometimes be seen as a secondary, purely optional, issue.

So it is not perhaps surprising that, if marriage has mainly become “celebration of love”, a fulfilment of the goals of the bride and groom, that we now see the calls to extend the institution to same sex relationships. Yet as many commentators have pointed out, if all that marriage does is provide a formal record that two parties, on a particular day, felt that they loved each other- what interest does the State have in this? Why is it formally recorded and accompanied by legal requirements? And since logic matters, why do we provide this celebration only for “sexual” relationships? Should we have “marriage” ceremonies for people who care for each other as friends? Why do we have rules against marriage between close family members? Why not, as some are now arguing, extend the “circle of love” to three or more persons? Interestingly it may be that the second rationale noted above provides a key reason for the move towards same sex marriage- for it provides community sanction for a type of sexual relationship that at most times in the past, and still in the majority of the world, is not regarded as appropriate.

The institution of marriage, though, is indeed a “package deal” which functions in all these five areas. The main interest the State has in marriage is that it provides a framework within which human experience tells us that children will be best cared for. A secondary goal is that marriage in its traditional form provides support for women, particularly those who choose to leave the external workforce to devote themselves to caring for their babies as they grow into mature human beings.

3. Is marriage really all about the children? Don’t children of same sex marriages do just fine?

That the goals of marriage included the protection and nurture of children in stable families has never been seriously doubted until very recently. In an important article, “Same-Sex Marriage and the ‘Reconceiving’ of Children”, (2014) 64/3 Case Western Reserve Law Review,  829-862 (at SSRN: http://ssrn.com/abstract=2532544 ) Professor Helen Alvares from the George Mason University School of Law notes that the US Supreme Court, and other courts in that country, regularly referred to these issues in ruling on marriage questions. She reviews a number of decisions from the 19th century onwards, concluding with a more recent one:

[In] Parham v. J.R. 442 U.S. 584 (1979), a case about parents’ rights to direct their children’s health care, (see 587) the Court stated that “[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.” (at 602)

Similarly, in Australia, when the High Court of Australia was considering the validity of certain provisions of the then-newly-minted Marriage Act 1961 (Cth), Windeyer J commented in AG (Vic) v Commonwealth (1962) 107 CLR 529 (the Marriage Act case):

the Commonwealth power would extend to matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony. (at 580, emphasis added)

His Honour goes on (at 580- 581):

The procreation and upbringing of children is set down in the Prayer Book first among the causes for which matrimony was ordained. If an authority of a different kind be preferred, Voltaire’s Dictionnaire Philosophique (1764), in the article on canon law, said: Le mariage dans l’ordre civil est une union legitime de l’homme et de la femme, pour avoir des enfans, pour les clever, et pour leur assurer les droits des proprietes, l’autoritc de la loi. (Roughly, “Marriage under the civil regime is the legal union of the man and the woman, for having children, for assuring their property rights with authority of Law”). And Puffendorf said that “the natural and regular end of marriage is the obtaining of children whom we may, with certainty, call our own”: Law of Nature & Nations vi, I, 15.

If the nurture of children is an essential part of the institution of marriage, then how can this element be present in a same sex marriage? The response of those agitating for change of the law is that children must just be provided! They can be adopted; technology can be used to allow a surrogate mother to bear a child of one of the parties; or, as more commonly happens, a gay or lesbian couple may be raising a child who was born to one of the parties in a previous heterosexual relationship.

Will children raised in a same sex marriage suffer any ill effects? There is evidence pointing in both directions here, which is highly contested. But as I read some recent studies, there is solid, peer-reviewed data showing that overall children do best when they are raised in a stable married family with a husband and wife who are the children’s biological parents. (And part of this study shows that earlier, contrary findings are often based on small, self-selecting samples.) Of course there are many exceptions to the general rule, heroic single parents and hard working same sex couples who provide fine care for their children. But when the research shows that other models are not ideal, one has to ask how we are justified, keeping the interests of children in account, in conducting what will amount to a decades-long “social experiment” when the preliminary data is not encouraging.

Indeed, it has to be said that in Australia we have already seen what happens when children are deliberately removed from their biological parents (as will have to happen for same sex couples to “have” children), in the interests of a public policy agenda. These days we call it the “Stolen Generations”. Already there is clear evidence that children brought into families through artificial insemination, embryo donation, and other techniques are, like a previous generation of adopted children where no records were kept, experiencing the pain of being cut off from their biological heritage. At least with those earlier social structures we thought that we were doing these things in the interests of the children, however misguided we were. But the current social experiment seems to be being conducted mainly in the interests of same sex couples, in some situations partly to fulfil a social expectation that a same sex marriage “ought to” have children so that it resembles a traditional heterosexual marriage.

4. But how will my same sex marriage have any impact on your traditional marriage? Can’t we all live and let live?

As noted previously, what is at stake is a radical redefinition of the whole institution of marriage. Most of the five characteristics traditionally thought to characterise marriage will be taken away. This, it should be noted, is not simply about the removal of children as a major goal of marriage (and incidentally the further downplaying of wider family involvement) and the change to a homosexual couple. It has to be conceded that very few homosexual relationships are long-lasting or intended to be “monogamous”. Research shows that there is an expectation in the homosexual community of a number of sexual partners. Once sexual fidelity and the intention to create a life-long partnership are removed, along with the possibility of children who are biologically related to both partners- the word “marriage” is reduced to little more than a shell. What remains is a celebration and authorisation of sexual relationship.

The analogy is not perfect but perhaps it will do. If I obtain a University degree from the University of Woop Woop, and some years later that University, in a desperate quest for cash, dumbs down all its courses so that its degrees may as well come from a Weetbix box- then the value of my degree is also diminished. My proud claim to be a Woop Woop alumni is now not heard so much. To come back to marriage, once the law is used to support an institution which we now all know has nothing essentially to do with encouraging the nurture of children, or faithfulness in sexual relationships to one partner, or a lifelong commitment: all marriages are seen to lack these characteristics.

One would be more prepared to accept that “live and let live” would work if it was in evidence in other jurisdictions around the world where same sex marriage had already been introduced. But in fact one of the serious challenges to religious freedom that is developing in the West (there are much more serious elsewhere, of course, but the West is where many of us are), is the fact that once a jurisdiction has authorised same sex marriage, it becomes increasingly difficult for believers to be a part of public life. A teacher at a school, a public servant, even those who are part of the “wedding industries” such as flower sellers and photographers and bakers- all may be required to put aside their serious moral objections to homosexual behaviour in the interests of avoiding “sexual orientation discrimination”, and to not be heard to suggest that same sex marriage is in any way different to traditional marriage. (Nor will they be allowed, in many cases, to respond that their objection is not to the persons, but to their behaviour.)

Summary

This post is far too long, and it has not scratched the surface of what can be said as rational reasons for opposing a change of the law to allow “same sex marriage”. Reasons stem from, among other things, views about the fundamental purposes of marriage, the interests of children being raised in same sex relationships, and the impact of the move on religious freedom. For further reading on this topic let me recommend some other sources:

This is a debate that will continue for some time. Don’t cut it off by assuming those you disagree with are simply irrational.