I am presenting a paper on this topic this evening to a group of Christian health professionals in Newcastle. The paper may be downloaded here: Same Sex Marriage and Christian Health Professionals. The PowerPoint slides are also available: Foster RF for Health Professionals presentation.
The recent decision of the England and Wales Court of Appeal in Pemberton v Inwood  EWCA Civ 564 (22 March 2018) upholds what was in effect disciplinary action taken against a Church of England clergyman, the Reverend Canon Jeremy Pemberton, on account of his entering into a same-sex marriage. The decision is a sensible one which upholds the religious freedom of the Anglican church to operate in accordance with its fundamental religious beliefs.
A recent decision by a California Superior Court Judge holds that a bakery cannot be required by discrimination law to make a same sex wedding cake, where the owner has a religious reason for declining to do so. In Department of Fair Employment and Housing v Cathy’s Creations Inc (Cal Sup Ct, Kern Cty; BCV-17-102855; Lampe J, 5 Feb 2018) Judge Lampe refused an injunction against Cathy Miller, proprietor of Tastries Bakery, which would have required her to create a wedding cake for the same sex wedding of Mireya and Eileen Rodriguez-Del Rio. The basis for the decision was the free speech clause of the First Amendment to the US Constitution, the judge holding that creating a wedding cake was a constitutionally protected form of “free speech”.
The Religious Freedom Review Panel, chaired by the Hon Philip Ruddock, has invited submissions from all Australians on the protection of religious freedom in Australia. Submissions are being accepted until 14 February 2018. I attach a copy of my submission here: Submission on Religious Freedom Protection for RF Review Expert Panel (with permission of the Review Panel), and one of its attachments: Foster Attachment 1- Religious Freedom in Australia overview 2017. (There is a second attachment which I will release later, as it is a copy of a paper I am presenting at a conference in a couple of weeks.) Those who are interested in the area may find it helpful to see the sort of topics that I think ought to be addressed.
There have been a number of “wedding industry” religious freedom cases arising in the United States and the UK over the last few years. On 28 December 2017 the Oregon Court of Appeals, in Klein v. Oregon Bureau of Labor and Industries (CA Or; Dec 28, 2017, — P.3d —-, 2017 WL 6613356; 289 Or App 507 (2017)) upheld a $135,000 fine levied on the Kleins, wedding cake makers, for declining to make a cake for the wedding of Rachel and Laurel Bowmen-Cryer. The case is another example of religious freedom (and, arguably, freedom of speech) being over-ridden in the name of “dignitary harm” to same-sex couples. It is a good example of the issues being presented to the current Ruddock Inquiry into Religious Freedom being conducted in Australia at the moment.
With the commencement of the legislation adopting same-sex marriage for Australia today, 9 December, it seems worthwhile to note some more implications, following my initial comments on the change. The two I would like to address here are the changes to the “monitum”, the summary of Australian marriage law required to be recited by some celebrants; and the possible issues surrounding what I will call “rogue priests”, clergy in one of the mainstream Christian denominations who may wish to solemnise same-sex marriages when their denomination adheres to the historic Christian position that marriage is only between a man and a woman.
Legislation re-defining marriage to include same sex couples passed its final third reading stage in the Commonwealth House of Representatives this evening Australian time, December 7. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will soon become law when it receives the Royal Assent. In this post I want to start exploring some immediate implications for religious freedom and other “law and religion” issues.
Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.
Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)
I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.
A recent UK court decision upheld the decision of University authorities to remove a student, Felix Ngole, from a post-graduate Social Work course, because of views he had expressed in a public social media forum about the Bible’s view on homosexuality. In my opinion the decision is a shocking breach of principles governing both religious freedom and freedom of speech, and should be over-turned as soon as possible. For Australian readers, it is also a salutary reminder that when the law on marriage changes, it becomes harder to protect religious and other freedoms.