Author: neilfoster

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.

neilfoster

Submission on Religious Freedom in Australia

Recently the Australian Law Reform Commission has had a consultation on Rights and Freedoms in Australia. Just the sort of thing I should have made a submission to, you might think. And so did I; except that, in the rush of getting ready for semester 1 teaching the Feb 27 deadline made a whooshing sound as it rushed by! So I was immensely pleased to discover that Freedom 4 Faith, an Australian group set up to further religious freedom, had put forward an excellent submission; in fact, far better than the one I might have prepared! I encourage you to read it. The submission clearly sets out the international obligations Australia has to protect religious freedom, the various limits on religious freedom, and how they should be approached. In particular it identifies very clearly the fact that there is a lingering tendency in those from the “mainstream” human rights area to cast religious freedom in a secondary role, even if they do so because they are unaware of their own presuppositions. See, for example, the paragraph in the ALRC discussion paper noted on page 4 of the F4F submission, where protection of religious freedom is simply labelled “discrimination” and a warning is issued about the needs of “vulnerable” people. The F4F paper clearly but politely points out some of these issues and proposes a model which would better balance out the right to religious freedom and the right to be free from discrimination. I hope that the ALRC will give it a great deal of weight in coming up with their final proposals later in the year.

neilfoster

The florist, the baker and the photographer- religious freedom and small business

One of the most vexed questions in the religious freedom area at the moment is the clash between religious views and support for same sex marriage, and three cases in which this clash has been evidenced all involve people in what might be called the “wedding support industries”- a florist, a baker and a photographer. The most recent is the decision of the Benton County Superior Court in the US State of Washington in the combined proceedings in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015). There Barronelle Stutzmann, proprietor of the business, and her firm, were held liable for breaching the State’s anti-discrimination laws prohibiting denial of a service on the basis of sexual orientation. Stutzmann, who had supplied one of the complaints, Ingersoll, with flowers for some time, declined to do so on the occasion that he invited her to do the flowers for his proposed same sex wedding, on the basis of her Christian commitment and a desire not to support such a ceremony.

Stutzmann’s claim that her refusal to provide the flowers was not based on the sexual orientation of the client (whom she had often served previously), but rather on her desire not to express support for same sex marriage, was rejected by the court. She tried to rely (see lines 12-15 on p 28 of the linked transcript)  on the distinction between conduct and orientation (as to which see my previous post, referring to other cases where this distinction has been not recognised by the courts, and one where it has.) But the court rejected the distinction, saying that there was US Supreme Court authority refusing to recognise it. In Christian Legal Society v Martinez 561 US 661 (2010) at 689, the Supreme Court held that a University legal society could not decline to have as leaders those who engaged in or supported same sex intimacy, refusing to draw a distinction between “status and conduct”. The Washington court held, following the earlier decision in Elane Photography (see below), that same sex marriage was “inextricably tied” to sexual orientation.

The claim that this was in breach of Stutzmann’s religious freedom rights was rejected on the basis that, in accordance with the prevailing judicial interpretation of the First Amendment, Employment Division v Smith 494 US 872 (1990), religious views must give way before a law of “neutral application” not targeted at religion.

The case of the wedding photographer proved influential here. In Elane Photography, LLC v Willock, 309 P 3d 53 (NM, 2013) a wedding photographer who declined to take on the photography duties for a same sex commitment ceremony was also found guilty of sexual orientation discrimination and fined, the US Supreme Court refusing to grant leave to appeal from the decision of the New Mexico Supreme Court.

Across the Atlantic, similar issues have arisen for a firm of bakers, Ashers Baking Company, who declined to produce a cake supporting same sex marriage when requested to do so. See here for more details. This case seems all the more odd, as it was not requested for the celebration of anyone’s wedding; it was simply to bear a slogan in support of introducing same sex marriage into Northern Ireland, which does not yet recognise the institution. While there has as yet been no hearing, the local Equality Commission has brought proceedings against the firm for sexual orientation discrimination.

In each of these cases, the last especially but also in the others, it seems arguable that what is involved is not discrimination against persons of a particular orientation, but a refusal to provide support for an institution (same sex marriage) which is regarded as morally wrong. There does indeed seem to be a valid difference between simple provision of a service (as had often been done by Ms Stutzmann, for example) and the purchase of the artistic skills and talents of a person to celebrate and support the event of a same sex wedding. The courts, if they were minded to, could implement this distinction by finding that refusal to provide artistic support for the event was not in fact unlawful “sexual orientation discrimination”. After all, not all homosexual persons believe that same sex marriage is a good idea. The fact of homosexual identity and support for same sex marriage are not, as the courts seem to think, “inextricably linked”. If the courts are unable to implement the distinction because of previous binding rulings, then legislators could choose to do so. It is suggested they should do so, and provide a clear avenue for recognition of religious freedom in the context of state support for discrimination laws. The comments of the Washington court here, that once same sex marriage had been introduced into Washington State there was a “direct and insoluble conflict between Stutzmann’s religiously motivated conduct and the laws of the State of Washington” (lines 12-13 on p 58), are with respect too pessimistic. There are other avenues where both important interests can be recognised.