A Colorado District Court has handed down a decision imposing a penalty on a cake-maker for declining to provide a cake designed to celebrate a “gender transition”, in Scardina v Masterpiece Cakeshop Inc (Denver District Ct, Co; 19CV32214, 15 June 2021). If the name of the shop sounds familiar, it will be to those interested in “law and religion” issues in recent years. Jack Phillips and his Masterpiece Cakes business were previously sued, all the way to the US Supreme Court, because he had declined to make a cake designed to celebrate a same-sex wedding (for my comment on the Supreme Court decision, see “Colorado Wedding Cake Baker wins before US Supreme Court” (June 5, 2018). Sadly it seems that Mr Phillips will need to appeal this latest decision as well.
This question has been raised by a report that a Victorian council has required its employees to add a graphic to their email addresses featuring a “rainbow flag”. One employee is reported as saying:
the rainbow flag can look like moral support for identity politics or sexualities prohibited by many religions in this multicultural area
This is an important issue which will present challenges to employees of organisations which are determined to make political statements on various causes. To what extent can an employee in such an organisation decline to provide their own support for the stance taken by their employer, where the “core business” of the organisation is not involved? In this post I want to consider religious freedom protections that might apply in the reported circumstances.
A debate over the extent of religious freedom laws has arisen in NSW after an incident at a school where one student was stabbed by another, who was wielding a “kirpan”, a religious symbol in the form of a dagger worn by Sikhs. Politicians have expressed surprise that knives are allowed at schools at all, and there has been an announcement on Tuesday 18 May that from Wednesday 19 May there will be a ban implemented. It seems worthwhile to discuss the legal issues.
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 NSW Government is currently inviting comment on draft legislation entitled the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020. The legislation has been drawn up in response to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, and as well as governing “secular” agencies caring for children, it will mandate a new scheme for child protection covering “religious bodies” (see cl 8AA definition of “child safe organisation”, para (c)). The Bill is generally a good idea, but I want to suggest one amendment which will be needed for it to properly protect religious freedom.
Many commentators concerned with free speech and religious freedom have expressed serious concerns about the Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic), now awaiting its second reading debate in the Victorian Legislative Council (which could resume on February 2, having swiftly passed all stages in the Legislative Assembly on 10 December 2020). Others who are sympathetic to the aims of the Bill have suggested that these concerns are over-stated- that the relevant criminal offences created by the Act are only applicable where “harm” or “serious harm” can be shown to a criminal standard, and hence that there will be few such cases. For example, an editorial from The Age which supports the Bill says:
It is important to note the government’s assurance that only in cases where such practices could be shown beyond a reasonable doubt to have caused injury or serious injury would they be considered offences under this legislation.The Age, Editorial, Dec 8, 2020
But the scope of this legislation goes well beyond the specific “injury” offences that are created (while these are problematic enough.) The Bill creates a powerful set of bureaucratic mechanisms by which religious groups presenting the classic teachings of their faith may be subject to investigation and “re-education” by human rights officers. It arguably makes the presentation of some aspects of Biblical teaching unlawful if the aim of that teaching is to encourage someone to follow that teaching in their own life. Despite the appearance of addressing horrific and oppressive quasi-psychological procedures inflicted on young people, the Bill goes well beyond this laudable goal, and will make it unlawful to provide assistance in obeying the Bible to those who explicitly and with full understanding request such help. Enactment of this legislation would be a serious mistake.
Residents of Sydney’s Northern Beaches local government area should be aware that a special Public Health (COVID-19 Northern Beaches) Order 2020 was published late today, commencing at 5:02 pm on Saturday 19 December. The effect of the order (made due to increased cases of COVID-19 in that area of Sydney) is that there is a “lockdown” in force for all residents, and except for a limited number of specific purposes no-one is to leave their homes. Nor is anyone from outside the area to travel into it. Most will be aware of this already, but this will means that no-one can leave home to attend their usual church service on Sunday Dec 20 if they live in the area, or their church is located in the area.
Schedule 1 cl 2 allows leaving home for “work”, which as previously discussed on this blog would seem to allow even a volunteer who was serving as an essential part of a church team to visit the church premises for the purposes of “live streaming”. Schedule 1 cl 14 allows for “a person who is a priest, minister of religion or member of a religious order—[to go] to the person’s place of worship or providing pastoral care to another person”. But other than these limited exemptions, and some specific provisions relating to weddings and funerals, church services cannot be held in person.
This Order expires at midnight on Dec 23. Hopefully it may not be required after that point if the current spread is contained.
The NSW Government has now released the text of the new more generous gathering rules which will apply from Monday 7 December, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 7) 2020 (“PHO7”). The new rules are much more generous in allowing churches to gather- in short, most indoor church meetings will only be subject to a new “one person per 2 square metres” rule, rather than a hard numerical cap. Restrictions as to outdoor gatherings have also been eased.
This is just a brief update to my last post about the recently released Change or Suppression (Conversion) Practices Prohibition Bill 2020. I have since had an opportunity to read some other documents released to the Victorian Parliament when the Bill was introduced, which give some more insight into what the Victorian Government views as the impact of the Bill on churches and other religious groups.