I am presenting a paper at the annual City Legal conference on August 25 on The Ethics of Freedom: Religious Freedom in the Workplace. It considers issues around religious freedom of employees and also touches on issues arising for Christian lawyers in particular. It can be downloaded here.
There has been a lot of controversy around the recent decision of the ACT government to compulsorily acquire Canberra’s Calvary Hospital. One question that is worth asking is this: could this move be an unlawful breach of religious freedom rights? In this post I want to consider the possibilities.
In a much anticipated decision, the US Supreme Court (by 6-3) in 303 CREATIVE LLC v. ELENIS 600 U. S. _ (2023) (30 June 2023) has ruled that a Christian graphic designer cannot be required by Colorado law to produce websites supporting and celebrating same-sex weddings, contrary to her religious beliefs. The ruling was based on the US First Amendment protection of free speech, and sets out a principle that the government cannot compel citizens to say what they object to saying, in an “expressive” business like web design, even if that business provides services to the public. It seems clearly correct, and will be helpful in protecting free speech on a range of issues, but in particular will support religious freedom. But, contrary to some comment, it is not a “license to discriminate”. The decision does not allow refusal of ordinary commercial services to same-sex attracted people. It only relates to the sort of artistic and expressive work engaged in by the designer.
The second issue of the Australian Journal of Law and Religion is now available online here. There are a number of important issues covered. The Table of Contents gives an idea:
Editorial i
Articles
May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster Nicholas Butler 1
Reconciling Freedom and Equality for Peaceful Coexistence: On the Need to Reframe the Religious Exemptions in the Sex Discrimination Act Alex Deagon 20
The Position of Religious Schools Under International Human Rights Law Mark Fowler 36
Legislating Gender Prejudice: Religion and the Overturning of Roe v Wade Rena MacLeod 56
Conversion Practices Legislation in Victoria – A Potential Crisis for Church Authority? Rhett Martin 70
Statements of Belief as Political Communication Timothy Nugent 81
Book Reviews
Law and Religion in the Commonwealth: The Evolution of Case Law edited by Renae Barker, Paul T. Babie, and Neil Foster Barry W. Bussey 90
The Transgender Issue: An Argument for Justice by Shon Faye Jeremy Patrick 93
Special Topic Forum: Religious Freedom, Sexuality, and Gender Identity
Cherry Picking Human Rights Nicholas Aroney 95
What Does Gender Identity Mean in the Sex Discrimination Act 1984? Patrick Byrne 101
The Politics of Indonesia’s New Criminal Code Robert W. Hefner 104
Of course each reader will have their own specific areas of interest. I was obviously very interested to see that one of the articles is a rejoinder to an article I had published in volume 1, dealing with the impact of differing discrimination laws applying to faith based schools (and other institutions) in Commonwealth and State laws (see Butler, from p 1.) Readers will have to make up their own minds as to whether Mr Butler’s critique of my position is valid or not. I was also pleased to see an encouraging review of the edited volume Law and Religion in the Commonwealth , of which I was a co-editor (see Bussey, from p 90).
I look forward to reading the other articles in due course! I very much commend the editors for their decision to make all the articles freely available for download.
Recently the Australian Human Rights Commission has issued a Position Paper entitled A Human Rights Act for Australia . In a previous guest post, Dr Paul Taylor provided some preliminary comments on the proposals. I am pleased to have an opportunity to provide his more recent comments.
As noted previously, Dr Taylor is an Honorary Senior Lecturer in the T.C. Beirne School of Law, a Fellow of the Centre for Public, International and Comparative Law, and an Adjunct Professor at the School of Law, The University of Notre Dame Australia. His principal academic interests are international human rights law and conflict of laws (private international law). He has held Visiting Fellowships at Wolfson College, Cambridge and at the Centre for International and Public Law, College of Law, Australian National University. He is the author of A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights’ Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020); and Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005).
Dr Taylor has provided the following comments as a guest blogger. The comments are of course written in a personal capacity, and do not reflect any views of any institution to which he is or has been affiliated.
Recently the Australian Human Rights Commission has issued a Position Paper entitled A Human Rights Act for Australia . I have often commented here on the gaps in protection for religious freedom under Australian federal law, and one suggestion that has sometimes been made is that Australia should implement internationally recognised rights such as those contained in art 18 of the International Covenant on Civil and Political Rights. But is doing this by way of a federal Human Rights Charter the right way to go?
I asked one of Australia’s leading commentators on international human rights issues, Dr Paul Taylor, to offer some preliminary comments on the proposals that have been put forward. Dr Taylor is an Honorary Senior Lecturer in the T.C. Beirne School of Law, a Fellow of the Centre for Public, International and Comparative Law, and an Adjunct Professor at the School of Law, The University of Notre Dame Australia. His principal academic interests are international human rights law and conflict of laws (private international law). He has held Visiting Fellowships at Wolfson College, Cambridge and at the Centre for International and Public Law, College of Law, Australian National University. He is the author of A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights’ Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020); and Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005).
Dr Taylor has provided the following comments as a guest blogger. The comments are of course written in a personal capacity, and do not reflect any views of any institution to which he is or has been affiliated.
I am presenting a short paper at the University of Notre Dame, Sydney, Ninth Annual Religious Liberty Lecture and Conference, on February 24, 2023, as part of a panel on “The Importance of Conscience”. The paper is linked here:
Press reports today record that a local franchisee of company “Kwik Kopy” declined a request to print posters for an event associated with the “World Pride” events happening in Sydney at the moment- see this report from Nine News. The World Pride events are in effect an extension of the Sydney “Gay and Lesbian Mardi Gras” parade which has been running for many years, although extended over 17 days. Their website refers to it as “a glittering celebration for the global LGBTQIA+ community”.
But, of course, not everyone is on board with an event celebrating sexual activity outside heterosexual marriage. Mr Wing Khong, a Christian man who runs the Sydney CBD franchise of Kwik Kopy, declined to accept an order from Skater Leo Bunch, who emailed to ask for a quote to print “roller derby” flyers with a World Pride theme. Mr Khong commented:
“There was no offence meant. Everyone is entitled is to their own position. I don’t believe it was discrimination, rather I was just obeying the Word of God.”
The news report linked above contains video comments from the reporter and also Anna Brown, from Equality Australia, that Mr Khong’s action was “clearly unlawful”. With respect, I beg to differ, and would like to explain why.
The Australian Law Reform Commission has now released a Consultation Paper for its current reference on “Religious Educational Institutions and Anti-Discrimination Laws”. The paper, while formally acknowledging the importance of religious freedom and parental rights, will be a serious disappointment to those involved in religious schools and colleges. It effectively recommends the removal of protections enjoyed by religious educational institutions which have been designed to safeguard the ability of these organisations to operate in accordance with their religious beliefs. The “fences” protecting these bodies from being forced to conform to majority views on sexual behaviour and identity (and hence losing their distinctiveness as religious bodies) are to be knocked down, the ALRC says. But the paper offers no convincing reasons for this wholesale demolition of a structure which has served the diversity and plurality of the Australian community for many years. Rather than supporting “Diversity, Equity and Inclusion”, the paper’s recommendations would require a compulsory uniformity which would undermine the reasons for the existence of faith-based educational institutions.
Just before Christmas, a significant religious discrimination decision was handed down in the Western Australian State Administrative Tribunal. In HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117 (23 December 2022), the Tribunal held that Mr and Mrs Hordyk had been indirectly discriminated against on the ground of their religious beliefs, when told by Wanslea Family Services that they were not suitable to be appointed as foster carers for children between 0 and 5 years. Their rejection came after they told Wanslea that as Christians who took the Bible seriously, “in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted” (from para [4]). Wanslea then terminated the process for assessment, and marked their application “assessed to not meet competencies”. The Tribunal found that these actions amounted to unlawful discrimination, and ordered payment of a modest award of damages ($3000 each) and removal of the annotation on the file. The decision is an important affirmation of rights of religious freedom.
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learning to number my days
Law, politics and culture from a Christian perspective
