Freedom of religion

neilfoster

The Ashers “Gay Cake” appeal- one of these things is not like the others

When our children were watching Sesame Street one of the regular clips featured the song “one of these things is not like the others“, training children to look carefully and make distinctions where things are different. In a case involving Bert and Ernie from Sesame Street, the Northern Ireland Court of Appeal has shown that it is not very good at making distinctions between things that are different.

The case is Lee v McArthur, McArthur & Ashers Baking Co Ltd [2016] NICA (24 October 2016). (Thanks to the always helpful Law and Religion UK blog for the link to the official report. There is an “official summary” available here which is a bit shorter.) In the decision the Court of Appeal equates the decision of Christian bakers not to supply a cake, the sole purpose of which was to bear a message which they disagreed with on religious grounds, with a decision of a business to discriminate against persons on the grounds of their sexual orientation. In my view they have confused things which are quite different to each other.

Continue reading

neilfoster

Legal implications of same sex marriage for Christian life and ministry

I was privileged today to present a paper on issues from a Christian perspective raised by the possible introduction of same sex marriage, at a seminar on the topic held at the Lower Mountains Anglican Parish centre at Glenbrook. For those who are interested (and the paper is of particular relevance to Christians, so others may not find it so helpful), the longish paper can be downloaded from the seminar website here. I understand there may be a video of the presentations available at a later stage on the same website. The other speaker I was honoured to share the platform with was Dr Peter Jensen, who gave a terrific overview of marriage as a social phenomenon and the Bible’s view of marriage.

neilfoster

Some of Victoria’s “inherent requirements” amendments may be unconstitutional

The Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 into its Parliament on 30 August 2016. It has passed the Legislative Assembly without amendment, and is presently before the Legislative Council. The Bill proposes the amendment of the Equal Opportunity Act 2010 (Vic) to make it more difficult for a religious body to claim that it is not “discriminating” when it declines to hire, or fires, someone whose behaviour or convictions is contrary to the ethos of the body. The amendments introduce an “inherent requirements” test which must be satisfied in order for such an action to be viewed as falling outside the prohibition in the legislation on detrimental treatment based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (the “Victorian prohibited grounds”).

I have commented in a previous post as to why I think this is poor legislation from a policy perspective.[1] In that previous post I briefly noted that an argument could be made that some of the amendments, at least, would be unconstitutional. Since that previous post I have looked into the area further and am fairly sure that this is the case. Here I want to develop the case a bit further. 

Continue reading

neilfoster

Religious Vilification claim in Victoria rejected

The second development I want to briefly note today is a decision of the Victorian Civil and Administrative Tribunal, Sisalem v The Herald & Weekly Times Ltd [2016] VCAT 1197 (19 July 2016). This is an important and helpful decision, in my opinion, supporting free speech on religiously related issues.

Continue reading

neilfoster

Religious Freedom victory in Nova Scotia

Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.

First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.

Continue reading

neilfoster

More Law & Religion events and a paper

A number of interesting events are coming up in the Law and Religion area in Australia, and I also wanted to mention a new paper exploring some important issues.

Australasian Christian Legal Convention 2016

The ACLC will be held on Brisbane from 29 September to 1 October. It is specifically a gathering for those interested in the intersections between Christianity and the law.

From the website:

The theme of the Convention will be “Redeeming the law for the kingdom of God in Australia.“ The conference is open to lawyers, law students, persons involved in the administration of justice and those with a concern for justice in our community.

The international key note speaker for the Convention is Mike Schutt from the USA, the director of the Christian Legal Society (CLS) Law School Ministries and of the Institute for Christian Legal Studies, a cooperative ministry of the CLS and Trinity Law School, where he is a Visiting Professor.

There will be a number of other speakers, including <cough> myself. Should be an interesting event.

Religious Liberty Conference ‘Varieties of Diversity’

Coming up more quickly, the University of Notre Dame, Sydney, Law School will be hosting 2 days of material on religious freedom on August 18-19. (See here for a flyer with all the details.) The event opens on the Thursday evening Aug 18:

The Conference will begin with the University’s Annual Religious Liberty Lecture on Thursday 18 August. This year’s lecture will be presented by Iain Benson, Professor of Law at Notre Dame. Iain has also been appointed as an Extraordinary Professor of Law at the University of the Orange Free State in South Africa in recognition of his status as an international constitutional and human rights lawyer, and as a religious liberty expert.

There will be a range of interesting speakers on other topics on the Friday:

Learn how you can protect religious liberty in Australia:

  • How anti-discrimination and same-sex marriage interfere with your freedom to practice your religion.
  • Is it appropriate to think of equality without considering religious equality?
  • How “safe” is the safe schools program?
  • Parental authority and consultation in relation to education.

The Democratic Deficit

Finally, I wanted to flag for those who haven’t seen it yet an excellent recent research paper by Peter Kurti, from the Centre for Independent Studies, entitled The Democratic Deficit: How Minority Fundamentalism Threatens Liberty in Australia. From the summary:

We are faced with a new kind of fundamentalism – call it ‘minority fundamentalism.’ It has all the features of religious fundamentalism, such as ideological fanaticism, intolerance of dissent, and a Manichaean certainty about truth and falsehood. The goal of the minority fundamentalists is to eradicate all forms of discrimination in the name of liberating those deemed to be oppressed. In this age of the new intolerance, punishment by intimidation and vilification is meted out to those who think differently. This leads to what is known as a ‘democratic deficit’ – a growing discrepancy between our expectations and our experience of democratic institutions. This widening of the democratic deficit is indicative of an increasing readiness on the part of self-appointed guardians of the moral and social order to privilege the sensitivities of the minority over those of the majority. Minority fundamentalism poses a threat to the normal political and social functions that we take for granted.

Some very sharp insights here into current debates in Australia and elsewhere.

neilfoster

Some upcoming Law & Religion events

A short post plugging some forthcoming Law & Religion events here in Australia which look to be excellent.

Last year I was honoured to help host the Freedom for Faith 2015 conference. This year there are two conferences sponsored by this excellent organisation, both of which look terrific. “Freedom for Faith”, to quote their website, is “a Christian legal think tank that exists to see religious freedom protected and promised in Australia.”

The first one-day conference, on Friday August 12 in Sydney, is aimed particularly at Christian leaders. Speakers include Dr Michael Ovey (Oak Hill College London), Professor Iain Benson (Notre Dame Law School), Rev Kanishka Raffel (Anglican Dean of Sydney), Dr Megan Best – ethicist, Dr Sam Chan – Evangelist City Bible Forum, Archbishop Julian Porteous – Catholic Archbishop of Hobart, Lyle Shelton – Australian Christian Lobby & more.

The second, on Friday September 23 in Melbourne, features a range of academics and other policy makers.  The theme for this one is ‘Religious freedom in an age of equality’. The keynote speaker is Father Frank Brennan. Other speakers include: Anne Robinson (Founding Partner ProLegis Sydney), Prof. Iain Benson (Notre Dame Law School Sydney), Mark Sneddon (Melbourne Bar), Prof. Patrick Parkinson (Sydney University Law School), Asssociate Prof. Patrick Quirk (Australian Catholic University Law School).

As I say, both look to be great events and would be good value for anyone interested in Law and Religion issues in Australia.

neilfoster

Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

Continue reading

neilfoster

Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

Continue reading

neilfoster

Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

Continue reading