It seems that our “Religious Freedom in a Multicultural World” went well. I certainly enjoyed the day and was very grateful for the top class speakers we had. For those who are interested, the video of my presentation on the day is now available. The paper which goes along with the talk can be downloaded here. It was entitled “How should religious marriage celebrants respond if same sex marriage is introduced in Australia?” Regular readers of this blog will notice that it combines some discussion from previous blog posts on the issue, but also adds some extra material setting the scene at the beginning.
Freedom of religion
The Legality of Exclusion Zones around abortion clinics in the US and Australia- Guest blog
I am very pleased to be able to welcome my first “guest blogger” in the person of Professor Michael Quinlan, Dean of the University of Notre Dame’s Sydney-based Law School. Michael’s note on this important issue, which is now becoming more relevant in Australia in recent years, was originally published in “On the Case”, a series of notes on legal issues produced by the UND Sydney Law School. He has kindly agreed to me re-publishing it here.
Issue 9 of On the Case discussed the recent decision of the Supreme Court of the United States (the US Supreme Court) in relation to same sex marriage in Obergefell [1] and the implications for Australia of that decision.[2] The Obergefell decision received substantial media attention in Australia [3] although the legal position in the two countries is quite different. [4]
In this edition of On the Case Professor Michael Quinlan, the Dean of The University of Notre Dame Australia, School of Law, Sydney, discusses another recent decision of the US Supreme Court, McCullen. [5] In this decision the US Supreme Court considered the legality of exclusion zones around abortion clinics. Whilst this decision did not attract media attention in Australia, as Tasmania introduced exclusion zones around abortion clinics last year [6] and other Australian States and Territories are considering doing so, [7] the approach of the US Supreme Court to this issue warrants attention.
In Brief
This decision considered the validity of a Massachusetts law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of any place where abortions are performed or offered other than a hospital. [8] The US Supreme Court found that law to be unconstitutional.
Background
The Massachusetts law was introduced in 2007 [9] following clashes between advocates for and opponents of abortion outside abortion clinics.
The Facts
This case was brought by a number of people who engaged in “sidewalk counselling” of women approaching abortion clinics (the Counsellors). Whilst it might be appropriate to describe some people who stand outside Massachusetts abortion clinics as protestors because they use signs or chants or face-to-face confrontation to express their religious, moral or conscientious objection to abortion, this was not the approach of the Counsellors.[10] The Counsellors provided women with information about alternatives to abortion and help in taking any of those alternatives if they wished to do so. In order to provide this counselling, the Counsellors considered that it was essential for them to maintain a caring demeanour, a calm tone and direct eye contact with women entering abortion clinics.[11] The Counsellors claimed that because the exclusion zone included the public footpaths adjacent to the clinics they were not able to approach the clinics’ entrances and driveways and that this frustrated their counselling efforts.[12]
The Counsellors argued that standing outside the exclusion zone meant that they could not distinguish patients from other passers-by and that this made it difficult for them to distribute literature to arriving patients. It also meant that where they had engaged a patient in conversation they had to stop their discussions at the border of the exclusion zone. This resulted in the Counsellors often having to raise their voices to be heard by patients within the exclusion zone which was completely contrary to the message of compassion that they wished to convey. [13] The evidence was that the result of the imposition of the exclusion zone was that the Counsellors had been far less successful in informing women of alternatives to abortion and that, as a result, far fewer women had chosen those alternatives as a result of their counselling. [14] The Counsellors argued that the Massachusetts law violated the First [15] and Fourteenth [16] Amendments to the Constitution of the United States of America (the US Constitution).
The Decision
While there were three separate judgments, the Court unanimously found that the Massachusetts law violated the First Amendment.[17] The Court referred to previous decisions which had found that the First Amendment considered that public ways and footpaths were entitled to “First Amendment protection” because they had historically been important sites for debate and discussion and leafletting.[18] The Court noted that the guiding principle of the First Amendment was that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” and that that principle applied “with full force” to footpaths and public streets.[19] This meant that the government could not prevent or prefer speech because of its content.[20] This approach did not prevent the government from imposing reasonable restrictions “on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest and that they leave open ample alternative channels for communication of the information.” [21] In other words, so long as the restrictions on free speech were not content based, reasonable restrictions might not be unconstitutional. If the laws were not content based they could be constitutional but in that case, only if they did not “burden substantially more speech than is necessary to further the government’s legitimate interests.” [22] On the other hand, if the restrictions on free speech were not content neutral they could only be constitutionally valid if they could withstand “strict scrutiny.” This is a much more rigid test and requires such laws to use the “least restrictive means of achieving a compelling state interest.” [23]
The Counsellors argued that the Massachusetts law did not fit within the permissible restrictions on free speech because it went beyond what was necessary for the legitimate purposes of the State, and because it discriminated against anti-abortion speech. They argued that this discrimination was evident because the law established an exclusion zone only around abortion clinics and so would clearly primarily affect speech concerning abortion. [24] They also argued that the Massachusetts law was not content neutral because the law exempted the employees and agents of abortion clinics. They argued that, as a consequence, speech in favour of abortion could and would occur within the exclusion zone where the Counsellors were prohibited from speaking. [25]
The majority first considered whether the Massachusetts law was content based and concluded that it was not. They noted that the law did not refer to the content of any speech and so was not directed to preventing anti-abortion speech. The majority also found that the State had a legitimate interest in ensuring public safety, preventing large crowds gathering, impeding access and obstructing footpaths and that these problems would arise no matter what was said within close proximity to an abortion clinic. [26] The majority rejected the Counsellors’ argument that the Massachusetts law discriminated against free speech based on its content by providing for an exception for employees and agents of clinics who were permitted to pass in and out of the exclusion zone. This was because, they found that, the exception for employees and agents was necessary and there was no evidence that any speech in favour of abortion took place inside the exclusion zones was authorised by clinics. [27] As the majority found that the Massachusetts law was not content based it found that it was not necessary for it to be subject to strict scrutiny. [28]
Having found that the Massachusetts law was not content based and not subject to strict scrutiny [29] the majority then considered whether the law burdened substantially more speech than was necessary to further the government’s legitimate interests. [30] While the majority accepted that the State had a legitimate interest in attempting to prevent the deliberate obstruction of clinic entrances and the harassment and intimidation of patients and clinic staff, the majority noted that these concerns were addressed in other unchallenged provisions of the law [31] in addition to other criminal laws against assault, breach of the peace, trespass and vandalism. [32] The result for the majority was that the Massachusetts law did burden substantially more speech than was necessary to further the government’s legitimate interests. This was because by excluding all non-exempt individuals [33] from the buffer zones, the law unnecessarily “[swept] in innocent individuals and their speech.” [34] The law made it more difficult for people, like the Councillors, to engage in conversations at a normal proximity and volume or to hand out leaflets. The majority thus considered that the Massachusetts law unconstitutionally impeded free speech and was invalid. Targeted injunctive relief focussed on precise individuals and precise conduct at a particular clinic experiencing safety and access problems was preferable and would not breach the US Constitution. [35]
While Justices Scalia [36] and Alito agreed with the majority that the Massachusetts law offended the First Amendment they were critical of the majority’s approach because, in their view, the Massachusetts law was specifically targeted at supressing anti-abortion speech and should have been subject to the strict scrutiny test. [37] In Justice Scalia’s opinion the Massachusetts law was content based because it imposed a blanket prohibition on speech in an area where anti-abortion messages would be most effective. [38] He rejected the notion that, in these circumstances, the purpose of the legislation could properly be determined by reference to its stated objects. [39] Justice Scalia was also scathing of the majority’s approach to the exempt persons provision of the law. He had no doubt that abortion clinic employees or agents would often speak in favour of abortion and seek to counter the speech of people, like the Councillors, within the exclusion zone and that they would do so within the scope of their employment. [40] Justice Scalia found that:
Protecting people from speech that they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.[41]
The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed. I concur only in the judgment that the statute is unconstitutional under the First Amendment.
Similarly Justice Alito found that the effect of the law was to silence the Councillors and other critics of the relevant abortion clinic while the clinic remained able to authorise its employee and agents to speak in favour of the clinic and its work. 42 He described this as “blatant view point discrimination.” [43] He also found that the other features of the law meant that even if the exemption for employees and agents were excised it would not be a content neutral law. [44]
Implications of this Case
The Australian Constitution is very different to the US Constitution so that the legal issues considered in McCullen do not arise in the same way in Australia. That is because Australia does not afford freedom of speech the same level of Constitutional protection and has no equivalent to the First Amendment. The approach taken by the US Supreme Court in this case is, however, of particular interest in Australia in light of the exclusion zone created by The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) and the proposed exclusion zones under consideration in other Australian states and Territories [45] as it raises for consideration whether it is necessary and appropriate to interfere with freedom of speech around abortion clinics at all. If policy determines that State government interference with free speech is warranted near abortion clinics, this case raises the question of the appropriate breadth and scope of such interference.
During the Tasmanian State elections in March last year a lone protestor, 58-year-old Graham Preston, was arrested after holding two placards quoting from the Universal Declaration of Human Rights and handing out leaflets while standing within the mandated exclusion zone outside an abortion clinic in central Hobart. [46] The Tasmanian Director of Public Prosecutions dropped the charges in September last year and was ordered to pay costs. Mr Preston was not re-arrested when he protested in the same way after leaving court. [47] However Mr Preston and a number of other individuals have subsequently been arrested for other alleged violations of the exclusion zone. [48]
In Australia, the State and Federal Constitutions tend to be more concerned about issues relating to trade and good governance than human rights. Section 46 of the Tasmanian Constitution is an exception. It guarantees freedom of conscience and freedom of religion and may allow protestors to raise such issues in their defence in future prosecutions. The enforcement of such exclusion zones in Australia, particularly during election campaigns, may also raise freedom of political communication issues under ss 7 and 24 of the Commonwealth Constitution. [49]
1 Obergefell et al v Hodges, Director, Ohio Department of Health et al 576 US ___(2015) (Obergefell)
2 Michael Quinlan, “The Supreme Court of the United States decides that all states of the United States must permit and recognise same sex marriage” On the Case: Issue 9 The University of Notre Dame Australia http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-9
3 See e.g. Michael Koziol, “Love Wins: World celebrates US Supreme Court decision legalising gay marriage” Sydney Morning Herald June 27, 2015: http://www.smh.com.au/world/lovewins-world-celebrates-us-supreme-court-decision-legalising-gay-marriage-20150626-ghz4tx.html#ixzz3fvplgpCm
4 Quinlan n2 above
5 McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014) (McCullum).
6 The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) s9(2) creates an exclusion zone with a 150 metre radius of premises where terminations are conducted .Within this zone people are prohibited from protesting and other similar behaviour.in relation to terminations.
7 e.g in NSW the Greens MLC, Mehreen Faruqi, has introduced into the NSW Legislative Council the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2015 which, among other things, seeks to “establish exclusion zones in order to prohibit certain behaviour near premises at which abortions are performed.” The Sex Party has introduced the Public Health and Wellbeing Amendment (Safe Access) Bill 2015 which seeks to establish exclusion zones in Victoria around abortion clinics and other locations providing advice, mediation and treatment in relation to reproductive health. In early September 2015 the Victorian government announced that it would support this legislation. The draft legislation makes it illegal to “interfere with” a footpath within 150 metres of an abortion clinic and to communicate in a manner which may be seen or heard by a person seeking to access abortion clinics or other reproductive health services. In this way conversations, prayers, providing leaflets or advertising which can be seen or heard from a clinic will be criminalised. See Monica Doumit “It’s OK to pray, but not in Victoria” The Catholic Weekly Vol 73 No 4792 13 September 2015, 11 and Morgan Begg “150 metre protest exclusion zones coming to Victoria” 1 September, 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/. Similar exclusion zones have also been proposed in the Australian Capital Territory. See Morgan Begg, “Exclusion zone proposals show fundamental misunderstanding of freedom” 2 April 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/
8 Reproductive Health Care Facilities Act s120E1/2(a), (b) Mass.Gen Laws.
9 Amending an Act passed in 2000 10 McCullen Roberts CJ 4
11 Ibid 5
12 Ibid 19-20
13 Ibid 20
14 Eg one Counsellor’s uncontradicted evidence was that prior to 2007 about 100 women had chosen alternatives to abortion as a consequence of her counselling outside Massachusetts abortion clinics but none had done so since: ibid 20
15 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
16 Section 1.”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
17 Chief Justice Roberts delivered the Court’s opinion and Ginsburg, Breyer, Sotomayor and Kagan JJ joined in that opinion.This opinion will be referred to as “the majority opinion.” Justice Scalia filed an opinion concurring with the judgment of Robert CJ and Kennedy and Thomas JJ joined in Scalia J’s decision. Justice Alito filed a separate opinion concurring with the judgment of the Court.
18 McCullen Roberts CJ 8 referencing United States v Grace 461 US 171, 180 (1983) and 21; Scalia J 5
19 McCullen Roberts CJ 9 referencing Police Dept of Chicago v Mosley 408 US 92, 95 (1972).
20 McCullen Roberts CJ 9 referencing Erznoznik v Jacksonville 422 US 205,209 (1975).
21 McCullen Roberts CJ 9 referencing Ward v Rock Against Racism 491 US 781, 791 (1989) (Ward) (quoting Clark Community for Creative Non-Violence 468 US 288, 293 (1984).1975)
22 McCullen Roberts CJ 19 referencing Ward 799
23 McCullen Roberts CJ 10 referencing United States v Playboy Entertainment Group Inc 529 US 803, 813 (2000)
24 Brief for Petitioners 23 referenced in McCullen Roberts CJ 11
25 McCullen Roberts CJ 15
26 Ibid 13
27 ibid 17
28 Ibid 18
29 Ibid 18
30 See n22 above
31 McCullen Roberts CJ 23 referring to ch 266 s120E1/2 ( e) Mass.Gen Laws which creates a criminal offence for “[a]ny [person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.”
32 McCullen Roberts CJ 25
33 This refers to exemptions for clinic workers etc
34 McCullen Roberts CJ 25
35 ibid
36 With whom Kennedy and Thomas JJ concurred
37 McCullen Scalia J 7,13 and Alito J 1-3
38 McCullen Scalia J 5
39 Ibid 6-7
40 Ibid 10-13
41 ibid 9
42 McCullen Alito J 2
43 Ibid 2
44 Ibid 3
45 See n6 above
46 “Brisbane man charged over anti-abortion protest in Hobart” http://www.abc.net.au/news/2014-03-04/brisbane-man-charged-over-anti-abortion-protest-in-hobart/5297756?section=qld
47 “Hobart abortion clinic protest charges dropped” http://www.abc.net.au/news/2014-09-04/police-drop-charges-over-abortion-clinic-protest/5719298
48 Edith Bevan, “Anti-abortion campaigner Graeme Preston arrested again for protesting outside clinic” http://www.abc.net.au/news/2015-04-14/anti-abortion-campaigner-graeme-preston-arrested/6392214
49 See Nationwide New Pty Ltd v Wills (1992)177 CLR 1 per Deane and Toohey [69]-[74] and Australian Capital Television Pty Ltd v Commonwealth.Electoral Commission (2004) 220 CLR 181 per Mason CJ 137-146, Dean and Toohey JJ 217, McHugh J 227-233.
Interview on Religious Freedom in Australia
I sat down recently with a former student of mine, Ian Benson, who conducted an interview with me on behalf of the Sydney law firm A R Conolly & Co, on the subject of religious freedom in Australia. For those who have about 45 minutes or so, the video can be viewed here.
Religious Freedom in the Newcastle Herald
Today I had an opinion piece in the Newcastle Herald entitled “Free to live by one’s beliefs“. The issues raised here are among those to be discussed at the Religious Freedom in a Multicultural World conference to be held at Newcastle University this Friday September 25. If you would like to come, see the website here for details and a link to register. (By the way, if you are a pensioner or in receipt of Government assistance generally, you can register at the Student rate of $25 rather than the full rate!)
After the conference I will be posting the paper I am presenting on this blog, and I hope that the other talks will be recorded so we can share them more generally.
Jail time for Kentucky County Clerk
Summary: Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law.
The internet is full of reports and comments about Kim Davis, the Kentucky county clerk who has been sentenced to jail for contempt of court in refusing to issue marriage licenses. Ms Davis’s objection stems from the ruling in the US Supreme Court decision in Obergefell finding a constitutional right to same sex marriage. As a devout Christian she regards same sex marriages as contrary to the Bible’s teaching on God’s purposes for humanity, and she does not wish by her actions in issuing marriage licenses (whether for same sex or heterosexual marriages) to be complicit in supporting such a system.
Even some normally conservative Christian commentators have responded negatively to her decision, which involves not only not issuing these licenses herself, but also directing the other 6 clerks in her office not to issue the licenses. While at first this seems very odd, the explanation for the direction seems to lie in the fact that as Rowan County Clerk, under Kentucky law her name will appear at the foot of all licenses issued by her office. The latest news available at the time of writing suggests that deputies have issued licenses, while Ms Davis is in jail, although there is some doubt about whether the licenses bear Ms Davis’ name.
Questions raised by this incident are similar to those being raised all over the Western world in countries where same sex marriage has been recognised. To what extent should the religious freedom of those called on to celebrate or support such marriage ceremonies be recognised? This blog won’t be able to answer all those questions, but I would like to set out some considerations that I think policy and law makers should take into account, and to comment briefly on this decision. (For those interested a more in-depth consideration of a range of religious freedom issues, including some raised by the possible recognition of same sex marriage in Australia, let me remind you that the University of Newcastle, here in NSW, is running a one-day conference on these issues on Friday September 25- and the “early bird” registration has been extended now to Sept 7!)
- Religious freedom is a fundamental human right, not some excuse made up to allow homophobia. It seems bizarre to have to say this, but occasionally one comes across the view represented by the second clause in the previous sentence. Perhaps one reason that some might suspect this, is that religious freedom debates have mostly been fairly minor in Western societies until recent years, and where they occurred they often involved minority, non-Western religious groups. The reason for this may be that up until recently most Western societies have operated on a broad moral consensus which was shaped by Christianity. In the area of sexual behaviour, for example, while since the 1960’s increasingly many people have not behaved in accordance with Christian norms that sex should only be enjoyed in a married relationship between a man and woman, many of those people have at least conceded that this was an “ideal” to which it would be good to aspire. But in recent years the successful work of homosexual activists in transforming the societal consensus on this question has led to a number of challenges for those who wish to live in accordance with Biblical principles. Christian views on appropriate sexual behaviour can now be attacked, not merely as out-dated or archaic, but as positively evil and harmful. Yet those views, as with some other controversial views which differ from the mainstream of society, may be deeply held and based on fundamental religious convictions which are not new, but often go back many thousands of years.
- Of course this means that sometimes a person’s religious beliefs will impact on the way they conduct their “secular” job. In the private sphere this raises issues about whether an employer should provide “accommodation” (a term which in this context doesn’t mean, “a place to live”, but means “some adjustment of the usual requirements to allow religious freedom”.) The view that if a religious person doesn’t like what their job requires, they should just quit their job, has occasionally been put forward in the past. But in more recent years courts have recognised that where accommodation is possible, it should be provided if it can be without unduly impacting on others in the workplace- just as in the area of sex discrimination, we recognise that accommodation should be provided where female employees need leave to have babies, or “family friendly” arrangements so that they can continue in the workforce when a baby has arrived. An example of this was the UK case of the British Airways employee who wanted to wear a visible cross despite a blanket “no jewellery” rule by her employer. When the case of Nadia Eweida reached the European Court of Human Rights, that court held that a reasonable accommodation could have been provided to employees with strong religious views about wearing religious symbols. I have discussed other similar cases in the past, some to do with the wearing of a head scarf at work.
- Religious freedom is about more than the right to hold certain beliefs internally, however; it is about a right of “free exercise” of religion which will mean that a person will live out their religious beliefs in everyday life. Indeed, it is a fair criticism of someone who claims to be a believer that their life does not match their claimed religious beliefs. All of us are grateful when people with deep religious beliefs live out those beliefs in caring for the poor and marginalised, in generous giving to worthy causes, and in looking after people in their local communities. So we need to resist the occasional “reframing” of religious freedom in terms of “a right to worship”; it is much more than that.
- Do these same principles apply, then, to a public servant? Or must we require all public servants to park their fundamental religious freedom rights at home when coming to work? The answer is that public servants do have, and should be allowed to exercise, religious freedom. It is not a question, as some have put it in recent days, of a public servant being “allowed to disobey the law”. The law should contain, and in most Western countries does contain, recognition of religious freedom rights, and relying on such a provision means that one would not be disobeying the law, one would be acting within the law.
- An example, closely analogous to the current matter, can be found in the case of Ms Lillian Ladele in the UK. Ms Ladele was employed by Islington Borough Council. In the UK, many registration functions are devolved to local Councils. The UK introduced legislation allowing parties to register a “civil union” (not at the time a “marriage”, but a formal procedure for recognising a same sex relationship which provided similar ancillary benefits.) Ms Ladele, an evangelical Christian, took the view that this type of procedure was authorising sexual behaviour contrary to the Bible, and she asked to not be placed on the list of registrars who would deal with these requests. She had joined the Borough long before this legislation was introduced, and there were other registrars who could easily have done the job.
- Despite the fact that no member of the public was in any way disadvantaged by her objection to dealing with such requests, Ms Ladele was fired for refusing to do so. Unlike Ms Eweida, the airlines employee noted previously, when Ms Ladele’s case went to the European Court of Human Rights the court by majority ruled that the Council had been entitled to dismiss her for not complying with their “equal opportunity” policy. The case has been criticised for failing to give due weight to Ms Ladele’s religious freedom.
- The point to note in the current context is that she was not acting “illegally” in the sense of high-handedly defying a clear law. She argued that regulations in force at the time provided that her religious freedom rights under art 9 of the European Convention on Human Rights should be taken into account. And indeed the European Court agreed that she had such rights, although they ruled in the end that these rights should, in the circumstances, be over-ruled. But she was not a “defiant lawbreaker”, because she believed on plausible grounds that she had religious freedom rights, which were part of UK law, which she could rely on.
- Let’s come to the case of Ms Davis. The main court decision here is the decision of Judge Bunning, in the Federal District Court, in Miller v Davis 2015 WL 4866729 (E.D.Ky.) (12 Aug 2015). Ms Miller, one of the various couples who had approached the clerk’s office to be told they could not have a license to marry, was suing Ms Davis in the Federal (not the Kentucky State) Court because she claimed that pursuant to 42 U.S.C. § 1983, a provision of Federal law, she as an official of the State was “subject[ing].. [the plaintiffs to] the deprivation of any rights, privileges, or immunities secured by the Constitution”; the “right” in question being the “right to same sex marriage” identified by the US Supreme Court in Obergefell. She sought an injunction to require Ms Davis to issue licenses for such marriages.
- Ms Davis in her defence spelled out a number of legal reasons which would justify her action; again, she was not claiming in a high-handed way the right to ignore the law. Her arguments referred to the fact that any constitutional right may be subject to being over-ridden in a particular case due to a sufficiently compelling State interest; that her own rights of freedom of speech and freedom of religious exercise, granted by the First Amendment to the US Constitution, were being unduly interfered with by the Governor of Kentucky’s order that all clerks personally issue same sex marriage licenses; and that her rights under Kentucky’s Religious Freedom Restoration Act were being breached. In this already too-long post I can’t adequately deal with all these arguments, although it seems to me that some indeed had much more merit than would be suggested by Judge Bunning’s dismissal of them. But I would like to comment on one in slightly more detail, the Kentucky RFRA.
- I have mentioned this type of legislation in a previous post here recounting controversy in the State of Indiana, and interestingly this very piece of Kentucky legislation was involved in a previous case mentioned here where a printer of T-shirts was allowed to decline to print a T-shirt supporting a “gay pride” march. The law, a State law and so clearly applicable to the decision of the Kentucky Governor to order clerks to issue licenses, provides that:
Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest (Ky.Rev.Stat. Ann. § 446.350)
- In other words, before the Kentucky Governor required every county clerk in the State to issue same sex marriage licenses, it would seem reasonable that he have considered whether this would impose a substantial burden on religious freedom, whether this burden was justified by a “compelling governmental interest”, and whether there was a “less restrictive” way to achieve this interest. In this situation it seems fairly clear to me that this legislation should have applied in Ms Davis’ favour:
- While different believers may agree or not with the view that she would be “complicit” in same sex marriages by issuing licenses, there seems no doubt that this was a genuine belief strongly held on plausible religious grounds. The State should not be in the business of making up the minds of believers about these things; it seems reasonable where someone can articulate a plausible belief, that it be regarded as worthy of respect. One feature of the law here, noted above, is that every marriage license must have the name of the clerk who issued it, at the bottom of the license- not just the office, but the actual name. This as mentioned explains the otherwise odd fact that Ms Davis objected to other clerks issuing the licenses as well- for they would all have borne her name as the county clerk.
- The State no doubt has a “compelling interest” in allowing its residents to enjoy a constitutional right declared by the Supreme Court. One may perhaps doubt whether “compelling” is a good way to describe the interest in allowing people to get marriage licenses in their home town rather than merely driving half an hour to another town, but that can be conceded for the moment. (Note that a license once issued somewhere is good for the whole of the State, so the parties concerned would not have been prevented from holding a ceremony in their home town once they had got the license from elsewhere.)
- Still, there seems absolutely no doubt that a less restrictive means of furthering this interest could have been found. The law could be changed to allow licenses to be issued from an office, rather than personally under the clerk’s name. Once it became clear that some clerks would have problems, it may even have been possible to set up an online application system for issue of marriage licenses. Other solutions would no doubt present themselves, as has been made clear for example in Utah and other States.
- Yet in his judgment on the issue, Judge Bunning glosses over the RFRA provisions far too quickly. In one paragraph he asserts that Ms Davis’ religious objection is misconceived, and in any event she can still go to church!
Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.
- With due respect, the Judge’s comments suggest he does not really understand the religious freedom issues. He is taking on himself the question whether Ms Davis’ religion really means what she says it means. As already noted, even other religious believers may agree that it is not “condoning” same sex marriages to issue a license; but the belief is a genuine one and should have been accommodated rather than being belittled (especially as the competing interest expressed by the couples is a “preference” for a marriage license to be issued in their local town, which on the most generous view seems not quite as heavy as a genuine conscientious objection which would lead one to prefer jail rather than issuing the license.) And the comments about her continuing freedom to go to church demonstrate a staggering mis-understanding of “free exercise” as limited to worship activities.
In other words, to conclude this lengthy discussion, Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law, in a country which claims to recognise free exercise of religion at both the Federal and State level. It seems likely that her religious freedom should indeed have been recognised by the court, and it is to be hoped that other courts will correct what seems to have been a grave injustice in sending her to jail for contempt of court, when she was in fact acting within her rights.
Her case also demonstrates the importance that needs to be given to consideration of religious freedom issues if same sex marriage is to be recognised. In Australia that is a debate we are still having, and it is to be hoped that if this happens here, we can learn some lessons from cases like this to do a better job of recognising legitimate religious freedom claims when changing the law of marriage.
Same sex marriage: referendum or plebiscite?
The debate on same sex marriage in Australia has changed dramatically in recent days. The current Liberal and National Party Coalition Government went into the last Federal election promising to maintain the definition of marriage as between a man and a woman. Subsequently some members of the Liberal Party indicated that they were personally in favour of recognising same sex marriage. (As previously noted here, in Australia at the moment it is clear that change in this area will have to come from the Federal Parliament in some way, as the High Court of Australia has made it clear that States and Territories cannot over-ride the Federal law on the matter, and that court is not at all likely to find an “implied constitutional right” to same sex marriage as was done recently by the US Supreme Court in the Obergefell decision.)
In response to pressure from the members of his own party, the Prime Minister, Tony Abbott, who has long signalled his desire to maintain traditional marriage, called a meeting of the party room to discuss whether or not members of the Coalition should be given a “conscience vote” on the issue. (In the Australian version of the Westminster system, party members almost always vote with their party on legislation in Parliament. Conscience votes, where members are free to express their own view without facing party censure in any way, are rare, and mostly reserved for the traditionally difficult “life or death” issues such as abortion and euthanasia. On the other side of politics, the opposition Australian Labor Party currently has a policy allowing its Parliamentary members such a vote on this issue; but at its most recent annual conference, it put in place a policy which means that support for same sex marriage will be a platform of the party from 2019, and at that point any ALP member of Parliament who disagrees will have to resign from the party.)
The result of the recent Coalition party meeting was that, by a 2/3 majority, the meeting voted to maintain support for traditional marriage as formal part of party policy. This means that, in theory, an individual Coalition MP or Senator could choose to “cross the floor” to support same sex marriage, but if they did so they would be unlikely to receive further advancement within the Government. In addition, members of the Cabinet are now bound to support traditional marriage, and if they wish to depart from that policy will have to resign their posts as Cabinet ministers.
Following the meeting, however, the Prime Minister announced that, at some stage in the future, the Coalition would undertake to hold a broad public vote to determine the extent of support for change in the Australian community. Some matters are still unclear, however. The timing of such a vote is uncertain: would it be prior to the next Federal election? Held at the same time? Following the election? In particular, there is ongoing debate over the legal form such a vote would take. The main choices seem to be between a referendum and a “plebiscite”.
There are important differences between these two options. A referendum is the means by which the Australian Constitution is amended, under s 128. (As this excellent review piece by electoral commentator Anthony Green notes, the word “referendum” is not used in the Constitution, but the word, in the Federal sphere at least, has come to be applied to the s 128 process). Procedures for setting and arguing a referendum question are reasonably clear. Such a vote could only be successful if supported by a “double majority”: an absolute majority of the voters, and also by a majority of voters in a majority of States. On the other hand, a plebiscite is a more generic term which simply refers to a vote on an issue, which presumably (unless Parliament decided otherwise) would simply require a majority of voters to approve it. Anthony Green notes that historically there have been only three plebiscites held in Australia, two during World War I about conscription, and one to vote on a new national anthem.
What are the relevant issues needing to be resolved to choose between these options, should they proceed? (It should be said that the ALP has indicated that, if they are returned at the next election, they will immediately put the matter to the Parliament. So there may not need to be such a vote in that case. On the other hand, if this happens before 2019, and given that there are some ALP members of Parliament who are known to support traditional marriage, the proposal might once again not succeed. In which case the national vote might come back onto the agenda!)
Jeremy Gans in a brilliant piece in the “Opinions on High” blog from Melbourne Law School does a great job of summarising the options. Which one is preferred by any particular commentator will be partly affected by their view on the best outcome.
Referendum
There are at least two important questions about a referendum on this topic. Is it necessary? What would be the effect of the vote?
As to the necessity of a referendum, opinions differ. What is clear is that, in its decision in Commonweath v ACT [2013] HCA 55 (12 Dec 2013) (the Same Sex Marriage case), the 6 judges of the High Court of Australia who decided that case took the view that the word “marriage” in s 51(xxi) of the Constitution was broad enough to allow the Federal Parliament to enact a law conferring that status on a same sex couple. However, with respect to the court, I disagree, and I am not the only commentator to suggest that this aspect of the Court’s decision is open to challenge (see articles by Professor Twomey, “Same-Sex Marriage and Constitutional Interpretation” (2014) 88 Aust Law Jnl 613- 616 and Professors Parkinson and Aroney, “The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case” (2014) 28 Australian Journal of Family Law 160-192.)
The problem as I see it is that the 2013 case was not in essence about the power of the Federal Parliament. The issue in that case was whether the ACT legislature could pass its own legislation recognising same sex marriage, contrary to the clear words of the definition in s 5 of the Federal Marriage Act 1961 (Cth) providing that marriage is a relationship between a man and a woman. For reasons spelled out in my earlier paper (which I urge the reader to consult, if only for the opening cartoon!), I maintain that the Court’s decision on this main point, that the ACT law was invalid in light of the Federal law, was correct; but that it was not necessary for that decision for the Court to rule on the wider point as to whether such a Federal law would be within power. I appreciate that the Court itself took the view that this issue was necessary to decide; I am simply not persuaded that they were correct.
In the paper I use a somewhat far-fetched example about “bankruptcy”, mainly because it is also a specific head of Federal legislative power, and it is also a personal “status” which the law regulates, like “marriage’. I suggest that one may conclude that a State or Territory law declaring all red-headed persons to be “bankrupt” is invalid due to the “covering of the field” of bankruptcy by the Federal Parliament, without also needing to conclude that the Federal Parliament’s power would entitle it in its turn to pass such a law. It may be that no legislature in Australia has the power to bankrupt persons on the basis of their hair colour. While such a result may seem odd for those committed to the most expansive possible definition of Parliamentary sovereignty, it seems consistent with the nature of our Federation that some matters may just not be capable of being legislated, at least as the Constitution currently stands.
Of course there is an ultimate sovereign Australian legislator who could enable such a law- it is the Australian people, acting through s 128 of the Constitution, who could provide the Federal Parliament with all the hair-colour-based bankruptcy powers they need. And so with same sex marriage: a referendum altering s 51(xxi) could allow a law to be passed to recognise a same sex relationship as a “marriage”.
In my view, if such a change were to be introduced into the Australian community, this is how it should be done. There is, after all, some lingering doubt that the comments of the High Court in the Same Sex Marriage case might be regarded as obiter dicta, which could be put to one side by a later bench squarely presented with the issue. (As I and others have pointed out, it is particularly unfortunate that these comments were made in a case where there was no “contradictor”, because the Commonwealth, for whatever reason, effectively conceded the issue without real arguments, and neither party had come prepared to argue the point in any detail.)
Jeremy Gans notes some of the consequences of a successful referendum:
One possibility is that the referendum will succeed, writing the view of six High Court judges in 2013 permanently into the Constitution. While that won’t change the law, it will have the effect of barring a future High Court from disagreeing with that particular holding. Specifically, it would remove the power to decide from four future High Court judges, for instance stopping Gageler, Nettle and Gordon JJ (none of whom participated in the 2013 decision) from getting together with French CJ’s successor sometime after 2017 to rule that the federal parliament lacks power to enact a same-sex marriage law (effectively putting the political ball in the court of state or territory parliaments.)
In other words, Gans concedes (though does not support) the possibility that at least 4 out of a future 7-member High Court bench might possibly conclude that the earlier decision was wrong. (Another possibility, of course, is that one of the members of the 2013 bench may be persuaded to change their mind.) For supporters of same sex marriage, that ought to encourage them to see the referendum as a positive step, especially if the oft-cited statistic of 64% of the Australian people supporting same sex marriage is correct.
It is important, however, to spell out the consequences of a referendum either way.
- A successful referendum changing the law
On the one hand, the referendum might succeed. But the result of such a vote would simply be to authorise the Federal Parliament to enact a law allowing same sex couples to marry. One may presume that a Government which had put the question to the people would, when confronted with a vote in favour, go ahead and implement the wishes of the people. (The current Prime Minister has given such an undertaking.) But there would be no mechanism requiring them to do so. Still, I think it can be assumed that even a Coalition Government faced with a successful referendum would enact a law on the topic.
However, one issue which has not been satisfactorily resolved is the question as to whether explicit protections are to be provided for religious freedom, once such a referendum had passed. A number of recent commentators, including the Human Rights Commissioner, Tim Wilson, a supporter of same sex marriage, have pointed out that such protection will be needed.
Interestingly, there is a precedent already for protection of competing rights to be provided for in a Constitutional referendum. Section 51(xxiiiA) was added to the Constitution in 1946, after World War 2, to allow the Commonwealth Government to continue to make payments of various pensions and benefits which it had been previously been making, but which had been found to be not supported by an existing Commonwealth head of power. It provides that the Commonwealth Parliament has power to legislate for:
“the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances”.
The meaning of the bracketed words, “but not so as to authorise any form of civil conscription”, has been the subject of some debate in subsequent decisions of the High Court (see British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (7 October 1949); General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532 (2 September 1980); Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 (2 February 2009)). However, at the very least they provide protection to doctors and dentists from being “drafted” into government service against their will.
If a referendum is to add a specific provision allowing same sex marriage, it would seem to be wise to include some such words of protection for religious freedom and conscientious objection. Such protection is required, in the face of increasing evidence from other parts of the world where same sex marriage has been introduced, that “wedding support” businesses are being penalised where the business owners object to being “conscripted” into celebration of unions which they find, for deeply held reasons of religion or conscience, unable to support. (See previous posts here and here dealing with some of these cases.) Perhaps some such wording as the following would be suitable for an amended s 51(xxi):
“(xxi) Marriage, including marriage of persons of the same sex (but in that case not so as to authorize undue interference with the free exercise of religion or belief by those asked to celebrate or provide creative support for the relevant ceremony).”
The reference to “creative support” here is intended to cover those who are asked to devote artistic talents to a ceremony, such as wedding cake makers, florists or wedding photographers, but not to include those simply asked to provide ordinary commercial services such as the provision of food or the hiring of secular premises. (The only danger of including such a specific provision is that it might be said that this precludes recognition of other circumstances where religious freedom ought to be recognised, but it should be made clear in the enacting law that this is not the intention. Where s 116 of the Constitution would generally require protection of “free exercise” of religion in other circumstances, it should continue to do so.)
2. A referendum which fails to change the law
Suppose, on the other hand, that a referendum were unsuccessful? In that case presumably the Government of the day would feel free not to proceed with proposals to change the law. But then what would happen should that Government be replaced by another with the Parliamentary power to enact same sex marriage legislation? Would the failure of the referendum mean that legislation could not be enacted?
It seems fairly clear that this would not be the case. In other words, even if a referendum to introduce same sex marriage were to fail, there would be nothing to stop a later Parliament from enacting a law, based on a view that the comments in the 2013 High Court decision in the Same Sex Marriage case were correct.
Jeremy Gans puts it this way:
But what about the other possibility (one presumably hoped for by many of the referendum’s current proponents), that the referendum will fail (either by failing to attract a majority of Australian voters, or failing to attract a majority of voters in at least four states)? That would leave the Constitution unchanged, but could it affect a future High Court’s willingness to revisit its earlier rulings (e.g. on the basis that the referendum signals that the Australian people disagree with the 2013 ruling?) In a 1997 case on whether territory governments could acquire property without just terms, Gaudron J and Kirby J split on whether the fact that a majority of ACT residents voted against a 1988 referendum on this issue could be taken into account. In 2006, a majority of the High Court firmly rejected relying on failed referenda in the decision upholding the Howard government’s workplace relations law… {quoting that case}.
Assuming a future court agrees, this ruling implies that a failed referendum on same-sex marriage would have no legal effect at all on how that issue is eventually resolved. Of course, the referendum could well have a political effect, not only on politicians, but also, perhaps, on the willingness of Australia’s judges to issue holdings that differ from a clearly expressed public vote.
So the failure of a referendum, while one might think that it should send a signal to politicians that the Australian people as a whole disagree with the change, might not mean that the change could not be attempted; and in those circumstances, the High Court would simply have to interpret the Constitution as it stands.
A plebiscite?
Would a plebiscite give any more certainty? Fairly clearly it would not. Even after a successful plebiscite on the issue, Parliament would not be obliged to pass such a law (though the political pressure would be strong.) And similarly, should the plebiscite fail, supporters of same sex marriage would, if they could command a majority in both Houses of Parliament on the issue, pass a same sex marriage law.
That is not to say that such a vote would not be useful. It would provide some resolution to the perpetual debate over polls which seem to offer widely differing results, depending on the question which is asked. “Do you favour marriage equality?”, for example, seems to be bound to receive a positive answer. “Do you think a child should wherever possible be raised by their biological mother and father?” is likely to also receive a positive answer, even if the person being surveyed does not realise that a positive answer to question 1, may preclude, or at least impact on, a positive answer to question 2. The framing of a plebiscite question is likely to be one of the most contentious debates in the area.
Referendum or plebiscite?
Finally, to come at last to the question posed by the title to this post, which is preferable? I ought to make clear what most regular readers of this blog will know already: my own view is that same sex marriage will be bad for the community, and so I would be opposing the change in any vote, and would continue to argue against such a change whatever the outcome.
But I maintain that I still have a right to have a view on the process to be followed, if such a change is to be made. And my view on balance is that a referendum is preferable. The cynical may suggest that this is because I know that referenda in Australia rarely succeed. But even if that were not so, I believe that a foundational and fundamental societal change of this sort ought not to be made without providing a clear basis for it in the document which forms the grundnorm of the Australian legal system. As noted previously, if there is no such change the question of the validity of Federal legislation on the topic will remain in some, even if slight, doubt. In addition, a binding referendum can provide, if framed as I suggest above, religious freedom protections which are carved into the bedrock of the change, rather than being subject to the winds of Parliamentary change. That, at any rate, is my view at the moment.
Religious Freedom in a Multicultural World conference, 25 Sep 2015
I am jointly organising a one-day conference co-sponsored by Freedom for Faith at Newcastle University on Friday 25 September 2015. All the details can now be found at the conference website: http://www.newcastle.edu.au/freedomforfaith . The day will bring together speakers from a range of areas of public life to discuss the important issues of religious freedom, including:
- Tim Wilson, Australian Human Rights Commissioner,
- The Right Rev Dr Peter Jensen, General Secretary of the Fellowship of Confessing Anglicans,former Anglican Archbishop of Sydney;
- Dr Paul Taylor, International Law Advisor and Barrister;
- Dr Renae Barker, UWA School of Law and Honorary Research Fellow, Centre for Muslim States and Societies;
- Dr Greg Walsh, from the University of Notre Dame Australia; and
- myself!
There is also a flyer here which you should feel free to download and distribute as widely as possible! I hope that some of the readers of this blog may be able to join us on the day!
Same Sex Marriage, Religious Freedom and the Vibe in Obergefell
Much has been written in the last few days about the decision of the United States Supreme Court in Obergefell v Hodges 576 US ___ (2015) (26 June 2015) that there is a previously unknown “right” of same sex marriage in the United States Constitution. In this brief comment I do not propose to analyse in great detail the Constitutional basis for the decision of the majority of 5 Justices, written by Kennedy J, nor the trenchant critique of those reasons offered by the 4 dissenting Justices. Others who are much more versed in US Constitutional law have started to do that already- see, e.g., the helpful collation of reactions from scholars and commentators at the excellent First Things website. But I will try to summarise the decision, before turning to one of the main unresolved issues flowing from it: what are its implications for religious freedom in the US? I will then briefly offer some thoughts on how these issues might play out in Australia.
The Majority Decision
Kennedy J offers a keen insight into the logic of the movement for same sex marriage around the Western world in his opening paragraph:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. (slip op, at 1-2)
The core of the movement is the idea of “freedom”, and not just freedom classically defined as freedom from external restraint (the dissent of Thomas J outlines in some detail this traditional understanding of liberty), but the freedom to “define and express” one’s “identity”. With those opening words there was never any doubt where this judgment was going: to the post-modern world, nothing is “fixed” or “static”, all must be “fluid” and “dynamic”, including of course sexual preference and even gender.
And yet… even here we see a problem. For of course to make the point that we must radically redefine an institution that has formed the basis for society in all human cultures for millennia, Kennedy J wants to appeal to the fact that homosexual persons in fact are “trapped” into an identity not of their own making at all. So we read later of the fact that the “immutable nature” of the homosexual petitioners (slip op, at 4) “dictates” that they must find fulfilment in marriage to a person of the same sex. On the evidence of psychiatry, we later read that “sexual orientation is both a normal expression of human sexuality and immutable.” (slip op, at 8, emphasis added) So, trapped as they are in this unchangeable homosexual nature, Kennedy J for the majority holds that the law must allow them to marry others like themselves, or else be condemned to a “life of loneliness” (slip op, at 14: “Marriage responds to the universal fear that a lonely person might call out only to find no one there”; see also the moving conclusion at slip op, 28: “Their hope is not to be condemned to live in loneliness.”)
There is much of this emotive language, and stress on the personal pain felt by the petitioners in their relationships not being recognised as marriage. And of course if indeed the predominant purpose of marriage is to allow human beings to find solace and fulfilment in the love of another (but of course, why only one other?), then it seems grossly unjust to deny this institution to same sex couples. We see that early on in his judgment Kennedy J stresses this:
Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. (slip op, at 3).
Others have asked, of course, that if emotional fulfilment is what is required, why does the State become involved at all? As the dissenters note, the fact is that marriage has never been seen simply as a vehicle for the benefit of the two parties. It is an institution which is directed toward the regulation of sexual relationships between men and women, because such relationships regularly result in the birth of children, who long experience teaches us are usually best off when raised from birth by their biological parents in an enduring family. Yet it is well into the judgment before Kennedy J notes that marriages relate to children, and where he does so it is to say that same sex marriage protects the rights of children of same sex couples (see slip op, at 14-15). Indeed, traditional marriage laws, we are told in an astonishing remark, “harm and humiliate the children of same-sex couples”! Never mind that in any same sex family where children are present, all of the children will have been deprived, in some cases deliberately and carefully, of the companionship and love of one of their biological parents.
Without going into all the details, the majority judgment finds in the words of the Fourteenth Amendment to the US Constitution, that “no State shall ‘deprive any person of life, liberty, or property, without due process of law'”, a new “liberty” for same sex couples to marry, in an example of what is called “substantive due process”. Roberts CJ in dissent notes that it was precisely this sort of Constitutional “magic trick” that was used by the Supreme Court in the infamous Dred Scott v Sandford 19 How 393 (1857) decision to find an implied property right that could not be interfered with to set slaves free; and precisely the same logic that was used in the almost equally discredited Lochner v New York 198 US 45 (1905) decision to undermine labour laws aimed at achieving fair conditions for workers, again finding a “right” in employers to not be deprived of income by interference with their “freedom of contract”. Since those cases later decisions had tried to carefully hedge around the ability of the Court to “discover” new rights based on their intuitions of fairness, in cases such as Washington v. Glucksberg, 521 U. S. 702, 721 (1997). But at slip op 18 the majority turn their back on the checks and balances in that decision and strike out to find their ideal of a new right.
The right, they say, is also supported by the “Equal Protection” clause of the Fourteenth Amendment (see slip op at 19) in some mysterious and not quite defined way. Indeed, to an Australian lawyer a number of the passages in the majority decision are more than slightly reminiscent of Dennis Denutio in the classic legal comedy movie The Castle saying when challenged as to what part of the Constitution he was relying on: “It’s the vibe!”
In the end, however they get there, the result is clear:
These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. (slip op, at 22)
And “marry”, of course, means marry someone of the same sex.
The Dissenters
There is no space or time here to do justice to the 4 dissenting opinions, each of which in their own way offers clear and, to my mind, compelling reasons why the majority are wrong. Roberts CJ, as noted, compares the constitutional “logic” of the majority with that of previous decisions later regarded as clearly wrong. He stresses that the Court is not a legislature, and should not be taking to itself the role of making a fundamental change in an ages-old social institution.
The Chief Justice is also very clear: such logic as is present cannot be confined to the decision to allow same sex couples to marry each other. The argument from “loneliness” and emotional support inevitably leads to the next stage, which is the recognition of polygamous relationships as valid marriages. Nothing in the majority judgment, apart from, as his Honour notes, a sprinkling of the number “two” at points where it plays no part in the reasoning, prevents this next step.
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. (slip op, at 20)
And, as the Chief Justice notes, there is a decision from Utah at the moment which may present this issue very shortly: see Brown v Buhman, 947 F Supp 2d 1170 (Utah 2013), appeal pending.
Scalia J is his usual scathing self, well worth reading about the threat to democracy by the way the majority reasons. Thomas J analyses the historical roots of the idea of “liberty” and points out how far the majority decision has moved from this concept as referring to freedom from government action. His Honour’s reference to Magna Carta (slip op, 4) rang many bells with me after the recent Oxford conference on this topic. He notes, strikingly, that in the 35 States of the US where the question of recognition of same sex marriage has been put to the people of the State in a referendum, 32 of those States have voted to retain the traditional model of male/female marriage- slip op, 14. Yet these democratic decisions are obliterated by the ruling of 5 Justices.
Alito J at slip op 3 helpfully identifies the focus of the majority decision on the fundamental purpose of marriage as “to promote the well-being of those who choose to marry”. But, his Honour notes at 4:
This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.
As his Honour goes on to say, slip op 5, even if this model of marriage is not universally accepted in Western societies, surely a State may decide that they do not wish to “contribute to marriage’s further decay” by further departing from the ideal.
Religious Freedom implications
What, then, are the implications for religious freedom flowing from this decision? Here again there is a strong division between Kennedy J for the majority, and the dissenters.
Kennedy J devotes one short paragraph to the issue, at slip op 27, almost literally an afterthought:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
The choice of language seems deliberate. Rather than a robust assertion of a right to the “free exercise” of religion, the literal words of the First Amendment, we see an attenuated concession that believers may “advocate” and “teach” against recognition of same sex marriage. The dissenters pick this up.
Roberts CJ puts it so clearly that I can do little better than provide an extended quote:
Today’s decision… creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
The other members of the Court comment in similar fashion- see Thomas J at slip op 14-15:
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect…
In our society, marriage is not simply a governmental institution; it is a religious institution as well… Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.
And in a telling footnote to the above quote, his Honour notes that under the terrible regime where racially mixed marriages were forbidden, one State at least made it a criminal offence for a clergyman to celebrate such a marriage, even where his religion allowed him to. The suggestion is that, conversely, under a same sex marriage regime some States at least may try to force clergy to be engaged in celebration of such marriages, contrary to their faith.
Alito J is also unusually blunt:
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas- sure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Implications for Australia
I have written in a previous post about the current state of play as far as recognition of same sex marriage in Australia is concerned. In short, unlike the US, “marriage” is a head of legislative power given to the Federal Parliament, not left to the States, and even though it is a “concurrent” power (which can be exercised by either State or Federal Parliaments), any valid exercise by the Federal Parliament will override any conflicting State (or Territory) law. At the moment the clear definition of “marriage” in s 5 of the Marriage Act 1961 (Cth) precludes recognition of same sex marriage at any level in Australia, a result confirmed by the decision of the High Court of Australia in The Commonwealth v Australian Capital Territory [2013] HCA 55, (2013) 250 CLR 441. (For a detailed comment on that decision see my paper here.)
This situation could change, then, if legislation amending the Marriage Act were to pass Federal Parliament. As at the date of writing the Government parties have a firm policy opposing such a change, which they went into the last election promising to adhere to. The main Opposition Party, the ALP, has a policy allowing its members a free vote on the issue, although recently one of the senior leaders of the party suggested that it should make support for same sex marriage a binding plank of party policy in the near future. Minor parties differ in their views among themselves. Press reports suggest that if the governing Liberal/National Coalition were to allow a free vote of its members, some at least would support a change. But at the moment it is unclear whether there would be a majority for the change even if all members of Parliament were able to vote freely.
There have been various pieces of legislation introduced on the topic as Private Member’s Bills, none of which have succeeded, most of which have not even come to a vote. The most recent was introduced by Bill Shorten, Leader of the Opposition, in the form of the Marriage Amendment (Marriage Equality) Bill 2015 (introduced on 1 June 2015).
From the point of view of religious freedom, the latest Bill does at least make a gesture in that direction by providing, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act 1961 which aims to make it clear that a minister of religion may not be obliged (by the Marriage Act or any other Act such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. But this minimal protection does not go very far in dealing with the sort of issues that are noted by the dissenters in Obergefell and have become more apparent in recent years: the questions as to whether ordinary believers may be required to compromise their principles by providing support for, and celebration of, same sex weddings. (See my previous posts on some of the “wedding industry” cases, here and here.) Other questions include whether religious institutions generally will be allowed to continue to operate in the public sphere if their view of the morality of homosexual conduct is so contradictory to the new “sexual orthodoxy” which would be represented by Parliament granting the status of “marriage” to same sex couples.
Will the decision of the US Supreme Court have an impact on the law of Australia? Not directly, but the decision (like the recent referendum in Ireland) may have the pragmatic effect of further persuading some members of Parliament that the “tide of history” is sweeping toward same sex marriage, and they should jump on their boards. There is also an interesting comparison between the logic of the majority in Obergefell and the reasoning of the High Court of Australia in Cth v ACT noted above. In the High Court the court (in a move I have critiqued in my previously noted paper) held that the Constitutional head of power to legislate on “marriage” includes the power to recognise same sex marriage, and part of their logic was that “incidental” features of marriage had changed over the years. Similarly, in Obergefell, Kennedy J for the majority argues that marriage has “evolved over time” (slip op, at 6) because previous features such as the law of coverture have dropped away.
In my paper on the Cth v ACT decision I note at p 8 that the High Court settles on a “core” meaning of the term which manages to include both polygamy and same sex relationships as part of a shifting meaning. But the question remains, both in Australia and the US, as to how one decides what is part of the “core” meaning of the term, and what is an inessential accident? And, one might add, not only “how” does one decide, but “who” decides? In the US the minority’s critique of the legislative-like move made by the majority in Obergefell is very convincing. In Australia we may at least have the matter decided by a Parliamentary body. But in my own view (and I think there is also a plausible legal argument to this effect as well as good policy reasons), such a fundamental change to a foundational social institution should really be settled by agreement of the people as a whole, rather than by the shifting forces of politics in Parliament.
Even if a referendum were held, of course, I would personally oppose such a change. But at least a referendum would have the benefit of allowing the extent of community support for the change to be properly assessed, and for its supporters to seek to persuade its opponents of the rightness of their cause. Such an opportunity, as Roberts CJ tellingly points out in his decision, has now been lost after the majority ruling in Obergefell:
Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.
Freedom of religion in the nursery- homosexuality and the jilbab
Two recent UK decisions (oddly, both involving employment in nurseries) provide interesting examples of the operation of religious freedom principles in the workplace. In one, an evangelical Christian employee was found to have been discriminated against on the ground of her religion, by being dismissed after a conversation on homosexuality. In another, a Muslim applicant for a position claimed that she had been denied a job at a nursery because of her long robe, a “jilbab”, worn in accordance with her religious beliefs; but her claim of religious discrimination failed.
Discussion about homosexuality
In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd (Case No 3300656/2014; ET, 21 May 2015) the claimant, Sarah Mbuyi, got into a conversation with a fellow worker, “LP”, about the Christian view of homosexuality. The details of the conversation were in dispute, but Employment Judge Broughton said, at para [46], that on the evidence that had been accepted by the employer (who claimed that their decision had been made solely on Ms Mbuyi’s evidence) the conversation involved LP asking questions about Ms Mbuyi’s church, mentioning that she (LP) was a lesbian and asking whether she would be welcomed at the church, and enquiring as to whether God would approve of her relationship. Ms Mbuyi conveyed that, while God accepts sinners, God was “not OK” with homosexual behaviour. LP was upset and complained to a supervisor.
On the basis of that conversation Ms Mbuyi was called to a disciplinary hearing without being told beforehand of the allegations, nor being warned that serious consequences might follow. She was asked whether, if she had been asked to read a book to the children in her care about a same sex family, she would do so; she responded that she would probably get a colleague to read it. She was then asked, without having used the word herself at all, “Do you think LP is wicked?” – see para [60]. Her response was “we are all wicked”; but this comment was later used as part of the evidence to suggest that she had been “harassing” her colleague. A few days later she was dismissed for “gross misconduct” on the basis of harassment, specifically (see [68]):
On Monday 6 January 2014 you entered into a conversation in the workplace with your colleague, LP, and the topic moved on to the issue of homosexuality… During that conversation you stated that homosexuality was a sin.
Ms Mbuyi then found other work, but took action against her former employer for discrimination based on harassment, direct discrimination on the grounds of religion or belief, and indirect discrimination on the same grounds. To summarise, her claim of harassment failed for the interesting reason that, when asked how she felt about the whole episode, she responded (see [132]) that “It was great. I could tell the gospel”! In other words, she said she did not feel bad about the incident.
However, her claim for discrimination was successful, not being dependent on how she felt about the episode. (And, of course, as a matter of precedent for the future, not all Christians dismissed in these circumstances would necessarily feel the same way!) The most obvious basis for her claim was that of “indirect discrimination”- that a requirement had been placed on her that, while not directly discriminatory, had a more serious impact on those with her religious belief than it would on others. This was indeed one of the grounds accepted by the Tribunal for her case succeeding. In terms of s 19 of the Equality Act 2010 (UK), a “provision, criterion and/or practice” (PCP) had been applied to her, that employees should not express any adverse views on homosexuality or describe it as a “sin”. (See para [101.1]) This PCP put “evangelical Christians” at a disadvantage in comparison to people in the community generally. Judge Broughton noted that art 9 of the European Convention on Human Rights protected religious freedom, and in particular that:
[106] The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (Kokkinakis v Greece, 25 May 1993, ECHR).
The Judge also noted that while an earlier approach in the UK suggested that an employee who found their religion clashing with their job, should just get another job (see [111]), this was no longer the approach favoured in the European Court of Human Rights since the decision in Eweida & Ors v UK [2013] (see the quote at [112]). Here the employer needed to consider whether it was “proportional” to a “legitimate aim” to have treated the claimant in this way. While the Judge accepted that a desire to have a “non-discriminatory” workplace was a legitimate aim, the way that the claimant had been treated in these circumstances was not a “proportionate” response- see the discussion at paras [187]-[193]. Features that led to this conclusion were that, if the issue of “discussions about homosexuality” was the real concern, then the colleague LP (who, on the accepted findings, had initiated the conversation) had not been disciplined; that no prior warning was given; that no opportunity was given for an undertaking to be offered that similar conversations would not be initiated by the claimant in the future.
While the above “indirect discrimination” analysis seems to be the most obvious way of analysing the circumstances, it is interesting to note that the Tribunal also found that there had been “direct” discrimination. Without going into all the findings, Judge Broughton found that the way the disciplinary hearing had been conducted involved a clear signal that there had been a pre-judgment made on the basis of a “stereotype”. Sufficient evidence was offered of “bad faith” (including matters such as putting the word “wicked” into the claimant’s mouth when she had not used it prior to the interview) to raise a presumption that she had been dismissed on account of her faith, and the employer had not produced sufficient evidence to rebut this finding (see the analysis of the “burden of proof” in direct discrimination cases in paras [115.3]-[115.4]).
To be frank, I have mentioned this second finding briefly because I suspect it is one that may be overturned on appeal, if there is one. The case does not really seem to rise, on my reading, to one of “direct” discrimination. But I think the decision on “indirect” discrimination seems justifiable. To dismiss an employee on the basis of a one-off conversation on a topic initiated by a fellow worker clearly seems disproportionate to legitimate aims of avoiding discrimination and harassment. While dismissal might be justified if there is a pattern of unwanted conversations foisted on others, as Judge Broughton said, here:
“there had been no warning and the dismissal was based primarily on an honest reply to a query”.
The length of the Jilbab
In the second case, Begum v Pedagogy Auras UK Ltd t/a Barney Lane Montessori [2015] UKEAT 0309_13_2205 (22 May 2015), the claimant, a Muslim woman, applied for a position at a nursery where other Muslim women were already employed. In the course of the interview, however, the employer noticed that the long traditional cloak, the “jilbab”, which she wore, extended to cover her feet completely. She said to the claimant that this might be a health and safety risk, as a tripping hazard, when moving around the nursery and picking up children, and asked her to consider wearing a shorter jilbab if she were to get the job. Evidence was that this was not a pretext of any sort, that health and safety issues of all sorts were regularly considered by the employer- see [12]. But while the interview concluded on a positive note, with the claimant to contact the employer about a starting date, she did not do so. The next they heard from her was a complaint of religious discrimination.
In this case the Employment Appeal Tribunal upheld the finding of the Employment Tribunal at first instance that there had been no discrimination on the basis of religion. The case involved, as did the Mbuyi case, the application of s 19 of the Equality Act 2010 (UK). The relevant PCP was that a long cloak covering the feet not be worn. It was accepted that the wearing of the jilbab was a manifestation of the claimaint’s religious beliefs, and the issue was whether the requirement that had been imposed was a proportionate means of achieving a legitimate aim- see para [67].
There was in fact some factual dispute about what had been said. The EAT accepted that at least a requirement had been imposed that any garment to be worn in the workplace not be a tripping hazard- see [73]. On that basis, this PCP “could not be said to be either wrong or unreasonable, and in our opinion is patently not so” – [74].
For further analysis of the decision, see comment at the Law and Religion UK blog by Frank Cramer.
Australian law
Would the result of these decisions have been the same in Australia? In my blog on the recent head-scarf case in the US I noted that there is no general law prohibiting religious discrimination which applies across Australia. However, in a jurisdiction like Victoria, where there is such a law, it seems to me that these decisions should have been decided the same way. As noted there, the issue under s 9 of the Equal Opportunity Act 2010 (Vic) s 9 would be whether a “requirement, condition or practice” (like the PCP spoken of in the UK cases) put the plaintiff at a disadvantage on the basis of religion or belief, and whether it was “reasonable”.
It seems to me that the Begum case would be reasonably straightforward, as it was in the end in the UK. To impose a requirement in the interests of safety, especially where the requirement was not “no religious dress” but simply “a slightly shorter robe”, would probably be held to be reasonable. (In Victoria, s 75 of the Act means that behaviour is not discriminatory if it is “necessary” to do something to comply with other legislation; and it might be argued that a safety requirement was mandated by the Victorian Occupational Health and Safety Act 2004.)
Arguably the outcome of a case like the Mbuyi one would be more uncertain. It seems to me, though, that a good argument could be made that in circumstances identical to this decision it would not be “reasonable” to impose a requirement that “no conversations expressing a Biblical view of homosexuality be had on pain of instant dismissal”. Determination of what is “reasonable” would be made having regard to s 9(3) of the EO Act:
(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;
(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;
(c) the cost of any alternative requirement, condition or practice;
(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;
(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.
Here the “censorship” of conversations on topics on which employees may wish to converse would be a serious disadvantage, arguably disproportionate to the result of seeing that employees were not harassed. Introduction of principles encouraging respect for other points of view, and even clear guidelines about not pursuing topics of conversation where one party indicates that they do not wish to discuss them, are clearly a better response. The costs of having a conversation about these issues for the future would be minimal, and impose much “less disadvantage” than a blanket prohibition on conversations. There are also other important issues at stake in terms of the value of free speech and open discussion on important issues among employees without a fear that retribution will follow a request to talk about a topic initiated by a colleague. It is to be hoped that a spirit of open discussion about important issues will allow continued freedom of religion and belief in the workplace.
Headscarves and Religious Freedom in the Fashion Industry
The United States Supreme Court has just handed down a very interesting religious freedom decision in Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, Inc (No 14-86, June 1 2015, 575 US ____ (2015)). The case involved a Muslim lady, Ms Samantha Elauf, who had applied for a job in a store run by high end fashion label Abercrombie & Fitch (A&F). In the interview she wore her head scarf, which she usually wore in line with her religious beliefs, but was not specifically asked about this. A&F maintained a “Look” policy applying to staff working in their stores which included a “no headgear” requirement. The person who conducted the interview told her supervisor that she thought Ms Elauf would be suitable, but noted that she seemed to wear a scarf for religious reasons. The supervisor directed that she not be hired. The Equal Employment Opportunity Commission (EEOC) sued A&F on behalf of Ms Elauf, alleging unlawful religious discrimination.
The Law
The case, then, was not one which directly involved the First Amendment to the US Constitution, or the Religious Freedom Restoration Acts which have recently generated such controversy. The legislation involved was Title VII of the Civil Rights Act of 1964, 78 Stat 253, which relevantly makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin. (42 U. S. C. §2000e–2(a).; emphasis added)
Another crucial part of the legislation for the Supreme Court’s decision is the definition of “religion”. The majority decision noted (at 3):
The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e(j).
It is somewhat unusual to incorporate a substantive provision about “reasonable accommodation” and “undue hardship” into the definition of “religion” (Justice Thomas in his dissent here, at 9, notes a previous case that said this inclusion was “somewhat awkward”, which I think is putting it mildly). This awkward structure led to some of the disagreements within the Supreme Court.
The Decision of the Court
The outcome of the decision is that Supreme Court, by an 8-1 majority, over-ruled the decision of the lower, Tenth Circuit, appeal court that A&F could not be held liable because Ms Elauf had not explicitly requested a religious accommodation. However, even within the 8 Justices who said that the Tenth Circuit had got it wrong, and needed to reconsider, there is an important difference of opinion. A sizeable majority of 7 Justices joined in an opinion written by Scalia J in which his Honour held that A&F’s knowledge that Ms Elauf wanted to wear the scarf for religious reasons was irrelevant- that for an action of an employer to be directly discriminatory on the ground of religion (under a “disparate treatment” or “intentional discrimination” ground, contained in Title VII, §2000(e)-2(a)(1)) all that has to be shown is that a “suspected” requirement for “accommodation” (that is, some adjustment of existing rules, such as the “no headgear” policy here) on religious grounds was a “motivating factor” in the decision to subject the employee to a disadvantage. See the following comments from pp 3 and 5 of the majority opinion:
[A]n applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision…
an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
On the other hand, Alito J, concurring in the result, disagreed with the majority on the question of “knowledge”. His Honour held that a requirement that the employer know that religious reasons required an “accommodation” should be implied in the terms of the legislation. However, since there was sufficient evidence in the agreed facts to lead to a finding of such knowledge, he thought that the appeal ought to succeed. Like the majority, though, he agreed that there was no need to prove that an actual request for such accommodation was made by the employee.
With respect, the concurring decision is fairly persuasive. As Alito J notes, it seems a very odd reading of the statute to say that an employer who had no idea at all that a religious reason was involved, could be held to have breached the statute, the aim of which seems to be to prohibit “intentional” discrimination (though that word is not used). The majority avoids this outcome by its comment suggesting that a “suspicion” of a religious reason would be enough; but to be frank this word really pops up from nowhere, it is not in the legislation, any more than a “knowledge” requirement is. But something of the sort seems needed. In a footnote, p 6 fn 3, the majority say they don’t need to choose between a “suspicion” and a “knowledge” criterion. But I think Alito J seems to be correct to say it needs spelling out to make the legislation operate sensibly- see p 4 of his decision. (As Thomas J says at 4-5 of his judgement, the majority decision “leaves the door open” to argue a “strict liability” which would not even depend on suspicion, by refusing to resolve the issue.)
In dissent, Thomas J holds that the majority are wrong to characterise this case as one of “direct” discrimination, “disparate treatment”. Instead, it should be regarded as a classic example of “indirect”, or “disparate impact”, discrimination, and resolved under the principles developed in those cases. However, his Honour does not then go on to apply the “indirect” provision to this case, being content to say that he would affirm the judgment of the Tenth Circuit decision.
Comment
I agree with the outcome of this case. I will demonstrate why shortly, by referring to Australian law. But it has to be said that it certainly leaves some uncertainty in the area of protection from religious discrimination. The majority judgment does seem to open up the possibility of some odd decisions, where an employer may refuse to accommodate a religious belief on the basis of a “suspicion” and be found guilty of direct discrimination under Title VII. This seems a very high bar. I think, while I am not an expert in US law, that the explanation can partly be found in the different approaches of Scalia J (author of the majority judgment) and Alito J to the question of statutory interpretation. Partly as a result of the many decisions that the US Supreme Court has to make on the meaning of that country’s Constitution, and also for other reasons, Scalia J is a fierce proponent of the view that a statute has to be interpreted by strict reference to the words chosen by the law-makers, with possible reference to dictionaries of the English language available at the time the legislation was enacted, but excluding any consideration of what was said in Congress or what a judge believes the “policy” of the statute is. Hence his Honour’s sharp comments on p 5 that the court should not “add words to the law to produce what is thought to be a desirable result”.
On the other hand, Alito J adopts the interpretation he does, requiring “knowledge” of a religious belief needing accommodation, because, as he says at p 4 of his judgment, “This interpretation makes sense of the statutory provisions”. With respect, I think his Honour is correct; and interestingly, despite Scalia J’s refusal at one point to “add words”, the word “suspicion” pops up in the majority judgment at various points with no direct statutory warrant. (Partly it is used because the legislation does refer to “motive”, see majority p 6 fn 3; but since this word needs explanation the court has to adopt some other criteria.)
In the end it has to be said that this case, which should be reasonably straightforward, is complex because of the “awkward” way that the definition of “religion”, noted above, is drafted. The question of whether a “reasonable accommodation” is possible is logically nothing at all to do with whether the employee has a religious belief or practice; that is an issue which needs to be dealt with, but not as part of the definition of “religion”. In addition, by incorporating “all aspects of religious observance and practice” into the definition of “religion”, the way is open for the confusion evident here. Scalia J seems correct if the statute is to be read literally: if “religion” includes any practice that might be connected with religion, then making an employment decision on the basis of, say, an employee’s desire not to work on the Sabbath is itself to discriminate directly on the basis of “religion”, even if the employer could not and does not know that the employee is Jewish. But as Alito J says, it makes no sense for the statute to operate that way.
Under Australian law?
How would this case have been decided under Australian law? Briefly, it would not have even arisen under the law of the Commonwealth or NSW, as those jurisdictions have no law prohibiting discrimination on the basis of religion. (Even the provisions of s 351 of the Fair Work Act 2009 (Cth) which forbid discrimination against a “prospective employee” on the basis of religion, would not seem to operate if the events occurred in NSW, as under s 351(2), the prohibition “does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken.”)
However, in a State that does contain such laws, then under the usual Australian approach this would be an example of “indirect”, not “direct”, discrimination (as Thomas J in dissent argued should have been the case under Title VII.) So in Victoria, for example, under the Equal Opportunity Act 2010, the “attribute” of “religious belief or activity” is one of the protected attributes- see s 6(n). Under s 9(1) it is “indirect discrimination” where:
(1) …a person imposes, or proposes to impose, a requirement, condition or practice—
(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
Under s 16 an employer must not “discriminate” on the basis of protected attributes when determining to offer jobs. Under s 7 this word includes “indirect” discrimination. Here it seems clear that a requirement that a worker not have headgear would be a condition that will have the effect of disadvantaging those who have the attribute of a traditional Muslim belief that women ought to have their head covered. The court would then need to consider whether this requirement was “reasonable” or not taking into account a range of matters noted in s 9(3), including whether some “reasonable accommodation” is possible. It seems likely that a court would hold that a requirement merely based on a desire for a “Look” might not be sufficiently important to involve rejecting employment to a Muslim woman. That at least is where the discussion would take place, which seems the right approach.
Protection of the freedom of religion is an important issue. It is to be regretted, in my view, that there is no such general provision in Commonwealth and NSW law. This case illustrates that the law can act to protect the rights of religious minorities, and it would be good if the law of Australia did so more clearly.
