Author: neilfoster

neilfoster

Sexual orientation and sexual behaviour: can they be distinguished?

Should the employee of a religious organisation be allowed to be dismissed because of her sexual activities outside work? A recent Australian decision suggests, somewhat surprisingly, that she may be. I will explain here why I believe the court was correct. In Bunning v Centacare [2015] FCCA 280 (11 February 2015) an employee of a Catholic family counselling centre was dismissed because of her involvement in support for “polyamorous” activities. She claimed to have been discriminated against on the basis of her sexual orientation, but the claim was dismissed.

Distinguishing between orientation and behaviour- previous cases

By way of background, one of the most difficult issues in the interaction between religious freedom and sexual orientation anti-discrimination law arises when a believer makes a decision which is based on a person’s sexual activity, and it is claimed that in fact the decision was based on sexual “orientation”. This dilemma arises because, unlike most other prohibited grounds of discrimination, “sexual orientation” discrimination involves serious ethical dilemmas for those who adhere to traditional religious beliefs on sexual morality. That is, long-standing religious views (not only in Christianity but also in Islam and Judaism, for example) teach that same sex sexual behaviour is actually wrong, and contrary to God’s purposes for humanity. But one of the defining characteristics of a person who is of a homosexual “orientation” is a preference (to use a possibly controversial word) for sexual activity with a person of the same sex.

Sometimes believers, when challenged that their decisions are based on sexual orientation, have attempted to argue that in fact those decisions are based on sexual behaviour. That is, the claim is made that there is no intention to investigate someone’s personal preferences or “inclination”; but that engaging in what the religion regards as immoral behaviour, homosexual intercourse, can be a legitimate reason for making a distinction of some sort. An argument of this sort was run in the UK decision in Bull & Bull v Hall & Preddy [2013] UKSC 73 (27 November 2013). There the Christian owners of a boarding house had enforced for some years a rule that they would not let a double-bed room to any couple who were not married. A same sex couple were turned away from the room on this basis and sued for sexual orientation discrimination. The UK Supreme Court upheld the award of damages against the Bulls. In particular, they commented at one point as to whether it made a difference that it was the “status of marriage” which was the criterion for the decision, or not. (At the time same sex couples could not marry each other in the UK.) The majority of the court held that this did not make a difference. In particular, Lady Hale commented in this way on the argument that one could distinguish a decision made on the basis of sexual behaviour, from one made on the basis of orientation:

[52] Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation. As Justice Sachs of the South African Constitutional Court movingly put it in National Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1) SA 6, para 117:

“While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.”

This view, that sexual orientation requires expression in intercourse, and hence that any distinction based on the behaviour will also be a distinction based on orientation, was also affirmed in a recent Australian decision, Christian Youth Camps Limited v Cobaw Community Health Service Limited and Mark Rowe [2014] VSCA 75 (16 April 2014) (for detailed comment on this case see my previous post and linked articles.) The Court there rejected an argument that in denying a booking to a group that was lobbying for the “normalisation” of homosexuality, the Christian group concerned was not basing its decision on the orientation of the group members, but (impliedly) on their “behaviour” of lobbying for a particular viewpoint. Maxwell P supported comments that had been made by the Tribunal below, which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity. (at [57])

(See also Redlich JA:  “sexual orientation [is] inextricably interwoven with a person’s identity” (at [442]).)

Against this background, it is very interesting to find this recent decision that clearly distinguishes between “orientation” and “behaviour”, and finds against a dismissed claimant on these grounds.

Bunning v Centacare

In the Bunning case, Ms Bunning worked in a Catholic family counselling centre in a senior position. (While operating under the “brand” of “Centacare”, the Respondent’s full name from the case documents was “THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE”, and hence it was clear that Centacare was a direct emanation of the Church.)

The Applicant’s own documents revealed the following (see [7]):

her contact details as a counsellor at Centacare [had been] published on a website for the Brisbane Poly Group. These details had been originally published in or around late 2011, or early 2012, following a request from the group for the contact details of a ‘poly-friendly’ counsellor. The Brisbane Poly Group is a group of people involved and/or interested in the polyamorous lifestyle.

The website details had been brought to the attention of her employer, and on this basis her employment was terminated. Para [11] describes the events in the Applicant’s words:

(e) Furthermore, during the meeting the Applicant was told that the ‘Brisbane Poly Group’ goes against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.

(f) The Applicant was told that she was to be dismissed instantly for gross misconduct.

The claim under the Sex Discrimination Act 1984 (Cth) (“SDA”) was that the Applicant had been dismissed, or else put at a disadvantage, on the basis of her “sexual orientation”, and hence there had been a breach of the Act, s 14. Judge Vasta had to determine whether “being polyamorous” was a relevant sexual orientation. His Honour concluded that it was not. He referred to the Macquarie Dictionary definition of “polyamory” as

“The mating pattern of having a number of sexual partners at the same time” – [41] (emphasis in original)

As such the term referred to a certain type of behaviour. But, his Honour said, the word “orientation” as a “state of being” rather than actual behaviour:

[29] Under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as “sexual behaviour”.

He concluded that the Applicant had shown that she adopted polyamorous behaviour, but had not demonstrated that this was a relevant orientation. In a very interesting passage worth quoting at length, he continued:

[33] In argument before me, the Applicant contends that “behaviour” is a “sub-set” of an orientation and therefore is covered by the definition in the Sex Discrimination Act 1984.

[34] If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result would be an absurdity.

[35] This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation.

Having noted that as a matter of legislative history, Parliament had declined to include “lawful sexual behaviour” as an alternative ground of discrimination, his Honour concluded:

[39]…I am led to the inexorable conclusion that “sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

Hence the claim for sexual orientation discrimination failed, as the Applicant had not shown that the basis of the decision was a “condition” or “state of being” recognised under the SDA as a prohibited ground.

Comments

The decision in this case is interesting, as previously noted, because it seems to run counter to a tendency in other decisions to treat “orientation” and “behaviour” as interchangeable. It has to be said, however, that the implications of the decision are unclear. The Federal Circuit Court is a successor to the court that was previously called the “Federal Magistrates’ Court”. It is not high up in the Australian court hierarchy, and indeed it seems likely that formally its decisions do not form a precedent for any other courts. The decision here could of course go on appeal to the Federal Court “proper”.

In addition, neither of the judgments noted above, Bull and CYC v Cobaw, seem to have been cited to Judge Vasta. However, it should be noted that the case did not concern the question of “homosexual” orientation, and hence did not directly engage the issues which led to the previous comments. Polyamory, of course, as a formal “lifestyle” (as Judge Vasta noted, the term used by the Applicant herself) is not commonly spoken of as an “orientation”. A claim for discrimination on this basis feels more like a claim for discrimination on the basis of “marital status”, which does indeed focus on behaviour. The definition of “marital status” in s 4(1) of the SDA assumes that there is only one other party to the relationship- see e.g. para (e) “the de facto partner of another person” (emphasis added). Presumably if Parliament had intended to protect persons in multiple relationships, it could easily have referred to “person or persons”.

On balance, it seems that his Honour’s decision is correct. Whether the broadly expressed comments about the difference between “orientation” and “behaviour” will be adopted in later proceedings is more doubtful, but it is to be hoped that they are given due weight. Christians, to take one example, are well used to distinguishing between a “propensity” to behave in a certain way, and the actual behaviour. The Bible teaches that all people are by nature inclined to sinful behaviour, but sees nothing inconsistent in urging people at the same time to resist the temptation to do so. In other areas of life even modern Western society recognises the fact that someone may be, for example, an alcoholic, and regularly tempted to drink to access, but can commend and encourage that person not to act on their impulses and to resist the temptation. Whether this situation is analogous to the orientation of a person to have sex with others of the same sex is a matter of great debate. But it does not seem unreasonable that religious believers ought to be able to make the case that there is a difference between the two concepts of propensity and activity, and to argue that in some cases there is a valid distinction to be made between them.

Finally, it should be noted that even if the Applicant had been able to establish a prima facie case of sex discrimination, it seems possible that the Church would have had a defence under s 37(1)(d) SDA, which says that the earlier provisions prohibiting sex discrimination do not apply to:

any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Clearly the practice of having multiple sexual partners at the same time (which of course would mean at least one of them was not married to the Applicant) would run contrary to the moral teaching of the Roman Catholic Church. Since the role of Centacare was to counsel on family relationships, presumably the counselling was designed to be given in accordance with those moral teachings, and it would be a fundamental contradiction of those teachings for the church to employ a counsellor whose lifestyle was a living repudiation of those teachings. No doubt, in addition, many members of the Catholic Church would be offended by a person in this situation purporting to deliver counsel on behalf of the Church. On this basis it seems fairly clear that s 37 would have been engaged and entitled the Church to dismiss the Applicant, even if there had been “sexual orientation discrimination”.

However, as clear as this may seem, it has to be said that there is now some doubt about the application of s 37 since the earlier-mentioned decision in CYC v Cobaw, where it was queried whether a religious organisation’s views on sexual behaviour could be said to be part of their fundamental “beliefs” or “doctrines”. As discussed in my previous notes on the case, however, I take the view that the decision of the NSW Court of Appeal on this issue in OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL [2010] NSWCA 155 is binding on lower courts (as an earlier decision on the point by an appellate court) and should be followed on this issue. Christian doctrines on marriage and sexual behaviour have been a fundamental part of the Church’s teaching from the earliest days and were clearly intended by Parliament to be relevant in these contexts.

neilfoster

Canadian Supreme Court creates right to assisted suicide

Legal issues around the beginning and end of life have a long history of intersecting with religious beliefs on those same fundamental topics. Longstanding debates about abortion and euthanasia involve questions about the limits of the law, and the signals sent by the legal system on these topics. This area came to the fore again yesterday with the decision of the Supreme Court of Canada in Carter v Canada, 2015 SCC 5 (6 Feb 2015), in which a unanimous 9-member bench ruled, on the basis of s 7 of the Canadian Charter of Rights and Freedoms, that Federal Canadian law prohibiting suicide was invalid to the extent that it prevented

physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

A previous SCC decision had ruled in 1993 that there was no such Charter right. But now the court has changed its mind. In other words, despite a clearly enunciated rule on this topic passed under the democratic process by the Federal Canadian Parliament, the 9 members of the Supreme Court have now decided that Parliament got it wrong.

There are two major problems with this decision. One is the way it was made, the other is the substance of the decision. (Apart from that, all was fine…) The way that it was made illustrates the legitimate concerns that many have had in Australia about a “Bill of Rights” which allows courts to immediately substitute their judgments on significant policy issues, for the judgments of elected Parliamentary representatives. I happen to think that there is a legitimate place for a Bill of Rights of some sort in the Australian context. However, if such a thing were to be introduced, it should follow the model of being an “advisory” jurisdiction under which the courts would flag an issue, but there would be no legal consequence until Parliament had chosen to respond.

The problems of the Canadian model, where the courts immediately over-ride Parliament, are apparent here. The Supreme Court, having said that the current Federal law is invalid under the Charter, then “suspends” its ruling for a year to allow Parliament to respond. Why? Because it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is “unendurable”? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things? (In a very brief comment at [132] the Court says that the rights of patients and physicians in this area “will need to be reconciled”.) But one might remark that if it would be inappropriate for the Supreme Court to sully its hands with the gruesome details of implementing a policy, there may be something to be said for the view that they are an inappropriate forum to be making binding pronouncements on such policy.

One feature of the Charter which is not often mentioned may provide a “fallback” position. Section 33, sometimes known as the “notwithstanding clause”, does allow a Canadian legislature to over-ride a court ruling on certain provisions of the Charter (including s 7, the “right to life”, which with extreme irony was the provision invoked here to support a “right to death”), so long as it does so explicitly. Press reports suggest that some are already arguing that this is a case where s 33 ought to be invoked.

Why is the substance of the decision questionable? The arguments about opening up the door to legalisation of suicide generally are fairly well known, as are the arguments against allowing open slather in assisted suicide. But briefly, the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life. Any provision which allows others to make decisions to end human life weakens that value in the community. While the criteria set down by the Supreme Court here sound plausible and reasonable, the problems lie both in the implementation and also in the future development of the law. The implementation issues arise because fallible human beings have to make these decisions, and in many cases they will be under pressure from others. Family members of a dying person may have their own reasons for showing that the person’s illness is sufficiently grave, and their pain sufficiently unendurable, for a physician to assist in death. In many cases someone who is so gravely ill will have impaired judgement, and these decisions will have to be made by others. And once a law like this is introduced, there is an observable tendency in jurisdictions around the world for the grounds on which these decisions are made to be broadened.

All these issues have been long debated, and will continue to be debated. Sadly, the Supreme Court of Canada has decided that it has much more wisdom on these matters than the legislators of Canada, and foreclosed a debate that should be had in full, and with all relevant interests being considered carefully.

neilfoster

Religious organisations and their employees- new US decision

Can a religious organisation hire and fire staff in accordance, not just with their commitment to its doctrinal beliefs, but also on the basis of whether they conform to moral teachings? This was the issue in the background of a recent US decision, and it is interesting to note how this might play out in Australia.

The Conlon decision

The United States (Federal) Court of Appeals, 6th Circuit, has just handed down its decision on appeal in Conlon v InterVarsity Christian Fellowship/USA (No 14-1549, 5 Feb 2015), holding that Ms Conlon, who was dismissed as a “spiritual director” by IVCF, cannot file a Federal (or State) sex discrimination claim against the organisation. IVCF is an organisation that operates on many University campuses in the US, supporting evangelical gospel ministry there. (Full disclosure in case it is relevant: I have been a long time supporter of the Australian Fellowship of Evangelical Students, AFES, a similar organisation in this country which is, like IVCF/USA, a part of a wider global network, the International Fellowship of Evangelical Students, IFES.) Ms Conlon worked from 2004-2011 as a “spiritual director” assisting IVCF staff workers in their spiritual growth. When she started discussing problems within her marriage, and in particular flagged her possible divorce in March 2011, IVCF supervisors put her on paid leave to support her while dealing with this issue. When by the end of 2011 that seemed not to be working, her employment was terminated in December 2011.

The employment conditions for IVCF staff, which were made clear by the organisation from the outset, required that staff annually reaffirm their commitment to the IVCF Purpose Statement and Doctrinal Basis. The court quotes early in their decision a phrase (which I assume comes from the Purpose Statement), to the effect that

IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.”

Presumably the IVCF leaders, although the decision does not make this clear, took the view that Ms Conlon would, if she were divorced, not provide an appropriate model of Christian behaviour in this area. I want to be clear that I am not making any comment on the rights and wrongs of this decision. Despite my general support for IFES and its affiliates, I know nothing about the decision in this case and whether it was godly, wise or justified. In fact, it somewhat disturbs me that the court notes that Ms Conlon alleges that two similarly situated male employees were divorced while working for IVCF, but were not disciplined or terminated (see p 3 of the decision.) But of course there are divorces and divorces, and difficult decision have to be made in these circumstances.

The fact that life can be so messy, and that decisions about who should be employed in spiritual leadership are so dependent on a number of fuzzy criteria, may be partly what lies behind the doctrine of the “ministerial exception” in US law, which was successfully relied on here by IVCF. Formally the doctrine is driven by the First Amendment to the US Constitution, forbidding the Establishment of a state church (and excessive “entanglement” by the state in religious groups) and setting out rights of Free Exercise of religion. The doctrine has been applied by lower courts for a while, but received endorsement by the US Supreme Court for the first time a few years ago in its decision in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012). I discussed this decision in detail in an earlier paper, but in brief the main relevant part is that the USSC held (somewhat surprisingly for a religion clause decision, unanimously) that Federal employment discrimination laws could not apply to “claims concerning the employment relationship between a religious institution and its ministers” (at 705).

Applying Hosanna-Tabor, the 6th Circuit here held that IVCF clearly qualified as a “religious organisation” (not only its name, but its mission statement and activities were all directed to religious ends), and that the position that Ms Conlon held of “spiritual director” satisfied at least 2 of the 4 criteria set out by the SC for an employee being regarded as a “minister” : the title of her role, “spiritual” director, and the religious functions she carried out, being responsible for assisting the “spiritual growth” of other IVCF staff. (See the discussion at pp 7-8: the court did not explicitly find that the other 2 factors were not present, being formal theological training and use of the title in public contexts; they just held that there was not enough evidence to make a finding. But the other 2 factors were, in this case, sufficient.)

The result was that under the authority of Hosanna-Tabor the court could not entertain a claim for discrimination under federal law; and they also ruled that since the decision was based on the Constitutional rights granted under the First Amendment, and it had long been held that the First Amendment applied to the States as well as to the Federal Congress, nor could a claim under State law be made (see pp 10-11.)

Australian law?

How would this matter be resolved under Australian law? I will comment on the application of the Federal legislation, the Sex Discrimination Act 1984 (Cth) (‘SDA’)- I think a similar analysis would apply under most State laws.

Under the SDA there would be a possible prima facie claim that a decision to dismiss someone because of their divorce would be discrimination based on “marital or relationship status”, which is one of the alternative grounds of unlawful discrimination in employment- see s 6, and the definition of “marital or relationship status” which includes the state of being “divorced”. I am not sure, in fact, whether this is a claim that would be possible under US law- the court in Conlon refers simply to the differential treatment of divorced men as opposed to the claimant, who is a woman. Under the SDA that might also give rise to a straightforward gender-based discrimination claim under s 5(1), whereby by reason of

(a)  the sex of the aggrieved person…. the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

Under s 14(2)(c), in Division 1 of Part II, it is unlawful for an employer to discriminate on the basis of marital or relationship status, or sex, “by dismissing the employee.”

While there is no general Hosanna-Tabor principle under Australian law, there are “balancing provisions” in the SDA designed to protect the religious freedom of certain organisations. Under s 37(1) in Part II:

  (1)  Nothing in Division 1 or 2 affects:

                     (a)  the ordination or appointment of priests, ministers of religion or members of any religious order;

                     (b)  the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

                     (c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

                     (d)  any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Should a local student religious group dismiss a staff-worker in similar circumstances to those in Conlon, then it would need to show that the circumstances fell within s 37. It would probably be difficult to establish that a student staff-worker was a “minister of religion” under paras (a) and (b). It is possible that para (c) could apply but that would depend whether a “religious observance or practice” was broad enough to cover not just “rituals” but also the general practice of evangelism and bible studies, for example. Para (d) would probably apply: a group of this sort would be a “body established for religious purposes”, and the “practice that conforms to the doctrines, tenets or beliefs of that religion” would be arguably the policy of requiring staff members to conform to Biblical standards of sexual behaviour, including practices in relation to divorce. Possibly the bar would be set a bit higher in Australian than in the US: whereas under Hosanna-Tabor the court would not even begin to inquire into the religious criteria used, in Australia the organisation might need to make a plausible case that their decision could be justified by a set of doctrines and beliefs that were at least a possible reading of their religious tradition.

There a number of uncertainties, then, as to how an Australian court would deal with these matters. Those uncertainties are unfortunately compounded by the differing views expressed in the Victorian Court of Appeal decision in Christian Youth Camps v Cobaw [2014] VSCA 75, discussed in a previous post. One reading of Cobaw might suggest that matters of sexual behaviour, even decisions about divorce, were not part of the “doctrines, tenets or beliefs” of a Christian organisation (a view I would disagree with.) Another issue is that whether any disciplinary action taken “conforms” to those beliefs, so that the court would be given the task of coming up with an authoritative interpretation of the Biblical material on divorce! (A matter that mainstream Christian churches, and groups within churches, have disagreed on for the last 2000 years…)

In my view, despite what was said in Cobaw, the best approach is for the courts to grant a wide “margin of appreciation” (to use a phrase drawn from European jurisprudence) to religious groups, so that so long as a decision seems to be made in a good faith and consistent interpretation of their own doctrines (not in a “sham” way to achieve a particular outcome), then courts should recognise their freedom to determine who is suitable to work in key positions in these organisations. But whether this is the way that courts go in Australia remains to be seen.

neilfoster

Update- Religious Freedom and a Canadian Law School

In a previous post I noted the ongoing controversy over whether Trinity Western University, in British Columbia, Canada, can train lawyers who will be able to practice in Canada. TWU as a Christian University requires its students to agree to comply with a Code of Conduct, part of which bans all sexual intimacy outside the traditional marriage between a man and woman. TWU’s Law program has actually been approved by the Canadian national accrediting body, the Federation of Canadian Law Societies. But as noted previously, a number of individual Provincial Law Societies have now indicated that, due to the Covenant being viewed as discrimination against persons on the basis of their sexual orientation, TWU graduates will not be admitted to practice law in those Provinces.

The first decision in what may be a number of judicial challenges to the refusal of Law Societies to accept TWU future graduates was handed down on 28 January 2015 in Nova Scotia. In Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, Justice Campbell of the Nova Scotia Supreme Court ruled in favour of TWU. (See press summary here.) His Honour held that the NSBS had acted beyond its powers by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federal FCLS, especially as it was accepted that there was no evidence that TWU graduates would unlawfully discriminate against anybody on the basis of their sexuality. In addition, his Honour held that the NSBS in making its decision was under a duty under the Canadian Charter to take into account the religious freedom rights of TWU students and graduates, and had not done so appropriately. Just a minor point- the final ruling is summed up in para [270] of the decision; the version available on the web today I think accidentally omits the word “not” from the final sentence in that paragraph. But the rest of the decision makes it crystal clear that his Honour thinks that

The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives were not reasonably balanced within a margin of appreciation. (word added)

it will surprise no-one who has read my previous paper on the issues that I agree entirely with the Judge’s decision. If I can say so with due respect, the decision is remarkable for both its learning, its clarity and the breadth of the issues covered, while remaining clearly focussed on the relevant issues. I recommend anyone interested in the balancing of religious freedom with anti-discrimination rights to read it carefully.

neilfoster

Protection of Religious Freedom in Australia

Since today is Australia Day, it seems like an appropriate occasion to make some comments about freedom of religion in Australia! Those of us who are blessed to live in this wonderful country have many things to be grateful for, and one of them is a tradition of free exercise of religion. However, this right is not protected here in precisely the same way as it is protected in other jurisidictions which share our common law heritage. In this post I want to outline briefly how the law protects freedom of religion in Australia.

One of the key features of the Australia legal system is that we are a Federation, governed by a written Constitution. The Commonwealth Parliament is given certain specific areas in which it can legislate; the States hold the “residual” powers of legislation, although if the Commonwealth has passed a valid law it can over-ride State law on that topic. This Federal division of powers is an important background to considering how religious freedom is protected.

A. Religious Freedom Protection under Commonwealth law

The Commonwealth Constitution contains a clear restriction on Federal law-making powers, designed to protect religious freedom. This is s 116 of the Constitution:

Commonwealth not to legislate in respect of religion 

  1. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

(Of course s 116 also deals with “establishment” issues, whether the Commonwealth can create or support a religious body, and religious tests. But for today we will focus on the “free exercise” clause.)

The provision is similar to, and was enacted in clear knowledge of, similar words in the First Amendment to the Constitution of the United States of America. But it has become clear in later interpretation that the High Court of Australia, in the few cases where the provision has been considered, will not automatically follow the US Supreme Court. There are only a half dozen High Court decisions dealing with the free exercise clause of s 116; to my mind the most important, and still the best, of these decisions is the WW2 era decision of Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.

Briefly, the issue that arose in that case was one which is still a hot topic today: where do we draw the line between protecting religious freedom, and protecting national security? During World War 2, the theology of the JW’s involved the views that all organised political entities (up to and including the British Empire) were “organs of Satan”, and that it was the duty of all JW’s to not participate in human wars. In addition they would refuse to take an oath of allegiance to the King.

While these views were unpopular even in peacetime, at the height of World War 2, when many Australians were fighting and dying overseas for the British Empire, they were pretty explosive. So much so that under a general regulation-making power given by the National Security Act 1939 (Cth), regulations called the National Security (Subversive Associations) Regulations 1940 had been made, and under those regulations the Governor-General had declared the Jehovah’s Witnesses to be a subversive association, and the Commonwealth had taken over its main meeting centre.

The High Court held  that the regulations were invalid. But interestingly for our purposes, the reason for their invalidity was not that they breached s 116! The court effectively held that they went beyond either the regulation-making power, or else beyond the Constitutional power involved, as being too far-reaching. In particular one of the features that struck the judges concerned was that under the Regulations organisations were prohibited from advocating “unlawful doctrines”, which were defined to include “any doctrine or principle advocated by a declared body”. Since the JW’s were within a tradition that honoured the Bible, their doctrine included such subversive tenets as the Ten Commandments! Overall 3 out of the 5 judges ruled that the regulations were too broad and were, in effect, a disproportionate response to the danger posed by the JW’s.

However, the court did consider the question whether, if the regulations were otherwise valid, they would have been contrary to s 116. I think the best of the judgments on this question was that of Latham CJ, who emphasised the importance of religious freedom, but held that in effect s 116 had to be read as posing the question whether a law amounts to an “undue” infringement of freedom of religion, taking into account other important interests (at 128). Hence a law which impaired religious freedom (as this law clearly did) would still be valid if it was aimed at achieving an important government interest (national security, here), so long as it was not an “undue” infringement of religion taking into account the importance of the interests.

Other judges read s 116 in slightly different ways, and later decisions of the High Court (most of which were comments in passing, rather than directly on this issue) offer a slightly narrower view of s 116. (See e.g. Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1.) But it seems to me that Latham CJ’s decision captures the real importance of the provision, while recognising that it cannot provide “absolute” protection where other important interests are at stake.

An important point to note about s 116, however, is that it does not apply to laws passed by a State, as opposed to the Commonwealth. The wording of the provision is clearly limited to the Commonwealth (and here in Australia our High Court has not made the step that the US Supreme Court took in Cantwell v Connecticut 310 US 296 (1940) of extending the free exercise limb of the First Amendment to the States.) Indeed, there is some academic and judicial debate as to whether s 116 even extends to Federal Territories, which are set up under authority of Commonwealth laws (although I think that there are strong hints in recent High Court decisions that, should the issue come up today, the High Court would apply s 116 to a Territory law- see Wurridjal v Commonwealth (2009) 237 CLR 309, which extended a similar limitation on general Commonwealth law-making powers to govern Territorial laws.)

B. Protection of religious freedom other than through s 116

How is religious freedom protected in Australia, then, where s 116 does not apply (in particular, under State law?) There are a number of possibilities which have been put forward, which I will briefly note.

(a) Protection under International Conventions?

There are a number of important international treaties which protect religious freedom. Probably the most important one, which Australia has undertaken to be bound by, is the International Covenant on Civil and Political Rights (the ICCPR), s 18 of which provides for a broad right of religious freedom.

But under Australian law international treaties are not “incorporated” into our domestic law automatically; Parliaments need to take a further step and pass implementing laws. Unless the Commonwealth or a State/Territory enacts specific legislation, the most that can be said (and this argument has been run in a couple of cases) is that as a matter of judicial discretion in interpreting ambiguous legislation, the courts should presume that Parliament would intend to comply with international law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.) But so far no statute has been found to be sufficiently unclear in the area of religious freedom for this principle to be applied.

Of course international conventions can provide a model to encourage legislation, and as we will see in a moment there is some local legislation which to some extent specifically adopts the ICCPR. But it cannot be litigated on directly in domestic courts.

(b) Common law protection for religious freedom?

While the common law has a long tradition of protecting freedoms in general, there is not a strong common law religious freedom tradition. In fact, of course, the common law developed in a country (Great Britain) where there was an established church, the Church of England, and at various points in history there were legal disabilities imposed on those from other religions. In Grace Bible Church Inc v Reedman (1984) 36 SASR 376 the South Australian Supreme Court held that there was no implied principle of religious freedom constraining State laws.

On this question the most promising angle is the approach seen in a Federal Court decision, Evans v NSW [2008] FCAFC 130, where the Full Court in ruling on the invalidity of some regulations constraining religious comment during “World Youth Day”, that where legislation was ambiguous it would be interpreted so as to favour the internationally recognised right of religious freedom to the maximum extent possible, referring at para [79] to the fact that “[an] important freedom generally accepted in Australian society is freedom of religious belief and expression”.

(c) Protection under specific charters of rights

As most people are aware, Australia has no general Federal “Charter of Rights” (unlike the US or even, today, the UK where the European Convention on Human Rights has to some extent been incorporated into local law.) But individual jurisdictions have chosen to implement such charters, and both the State of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14) and the Australian Capital Territory (Human Rights Act 2004 (ACT) s 14) have enacted general human rights instruments which contain explicit protections for religious freedom.

(d) Discrimination laws and “Balancing provisions”

Freedom of religion is also protected in two different ways under legislation which prohibits unlawful discrimination around Australia. In most jurisdictions (all except NSW and the Commonwealth), one of the grounds of unlawful discrimination is religious belief, so that it would be unlawful to sack someone, or deny them services, on the grounds of their religious belief. Related to this, and also present in the other jurisdictions, are provisions of laws that are designed to “balance” religious freedom with the right not to be discriminated against. So that, for example, while there is a general prohibition on employment decisions being made on the basis of gender, all jurisdictions allow churches or other religious organisations to decide only to appoint male clergy, because that is seen by some religious groups as a key part of their teachings. Agree with these teachings or not, the law takes the view that it reasonably preserves the religious freedom of believers in these groups, and the groups as a whole, to allow their religious freedom to be exercised in this way.

Of course there is a great deal more that could be said about all these areas, but hopefully this will provide a useful overview of religious freedom protection in Australia. On the whole our history has been fairly free from serious religious conflicts, and it is be hoped that we can continue to enjoy the freedom to live in accordance with our fundamental beliefs, while respecting the rights of others.

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Article in The Australian on freedom of religion and human rights

There is a brief article in The Australian newspaper today (Friday, Jan 23) by Chris Merritt, “Left hijacks human rights arena”, which quotes me, and some other Australian commentators, on the unfortunate tendency to trivialise freedom of religion (a clearly recognised human right under major international conventions) and to elevate general rights of “non-discrimination”. For those who are interested in further reading, there is an excellent discussion of some of these issues in a chapter by Professor Patrick Parkinson, “Christian Concerns about an Australian Charter of Rights” (in Babie & Rochow, eds, Freedom of Religion under Bills of Rights, Uni of Adelaide Press, 2012) 117-151, esp from p 121. (The book as a whole may be downloaded for free here.)

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Beards, prisons and religious freedom

The US Supreme Court yesterday issued an interesting religious freedom decision in Holt, AKA Muhammad v Hobbs, Director, Arkansas Dept of Correction (No 13-6827, Jan 20, 2015). (Thanks to Marc DeGirolami at the CLR Forum for the notice.) A Muslim prisoner wanted to grow a 1/2 inch beard for religious reasons. The State prisons policy required that prisoners have no beards, except that those with certain skin problems were allowed to grow a 1/4 inch beard. Holt, the prisoner, successfully sued the State under the provisions of the Federal Religious Land Use and Institutionalised Persons Act 2000 (“RLUIPA”), 42 USC  §2000cc et seq. The SC held that he had shown that the State rule burdened his religious freedom, and that the rule could not be proven by the State to be in furtherance of a “compelling governmental interest” or to be the “least restrictive means” of furthering that interest.

The unanimous decision of the Court (there were clarifications issued by Ginsburg J and Sottomayor J but they agreed with the outcome) is a nice illustration of how many religious freedom claims are dealt with in the US these days. Alito J provides a helpful “road-map” to the way the issues are raised, at part IA of the judgment (pp 2-4 of the linked decision). This case did not directly involve the right to free exercise of religion under the First Amendment to the US Constitution, because the prevailing view in the SC at the moment seems to be that Employment Division v Smith, 494 US 872 (1990) represents the correct approach to the First Amendment. In effect Smith is read to mean that so long as there is some plausible, non-“religiously hostile”, reason for a Government law then it cannot be challenged under the First Amendment. Following Smith, the US Congress attempted to return protection for religious freedom to a broader basis by enacting two Federal statutes. The first was the Religious Freedom Restoration Act 1993 (“RFRA”), which (it was subsequently held in City of Boerne v Flores, 521 US 507 (1997)) applies only to Federal law. The second was RLUIPA, which applies to specific types of State laws covered by Federal legislative power (according to Alito J here at p 3, the “Spending and Commerce Clauses”.) The particular State laws covered by RLUIPA, as its somewhat odd title conveys, are land use laws and laws governing “institutionalised persons” including prisoners in State jails.

Where RLUIPA applies, as with RFRA in its area, the substantive provisions require that a State law which “substantially burdens” the religious freedom of a prisoner, will only be valid if the State can show that:

imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a).

Here the Supreme Court held that

  • the plaintiff was able to show that he had a sincere and genuine religious belief, not motivated by some other reason (evidence at trial established “hadith requiring beards… are widely followed by observant Muslims” – see p 8), and the Court held that it was irrelevant that growing a beard was neither universally followed by all Muslim men, and also that it was not viewed as a “compulsory” part of Islam. Nor was it relevant that the prisoner was allowed to carry out other religious exercises- the specific issue of the beard mattered to him on genuine religious grounds.
  • hence it was a “burden” to be asked to shave off his beard below 1/2 inch (it may have been relevant that Mr Holt had already “compromised” in agreeing to restrict his beard to 1/2 inch, as he would have preferred to not shave at all).
  • The State was not able to show that its claimed interests were “compelling”. The claim that small dangerous items could be concealed in a beard was doubted by the Court in relation to a 1/2 inch beard (nothing that hair could be grown quite long and would provide a better hiding place!) The claim that the beard could be shaved off and make identification harder was met by the answer that two photos of each prisoner could be taken, a “before” and “after” the beard, which would enable adequate identification (a policy followed in many other prison systems.)
  • Nor could the State show that this was the “least restrictive” method of achieving even these limited aims, for similar reasons. The Court noted that of course the judgment of prison officials warranted a degree of deference by the courts, as they had to deal with the issues daily; but they said that there came a point where deference had to give way:

without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting outcontraband. (at p 10)

  • One factor that counted heavily against the State was that the vast majority of other State prison systems, and the Federal system, had no such rules and was able to manage the concerns about smuggling and identification adequately.

In the end, then, all the Court agreed that Mr Holt’s religious freedom had been unduly burdened by a rule which could not be justified under the RLUIPA standard.

neilfoster

Same Sex Marriage- Comparing the US and Australia

The recent decision of the US Supreme Court to grant “certiorari” (leave to appeal) in a same sex marriage case has brought the matter back to attention in the US. The topic is one with many connections to law and religion, and I thought it was worthwhile to compare the current state of play in the US with the situation in Australia.

The “law and religion” connections are in two main areas. First, the law of marriage in Western societies has been shaped by Christianity, which was the shared world-view of the West for most of the previous two millennia. Proposals to now expand the definition of marriage, to extend the status to same sex couples, are seen by many as radically changing the institution, and hence are objected to by many who share the Christian world-view. Second, a change in the nature of marriage has already produced a number of religious freedom challenges. Should religious clergy who are empowered to conduct weddiings, be required to conduct same sex weddings? Should others who are in the “wedding support industries”, such as florists, cake-makers,or those who hire venues, be required to provide their active support to same sex weddings when they may, on account of sincere religious belief, take the view that these relationships are contrary to God’s purposes and wrong? Once the State authorises entry into same sex marriage, is it legitimate for faith-based schools to teach children that such relationships are sinful? Indeed, is it possible for anyone to say as such in the public square and not be accused of “homophobia”?

One common response to these issues on the part of proponents of same sex marriage is to simply recite the slogan “marriage equality”. But, as I have argued previously, it is not “discrimination” to treat things which are in fact different, differently; not is it discriminatory to deny the conferral of a status on a person or persons when they simply do not meet the accepted criteria for that status. No-one denies that a homosexual person should be able to marry; but what is denied is that a relationship with someone else of the same sex would be a “marriage”, for marriage has never previously meant that.

Nevertheless, the arguments in favour of redefining the institution of marriage to include same sex couples have been made vigorously over the last decade or so, and with some success in a number of Western countries.

Both Australia and the United States have seen this pressure for change. Both countries are Federations, with a Federal legislature with defined powers, and other legislative powers exercised by the various States.

United States of America

In the US, it has commonly been thought that questions of marriage are left to the different States. But the over-riding power of the US Constitution means that a State may not legislate to remove a right or privilege given by the Constitution. Proponents of same sex marriage have been arguing for some years that rights of “equality” to be found or implied in the Constitution mean that no State can choose to deny the right to marry to a same sex couple.

So far this argument has not yet been successful; it is expected that this will be the focus of the forthcoming appeals. Far from being uniformly in favour of same marriage, many individual States have passed laws either through their legislatures, or by referendum, affirming that marriage is between a man and a woman, and rejecting any transformation of the term. (This, by the way, is a more accurate description than that sometimes adopted, of laws “banning” same sex marriage. Something cannot logically be “banned” if it never previously existed! The people of these States, through their democratic processes, have chosen not to adopt a proposed change to the law which has been as it now stands for the entire history of the US.) However, in many of those States, a Federal judge or Court of Appeal has ruled that, despite the will of the people of that State, there is a constitutional “right to same sex marriage” buried deep in the terms of the US Constitution, which over-rides what those people have decided.

Until recently the US Supreme Court had not ruled definitively on the point. In 2013 two high-profile decisions of the Court were seen as supporting a general move to recognition of same sex marriage, but only went a certain way. In United States v Windsor, 570 US __, 2013 WL 3196928, No 12-307 (26 June 2013) federal legislation, the Defence of Marriage Act, which defined marriage for “federal purposes” as between a man and a woman, was struck down as invalid. In Hollingsworth v Perry, 570 US __, 2013 WL 3196927, No 12-144 (26 June 2013) it was held that those in California who had organised a successful referendum in that State defining marriage as between a man and a woman, did not have standing to challenge a decision of a lower court judge that the amendment was unconstitutional (and since the California government would not defend the legislation, the lower court decision remained.)

One point is worth noting. Even commentators who supported the Windsor decision had some problem identifying precisely the legal basis for the striking down of the law! But one of the features of the decision was the “swing” vote of Kennedy J (who provided the majority) where he insisted that it was not only the effect of the Federal legislation that homosexual persons felt denigrated, but in fact that this was indeed the “purpose” or “motive” of those who enacted it- to injure and disparage same-sex unions and those who might form them (see eg 133 S Ct 2693). As Smith points out in his excellent critique, the Court was thereby implying that all of the members of Congress who supported the law, and indeed the President at the time, Bill Clinton, were guilty of an irrational “animus” against homosexual persons. Smith demonstrates convincingly that in fact this charge was completely false, that clear public policy rationales were provided by the supporters of the laws, and he laments the fact that in the debates in this area it seems to be impossible for some to concede that those who disagree with them do so for any but irrational reasons.

As Smith points out, it seems that Kennedy J has adopted the popular view that “to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior human beings” (at p 6.) In a telling passage he continues:

The inference from moral disapproval to ascribed judgments of lesser personhood is not only a non sequitur; it is a pernicious non sequitur. That is because if we are to live peacefully and with mutual respect in a morally pluralistic society, it is imperative that we be able to approve or disapprove of different kinds of conduct, or even of different ways of life, without thereby being deemed to have depreciated the humanity of people who live in ways we disapprove. The invalid inference asserted by the Court in Lawrence and tacitly repeated in Windsor would effectively eliminate that possibility. Logically extended, the inference would inhibit judgments disapproving of racism, sexism, or other forms of bigotry: such judgments would violate the commitment to the “equal moral worth” of all human beings by implying that the people guilty of such offensive and irrational attitudes and actions are themselves somehow lesser or inferior persons.

In more recent developments in the United States, since these decisions a number of State constitutional amendments, or local State statutes, that define marriage as a relationship between a man and a woman, have been challenged and struck down as unconstitutional, on the basis that the implication of Windsor is that the US Constitution somehow contains a federal “right to same sex marriage”.

Indeed, President Obama has now said that this is his own view:

President Obama says he now believes that the Constitution guarantees a right to same-sex marriage in all 50 states but expressed support for the more incremental approach taken by the Supreme Court. Mr. Obama opposed same-sex marriage until 2012, when he came out in favor of letting states decide the issue for themselves and urged them to embrace such unions. In an interview with Jeffrey Toobin of The New Yorker, posted online on Monday, he said same-sex marriage should be a right for all Americans regardless of where they lived. But he added that “given the direction of society, for the court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.” The court struck down part of the federal Defense of Marriage Act last year and, in a separate ruling, effectively allowed same-sex marriage to proceed in California.[1]

Of course, even in the US the legal opinion of the President isn’t binding as a matter of law, but it is an interesting illustration of how public opinion has shifted.

The President’s comment was made in the context of a recent “non-decision” of the Supreme Court. Appeals were filed from a number of the decisions of Federal Circuit Courts of Appeal who had ruled State laws defining marriage in historically traditional ways were invalid. On Oct 6, 2014 the Supreme Court, with no explanation (as is often the case in denial of certiorari) refused appeals from those courts. Commentators argued about what this refusal meant, and why, but no-one really knew.[2] The impact on State laws has, however, was dramatic. In effect all those States whose Federal Circuit courts were under the authority of those appealed from were now required to invalidate a local State law affirming traditional marriage. This means that even in a State where the majority of the voters in the State had supported the historical definition of marriage, those laws were invalid. Same sex marriage is now regarded as being lawful in 36 US States, up by 17 from the number before the Oct 6 ruling.

However, the trend of Federal Circuit Courts of Appeal striking down State laws on these grounds was broken with a more decision of the 6th Circuit, upholding the statutes, which finally resulted in the Supreme Court agreeing to resolve the dispute. The stage is now set for the Court to finally hear argument on the substantive question, which it seems it will do in April. However, what is interesting is the way that the Court has structured the arguments. Time has been allocated for argument on two points: (1) whether there is a “constitutional right” to same sex marriage which would over-ride State laws; and (2) if not, whether a State which does not itself recognise same sex marriage should be obliged to recognise the validity of such a marriage carried out in another State (an argument based, presumably, on the “full faith and credit” clause obliging recognition of other laws within a Federation.) it seems possible that this careful structuring of the issues may mean that the conservative minority on the Court may be able to persuade Kennedy J (whose vote is viewed as the “swing vote” on this issue) that it would be going too far to completely over-ride State discretion on marriage for their own citizens; but that a plausible compromise would require recognition across State borders of a marriage entered into elsewhere. In many ways this would be an interesting outcome- the number of States where same sex marriage is recognised would be reduced to those where the State legislature had consciously chosen to change the law, a fairly small number. But it is impossible to predict exactly what the Supreme Court will decide.

Australia

The situation in Australia is that here our Constitution gives “marriage” as one of the topics that the Federal Parliament may legislate on, under s 51 (xxi). It is a “concurrent” power, shared with the States, but where the Commonwealth has exercised its power, then under s 109 of the Constitution Federal law will over-rule any contrary State law. The two quasi-independent Territories, the ACT and the Northern Territory, are also able to make laws on a wide range of topics, but again those laws must give way where the Commonwealth Parliament has spoken.

Here, then, the most natural way to implement same sex marriage would be by way of amendment to the Federal Marriage Act 1961, which has been the exclusive law on the topic since it commenced in 1963. In 2012 an attempted Bill for same sex marriage was defeated in both Houses of Parliament. An attempt by the ACT, a Federal Territory, to go its own way and to enact a same sex marriage law was over-turned by Australia’s final court of appeal, the High Court, at the end of 2013. I have just written an analysis of this decision here which explains its reasoning.

Unfortunately, in my opinion, the High Court’s decision went beyond striking down the ACT law, and offered comments on whether a future law for same sex marriage passed by the Federal Parliament would be valid. As I discuss in my recent note, I regard these comments as unnecessary and unhelpful, particularly as no opposing position was put in the litigation. I think it is still very much an open question as to whether the Commonwealth’s “marriage” power can be used as it stands to support same sex marriage, or whether (as I think) the change could only be made by referendum.

In conclusion, in the US the question whether same sex marriage will be introduced around the country (even over the opposition of large numbers of voters in the various States), or not, will hinge very substantially on what is decided in the forthcoming US Supreme Court decision. In Australia, it seems clear that the matter is one that will have to at least be decided initially by the Federal Parliament, and at the moment the current Parliament shows no enthusiasm for the question. Even if a change should be approved in the future (and this, despite the claims of supporters, is by no means a forgone conclusion- sometimes the “tide of history” goes out again!), there will still in my view be a serious question as to whether the obiter dicta of the recent High Court decision should be accepted, or whether the Court will need to revisit the scope of the marriage power in the Australian Constitution.

[1] Peter Baker Obama Broadens Support for Same-Sex Marriage (New York Times, Oct. 20, 2014) http://www.nytimes.com/2014/10/21/us/obama-broadens-support-for-same-sex-marriage.html?_r=0 .

[2] See, for one of many comments, Suzanne Goldberg, Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples, SCOTUSblog (Oct. 6, 2014, 12:48 PM), http://www.scotusblog.com/2014/10/symposium-the-supreme-courts-opt-out-means-more-marriage-equality-but-continuing-harms-to-gay-and-lesbian-couples/ .

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Churches meeting in public schools

Can a church hold its Sunday meetings (or other activities) in a public school building? The issue doesn’t seem controversial in Australia at the moment (my church, for example, does just that.) But it has proved surprisingly difficult to resolve in New York, and where there is a trend in the US in the area of religious freedom it is worth noting for its possible future arrival in Australia.

I first wrote a paper about this particular dispute at the end of 2011. That paper contains some details about the US First Amendment and why it was invoked here. Essentially, a smallish independent church, the Bronx Household of Faith, had been meeting on Sundays in a public school, but the New York City Board of Education objected. The relevant rule they laid down, after some other versions, was that no organisation could use school property for “religious worship services”. They were effectively claiming that by allowing church services to take place, the “wall of separation” between church and state was being breached, and members of the public would see the City as somehow “entangled” with the church.

The dispute has been characterised by trial judges ruling in favour of the church, and the Second Circuit Federal Court of Appeals then overturning the lower court decision and ruling against the church. There have also been strong dissents from one of the judges on the Court of Appeals. As I left matters at the end of my 2011 note, the US Supreme Court had refused to hear an appeal from the Second Circuit, which had ruled that the City’s regulation was not contrary to the “free speech” part of the First Amendment. But as I said in my note, it had become apparent that there were stronger “freedom of religion” arguments that could have been raised, which opened the way for the school to have another go.

After the Supreme Court’s denial of appeal on the free speech point, the church obtained an injunction from the District Court, in Bronx Household of Faith v. Board of Educ. of City of New York, per Preska CJ (see 876 F Supp 2d 419 S.D.N.Y., 2012; June 29, 2012) preventing the city removing the church from the school, this time on “free exercise” grounds (as the particular regulation targeted “religious worship”), and also interestingly on the “establishment clause” ground that the law “excessively entangled” the government with religion (as government officials had to make a judgement about whether what the church was doing was “religious worship” or not!).

 The Court (a single judge) found that the regulation violated the Establishment Clause under Lemon (see the earlier paper for details of this) because it caused the Board’s officials to become excessively entangled with religion by requiring them to make their own bureaucratic determinations as to what constitutes “worship.” (at p 47 of the transcript)

The US Second Circuit Court of Appeals then heard an appeal from this decision on Nov 19, 2012. On April 3, 2014, the majority of the 2nd Circuit ruled in favour of the City that there was no violation of the First Amendment, either the establishment clause or the free exercise clause. An application for an appeal to the US Supreme Court has now been made. The 2nd Circuit on 10 July 2014 issued a “stay order” which means that the church can keep meeting in the school for the moment until the appeal is resolved.

Meanwhile, in May 2013 the New York City Council passed a motion encouraging the New York State legislature to overturn the particular rule: see here. But there is apparently still some doubt as to whether the State legislature will do this, and so it seems that the outcome of the appeal is still important for the issue. The current New York mayor has said that he favours allowing the church to use the school.

The latest report I have read says that, despite the Mayor’s previously expressed views, officials from the City are still proposing to argue the appeal in the Supreme Court. It is also interesting to note that the litigation has been dragging on for so long that church has now managed to put up its own building! But it would still like to use school premises for the occasional extra activities, so it will also continue the litigation.

Those interested in a full account with links to all the relevant court documents can see it at the excellent Alliance Defending Freedom website on the case.

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Vaccination and religious freedom

The question of the effectiveness or possible harm of compulsory vaccinations is of course a hot topic in Australia as it is in other parts of the developed world. My own view is that the evidence for the effectiveness and general safety of most standard childhood vaccinations is overwhelming. But how should the law respond when a parent claims that for religious reasons they do not want to vaccinate their children?

This was the issue that was considered recently in a decision of the Second Circuit of the US Court of Appeals in Phillips v City of New York (DN 14-2156-cv, 7 Jan 2015). NY state law requires all children attending public schools to produce evidence of vaccinations, with two exceptions: where there is a clear medical reason that vaccination should not take place, or where the parents can show a genuine religious objection. But another part of the law specifies that where there is an outbreak of a disease against which vaccination is effective, students who are unvaccinated because of such exemptions being granted, may be temporarily excluded from the school.

In this case two of the plaintiffs had been granted a religious exemption, but complained that their children had been excluded from school during a chicken-pox outbreak. The other plaintiff had had her claim for a religious exemption denied, because she could not cite any doctrines of her church (the Roman Catholic Church) that related to the question of vaccinations. The complaints alleged a breach of the freedom of religious exercise right granted by the First Amendment to the US Constitution.

The facts illustrate a common feature of religious freedom cases, that many involve a clash between religious freedom of the plaintiff and some other right of someone else. Here NY officials claimed that the right to be free from infectious diseases (a specific example of what one might call a general right to be free from unnecessary bodily harm) clashed with the right of parents to exercise religious freedom. The Court, correctly in my view, held that the First Amendment rights of the plaintiffs had to give way in this case to public health considerations. While there was no US Supreme Court decision directly on point on the First Amendment issues, the Court cited dicta from a 1944 decision which was highly persuasive:

a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

In addition, the general approach of the US Courts to religious freedom issues in recent years is to read the right very narrowly, so that if there is a “neutral” (i.e. not clearly anti-religious) reason for a law, it will not breach the First Amendment, following the decision in Employment Division v Smith 494 US 872 (1990). (Without going into detail at the moment, I should say that I disagree with this general approach, which seems to read religious freedom far too narrowly. But that will have to be the topic of a future post.) But even if a more generous approach were adopted, such as has been taken in the US Federal sphere in the Religious Freedom Restoration Act (RFRA) 1993,[1] where restrictions on religious freedom have to have a compelling policy justification and be narrowly drawn, it seems to me that this law on vaccination is perfectly sensible. There are clear and scientifically proven detrimental health effects to others from the spread of disease from those who are not vaccinated (and indeed compelling reasons in the interests of children themselves to do as much as possible to encourage parents to vaccinate.) Even if there are religious reasons not to do so, the potential harm caused by the failure outweighs the harm caused to religious sensibilities.

Indeed, one may go further. While it is true that some who oppose vaccinations on general principles are religious believers, many are not. And even among those who are religious, it is arguable that hardly any of the reasons offered for not vaccinating are drawn from religious reasons. The decision records that 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.

In other words, while it was not doubted that she had genuine health concerns for her child, those concerns were not really based on religious beliefs. It may be that others can be offered, and I would not want to deny that some objections to vaccination might be based on genuine religious beliefs. But I think the approach of the court here was correct, to test the claim of a religious belief on the topic by asking the plaintiff to spell out her reasons, and where none of the effective beliefs related to her religious world-view, to not accept that they were religiously motivated.

Religious freedom is a fundamental human right which is protected by international human rights instruments and a long common law tradition. But like all other rights, it occasionally has to give way in the wider public interest, and while accepting that the parents concerned had genuine beliefs, the decision of the Court here seems sensible. It will be interesting to see if the matter is taken up the US Supreme Court, as some of the press reports indicate the plaintiffs plan to appeal.

[1] 42 USC ss 2000bb to 2000b-4.