Religious Freedom amendments introduced in NSW

Today the Rev the Hon Fred Nile, for the Christian Democrat Party, introduced a Bill to add “religious beliefs or religious activities” into NSW legislation as a prohibited ground of discrimination. The proposed Anti-Discrimination Amendment (Religious Freedoms) Bill 2018 will add new Parts 3B and 5A into the Anti-Discrimination Act 1977 (NSW) (“ADA”), making it unlawful in various areas to discriminate on the grounds of religion, or to subject religious bodies to a detriment. The proposals will also make it unlawful to penalise someone for holding views on marriage as the union of a man or a woman, or for holding the view that there are only two genders.

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Submission to Religious Freedom Review

The Religious Freedom Review Panel, chaired by the Hon Philip Ruddock, has invited submissions from all Australians on the protection of religious freedom in Australia. Submissions are being accepted until 14 February 2018. I attach a copy of my submission here: Submission on Religious Freedom Protection for RF Review Expert Panel (with permission of the Review Panel), and one of its attachments: Foster Attachment 1- Religious Freedom in Australia overview 2017. (There is a second attachment which I will release later, as it is a copy of a paper I am presenting at a conference in a couple of weeks.) Those who are interested in the area may find it helpful to see the sort of topics that I think ought to be addressed.

Religious groups and employment of staff

Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?

These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved. 

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Balancing Religious Freedom Rights is not “Discrimination”

Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:

Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another” The Guardian online, 22 Nov 2017)

The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination. 

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Protecting religious freedom after “Yes”

Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)

I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.

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Review of NT discrimination law- guest blog

The Northern Territory government has released a discussion paper called Modernisation of the Anti-Discrimination Act (Sept 2017). It invites comments by 3 December 2017. You can almost get the tone of the paper from the title! After all, who in this fast-changing age could oppose anything called “modernisation”? But there are a number of concerning recommendations and comments made from the law and religion perspective, and there are some real doubts whether the proposals properly reflect religious freedom principles.

My colleague Dr Alex Deagon from QUT has graciously provided a guest blog post in which he outlines his comments on two major concerns with the proposals to amend the Act. Those who are interested in the interaction of discrimination law and religious freedom should find them very helpful, and may wish to make their own comments in response to the discussion paper. There are other controversial proposals in the paper which may be the subject of future posts. 

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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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