Australia now has two local Acts banning so-called “gay conversion therapy”, in Queensland and the ACT. An article on the ABC website on November 8, 2020 reports: “Gay conversion practices to be outlawed by the Victorian Government“. But this latest article demonstrates that some activists calling for these laws want to go well beyond outlawing horrible practices like shock therapy or “aversion” therapy. Those quoted in the article want to ban “conversations with religious leaders” on topics of sexuality. Such a law would be a gross violation of free speech and religious freedom rights, as well as an attack on those experiencing same-sex attraction who may want to be helped to live in accordance with religious teachings on these issues. Laws like this ought not to be passed.
The NSW Parliament is currently considering a Private Member’s Bill which would make religious discrimination unlawful. The Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020, introduced by the Hon Mark Latham, is being considered at hearings before a Joint Select Committee. I have previously linked, here, to a submission on the Bill provided by Freedom for Faith. The Bill has been subject to serious criticism in an article on The Conversation and in the Sydney Morning Herald. Here I want to provide some response to those critiques, and to suggest that the Bill, while not perfect, is worth supporting and is a good idea.
Most of us are chafing under restrictions on gatherings imposed by COVID-19 laws. Getting the balance right here is hard, and we want to give the government as much leeway as possible; but the restrictions have been very difficult for churches, and the rules adopted in some jurisdictions seem to discriminate against church meetings in comparison to other activities which are now allowed. These were the issues at stake in the recent decision of the United States District Court for the District of Columbia in Capitol Hill Baptist Church v Bowser (Case No. 20-cv-02710 (TNM), McFadden USDJ, Oct 9, 2020).
Capitol Hill Baptist Church has been meeting in Washington DC for 142 years. In recent days it has been prevented from gathering all at one time by local rules restricting all church gatherings, wherever held, to the fewer of 50 percent capacity or 100 persons. The Church is theologically committed to the view that all members of the church should gather together physically on a Sunday in one meeting. As they usually have about 1000 people attending the meeting on Sundays, they have had to move their meetings across the State border to Virginia, where they have been meeting outdoors with social distancing precautions and facemasks. They would like to meet in this way in Washington DC. Their action against the Mayor of the District claimed that the rules in place breached the provisions of the Religious Freedom Restoration Act (RFRA). They have now been successful in obtaining an expedited preliminary injunction enjoining the District from enforcing their restrictions “insofar as they prevent the Church from holding socially-distanced outdoor worship services in which congregants wear masks”- see pp 1-2 of the ruling.
A brief update on my previous post on the COVID-19 rules applying to churches in NSW, where I referred to an “exemption” issued by the Minister for Health relating to weddings and “places of public worship” where there is more than one building on the premises.
The current Public Health Order governing “gatherings” has been formally amended with operation from Monday 14 September 2020 to implement this “exemption”. (For the amended text of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 see here.)
There is now a definition in cl 3(1) of the term “separate area” for “places of public worship”:
separate area, for a place of public worship, means a building— (a) that is separate from other buildings within the premises, and (b) has been designated as a separate building by the occupier of the premises, and (c) that is staffed by persons officiating or volunteers or other staff who provide services in that building only, and (d) that does not allow persons gathering in different buildings to mingle.
New cl 9 then sets out the rules concerning gatherings in places of public worship:
9 Directions of Minister about places of public worship
(1) The Minister directs that the occupier of a place of public worship must ensure—
(a) for a place of public worship with more than one separate area, the maximum number of persons in each of the areas is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space in the area, or
(ii) 100 persons, and
(b) for any other place of public worship, the maximum number of persons on the premises is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space on the premises, or
(ii) 100 persons.
(2) The Minister directs that the occupier of a place of public worship comprised of more than one separate area must ensure that a religious service, activity or event conducted in one separate area does not commence or end at the same time as another religious service, activity or event in another separate area in the place.
(3) Subclause (1) does not apply in relation to a wedding service or a gathering following a wedding service.
Note. Clause 14A(5) provides for the maximum number of persons for wedding services and gatherings following wedding services.
This rule allows a “place of public worship” (a formal “church building”) to allow different groups of up to 100 or the “4m2” number (whichever is the smaller) in separate buildings, so long as the events start and finish at different times. (Weddings are subject to a higher limit of 150, set out in cl 14A).
The only other change that may impact churches is that the residential gathering limit of 20 persons may now be enforced, not only against the occupier of the residence, but also against any visitors who join a meeting larger than 20- see new cl 11(1A). This reinforces the rule but will probably not have a major impact, given that most church home bible study groups would already be observing the 20 person limit anyway. Presumably it will make life easier for police in prosecuting persons who attend large parties at private houses.
Freedom for Faith have posted this submission on the provisions of a Private Member’s Bill (sponsored by the Hon Mark Latham) being considered in the NSW Parliament at the moment. The Bill would plug a gap in NSW discrimination law by making religious belief or activity a prohibited ground of discrimination in NSW. The Bill is one that ought to receive serious consideration from the Parliament, and the submission (prepared for Freedom for Faith by Dr Alex Deagon, Senior Lecturer in Law at the Queensland University of Technology) should be very helpful in that process.
Australia has seen two recent initiatives by local Parliaments aimed at what are often called “conversion therapy” practices. No-one supports coercive electro-shock or other oppressive practices imposed on someone without their consent, to change their sexual preferences or identity. But the problem with the recent legislative proposals is that the laws do not target these practices alone (as to which it is hard to find any evidence of them occurring in Australia in recent years), but seem to reach further and to prevent religious groups sharing the teaching of their faith.
The approach of the official end of the judicial term in the US Supreme Court has seen a number of important law and religion-related decisions handed down in the last week. We have seen decisions relating to access to abortion; to whether the US government can require religious bodies to fund abortion and contraception; to the provision of state funds for religious schools; and to the question of whether discrimination law can be applied to teachers of religion at religious schools. (And all of those are in addition to the other recent major decision in Bostock on sexual orientation and gender identity discrimination, which I have noted previously.)
Each of the four cases here would warrant (and no doubt will produce) detailed academic commentary. But here I will simply flag the case and the general outlines of the reasoning for those who want to read more.
Following earlier announcements by the Premier of NSW, the rules regarding public gatherings in the State have been amended with effect from 1 July 2020, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (“PHO No 4”). This post comments on matters that relate to churches and other religious bodies. For my previous post on the rules under PHO No 3, see here.
In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.