A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.
I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.
The debate on same sex marriage in Australia, and the debate on whether we can have a debate, took some interesting turns in the last week. I have a comment on Mercatornet where I discuss how beer and bibles led to questions about what can be said and who can say it: see “Beer, Bibles and free speech in Australia” .
Barronelle Stutzman, who runs a florist’s business in Washington State in the USA, has just lost another appeal in court proceedings based on her decision to decline to prepare floral arrangements for a same-sex wedding. In State of Washington v Arlene’s Flowers Inc and Stutzman, (Wash SC, En Banc, No 91615-2; 16 Feb 2017) the 9 members of the Washington Supreme Court upheld an earlier order that she pay damages and also the costs of her opponents, likely to run into hundreds of thousands of dollars. (Note that, of course, this is not a decision of the final court of appeals, the US Supreme Court; whether or not there is an appeal to that court remains to be seen.)
You can see Ms Stutzman speak about the circumstances in a video here. In short, she had catered for one member of the couple by supplying flowers for him for many years, knowing he was gay. But it was only when he asked her to devote her artistic talents to the celebration of a same-sex marriage, a union she saw as contrary to God’s will according to her Christian faith, that she politely declined. She was then sued both by the State of Washington (under the Washington Law Against Discrimination, WLAD, which includes “sexual orientation” as a prohibited ground of discrimination), and in separate proceedings by the couple themselves.
The Arlene’s case is only one of a number of examples of cases involving participants in what might be called the “wedding support industry,” who have been sued for sexual orientation discrimination after declining to devote their skills to the celebration of a homosexual marriage relationship. (I have mentioned this specific case in a previous blog post here, and other cases here.) I dealt with a number of the issues in my article on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5/3 Oxford Journal of Law and Religion 385-430. Following the approach taken in that article, I want to analysis this most recent decision under the headings:
- Is this sexual orientation discrimination?
- If so, is there or should there be some “balancing clause” applicable to recognise religious freedom?
I will then turn to briefly discuss the policy issues that arise in these cases, and address the fear that recognition of religious freedom here would lead to serious impairment of other rights and freedoms.
The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has now handed down its formal Report (15 Feb 2017). I have referred previously to my evidence to the Committee and my response to the remarks of one of the other witnesses: see Why proposed same-sex marriage balancing clauses would be constitutional and right (29 Jan 2017).
The Report contains no major surprises, perhaps to be expected from an area which is so contentious and in which positions of the Committee members and the various witnesses are so far apart on basic presuppositions. But overall it is a well-balanced document which fairly presents the different points of view. As the Committee itself notes, its deliberations are really only relevant for the future, if Parliament chooses to revisit this area. At the moment the current Government’s preferred option, a plebiscite, has been rejected by the Parliament, and the Government has indicated that in line with its election commitments, it will not be moving to a vote in Parliament on the issue.
Nevertheless, it is worth noting some areas of consensus, and flagging the issues on which there still remains substantial disagreement.
Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)
While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.
I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.
A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal- at .
The latest decision in the long-running Trinity Western University law school saga, from the Court of Appeal for British Columbia, is an encouraging development for religious freedom in Canada. In Trinity Western University v. The Law Society of British Columbia,
2016 BCCA 423 (1 Nov 2016) the Court of Appeal held that the decision of the Law Society of British Columbia to refuse accreditation to practice law in the Province, to graduates of a new proposed TWU law school, was unlawful. That decision had been based on the “Community Covenant” required of all students at the confessionally evangelical TWU, to (among other things) “abstain from… sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Court held that the Law Society had failed to give proper consideration to the impact on the religious freedom of TWU students and graduates in making its decision.