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.
Same Sex marriage
First volume of Australian Journal of Law and Religion published
Great to see that the first volume of the Australian Journal of Law and Religion has been published: see here. All articles are free to download. Congratulations to editors Alex Deagon and Jeremy Patrick on this new venture! I am honoured to have an article in this first issue on “Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws”.
For convenience, here is a copy of the first table of contents:
Law and Religion in the Classroom: Teaching Church-State Relationships: Renae Barker
The Formation of Islamic Law in Indonesia: The Interplay Between Islamic Authorities and the State: Muhammad Latif Fauzi
Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws: Neil Foster
Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts: Andrew Hemming
Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions: Patrick Parkinson
Christians: The Urgent Case for Jesus in Our World by Greg Sheridan: Katie Murray
Law and Religion in the Liberal State edited by Md Jahid Hossain Bhuiyan and Darryn Jensen: Jeremy Patrick
Special Topic Forum: The Future of Law and Religion in Australia
The Continued Existence of the Crime of Blasphemy in Australia: Luke Beck
Proportionality in Australian Constitutional Law: Next Stop Section 116?: Anthony Gray
The Liberal and Post-Liberal Futures of Law and Religion in Australia: Joel Harrison
Blessing same sex marriages in the Anglican Church in Australia
The question as to whether same sex marriages entered into under Australian civil law can be blessed in an Anglican Church service is one that has generated much disagreement within the church. An important Opinion of the Appellate Tribunal of the Anglican Church of Australia in relation to a question posed by the Diocese of Wangaratta (Primate’s References re Wangaratta Blessing Service, 11 Nov 2020) held that it is lawful for a diocese to approve such a formal blessing. I have now contributed a chapter to a book of essays prepared for the consideration of the forthcoming General Synod discussing the issue, analysing the Majority Opinion and its implications. The chapter is available for download here, for those who are interested. I conclude, in brief, that as a matter of internal Anglican doctrine, the decision is contrary to the “doctrine of the Church”, which finds its ultimate source in the Bible. The Majority Opinion takes a too narrow view of the word “doctrine”, in my view. I suggest that this may have consequences outside the church:
unfortunately the narrow view taken by the Majority Opinion of the Appellate Tribunal may encourage a narrow view of the word to be taken by [secular] courts in the future, with the result that clauses protecting religious freedom may be unduly read down.At p 47.
From the perspective of the general law of Australia, a church which declined to bless a same sex marriage might be accused of “sexual orientation” discrimination if they would offer such a blessing to a heterosexual couple. But balancing clauses under discrimination law would seem to have the effect that such a decision would not amount to unlawful discrimination, if the decision was:
(d) [an] act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.Section 56, Anti-Discrimination Act 1977 (NSW)
(See also the similar provision in s 37 of the Sex Discrimination Act 1984 (Cth).)
It seems to me to be fairly clear that the “doctrines” of the Anglican Church would prevent the blessing of a same sex marriage. Indeed, the General Synod of the church said as much in a 2017 resolution:
the doctrine of our church, in line with traditional Christian teaching, is that marriage is an exclusive and lifelong union of a man and a woman (emphasis added)See ‘MARRIAGE, SAME-SEX MARRIAGE AND THE BLESSING OF SAME-SEX RELATIONSHIPS’, adopted 7 Sept, 2017, at https://anglican.org.au/the-general-synod/search-resolutions-of-gs-sessions/?sid=2827
But the Majority Opinion of the Appellate Tribunal might cast some doubt on that proposition, and as a result needs urgent consideration by the next General Synod.
Challenge to “Gay Marriage Cake” decision dismissed
Some years ago now the UK Supreme Court ruled that a Christian bakery company had not been guilty of sexual orientation discrimination when it declined to produce a cake for an activist designed to convey a political slogan in favour of same-sex marriage- see Lee v Ashers Baking Company Ltd  UKSC 49 (10 Oct 2018) and my comment at the time. Now, after a long delay, an challenge to that decision by the customer, Mr Lee, has been finally dismissed by the European Court of Human Rights: see here where a copy of the judgment in Lee v United Kingdom (ECHR 4th section, Application no. 18860/19, 6 Jan 2022) can be downloaded. (A short summary is available on this page.)
(A preliminary comment on the nature of this challenge should be made. The details are spelled out clearly in an excellent comment on the decision by Prof Mark Hill QC, available here. This was not a formal “appeal”- the initial defendants, Ashers, were not parties to the case. Instead it was a claim by Mr Lee that the UK government should be held accountable for the decision of the UK Supreme Court not upholding his rights. Still, a finding against the UK would have cast into doubt the legal validity of the decision of the Supreme Court. This comment has been amended since first posted to take into account these matters.)
The grounds for refusing the challenge can be stated fairly shortly. Under the rules of the European Court of Human Rights, if that court is to hear an case based on a breach of the European Convention on Human Rights, the applicant must have raised specific convention rights in his or her claim at the local level. But unfortunately for Mr Lee, none of his claims explicitly raised Convention arguments; he had made his case entirely based on the domestic UK laws. As they said near the conclusion of their decision:
…In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts…
This was the case even though the defendants in the case, the Ashers, had relied extensively on the Convention rights of freedom of religion and free speech. But the ECHR held that this did not overcome the problem that the applicant himself had not raised those issues.
The result is that the challenge has failed, although the ECHR has avoided making any clear comment on the substantive issues as to whether a business owner should be allowed to decline to make an artistic product which expresses a view which the owner fundamentally disagrees with. They do say at one point however:
…What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.
The decision of the UK Supreme Court in 2018 stands as good law, and in my view this is a good thing for free speech and religious freedom. It should perhaps be stressed that the cake concerned was not a wedding cake, it was simply a cake designed to celebrate and support a view on the political issue of recognition of same sex marriage. Lady Hale in the Supreme Court, as the ECHR noted here, pointed out that :
“ … People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.”Lady Hale, Ashers (2018) at , quoted by the ECHR in Lee v UK at .
The ECHR summed up the decision in this way:
36. In summarising the court’s position, Lady Hale noted that the defendants would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there had been no discrimination on grounds of sexual orientation.
This remains as true today as when it was stated in 2018.
The Religious Discrimination Bill arrives
After a long wait, the Federal government has released the text of the Religious Discrimination Bill 2021 which is about to be introduced into the Parliament. There has been no general Federal law dealing with detrimental treatment of Australians on the basis of their religious faith and activities, and this is a welcome development, implementing a recommendation of the Ruddock Review which reported in 2018.
The government previously released two “Exposure Drafts” of the Bill (see some comments on those in previous posts, here, and here.) Having promised prior to the last election that he would advance this law, Prime Minister Morrison will now introduce it into the House of Representatives. If passed by the House, the Bill will then need to approved by the Senate, where it seems likely to be referred to (yet another) committee before being voted on there, probably sometime in the New Year.
In this post I will aim to provide an overview of the Bill, and also to indicate briefly where it differs from previous drafts.
Vilification complaint against Israel Folau dismissed
Those who follow public matters in Australia will remember the controversy in 2019 surrounding controversial comments made by celebrity rugby player Israel Folau. See here and here for my discussion of the legal issues around Mr Folau’s claim that he had been dismissed partly on account of his religious beliefs. That claim was later settled before proceeding to trial, in December 2019 .
In an interesting sequel, Mr Folau was then sued by Mr Gary Burns for “homosexual vilification” under the NSW Anti-Discrimination Act 1977. Mr Burns’ claim was rejected by the President of the Anti-Discrimination Board in April this year. Now his appeal against this decision to the NSW Civil and Administrative Tribunal has been dismissed, and the claim will go no further- see Burns v Folau  NSWCATAD 287 (18 November 2020).
Ruddock Report summary and responses (Part 2)
Following my previous post giving comments on Recommendations 1, 5-8 and 15 of the Ruddock Report and the Government Response, I will comment here on another set of recommendations (Recs 2-4, 9-12) and the likely outcome. Comments on recommendations 13-14, and 16-20, will (hopefully) be made in Part 3!
“White” on the new black-list
A popular wedding magazine called “White” has announced today that it is closing down. The reason? The Christian publishers had been asked to carry articles featuring same sex weddings, and had politely declined to do so. The backlash on social media led to a number of advertisers withdrawing their custom, and some customers refusing to buy the magazine any more. In this post I want to comment on the legal issues around this incident, and another episode highlighted in the press today.
Ruddock Report (part 3): religious schools and gay teachers
Following the recent debate about whether religious schools in Australia should be entitled to expel gay students on account of their sexual orientation alone (as to which all seem to be agreed the answer is, No), there is now a push to remove the freedom of religious schools to make staffing decisions on these issues. The ALP has announced that they want to pursue this issue when amendments relating to students are debated in Parliament. It even seems that some members of the LNP Government are unclear about the issue.
While “orientation alone” should not be a ground to expel or discipline students, removing the provisions that allow schools to make these decisions in relation to staff is a bad idea. Religious schools exist because parents want the option to see their children educated in an institution which supports their religious and moral worldview. Students do not just learn academic truths from their teachers; in many cases they admire them as people, and model themselves on the values their teachers live out. Hence someone who is committed, by their identification and activity, to opposing the moral framework of the school, is not suitable to be working as part of that school community. A fully committed member of the Greens would not be suitable to work in the office of the Conservatives. The same issues arise in relation to religious schools and same sex oriented teachers.
No sexual orientation discrimination in declining to make a “gay cake”
The UK Supreme Court has now ruled that the Ashers Bakery in Northern Ireland was not guilty of sexual orientation discrimination by politely declining to bake a cake decorated with a message in support of same sex marriage- see Lee v Ashers Baking Company Ltd  UKSC 49 (10 Oct 2018). This is an important decision illustrating the clear difference between a decision based on someone’s personal characteristics, and a refusal to support a specific message.