Can a Roman Catholic agency involved in placing foster children with carers, decline to place children with same-sex couples because of its religious commitment to the value of traditional marriage? The US Supreme Court recently handed down a significant religious freedom decision in Fulton v City of Philadelphia, Pennsylvania (593 US ____ (2021); No 19-123; 17 June 2021) which ruled 9-0 in favour of the Catholic agency. This is an important decision, although it did not quite go far enough in clarifying the interpretation of the US First Amendment. As decisions in the US often resonate in other parts of the world, I thought it would be helpful to set out the reasons of the court, and to briefly discuss another case which has already been decided based on its reasoning. (That case involves some Amish people and their plumbing arrangements!)
The recently released NSW Parliamentary Report of the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (handed down on 31 March 2021) has recommended that the NSW government introduce amendments to make it unlawful in NSW to discriminate on irrelevant grounds relating to religious belief or activity. The proposals supported by the Committee are a good idea and I think their recommendations (with a couple of minor reservations noted below) should be implemented.
The Victorian Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (which I will call the “CSP” law for short) passed the Upper House on 4 Feb, 2021. As I write it seems not to have yet received the Royal Assent and become an “Act” but that will no doubt happen soon. The government has signalled that the legislation will not come into operation for another 12 months (see the final sentence in this article.)
My previous posts (see here for the most recent) have expressed grave concerns about the effect of the law on religious freedom and specifically on the freedom of parents and others to encourage children to live in accordance with Biblical standards of sexual behaviour. It is astonishing that the Bill was rushed through Parliament in the face of concerns also being expressed by the Law Institute of Victoria, the Australian Medical Association (AMA) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP). (See this excellent post from Murray Campbell noting these issues.)
There are, it seems, very few legal avenues available to challenge the many problems created by this law. But in this post I want to suggest one which may be available- where the CSP Law purports to take away rights of religious freedom granted by the Commonwealth Parliament.
The approach of the official end of the judicial term in the US Supreme Court has seen a number of important law and religion-related decisions handed down in the last week. We have seen decisions relating to access to abortion; to whether the US government can require religious bodies to fund abortion and contraception; to the provision of state funds for religious schools; and to the question of whether discrimination law can be applied to teachers of religion at religious schools. (And all of those are in addition to the other recent major decision in Bostock on sexual orientation and gender identity discrimination, which I have noted previously.)
Each of the four cases here would warrant (and no doubt will produce) detailed academic commentary. But here I will simply flag the case and the general outlines of the reasoning for those who want to read more.
In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.
I am delivering a seminar paper on the topic “Churches, Same-sex ministries and the law: discrimination and religious freedom” on August 20. For those who are interested, there is a copy of the paper here:
Dominic Steele, the organiser for the day, has kindly made this video of the presentation available as well:
(This is a guest blog post from Mark Fowler, Director, Fowler Charity Law Pty Ltd and an Adjunct Associate Professor at the University of Notre Dame Law School, Sydney.)
The Commonwealth Attorney-General has released a long-awaited referral to the Australian Law Reform Commission concerning the legal freedoms of religious schools and religious bodies. The referral gives effect to a commitment of the Morrison Government made in its December 2018 response to the Expert Panel on Religious Freedom (the Ruddock Review). This is the latest instalment in the debate over the proper protections to be afforded to religious freedom that first arose in the context of the legalisation of same-sex marriage. For ease of reference, the Ruddock Review and the Government Response are available here.
Main Points to Note
By way of analysis, there are a few headline points to note about the ALRC Referral:
- The referral requests recommendations on how to provide legal guarantees that will ensure that schools can continue to teach and act consistently with their ethos. This gives effect to the Government’s commitment that arose from the recent Senate debates on the Discrimination Free Schools Bill 2018, introduced by the Greens, and the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, introduced by Labor Senator Penny Wong. In their dissenting Senate Inquiry report on the Wong Bill, Labor committed to removing the religious schools exemptions for both staff and students. Labor’s proposal is:
- In respect of students, all acts of ‘direct discrimination’ would be unlawful and schools would need then to argue that their actions are ‘indirect discrimination’ and are ‘reasonable’. In my view, this introduces high degrees of uncertainty for schools, parents and children.
- In respect of staff, to introduce a positive right for schools to exercise discretion over teachers (not wider staff), which would only be available where a teacher acts inconsistently with the school’s beliefs – that is, schools will not be able to require that teachers hold their beliefs. Many schools consider that their ability to employ persons who adhere to their belief system is critical to the modelling of authentic faith to the next generation.
Should Labor win the election, the ALRC’s recommendations will be a critical lodestar, either guiding future Labor reform efforts, or their proper assessment.
2. The referral concerns not only Commonwealth, but also State and Territory law, emphasising ‘the desirability of national consistency in religious exceptions in those laws’.
3. The referral extends not only to the religious freedom rights of religious schools but to all religious bodies. Given this wide-ranging scope, the ALRC recommendations hold out the prospect of wholesale reform to protections to religious freedom within State, Territory and Commonwealth law.
4. The referral makes expressly clear that the ALRC is to consider faith-based institutions, such as welfare providers, to be ‘bodies established for religious purposes’ for the purposes of the referral, aligning with the treatment of such bodies by the Ruddock Review. On the basis of past reviews, this is likely to invite deliberation on whether special conditions should apply to such faith-based institutions, particularly where they are in receipt of government funding, or make supplies to the general public.
5. Consistent with the Government response to the Ruddock Review, the referral also requests recommendations on amendments to State and Territory discrimination and vilification law to ensure that such laws do not prohibit the expression of a traditional view of marriage.
Specific Terms of the Referral
In specific terms, the referral requests that the ALRC consider ‘what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
- limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
- remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.’
The referral can be seen as the culmination of long-running calls from religious bodies to replace the existing religious exemptions with a positive right to act (see, for example, my recent article for the ABC here). It can also be seen as a response to concerns raised during the marriage campaign concerning infringements on freedom of speech.
A full copy of the referral can be obtained here.
Religious Discrimination Act
Importantly, the referral states:
‘The ALRC should also have regard to religious exemptions in anti-discrimination laws and their interaction with ‘religious belief or activity’, including the expression of religious and moral views, insofar as they are a ground of discrimination (as proposed by the Religious Freedom Review, particularly in recommendations 15 and 16, and in accordance with Recommendation 2).’
The Ruddock Review’s Recommendation 15 contained a proposal to protect religious belief and activity through a CommonwealthReligious Discrimination Act (you can find my further piece for the ABC on this topic here). Recommendation 2 proposed that anti-discrimination law should be structured according to the principles set out in international law, as interpreted by the Siracusa Principles. For those who would like further detail on the relevant international law, a very helpful summary that had specific regard to religious schools, was provided by the Coalition Senators Dissenting Report to the Greens Bill, available here.
Any consideration of the interaction of such an Act with exemptions will likely require the ALRC to give consideration to the substantive content of protections within a Commonwealth protection of religious belief. In my view, this will be an important area for stakeholders to consider in their submissions.
Reporting Timeframe and Opportunity for Submissions
The ALRC must report by 10 April 2020, and is requested to consult with relevant stakeholders. Judging from conventional ALRC practice, it will be likely that the ALRC will seek submissions from the general public.
(By Neil Foster) It is also interesting to note that on the ALRC website, the following information appears:
Conduct of Inquiries
Both inquiries will be led by ALRC President, the Hon Justice S C Derrington… The ALRC will consult widely during the course of each Inquiry.
In accordance with the ALRC’s usual process, a Discussion Paper for each Inquiry will be released at an interim stage and interested stakeholders will be invited to make formal submissions in response to the Discussion Paper. These submissions will inform the final report provided to the Attorney-General of Australia.
The ALRC has opened the Terms of Reference for both Inquiries to public comment until 10 May 2019. Please refer to the Corporate Crime and Religious Freedoms inquiry pages on the ALRC website. The ALRC will use comments on the Terms of Reference to inform the scope of its review.
The ALRC will now undertake the process of setting up these two inquiries and will commence consultations with stakeholders in these areas in a few months’ time. (emphasis added)
It is, in my experience, slightly unusual to see an invitation to comment on the Terms of Reference of an inquiry. Presumably those interested may like to offer views on the interpretation of the wording and the intent of the reference. If so, it is worth noting that there is a very short timeframe for “terms of reference” comments, which expires on 10 May 2019. This, of course, is just a preliminary comment stage- further comments will no doubt be sought after a Discussion Paper is released.
Further information: since this post was first up, the ALRC has now announced more details about its timeline:
The ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.
The Senate Legal and Constitutional Affairs Committee has now (Feb 14, 2019) tabled its Report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, a Private Senator’s Bill introduced last year by Senator Wong with the support of the ALP. (The background to the Bill can be found in previous posts on this blog, starting here, the most recent of which was here.) The recommendation of the majority is that the Bill not be approved, and instead that the Bill and related issues “be referred to the Australian Law Reform Commission for full and proper consideration” (para 3.86).
In my former posts (here and here), O Friend of Law and Religion, I have dealt with all that the Ruddock Report covered in recommendations 1-12 and 15, along with the official Government Response to those recommendations. In this post I aim to cover recommendations 13-14 and 16-20. These deal with important issues of the law of blasphemy and religious free speech, along with State discrimination laws, collection of data, education on religious freedom, the role of the Australian Human Rights Commission, and the exercise of leadership in the area by the Commonwealth.