Religious Freedom protections in new same sex marriage proposals: too few, too narrow

The debate over same sex marriage in Australia has been re-ignited by news that some members of the federal governing Liberal/National Party (LNP) coalition are proposing, contrary to their party’s policy, to introduce legislation in Federal Parliament this coming week to redefine marriage to extend it to same sex couples. In particular, press reports today indicate that a new Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will be introduced, one feature of which is that it contains legislative protections for religious freedom, designed to encourage support of the legislation by believers. In my view the protections to be provided, if press reports about the proposal are accurate, are far too few and far too narrow, and the proposal cannot be seen as providing adequate protection for this fundamental human right.

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Protection of Religious Freedom through Discrimination Balancing Clauses

I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.

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Flowers and Freedom: the Arlene’s appeal in Washington State

Barronelle Stutzman, who runs a florist’s business in Washington State in the USA, has just lost another appeal in court proceedings based on her decision to decline to prepare floral arrangements for a same-sex wedding. In State of Washington v Arlene’s Flowers Inc and Stutzman, (Wash SC, En Banc, No 91615-2; 16 Feb 2017) the 9 members of the Washington Supreme Court upheld an earlier order that she pay damages and also the costs of her opponents, likely to run into hundreds of thousands of dollars. (Note that, of course, this is not a decision of the final court of appeals, the US Supreme Court; whether or not there is an appeal to that court remains to be seen.)

You can see Ms Stutzman speak about the circumstances in a video here. In short, she had catered for one member of the couple by supplying flowers for him for many years, knowing he was gay. But it was only when he asked her to devote her artistic talents to the celebration of a same-sex marriage, a union she saw as contrary to God’s will according to her Christian faith, that she politely declined. She was then sued both by the State of Washington (under the Washington Law Against Discrimination, WLAD, which includes “sexual orientation” as a prohibited ground of discrimination), and in separate proceedings by the couple themselves.

The Arlene’s case is only one of a number of examples of cases involving participants in what might be called the “wedding support industry,” who have been sued for sexual orientation discrimination after declining to devote their skills to the celebration of a homosexual marriage relationship. (I have mentioned this specific case in a previous blog post here, and other cases here.) I dealt with a number of the issues in my article on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5/3 Oxford Journal of Law and Religion 385-430. Following the approach taken in that article, I want to analysis this most recent decision under the headings:

  1. Is this sexual orientation discrimination?
  2. If so, is there or should there be some “balancing clause” applicable to recognise religious freedom?

I will then turn to briefly discuss the policy issues that arise in these cases, and address the fear that recognition of religious freedom here would lead to serious impairment of other rights and freedoms.

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Australian inter-State vilification orders overturned

In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.

While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.

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Why proposed same-sex marriage balancing clauses would be constitutional and right

Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)

While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.

I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.

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Three controversial Victorian bills defeated

A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law. 

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Freedom of Religion and Balancing Clauses in Discrimination Legislation

An article of mine on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) Oxford Journal of Law and Religion, doi: 10.1093/ojlr/rww045, has just become available. Those who are interested can download it from the Oxford website here.

The law moves quickly in this area- the article notes the Ashers Bakers case but when it was written the appeal had not been handed down. For those who want an update on that decision it is available in my previous post, “The Ashers “Gay Cake” appeal- one of these things is not like the others” (Oct 25, 2016). The criticisms of the trial decision I make in the article are still applicable to the unsatisfactory appeal decision, which I hope will be overturned if taken on further appeal.