There have been a number of “wedding industry” religious freedom cases arising in the United States and the UK over the last few years. On 28 December 2017 the Oregon Court of Appeals, in Klein v. Oregon Bureau of Labor and Industries (CA Or; Dec 28, 2017, — P.3d —-, 2017 WL 6613356; 289 Or App 507 (2017)) upheld a $135,000 fine levied on the Kleins, wedding cake makers, for declining to make a cake for the wedding of Rachel and Laurel Bowmen-Cryer. The case is another example of religious freedom (and, arguably, freedom of speech) being over-ridden in the name of “dignitary harm” to same-sex couples. It is a good example of the issues being presented to the current Ruddock Inquiry into Religious Freedom being conducted in Australia at the moment.
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.
Legislation re-defining marriage to include same sex couples passed its final third reading stage in the Commonwealth House of Representatives this evening Australian time, December 7. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will soon become law when it receives the Royal Assent. In this post I want to start exploring some immediate implications for religious freedom and other “law and religion” issues.
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.
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.
A recent UK court decision upheld the decision of University authorities to remove a student, Felix Ngole, from a post-graduate Social Work course, because of views he had expressed in a public social media forum about the Bible’s view on homosexuality. In my opinion the decision is a shocking breach of principles governing both religious freedom and freedom of speech, and should be over-turned as soon as possible. For Australian readers, it is also a salutary reminder that when the law on marriage changes, it becomes harder to protect religious and other freedoms.
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.