Freedom of religion

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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!

ReligiousFreedomConferenceInvite

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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.

neilfoster

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.

neilfoster

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.

neilfoster

Religious Freedom in Australia

I was invited to speak to the J Rueben Clark Law Society annual conference on Friday May 29, and gave a paper on Religious Freedom in Australia. (I am not a member of the Society but happy to share in the work of supporting religious freedom with its members.) The paper covers something of the ground I covered in a previous blog post on this area, but in more detail and with footnotes! After the paper one member of the audience noted that I had omitted to mention s 46 of the Tasmanian Constitution Act 1934 which is the only provision for specific religious freedom protection in Australia in a State Constitution. Worth keeping in mind though so far no court has ever had occasion to consider what it means. Those who are interested in a detailed analysis of the somewhat patchwork system for religious freedom protection in Australia at the moment may find the paper of interest.

neilfoster

Cakes, t-shirts and religious freedom- an update

A brief note about two decisions illustrating radically different approaches to religious freedom developing in the context of laws prohibiting sexual orientation discrimination, both from the United States.

One case, Re Klein dba Sweetcakes by Melissa and anor (Commissioner of the Bureau of Labor and Industries, State of Oregon; Case Nos 44-14, 45-14; 21 April 2015) is in the “genre” of the wedding industry cases I have previously commented on. The owners of a small-town cake shop were asked to make a wedding cake. When they discovered that this was for a same sex “commitment ceremony” (at the time same sex marriage was not legal in Oregon), they declined on the grounds of their Christian beliefs. Soon word got around, they were besieged by protests and in fact had to shut down their shopfront business. In this decision the Commissioner has ruled, on the basis of a previous finding of liability for sexual orientation discrimination, that they should pay $135,000 in damages to the couple concerned for “emotional suffering”.

The argument that the refusal to provide a cake was not based on the sexual orientation of the customers, but based on the fact that the cake was designed to send a message contrary to the shop-owner’s religious beliefs, was rejected. The Commissioner ruled that holding a same sex wedding ceremony was “inextricably linked” to the complainant’s sexual orientation, and “The Respondents’ refusal to provide a wedding cake for Complainants because it was for their same sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation” (p 38, lines 14-16).

Nor was a religious freedom argument accepted. Applying the US Supreme Court decision in Smith (1990), the law in question was a “valid and neutral law of general applicability” and hence the First Amendment “free exercise of religion” right did not assist- see e.g. p 57, lines 1-3. Oregon has no RFRA law designed to restore an earlier, more expansive, view of religious freedom.

The imposition of the fine by the Commissioner is subject to further review, and of course to a potential appeal. Interestingly, a public appeal for funds to pay the fine started on an internet site used for this sort of purpose before, but was then cancelled as the host of the site met complaints that the funds would be supporting “campaigns in defense of formal charges of heinous crimes, including violent, hateful, or sexual acts.” Presumably the act of politely declining to bake a cake was a “heinous” act of “hate”.

The other case could hardly be more different in outcome, though sharing many features with Klein. In Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015) a printer of T-shirts and promotional materials had declined to print advertising for a “Gay Pride” march. The company had been found by the Human Rights Commission to have discriminated against the local Gay and Lesbian Services Organisation in its refusal.

Judge Ishmael overturned the finding of discrimination. His Honour noted that the company had operated in accordance with the Christian principles of its proprietor for some years, and had declined a number of previous printing jobs on the basis of the messages being conveyed (for example, shirts promoting a strip club and others containing a violence related message- see p 9). He also noted that the former president of the GLSO, who had filed the complaint, does not identify as gay and is actually married to someone of the opposite sex. It was a particularly clear case where the refusal of the job was based on the message, and not the sexual orientation of the customer.

In reviewing the Commission’s decision the judge applied Constitutional principles as well as disagreeing with the finding of sexual orientation discrimination. The decision of the Commission was said to breach the company’s First Amendment freedom of speech, because the Commission was in effect requiring them to speak a message they did not support (see p 9). As his Honour said:

HOO’s declination to print the shirts was based upon the message of GLSO and the Pride Festival and not on the sexual orientation of its representatives or members. (at p 10, emphasis in original)

In addition, the Commission’s finding was a breach of religious freedom rights. Here the judge did not need to find his way through the barrier of the Smith decision, because Kentucky statute KRS 446.350 was a State-based version of the RFRA discussed in previous posts. This provision required a Government showing that a substantial burden on religious freedom could be shown to be in furtherance of a “compelling governmental interest” and was the “least restrictive means” to further that interest. Here there was a clear burden in requiring a Christian printing firm to support a message they saw as contrary to the Bible. (In light of the Supreme Court decision in Hobby Lobby (2014), the RFRA provision in referring to “person” should be read as including corporate persons like the company HOO- see p 14). The Government could not demonstrate why it was necessary to do this to further any interest it had- as the judge noted, the complainant organisation had no problems in getting their printing done by another company. (Indeed, HOO in its dealings with the GLSO had offered to find another company who would do the job at the same price that they would have charged, if the organisation had had any problems in doing so.)

Why the different results?

These cases offer similar situations: a commercial service provider who, because of their Christian beliefs concerning sexuality, cannot in good conscience provide their artistic talents to the support of a message favouring same sex relationships, and is alleged to be guilty of sexual orientation discrimination. In my view the second decision was correct, and the first decision ought to have been decided in a similar way. But there are differences that may have made a difference. The differences may lie in:

  • different complainants: in the Klein case homosexual persons, whereas in the HOO case the person requesting the job did not identify as gay;
  • different purposes for which the job was required: in the Klein case the celebration of a wedding between the parties, which of course carries all the sympathies of those who love weddings; whereas in HOO the issue is a public parade;
  • different degrees to which the issue is about “speech”: the HOO case looks to be all about a message, and the US courts are traditionally very keen to support free speech; the Klein case is about a form of speech, when analysed carefully (the celebration of a relationship), but appears on the surface not to be;
  • and the legislative context: it seems that this is one example where the presence of an RFRA made a difference- in Klein the Smith decision (which on top of everything else was about facts which arose in Oregon) receives priority, whereas in HOO the judge applies what is in effect the pre-Smith line of cases reflected in the local RFRA.

Still, it is good in my view to see a judicial decision recognising the strength of the free speech and freedom of religion arguments in these cases, and it may be hoped that this case provides support for a better analysis in other cases.

neilfoster

One step forward, two steps back: religious freedom, vaccination and RFRA’s

I couldn’t help noticing some disturbing features of the debates over religious freedom in the last few weeks. The pattern: a government body makes a decision to improve or uphold religious freedom, and for some reason it then does a “back-flip” so that we arguably end up worse off than before. The two examples: Indiana’s RFRA law and Australia’s guidelines on vaccinations.

Example 1- Indiana

Like many others interested in this area, I previously posted about the proposals to enact a Religious Freedom Restoration Act in the US State of Indiana. In brief, this law was part of a number of similar laws that had been enacted at Federal and State level to provide greater protection for religious freedom, in the face of a very narrow reading of the “free exercise” clause of the First Amendment to the US Constitution. (Incidentally, this week was the 25th anniversary of the decision setting up that narrow reading, Employment Division v Smith, marked by an excellent piece noting it as “Justice Scalia’s Worst Opinion“.)

The law was, as previously noted, the subject of a massive campaign against it in the media, and in the political sphere, with the spectre of mass boycotts of the whole State. (And the incredible tale of a small-town pizza store, the subject of “entrapment” by a local TV reporter, led to answer “No” to the question that presumably no-one had ever asked anyone before, “would you provide your pizzas to cater for a same sex wedding?” The resulting internet “firestorm” saw an online threat to burn down the store, along with a large amount of money donated to the store to encourage them to stay in business.)

The “pizza wedding” furphy, of course, arose because one motivation behind the enactment of increased religious freedom protection is an attempt to deal with the clash created when Christian bakers, photographers and florists are faced with penalties for not wanting to devote their artistic skills to supporting an institution they believe to be contrary to the Bible’s teaching on marriage and sex.

Here, however, is where the back-flip comes in. The Indiana government decided to amend the new law (not even in force yet) to respond to the online discourse that their act was a “license to discrimination against gays”. In doing so they have ended up, according to a number of commentators in the US, with a situation that now restricts religious freedom in this area to a greater degree that had previously been the case. Now the law will make it clear that Indiana citizens who have strong religious beliefs about support for the new institution of same sex marriage may not, apparently, choose to decline to provide their skills in support of this institution. Two steps back.

Example 2- vaccination in Australia

Again, I posted about this recently. The Australian Federal government has decided, to create more incentives for all parents to vaccinate their children against common childhood diseases, to withdraw key social security benefits from those who do not do so. Their initial announcement, which I applauded, included an exemption for those who had religious objections to vaccination.

Now we hear that this religious exemption will not be preserved. In fact the number of groups to whom it would apply was already very small- the main one seems to have been the “Church of Christ Scientist”, usually called “Christian Science”. There is an excellent review of religious objections to vaccination around the world here, which reveals that this and some parts of the Dutch Reformed Church are the only religious groups which can be plausibly said to have genuine religious objections to vaccination.

Even this author concedes, however, that an exemption granted to those with genuine religious objections could arguably be limited enough not to have a major impact on the “herd immunity” factor needed to protect those who cannot be vaccinated for health reasons.

A community can afford to have a small number of conscientious objectors to immunization. (at 2019)

In Australia it seems clear that the number of active members of the Christian Science church is small, around 1000. In fact, the press report noted above suggests that the leaders of the church in Australia had indicated that they no longer objected to their members being vaccinated. So it may be that in practice the new policy will not affect many people. But in my view it is a bad precedent. Australia’s constitution, s 116, requires the Commonwealth Parliament (and, by implication, guidelines and regulations made under authority of legislation passed by the Parliament) not to unduly impede the free exercise of religion. (See my previous post summarising religious freedom protections in Australia.) Withdrawal of a benefit of this sort, which many parents rely on, without allowing at least a theoretical exemption on religious grounds, arguably amounts to undue interference.

I am not so naive as to ignore the possibility that if such an exemption is available, those who object to vaccination on other grounds might try to misuse the provision by making false claims of membership. But as I noted in my previous post, there are clear ways that courts and government bodies can test such claims. Does the person have a history of attending meetings of this organisation before the relevant change of law? Will a respected leader of the organisation testify to their membership? Is there a plausible argument that this is indeed what the religion teaches? Is it a genuine religion? A religious exemption process would involve investigating these matters, but it would allow a better balance between religious freedom and community health concerns than a proposal to ignore religious freedom altogether. Again, we have moved from a situation where there was a religious freedom exemption, even if rarely relied on, to where there is now none. Two steps back.

Is there a lesson to be learned from these two examples? To be honest, I am not sure. Perhaps one clear message is that arguing for the preservation of religious freedom is difficult in a climate where many are cynical about religion, and where it is easy not to spend the time looking into the real harms being done to believers by sidelining their genuine concerns. Even where religious freedom has been gained one day, it can be lost very easily!

neilfoster

Indiana Laws and the Raiders of the Lost Freedom

Probably the most likely context in which most Australian readers will have heard of “Indiana” is in the famous movie series from the 1980’s, alluded to in my cringe-worthy blog title! But the internet has been alive in recent days with headlines trumpeting the fact that this otherwise innocuous American State seem to be suddenly riddled with gay-hating “homophobes”. As exalted a figure as Tim Cook, CEO of Apple, describes recent legislation enacted there and elsewhere as “Pro-discrimination ‘religious freedom’ laws“. His reference to “days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms” implies that such laws are somehow authorising behaviour the moral equivalent of the worst sort of racial discrimination practised in the Deep South before the civil rights era. Even an article in the local Sydney Morning Herald tells us that under this dreadful law “a bar could use the law to refuse service to gay clientele” and it is “a licence to discriminate.”

All of this sounds horrible, and it would be- if it were remotely attached to reality! But the fact is that both the origins of the law, and its actual legal effects, have been misrepresented in these articles and other internet coverage- misrepresented so seriously that it is hard to avoid the conclusion that those running the “campaign” against the law in the US are doing so intentionally. I’d like to try and set the law in context, describe how it might operate, and offer a few comments about similar issues that may arise in Australia in the future.

The Indiana Legislation and its background

Others on the internet have already done a good job of outlining the background and operation of the Indiana law, here, here, here and especially here. But it may be helpful just to run through it again.

First, the Act itself. Despite what you might think from reading about it on some websites, it is not called the “License to Discriminate Act” or anything similar. Here is a link to the whole thing- it isn’t very long. It is the “Religious Freedom Restoration Act”, due to commence operation on July 1, 2015, as chapter 9 of the Indiana Code. The legislation sets up the principle that if the Government or some other public entity of Indiana wants to interfere with religious freedom, then they have to show that there is some compelling reason, and that they have chosen the least burdensome way of dealing with it. The core provision is s 8:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Is this a radical new idea? No. Some 19 other States of the US have enacted similar legislation, most of them called by the same name, RFRA. The reason for the name is that this State legislation is modelled on Federal legislation which was enacted back in 1993 by the US Congress (almost completely unanimously, and signed with great celebration by President Clinton and Vice-President Gore.) That legislation was thought to be needed because in a very narrow interpretation of the “free exercise of religion” clause in the First Amendment to the US Constitution, the US Supreme Court in Employment Division v Smith 494 US 872 (1990) had held that there would be no protection for freedom of religion when Congress had enacted a “neutral law” (i.e. one not specifically targeted at religion) of general application. This effectively removed a lot of protection for religious freedom that had previously been applied by the Supreme Court, and the RFRA was designed to “restore” this previously enjoyed religious freedom. (See my previous post on the “Muslim prisoner beard” case which describes the operation of similar legislation.)

The effect of the legislation, then, is to provide some protection for people who have serious religious objections to complying with a law that otherwise applies to everyone in the community. An Amish person, for example, may not want to have their photo taken because they believe this breaches prohibitions on making “graven images”; their right here will have to be balanced against the State’s general interest in identifying drivers through photo licenses.

The Indiana RFRA does go slightly beyond some of the other State laws of a similar nature, though not radically so. First, it provides protection for religious freedom of some corporate entities, as well as for that of individuals. Under s 7 the definition of “person” extends to companies where persons who have “control and substantial ownership of the entity” have shared religious beliefs. In doing so it departs from all but one other State RFRA. However, most of those other Acts were passed before the US Supreme Court handed down its decision in the Hobby Lobby case in 2014, where a majority of the court held that the word “person” in the almost identical Federal RFRA extended to include “closely held corporations”, where religious beliefs of the corporate owners could be identified. So in effect the Indiana RFRA is really mostly recognising the reality of the way all the similar legislation will have to now be interpreted, since the US Supreme Court has provided that authoritative ruling.

The second point of distinction for the Indiana law is that it can be invoked as a defence in litigation between private individuals, not just in a case against the government. Section 9 provides that a person whose religious freedom is burdened

may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

(The drafting is a bit odd here. While s 9 seems to indicate religious freedom can be a “claim” in actions involving private parties, s 10 of the Act when describing the result of such an action simply says that the court “shall allow a defense against any party”, while adding that other remedies such as an award of damages may be sought from a “government party”. I think on balance the “defence” operation is what is intended here in private party cases.)

The application of the RFRA to private party cases is only explicitly provided for in one other State RFRA. However, other State courts have interpreted their laws to allow such actions, so again it is not unique.

Allowing bars to deny service to gays?

What, then, does all that have to do with “anti-gay” laws and refusing service in bars? Well, not very much. But it is true that the law might apply in some cases involving gay couples. In a previous blog post I discussed a series of cases involving “wedding service providers”, where it has been suggested or found that someone declining to provide photography, florist or baking services to support same sex marriage was guilty of “sexual orientation discrimination”.

Proponents of the Indiana law do think that this legislation might allow a better balancing of “freedom of religion” with the right to “freedom from discrimination” than has previously been provided in these cases. Where a wedding service provider with a genuine religious belief that same sex relationships are sinful, is asked to provide support and celebration to such a relationship, it does indeed seem to be a substantial burden on their religious freedom. To support the validity of such a rule, the government would need to show that the law furthered a “compelling government interest” and did so in a way which was the “least restrictive means”.

There is no guarantee, of course, that the provider would win their case. The court will still have to weigh up these important issues. However, it would seem to be at least arguable that, where there was no real shortage of such services elsewhere in the community, presumably from providers who would actually provide a better service because they genuinely wanted to assist in the celebration of the union, it would seem to be burdensome and achieving no real gain to dragoon a believer into reluctantly providing the service (or else giving up their livelihood).

But notice that the effect of the law, even if were applied in this way, is incredibly limited. It does not authorise wholesale denial of services to gay persons! (Indeed, there is quite some irony here in the fact that Indiana as a State does not have any general prohibition on sexual orientation discrimination anyway. So at the moment, in most of the State, there is no obligation to serve a gay couple to which the RFRA would provide a defence. Still, some local city laws do have such provisions, so the issue is a live one in some areas of the State.)

No- the provision would only operate where there was a genuine religious belief (and courts are more than capable of making judgments about these things), and where there was a plausible case that what was being requested went against the belief. No religion that I know of requires bartenders to refuse to serve homosexual persons! Indeed, there is a very important threshold issue in all the “wedding provider” cases, that to decline to support the institution of same sex marriage may not of itself amount to discrimination against homosexuals. Many “straight” persons support same sex marriage; some gay persons do not. Arguably refusing to support the institution is not relevant “discrimination”. (This argument was rejected in two of the cases mentioned in my previous post, but I think it still ought to be considered.)

So- the Indiana law is not the “anti-gay” monster that it has been painted. It would take another blog post to properly analyse the reasons why it has been so painted, and the way that the mainstream media picks up on distorted views of the law without checking for themselves. But that seems to be the situation. Of course persons of good will may still disagree about the balance to be struck in these areas. But it would be nice if arguments were made in light of the facts, instead of being put forward from mere prejudice. The “lost freedom” of free exercise of religion is being diminished to the point of vanishing in some of this discourse.

Australia and similar issues

Finally, then, how are these issues being dealt with in Australia? And how might they be resolved here?

As I have previously noted, there is no over-arching religious freedom protection in Australia. A Federal prohibition on sexual orientation discrimination, if it was thought to be breached by a wedding service provider, might in theory be challenged under s 116 of the Constitution as an “undue” infringement of religious freedom (to quote Latham CJ from the JW’s case noted in the previous post.) However, the interpretation of the free exercise clause here has in the past been just as narrow as the Smith approach in the US, so it is quite unclear whether this would be useful.

At the State level some States have a Charter of Rights which provides some protection for religious freedom. And most States, where they have discrimination legislation, include some type of “balancing clause” to protect such freedom. However, in most such legislation that protection is extended to “religious organisations”, not to individuals. (Interestingly, such a provision in the NSW Anti-Discrimination Act 1975 was held to allow an evangelical group, the Wesley Mission, to decline to place a child for fostering with a same sex couple, in OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).)

One notable exception to the rule that most “balancing provisions” apply to religious organisations is Victoria, where s 84 of the Equal Opportunity Act 2010 (applying to “persons” generally) provides:

Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

While the provision seems at first glance very broadly worded, any fears that it might prove a “license to discriminate” against gay people can probably be laid to rest in light of the decision of the Victorian Court of Appeal in the CYC v Cobaw (2014) case, noted previously. There the Court read the provision so narrowly that a group called “Christian Youth Camps” and their manager were not able to rely on their commitment to a conservative view of Biblical sexual morality in declining to take a booking for a week whose stated aim was to “normalise” homosexual behaviour to a group of young people.

While there have so far been no reported cases in Australia involving “wedding industry” religious believers declining commissions to assist in celebration of same sex ceremonies, this may mostly relate to the fact that same sex marriage is still not recognised in Australia. (For good reasons, in my view.) Should it become legal, or should there be some move to formalise “de facto” same sex relationships with “wedding-like” ceremonies, then these questions may arise. In my view it would be sensible for Australian governments to consider enacting religious protection laws which would allow appropriate balancing of rights. Of course the furore over the Indiana laws may discourage politicians from daring to do so (as indeed may be its purpose). But I would encourage those responsible for lawmaking to remember their commitments to govern for the good of all the citizens in a democracy, not just those with the loudest voice in the media.

neilfoster

Submission on Religious Freedom in Australia

Recently the Australian Law Reform Commission has had a consultation on Rights and Freedoms in Australia. Just the sort of thing I should have made a submission to, you might think. And so did I; except that, in the rush of getting ready for semester 1 teaching the Feb 27 deadline made a whooshing sound as it rushed by! So I was immensely pleased to discover that Freedom 4 Faith, an Australian group set up to further religious freedom, had put forward an excellent submission; in fact, far better than the one I might have prepared! I encourage you to read it. The submission clearly sets out the international obligations Australia has to protect religious freedom, the various limits on religious freedom, and how they should be approached. In particular it identifies very clearly the fact that there is a lingering tendency in those from the “mainstream” human rights area to cast religious freedom in a secondary role, even if they do so because they are unaware of their own presuppositions. See, for example, the paragraph in the ALRC discussion paper noted on page 4 of the F4F submission, where protection of religious freedom is simply labelled “discrimination” and a warning is issued about the needs of “vulnerable” people. The F4F paper clearly but politely points out some of these issues and proposes a model which would better balance out the right to religious freedom and the right to be free from discrimination. I hope that the ALRC will give it a great deal of weight in coming up with their final proposals later in the year.

neilfoster

The florist, the baker and the photographer- religious freedom and small business

One of the most vexed questions in the religious freedom area at the moment is the clash between religious views and support for same sex marriage, and three cases in which this clash has been evidenced all involve people in what might be called the “wedding support industries”- a florist, a baker and a photographer. The most recent is the decision of the Benton County Superior Court in the US State of Washington in the combined proceedings in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015). There Barronelle Stutzmann, proprietor of the business, and her firm, were held liable for breaching the State’s anti-discrimination laws prohibiting denial of a service on the basis of sexual orientation. Stutzmann, who had supplied one of the complaints, Ingersoll, with flowers for some time, declined to do so on the occasion that he invited her to do the flowers for his proposed same sex wedding, on the basis of her Christian commitment and a desire not to support such a ceremony.

Stutzmann’s claim that her refusal to provide the flowers was not based on the sexual orientation of the client (whom she had often served previously), but rather on her desire not to express support for same sex marriage, was rejected by the court. She tried to rely (see lines 12-15 on p 28 of the linked transcript)  on the distinction between conduct and orientation (as to which see my previous post, referring to other cases where this distinction has been not recognised by the courts, and one where it has.) But the court rejected the distinction, saying that there was US Supreme Court authority refusing to recognise it. In Christian Legal Society v Martinez 561 US 661 (2010) at 689, the Supreme Court held that a University legal society could not decline to have as leaders those who engaged in or supported same sex intimacy, refusing to draw a distinction between “status and conduct”. The Washington court held, following the earlier decision in Elane Photography (see below), that same sex marriage was “inextricably tied” to sexual orientation.

The claim that this was in breach of Stutzmann’s religious freedom rights was rejected on the basis that, in accordance with the prevailing judicial interpretation of the First Amendment, Employment Division v Smith 494 US 872 (1990), religious views must give way before a law of “neutral application” not targeted at religion.

The case of the wedding photographer proved influential here. In Elane Photography, LLC v Willock, 309 P 3d 53 (NM, 2013) a wedding photographer who declined to take on the photography duties for a same sex commitment ceremony was also found guilty of sexual orientation discrimination and fined, the US Supreme Court refusing to grant leave to appeal from the decision of the New Mexico Supreme Court.

Across the Atlantic, similar issues have arisen for a firm of bakers, Ashers Baking Company, who declined to produce a cake supporting same sex marriage when requested to do so. See here for more details. This case seems all the more odd, as it was not requested for the celebration of anyone’s wedding; it was simply to bear a slogan in support of introducing same sex marriage into Northern Ireland, which does not yet recognise the institution. While there has as yet been no hearing, the local Equality Commission has brought proceedings against the firm for sexual orientation discrimination.

In each of these cases, the last especially but also in the others, it seems arguable that what is involved is not discrimination against persons of a particular orientation, but a refusal to provide support for an institution (same sex marriage) which is regarded as morally wrong. There does indeed seem to be a valid difference between simple provision of a service (as had often been done by Ms Stutzmann, for example) and the purchase of the artistic skills and talents of a person to celebrate and support the event of a same sex wedding. The courts, if they were minded to, could implement this distinction by finding that refusal to provide artistic support for the event was not in fact unlawful “sexual orientation discrimination”. After all, not all homosexual persons believe that same sex marriage is a good idea. The fact of homosexual identity and support for same sex marriage are not, as the courts seem to think, “inextricably linked”. If the courts are unable to implement the distinction because of previous binding rulings, then legislators could choose to do so. It is suggested they should do so, and provide a clear avenue for recognition of religious freedom in the context of state support for discrimination laws. The comments of the Washington court here, that once same sex marriage had been introduced into Washington State there was a “direct and insoluble conflict between Stutzmann’s religiously motivated conduct and the laws of the State of Washington” (lines 12-13 on p 58), are with respect too pessimistic. There are other avenues where both important interests can be recognised.