Some in-depth reading on same-sex marriage issues

An academic colleague suggested the other day that it would be good to post some recommendations for academic commentary on the same-sex marriage issues, for those who are interested in reading that goes a bit more in-depth than a standard blog post or opinion piece.

I thought this was a great idea. I have compiled the following list of reading from recommendations of legal colleagues who, like me, have serious concerns about the proposal to introduce same-sex marriage. In that sense it is not a ‘balanced’ list. Those who want to find enthusiastic academic support for introducing the reform will not find it hard to do so elsewhere. But some of these pieces may not be so widely read, and deserve to be better known. Some are quite recent. 

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Free speech and vilification in the marriage law postal survey

Australia is involved in a debate about whether same sex marriage should be introduced. The question is being put to the electors in the form of a voluntary postal survey, the question in which is simply: “Should the law be changed to allow same sex couples to marry?”

The original intention of the current Government had been to put this question to the people of Australia in a compulsory plebiscite. This option being defeated twice in Parliament, the postal survey has been designed to be run without explicit authorising legislation. However, once it was decided that the survey would proceed, concerns were expressed that the debate might contain misleading and deceptive advertising, which would usually have been dealt with under the electoral laws (but since the survey was not being run under those laws, no such protections applied for the survey.) In addition, concerns were expressed about hateful and harmful speech on both side of the debate.

In response to these concerns, the Commonwealth Parliament today (in a rare example of swift bipartisan action) saw the introduction and enactment of the Marriage Law Survey (Additional Safeguards) Act 2017 (which has now received the Royal Assent, and become Act No 96 of 2017). The Act will come into operation on Thursday 14 September, 2017 (tomorrow, as I write.)

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The Christchurch Cathedral saga and religious freedom- guest blog

Introduction (Neil Foster)

One of the aspects of religious freedom that is sometimes overlooked is the freedom of churches, mosques and other religious groups to own, maintain and control the buildings that they regularly use for meetings. Sometimes this issue has come up in recent years in controversies over the building of mosques- I reviewed an excellent book on this topic by Noel Villaroman a few years ago.

In New Zealand, however, the issue has arisen in what might be said to be an unexpected way. The city of Christchurch, of course, was hit by a devastating earthquake more than 6 years ago. One casualty was the Anglican Cathedral which had given the city its name. But now there is a fierce debate between the Anglican church, which in the interests of current ministry and care for the poor, would prefer to demolish the remains of the building; and the local city authorities, who in the interests of the preservation of the heritage of the city, want to see a rebuilding project. For more background, see here and here.

My friend and fellow “law and religion” fan, Professor Rex Ahdar from Otago University, has provided this “guest blog” to bring us up to speed on the issues, and to offer his perspective.

Is the church really the one to say what its building should be?

Guest blog by Rex Ahdar

The Christchurch Cathedral saga has had so much written about it one hesitates to add to the interminable debate. My purpose is to explain a dimension to the controversy that perhaps has been neglected.

The right of religious freedom is a very broad concept. It is recognised under sections 13, 15 and 20 of the NZ Bill of Rights Act 1990. One of religious liberty’s most important strands is the right of religious groups to organise their own affairs—the claim to self-regulation. A group asserts the right to choose its members, leaders, the content of its doctrines and so on. Yet another of these is the right to establish and maintain places of worship.

Now if the state completely denied a faith community the opportunity to build a church, mosque or temple that would be a clear violation of that body’s religious liberty.  If the state refused to allow it to modify its existing building to reflect the changing needs of its followers (because, say, the congregation had grown or shrunk) that would also look like a blatant infringement.

Yet, the right to religious freedom has never been absolute under the law, and the government may lawfully restrict it where the activity or practice would pose a serious threat to public order, health or safety or would interfere with the rights of others. After all, a worship centre might tower above all the other dwellings, be made of inferior materials, lack proper emergency exits, sufficient parking and so on, and thus intervention is warranted. Now I come to the rub (at last you say!). Can the state limit the right of a religious community to modify its place of worship in the interests of preserving the building’s outstanding historical, architectural or civic characteristics?

Here the case for limitation is, I suggest, much weaker. If a church decides that its current needs dictate the modification of an existing structure, or even its demolition to make way for a smaller (or larger) building, or one in a different location—perhaps incorporating different design features to reflect the church’s current mission (a different shaped cross, a bright (well, not too bright) neon cross, or no cross at all)—then it seems difficult to deny the faith community this.  The present building, no matter how beautiful or ancient or useful to the surrounding community for civic events, just no longer serves the needs of the faithful. The state seeks, nonetheless, to assert its right to keep the building as is. The preservation of historic landmarks is, the authorities claim, more important. Too many have gone under the bulldozer of late. A city’s traditional iconic structures cannot be altered or destroyed, say the city’s leaders or prominent citizens. We must keep what is unique to our town lest we look like every other place. Prince Charles where are you?

Unsurprisingly the clash between the right of church autonomy and the claims of historic preservation has led to court battles overseas. The results have not always been in a church’s favour. For instance, in Boerne, a town close to San Antonio, Texas, the Catholic church was initially not allowed by the city council to expand the historic stone 1923 mission-style St Peter the Apostle Cathedral to accommodate a growing congregation. Why? Historic preservation regulations and zoning laws mandated that the original design of buildings in this historic precinct be kept. An appeal to the Supreme Court by the church was unsuccessful. Eventually, a compromise between the city and the church was reached and a new bigger sanctuary was constructed—but not without it having cost the diocese and the city a half-million dollars each in legal fees.

Perhaps the religious nature of the building in question is just plain irrelevant. If the structure is architecturally significant or an integral link to the city’s past, then it stays—whether it be a town hall, museum, art gallery, school or church. It is a shame that the church cannot use its building for its purposes anymore, but there are greater things at stake. It is regrettable that the church building is no longer serving the needs of the flock, and its upkeep is prohibitive for them, but it is a truly beautiful example of a fading genre of architecture, the likes of which must be preserved.

It is easy to forget that the Cathedral is first and foremost a place of worship and a dwelling designed to serve the liturgical and pastoral needs of the adherents of that faith. It is not a museum, art gallery or palace. If we usurp the right of the religious group to determine the present and future purpose of a building designed by them for them, then we need, I suggest, a pretty compelling reason.

If we reach an impasse where the church does not want to keep or fully restore the former structure then the last thing we should be doing is coercing them into doing so. When did the state (in the guise of local government) become such a tyrant? Are we such an increasingly secular society that historic or architectural values can so easily trump the rights of a church to control its own place of worship?

The principled path is for the Anglicans to decide what they want. In truth, it is their decision, from first to last. If demolition and replacement with a modified contemporary-style building is the outcome of the Synod deliberations, then more drastic steps by the indefatigable preservationists will no doubt eventuate. Perhaps it would be best to sell the site and let the architectural aficionados design a glorious civic masterpiece that will, like the Sydney Opera House, become a new beacon for Christchurch. If this happens—who, on Earth, can say?—try not to forget that, along the way, the original architects simply wished to worship, pray, meditate, and sing in a sanctified dwelling. They have graciously sacrificed, or been forced to sacrifice, something they prized. They yield if they must, but the yielding is with sadness.

(Originally published on the New Zealand website Pundit- see https://www.pundit.co.nz/content/the-cathedral-saga-and-religious-freedom .)

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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Religious Freedom Protection in Australia- 2017 update

I recently presented a paper surveying general religious freedom protections available in Australia, based on a similar paper I presented in 2015 but updated with some more recent developments. The paper can be downloaded here.

Near my conclusion I note:

I would like to suggest that, given the “patchwork” protection for freedom of religion noted above and in the attached papers, it is past time for consideration to be given at the Commonwealth level for protection of religious freedom to be the subject of specific legislation. The Commonwealth has undertaken to provide serious religious freedom protection by acceding to the ICCPR and under art 18 in particular. It would be appropriate that this commitment be translated into law. Apart from other sources of Commonwealth power, it would seem fairly clear that the external affairs power would support implementation of the international human right to free exercise of religion, limited in the specific ways provided under art 18 but not in other ways that currently narrow its scope.

Hopefully the paper will be a useful resource in this area.

No religious discrimination where school has optional clause in creed

A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education [2017] WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.

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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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