Same Sex marriage

neilfoster

Jail time for Kentucky County Clerk

Summary: Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law.

The internet is full of reports and comments about Kim Davis, the Kentucky county clerk who has been sentenced to jail for contempt of court in refusing to issue marriage licenses. Ms Davis’s objection stems from the ruling in the US Supreme Court decision in Obergefell finding a constitutional right to same sex marriage. As a devout Christian she regards same sex marriages as contrary to the Bible’s teaching on God’s purposes for humanity, and she does not wish by her actions in issuing marriage licenses (whether for same sex or heterosexual marriages) to be complicit in supporting such a system.

Even some normally conservative Christian commentators have responded negatively to her decision, which involves not only not issuing these licenses herself, but also directing the other 6 clerks in her office not to issue the licenses. While at first this seems very odd, the explanation for the direction seems to lie in the fact that as Rowan County Clerk, under Kentucky law her name will appear at the foot of all licenses issued by her office. The latest news available at the time of writing suggests that deputies have issued licenses, while Ms Davis is in jail, although there is some doubt about whether the licenses bear Ms Davis’ name.

Questions raised by this incident are similar to those being raised all over the Western world in countries where same sex marriage has been recognised. To what extent should the religious freedom of those called on to celebrate or support such marriage ceremonies be recognised? This blog won’t be able to answer all those questions, but I would like to set out some considerations that I think policy and law makers should take into account, and to comment briefly on this decision. (For those interested a more in-depth consideration of a range of religious freedom issues, including some raised by the possible recognition of same sex marriage in Australia, let me remind you that the University of Newcastle, here in NSW, is running a one-day conference on these issues on Friday September 25- and the “early bird” registration has been extended now to Sept 7!)

  1. Religious freedom is a fundamental human right, not some excuse made up to allow homophobia. It seems bizarre to have to say this, but occasionally one comes across the view represented by the second clause in the previous sentence. Perhaps one reason that some might suspect this, is that religious freedom debates have mostly been fairly minor in Western societies until recent years, and where they occurred they often involved minority, non-Western religious groups. The reason for this may be that up until recently most Western societies have operated on a broad moral consensus which was shaped by Christianity. In the area of sexual behaviour, for example, while since the 1960’s increasingly many people have not behaved in accordance with Christian norms that sex should only be enjoyed in a married relationship between a man and woman, many of those people have at least conceded that this was an “ideal” to which it would be good to aspire. But in recent years the successful work of homosexual activists in transforming the societal consensus on this question has led to a number of challenges for those who wish to live in accordance with Biblical principles. Christian views on appropriate sexual behaviour can now be attacked, not merely as out-dated or archaic, but as positively evil and harmful. Yet those views, as with some other controversial views which differ from the mainstream of society, may be deeply held and based on fundamental religious convictions which are not new, but often go back many thousands of years.
  2. Of course this means that sometimes a person’s religious beliefs will impact on the way they conduct their “secular” job. In the private sphere this raises issues about whether an employer should provide “accommodation” (a term which in this context doesn’t mean, “a place to live”, but means “some adjustment of the usual requirements to allow religious freedom”.) The view that if a religious person doesn’t like what their job requires, they should just quit their job, has occasionally been put forward in the past. But in more recent years courts have recognised that where accommodation is possible, it should be provided if it can be without unduly impacting on others in the workplace- just as in the area of sex discrimination, we recognise that accommodation should be provided where female employees need leave to have babies, or “family friendly” arrangements so that they can continue in the workforce when a baby has arrived. An example of this was the UK case of the British Airways employee who wanted to wear a visible cross despite a blanket “no jewellery” rule by her employer. When the case of Nadia Eweida reached the European Court of Human Rights, that court held that a reasonable accommodation could have been provided to employees with strong religious views about wearing religious symbols. I have discussed other similar cases in the past, some to do with the wearing of a head scarf at work.
  3.  Religious freedom is about more than the right to hold certain beliefs internally, however; it is about a right of “free exercise” of religion which will mean that a person will live out their religious beliefs in everyday life. Indeed, it is a fair criticism of someone who claims to be a believer that their life does not match their claimed religious beliefs. All of us are grateful when people with deep religious beliefs live out those beliefs in caring for the poor and marginalised, in generous giving to worthy causes, and in looking after people in their local communities. So we need to resist the occasional “reframing” of religious freedom in terms of “a right to worship”; it is much more than that.
  4. Do these same principles apply, then, to a public servant? Or must we require all public servants to park their fundamental religious freedom rights at home when coming to work? The answer is that public servants do have, and should be allowed to exercise, religious freedom. It is not a question, as some have put it in recent days, of a public servant being “allowed to disobey the law”. The law should contain, and in most Western countries does contain, recognition of religious freedom rights, and relying on such a provision means that one would not be disobeying the law, one would be acting within the law.
  5. An example, closely analogous to the current matter, can be found in the case of Ms Lillian Ladele in the UK. Ms Ladele was employed by Islington Borough Council. In the UK, many registration functions are devolved to local Councils. The UK introduced legislation allowing parties to register a “civil union” (not at the time a “marriage”, but a formal procedure for recognising a same sex relationship which provided similar ancillary benefits.) Ms Ladele, an evangelical Christian, took the view that this type of procedure was authorising sexual behaviour contrary to the Bible, and she asked to not be placed on the list of registrars who would deal with these requests. She had joined the Borough long before this legislation was introduced, and there were other registrars who could easily have done the job.
  6. Despite the fact that no member of the public was in any way disadvantaged by her objection to dealing with such requests, Ms Ladele was fired for refusing to do so. Unlike Ms Eweida, the airlines employee noted previously, when Ms Ladele’s case went to the European Court of Human Rights the court by majority ruled that the Council had been entitled to dismiss her for not complying with their “equal opportunity” policy. The case has been criticised for failing to give due weight to Ms Ladele’s religious freedom.
  7. The point to note in the current context is that she was not acting “illegally” in the sense of high-handedly defying a clear law. She argued that regulations in force at the time provided that her religious freedom rights under art 9 of the European Convention on Human Rights should be taken into account. And indeed the European Court agreed that she had such rights, although they ruled in the end that these rights should, in the circumstances, be over-ruled. But she was not a “defiant lawbreaker”, because she believed on plausible grounds that she had religious freedom rights, which were part of UK law, which she could rely on.
  8. Let’s come to the case of Ms Davis. The main court decision here is the decision of Judge Bunning, in the Federal District Court, in Miller v Davis 2015 WL 4866729 (E.D.Ky.) (12 Aug 2015). Ms Miller, one of the various couples who had approached the clerk’s office to be told they could not have a license to marry, was suing Ms Davis in the Federal (not the Kentucky State) Court because she claimed that pursuant to 42 U.S.C. § 1983, a provision of Federal law, she as an official of the State was “subject[ing].. [the plaintiffs to] the deprivation of any rights, privileges, or immunities secured by the Constitution”; the “right” in question being the “right to same sex marriage” identified by the US Supreme Court in Obergefell. She sought an injunction to require Ms Davis to issue licenses for such marriages.
  9. Ms Davis in her defence spelled out a number of legal reasons which would justify her action; again, she was not claiming in a high-handed way the right to ignore the law. Her arguments referred to the fact that any constitutional right may be subject to being over-ridden in a particular case due to a sufficiently compelling State interest; that her own rights of freedom of speech and freedom of religious exercise, granted by the First Amendment to the US Constitution, were being unduly interfered with by the Governor of Kentucky’s order that all clerks personally issue same sex marriage licenses; and that her rights under Kentucky’s Religious Freedom Restoration Act were being breached. In this already too-long post I can’t adequately deal with all these arguments, although it seems to me that some indeed had much more merit than would be suggested by Judge Bunning’s dismissal of them. But I would like to comment on one in slightly more detail, the Kentucky RFRA.
  10. I have mentioned this type of legislation in a previous post here recounting controversy in the State of Indiana, and interestingly this very piece of Kentucky legislation was involved in a previous case mentioned here where a printer of T-shirts was allowed to decline to print a T-shirt supporting a “gay pride” march. The law, a State law and so clearly applicable to the decision of the Kentucky Governor to order clerks to issue licenses, provides that:

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest (Ky.Rev.Stat. Ann. § 446.350)

  • In other words, before the Kentucky Governor required every county clerk in the State to issue same sex marriage licenses, it would seem reasonable that he have considered whether this would impose a substantial burden on religious freedom, whether this burden was justified by a “compelling governmental interest”, and whether there was a “less restrictive” way to achieve this interest. In this situation it seems fairly clear to me that this legislation should have applied in Ms Davis’ favour:
    1. While different believers may agree or not with the view that she would be “complicit” in same sex marriages by issuing licenses, there seems no doubt that this was a genuine belief strongly held on plausible religious grounds. The State should not be in the business of making up the minds of believers about these things; it seems reasonable where someone can articulate a plausible belief, that it be regarded as worthy of respect. One feature of the law here, noted above, is that every marriage license must have the name of the clerk who issued it, at the bottom of the license- not just the office, but the actual name. This as mentioned explains the otherwise odd fact that Ms Davis objected to other clerks issuing the licenses as well- for they would all have borne her name as the county clerk.
    2. The State no doubt has a “compelling interest” in allowing its residents to enjoy a constitutional right declared by the Supreme Court. One may perhaps doubt whether “compelling” is a good way to describe the interest in allowing people to get marriage licenses in their home town rather than merely driving half an hour to another town, but that can be conceded for the moment. (Note that a license once issued somewhere is good for the whole of the State, so the parties concerned would not have been prevented from holding a ceremony in their home town once they had got the license from elsewhere.)
    3. Still, there seems absolutely no doubt that a less restrictive means of furthering this interest could have been found. The law could be changed to allow licenses to be issued from an office, rather than personally under the clerk’s name. Once it became clear that some clerks would have problems, it may even have been possible to set up an online application system for issue of marriage licenses. Other solutions would no doubt present themselves, as has been made clear for example in Utah and other States.
  • Yet in his judgment on the issue, Judge Bunning glosses over the RFRA provisions far too quickly. In one paragraph he asserts that Ms Davis’ religious objection is misconceived, and in any event she can still go to church!

Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.

  • With due respect, the Judge’s comments suggest he does not really understand the religious freedom issues. He is taking on himself the question whether Ms Davis’ religion really means what she says it means. As already noted, even other religious believers may agree that it is not “condoning” same sex marriages to issue a license; but the belief is a genuine one and should have been accommodated rather than being belittled (especially as the competing interest expressed by the couples is a “preference” for a marriage license to be issued in their local town, which on the most generous view seems not quite as heavy as a genuine conscientious objection which would lead one to prefer jail rather than issuing the license.) And the comments about her continuing freedom to go to church demonstrate a staggering mis-understanding of “free exercise” as limited to worship activities.

In other words, to conclude this lengthy discussion, Ms Davis was not setting herself “above the law” as so many commentators have suggested. She was attempting to act within the law, in a country which claims to recognise free exercise of religion at both the Federal and State level. It seems likely that her religious freedom should indeed have been recognised by the court, and it is to be hoped that other courts will correct what seems to have been a grave injustice in sending her to jail for contempt of court, when she was in fact acting within her rights.

Her case also demonstrates the importance that needs to be given to consideration of religious freedom issues if same sex marriage is to be recognised. In Australia that is a debate we are still having, and it is to be hoped that if this happens here, we can learn some lessons from cases like this to do a better job of recognising legitimate religious freedom claims when changing the law of marriage.

neilfoster

Schools, same sex politics and religion in NSW

The Minister for Education has asked that a controversial documentary, “Gayby Baby”, be shown outside school hours, rather than as part of the school day, at Burwood Girls High School, in Sydney’s inner West. As the ABC correctly reports:

Burwood Girls High School sent parents a flyer last week informing them that all students would attend a screening of the film Gayby Baby during class hours on Friday, as part of Wear It Purple Day — an initiative designed to promote acceptance and tolerance of diversity.

The PG-rated film follows the lives of four children — Gus, Ebony, Matt and Graham —growing up with gay parents.

No-one can deny that the film deals with an important issue being debated in Australian society today. Indeed, the trailer shows at one point some of the participants watching a television show where the merits of same-sex marriage are being debated. As pointed out in one media comment:

A review highlighted on the Gayby Baby website describes it as an “intrinsically political” documentary and says children of “queer” parents are being used to counter opponents of so-called marriage equality.

So there is no doubt the film is “political”, as dealing with a matter of highly charged debate in the Federal Parliament and in the public sphere. Yet the school was proposing to cancel classes and direct all students to attend, while also encouraging (if not directing) all of them to wear the colour purple as a mark of support for homosexuality. The original notice from the school to parents was very clear: “All students will attend a special screening….followed by purple cupcakes and fashion parade at lunchtime under the rainbow flag. Please wear purple.” A letter from the Principal enthused: “I look forward to seeing a sea of purple.” There seems to have even been a suggestion of a prize for the “most purple” outfit.

The Department of Education and Communities policy on “Controversial Issues in Schools” provides that:
1.1  Schools are neutral grounds for rational discourse and objective study. They are not arenas for opposing political views or ideologies…
3.1 Schools are places where students are preparing for informed and reasoned involvement in community life, including its politics, by calm and co-operative study of social issues. Schools are not places for recruiting into partisan groups…
4.1 The Principal is responsible for ensuring a balanced and reasonable consideration of various viewpoints is contained within curriculum content delivered by teachers, within presentations to students at schools by visiting speakers and while undertaking school excursions…
4.8 It is the responsibility of the Principal to ensure that staff are familiar with the substance of this policy, that parents are made aware of its implications and, where appropriate, are consulted with regard to the participation of their children in programs dealing with controversial issues. (emphasis added)
In light of these policies it seems fairly clear that this documentary would either be unsuitable for showing during class time, or parents ought to have been consulted as to whether they wished their children to attend. At the very least parents should have been provided with an opportunity to view the material beforehand, and to make their own judgment about its balance, and whether it presents a reasoned perspective on the issues. Yet the initial contact with parents made no such offer.
Subsequently, after it became apparent that a number of parents were concerned, and a local Presbyterian minister had made representations on their behalf, a belated letter from the school offered an option for children to be withdrawn from the activity and offered other activities in the library. (The letter appears in this press comment.)
By this time, however, the Minister for Education had become involved.

Education Minister Adrian Piccoli confirmed he had intervened.

“I have directed the Department of Education to ensure the film is not shown during school hours,” he said.

(The NSW Premier) Mr Baird said he supported schools screening the film, but not during class.

“I understand the intent of that is to provide an example of tolerance and that’s something I absolutely support,” he said.

“Should it be in class time? No, I don’t think so. Should it be optional? Yes, I do think so.”

Naturally there has now been strong criticism of the decision of the Minister not to allow the movie to be shown as part of formal school teaching time.
Some might suggest a similarity between this incident and a previous episode where the Department had attempted to exclude certain books from being used in Special Religious Education classes in high school, in part because those books taught the Biblical view that sex is only intended for the context of marriage between a man and a woman. I commented on that episode previously here and here. The Department’s decision was subsequently reversed.
But drawing those connections would, in my view, be wrong. SRE is provided in NSW Schools as an openly “confessional” program, teaching the beliefs of a particular religion from that religion’s perspective. It is explicitly authorised by legislation, and all parents have the right to withdraw their children from the classes at any time. By contrast, the mainstream teaching time in State schools is intended, as the Department’s legally binding policy quoted above makes clear, not to push a specific “political” agenda. And here, the school as it originally communicated to parents did not suggest that it was giving parents an option to withdraw their children from a film which would clearly, from viewing the trailer, be presenting a clear view in favour of homosexuality. Parents who hold a view that, in accordance with their religious commitments, such behaviour is wrong, should be entitled to not have that view undermined by powerful propaganda to the contrary, when that material is not part of the school curriculum.
It is obviously a good idea that a calm and reasoned debate be allowed to happen on same sex marriage and other issues to do with same sex attraction. There is no doubt that children of same sex parents have particular issues that they wrestle with, and that their situation needs to be understood. However, evenhanded discussion of these important issues cannot happen where there is an “official” assumption that anyone who holds to a traditional religious view on the morality of homosexuality is a “bigot” whose views can be ignored or marginalised in public life. The school’s apparently automatic assumption that a particular view on these matters could be presented in school hours alongside maths and chemistry, as a matter of established consensus, sends that signal.
The Departmental policy noted above seems a sensible one- where matters of this highly controversial nature are involved, they should and will be discussed within families and in other venues. They can be discussed in contexts that are set aside for presentation of religious perspectives, such as SRE classes, or among students themselves. But it does seem inappropriate that a school officially present one side of the debate as if all the issues were settled, without regard to deeply held views of parents and children.
(In the interests of full disclosure, I should mention that I have a relative attending the school in question. But all that means is that I saw some of the correspondence before it came into the public domain. I would be equally concerned about this sequence of events at any public school.)
neilfoster

Same sex marriage: referendum or plebiscite?

The debate on same sex marriage in Australia has changed dramatically in recent days. The current Liberal and National Party Coalition Government went into the last Federal election promising to maintain the definition of marriage as between a man and a woman. Subsequently some members of the Liberal Party indicated that they were personally in favour of recognising same sex marriage. (As previously noted here, in Australia at the moment it is clear that change in this area will have to come from the Federal Parliament in some way, as the High Court of Australia has made it clear that States and Territories cannot over-ride the Federal law on the matter, and that court is not at all likely to find an “implied constitutional right” to same sex marriage as was done recently by the US Supreme Court in the Obergefell decision.)

In response to pressure from the members of his own party, the Prime Minister, Tony Abbott, who has long signalled his desire to maintain traditional marriage, called a meeting of the party room to discuss whether or not members of the Coalition should be given a “conscience vote” on the issue. (In the Australian version of the Westminster system, party members almost always vote with their party on legislation in Parliament. Conscience votes, where members are free to express their own view without facing party censure in any way, are rare, and mostly reserved for the traditionally difficult “life or death” issues such as abortion and euthanasia. On the other side of politics, the opposition Australian Labor Party currently has a policy allowing its Parliamentary members such a vote on this issue; but at its most recent annual conference, it put in place a policy which means that support for same sex marriage will be a platform of the party from 2019, and at that point any ALP member of Parliament who disagrees will have to resign from the party.)

The result of the recent Coalition party meeting was that, by a 2/3 majority, the meeting voted to maintain support for traditional marriage as formal part of party policy. This means that, in theory, an individual Coalition MP or Senator could choose to “cross the floor” to support same sex marriage, but if they did so they would be unlikely to receive further advancement within the Government. In addition, members of the Cabinet are now bound to support traditional marriage, and if they wish to depart from that policy will have to resign their posts as Cabinet ministers.

Following the meeting, however, the Prime Minister announced that, at some stage in the future, the Coalition would undertake to hold a broad public vote to determine the extent of support for change in the Australian community. Some matters are still unclear, however. The timing of such a vote is uncertain: would it be prior to the next Federal election? Held at the same time? Following the election? In particular, there is ongoing debate over the legal form such a vote would take. The main choices seem to be between a referendum and a “plebiscite”.

There are important differences between these two options. A referendum is the means by which the Australian Constitution is amended, under s 128. (As this excellent review piece by electoral commentator Anthony Green notes, the word “referendum” is not used in the Constitution, but the word, in the Federal sphere at least, has come to be applied to the s 128 process). Procedures for setting and arguing a referendum question are reasonably clear. Such a vote could only be successful if supported by a “double majority”: an absolute majority of the voters, and also by a majority of voters in a majority of States. On the other hand, a plebiscite is a more generic term which simply refers to a vote on an issue, which presumably (unless Parliament decided otherwise) would simply require a majority of voters to approve it. Anthony Green notes that historically there have been only three plebiscites held in Australia, two during World War I about conscription, and one to vote on a new national anthem.

What are the relevant issues needing to be resolved to choose between these options, should they proceed? (It should be said that the ALP has indicated that, if they are returned at the next election, they will immediately put the matter to the Parliament. So there may not need to be such a vote in that case. On the other hand, if this happens before 2019, and given that there are some ALP members of Parliament who are known to support traditional marriage, the proposal might once again not succeed. In which case the national vote might come back onto the agenda!)

Jeremy Gans in a brilliant piece in the “Opinions on High” blog from Melbourne Law School does a great job of summarising the options. Which one is preferred by any particular commentator will be partly affected by their view on the best outcome.

Referendum

There are at least two important questions about a referendum on this topic. Is it necessary? What would be the effect of the vote?

As to the necessity of a referendum, opinions differ. What is clear is that, in its decision in Commonweath v ACT [2013] HCA 55 (12 Dec 2013) (the Same Sex Marriage case), the 6 judges of the High Court of Australia who decided that case took the view that the word “marriage” in s 51(xxi) of the Constitution was broad enough to allow the Federal Parliament to enact a law conferring that status on a same sex couple. However, with respect to the court, I disagree, and I am not the only commentator to suggest that this aspect of the Court’s decision is open to challenge (see articles by Professor Twomey, “Same-Sex Marriage and Constitutional Interpretation” (2014) 88 Aust Law Jnl 613- 616 and Professors Parkinson and Aroney, “The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case” (2014) 28 Australian Journal of Family Law 160-192.)

The problem as I see it is that the 2013 case was not in essence about the power of the Federal Parliament. The issue in that case was whether the ACT legislature could pass its own legislation recognising same sex marriage, contrary to the clear words of the definition in s 5 of the Federal Marriage Act 1961 (Cth) providing that marriage is a relationship between a man and a woman. For reasons spelled out in my earlier paper (which I urge the reader to consult, if only for the opening cartoon!), I maintain that the Court’s decision on this main point, that the ACT law was invalid in light of the Federal law, was correct; but that it was not necessary for that decision for the Court to rule on the wider point as to whether such a Federal law would be within power. I appreciate that the Court itself took the view that this issue was necessary to decide; I am simply not persuaded that they were correct.

In the paper I use a somewhat far-fetched example about “bankruptcy”, mainly because it is also a specific head of Federal legislative power, and it is also a personal “status” which the law regulates, like “marriage’. I suggest that one may conclude that a State or Territory law declaring all red-headed persons to be “bankrupt” is invalid due to the “covering of the field” of bankruptcy by the Federal Parliament, without  also needing to conclude that the Federal Parliament’s power would entitle it in its turn to pass such a law. It may be that no legislature in Australia has the power to bankrupt persons on the basis of their hair colour. While such a result may seem odd for those committed to the most expansive possible definition of Parliamentary sovereignty, it seems consistent with the nature of our Federation that some matters may just not be capable of being legislated, at least as the Constitution currently stands.

Of course there is an ultimate sovereign Australian legislator who could enable such a law- it is the Australian people, acting through s 128 of the Constitution, who could provide the Federal Parliament with all the hair-colour-based bankruptcy powers they need. And so with same sex marriage: a referendum altering s 51(xxi) could allow a law to be passed to recognise a same sex relationship as a “marriage”.

In my view, if such a change were to be introduced into the Australian community, this is how it should be done. There is, after all, some lingering doubt that the comments of the High Court in the Same Sex Marriage case might be regarded as obiter dicta, which could be put to one side by a later bench squarely presented with the issue. (As I and others have pointed out, it is particularly unfortunate that these comments were made in a case where there was no “contradictor”, because the Commonwealth, for whatever reason, effectively conceded the issue without real arguments, and neither party had come prepared to argue the point in any detail.)

Jeremy Gans notes some of the consequences of a successful referendum:

One possibility is that the referendum will succeed, writing the view of six High Court judges in 2013 permanently into the Constitution. While that won’t change the law, it will have the effect of barring a future High Court from disagreeing with that particular holding. Specifically, it would remove the power to decide from four future High Court judges, for instance stopping Gageler, Nettle and Gordon JJ (none of whom participated in the 2013 decision) from getting together with French CJ’s successor sometime after 2017 to rule that the federal parliament lacks power to enact a same-sex marriage law (effectively putting the political ball in the court of state or territory parliaments.)

In other words, Gans concedes (though does not support) the possibility that at least 4 out of a future 7-member High Court bench might possibly conclude that the earlier decision was wrong. (Another possibility, of course, is that one of the members of the 2013 bench may be persuaded to change their mind.) For supporters of same sex marriage, that ought to encourage them to see the referendum as a positive step, especially if the oft-cited statistic of 64% of the Australian people supporting same sex marriage is correct.

It is important, however, to spell out the consequences of a referendum either way.

  1. A successful referendum changing the law

On the one hand, the referendum might succeed. But the result of such a vote would simply be to authorise the Federal Parliament to enact a law allowing same sex couples to marry. One may presume that a Government which had put the question to the people would, when confronted with a vote in favour, go ahead and implement the wishes of the people. (The current Prime Minister has given such an undertaking.) But there would be no mechanism requiring them to do so. Still, I think it can be assumed that even a Coalition Government faced with a successful referendum would enact a law on the topic.

However, one issue which has not been satisfactorily resolved is the question as to whether explicit protections are to be provided for religious freedom, once such a referendum had passed. A number of recent commentators, including the Human Rights Commissioner, Tim Wilson, a supporter of same sex marriage, have pointed out that such protection will be needed.

Interestingly, there is a precedent already for protection of competing rights to be provided for in a Constitutional referendum. Section 51(xxiiiA) was added to the Constitution in 1946, after World War 2, to allow the Commonwealth Government to continue to make payments of various pensions and benefits which it had been previously been making, but which had been found to be not supported by an existing Commonwealth head of power. It provides that the Commonwealth Parliament has power to legislate for:

“the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances”.

The meaning of the bracketed words, “but not so as to authorise any form of civil conscription”, has been the subject of some debate in subsequent decisions of the High Court (see British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (7 October 1949); General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532 (2 September 1980); Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 (2 February 2009)). However, at the very least they provide protection to doctors and dentists from being “drafted” into government service against their will.

If a referendum is to add a specific provision allowing same sex marriage, it would seem to be wise to include some such words of protection for religious freedom and conscientious objection. Such protection is required, in the face of increasing evidence from other parts of the world where same sex marriage has been introduced, that “wedding support” businesses are being penalised where the business owners object to being “conscripted” into celebration of unions which they find, for deeply held reasons of religion or conscience, unable to support. (See previous posts here and here dealing with some of these cases.) Perhaps some such wording as the following would be suitable for an amended s 51(xxi):

“(xxi) Marriage, including marriage of persons of the same sex (but in that case not so as to authorize undue interference with the free exercise of religion or belief by those asked to celebrate or provide creative support for the relevant ceremony).”

The reference to “creative support” here is intended to cover those who are asked to devote artistic talents to a ceremony, such as wedding cake makers, florists or wedding photographers, but not to include those simply asked to provide ordinary commercial services such as the provision of food or the hiring of secular premises. (The only danger of including such a specific provision is that it might be said that this precludes recognition of other circumstances where religious freedom ought to be recognised, but it should be made clear in the enacting law that this is not the intention. Where s 116 of the Constitution would generally require protection of “free exercise” of religion in other circumstances, it should continue to do so.)

2. A referendum which fails to change the law

Suppose, on the other hand, that a referendum were unsuccessful? In that case presumably the Government of the day would feel free not to proceed with proposals to change the law. But then what would happen should that Government be replaced by another with the Parliamentary power to enact same sex marriage legislation? Would the failure of the referendum mean that legislation could not be enacted?

It seems fairly clear that this would not be the case. In other words, even if a referendum to introduce same sex marriage were to fail, there would be nothing to stop a later Parliament from enacting a law, based on a view that the comments in the 2013 High Court decision in the Same Sex Marriage case were correct.

Jeremy Gans puts it this way:

But what about the other possibility (one presumably hoped for by many of the referendum’s current proponents), that the referendum will fail (either by failing to attract a majority of Australian voters, or failing to attract a majority of voters in at least four states)? That would leave the Constitution unchanged, but could it affect a future High Court’s willingness to revisit its earlier rulings (e.g. on the basis that the referendum signals that the Australian people disagree with the 2013 ruling?) In a 1997 case on whether territory governments could acquire property without just terms, Gaudron J and Kirby J split on whether the fact that a majority of ACT residents voted against a 1988 referendum on this issue could be taken into account. In 2006, a majority of the High Court firmly rejected relying on failed referenda in the decision upholding the Howard government’s workplace relations law… {quoting that case}.

Assuming a future court agrees, this ruling implies that a failed referendum on same-sex marriage would have no legal effect at all on how that issue is eventually resolved. Of course, the referendum could well have a political effect, not only on politicians, but also, perhaps, on the willingness of Australia’s judges to issue holdings that differ from a clearly expressed public vote.

So the failure of a referendum, while one might think that it should send a signal to politicians that the Australian people as a whole disagree with the change, might not mean that the change could not be attempted; and in those circumstances, the High Court would simply have to interpret the Constitution as it stands.

A plebiscite?

Would a plebiscite give any more certainty? Fairly clearly it would not. Even after a successful plebiscite on the issue, Parliament would not be obliged to pass such a law (though the political pressure would be strong.) And similarly, should the plebiscite fail, supporters of same sex marriage would, if they could command a majority in both Houses of Parliament on the issue, pass a same sex marriage law.

That is not to say that such a vote would not be useful. It would provide some resolution to the perpetual debate over polls which seem to offer widely differing results, depending on the question which is asked. “Do you favour marriage equality?”, for example, seems to be bound to receive a positive answer. “Do you think a child should wherever possible be raised by their biological mother and father?” is likely to also receive a positive answer, even if the person being surveyed does not realise that a positive answer to question 1, may preclude, or at least impact on, a positive answer to question 2. The framing of a plebiscite question is likely to be one of the most contentious debates in the area.

Referendum or plebiscite?

Finally, to come at last to the question posed by the title to this post, which is preferable? I ought to make clear what most regular readers of this blog will know already: my own view is that same sex marriage will be bad for the community, and so I would be opposing the change in any vote, and would continue to argue against such a change whatever the outcome.

But I maintain that I still have a right to have a view on the process to be followed, if such a change is to be made. And my view on balance is that a referendum is preferable. The cynical may suggest that this is because I know that referenda in Australia rarely succeed. But even if that were not so, I believe that a foundational and fundamental societal change of this sort ought not to be made without providing a clear basis for it in the document which forms the grundnorm of the Australian legal system. As noted previously, if there is no such change the question of the validity of Federal legislation on the topic will remain in some, even if slight, doubt. In addition, a binding referendum can provide, if framed as I suggest above, religious freedom protections which are carved into the bedrock of the change, rather than being subject to the winds of Parliamentary change. That, at any rate, is my view at the moment.

neilfoster

More on withdrawal of churches from solemnising marriage

My friend Dr John McClean has posted a thoughtful response to my previous post on this topic; John’s response can be read here. I will have my own response once I have had a chance to think it over, but in the meantime I recommend it to those who are interested in this “internal” debate among those concerned about the consequences of same sex marriage from a shared commitment to the truth of the Bible.

neilfoster

Should Christian churches withdraw from marrying if same sex marriage is introduced?

The above question has been raised in Australia by news that the Assembly of the Presbyterian Church in NSW has recommended to its national body that ministers of the Church should withdraw from performing legally recognised marriages should proposals for recognising same sex marriage proceed. (I have discussed previously the situation with same sex marriage in Australia, noting that at the moment it is generally regarded as a matter for the Federal Parliament to decide.)

Many Christians who take the Bible seriously take the view that homosexual practice is contrary to God’s will for humanity as expressed in the Bible. (See, for a recent clear and careful analysis of the Biblical position, this post from the Principal of Moore Theological College in Sydney.) But, despite an increasing trend to civil ceremonies, many marriages are still conducted by ministers of religion. Other churches and groups around the Western world have suggested, in light of the adoption or possible adoption of same sex marriage by their governments, that Christians who believe this is so ought to withdraw from the solemnisation of marriages altogether. The logic of many of these arguments was expressed by a spokesman for the NSW Presbyterian Church, Rev John McLean, as follows:

It would still be possible to form a life-long monogamous heterosexual union under a changed act. But the act, and the way Australian society will use it, will be so different from the classic Christian view that the rationale for the church sharing in the system will have gone. From the church’s point of view, a wonderful blessing from God would be largely emptied of its meaning and purpose. It might be better for us not to be part of a system which endorses that.

But does it follow that Christians who object to same sex marriage on Biblical grounds should withdraw from solemnising legally binding marriages? I would like to suggest that it does not, and that the arguments presented in favour of this view are flawed.

(Perhaps I should note that, while most of the material I post on this blog is relevant to the community generally, to some extent this debate is a “family discussion” within the Christian church, of which I am of course a part. Observers who are not involved may wish to move on at this point! But I would like to address these issues to fellow believers, as I think there are some dangers in the course of action being proposed.)

The arguments in favour of withdrawal

Many of those who argue for withdrawal from a system that recognises same sex marriages do so from a position somewhat similar to that noted above- that the “institution” of marriage would be so changed by this development that it would be no longer right for Christians to support it. We may call this the “institutional change” argument.

Others have put forward the argument in terms which suggest that they think it will contribute to religious freedom. Concerned at the prospect of clergy being forced to conduct same sex weddings, they argue that if the church stops conducting weddings at all, then there will be no legal grounds for such an action. This is the “clergy religious freedom” argument.

These seem to be the main two arguments that are presented in favour of withdrawal.

The current situation with religious celebrants

It seems best, before addressing these, to outline the current position of religious celebrants in Australia. Under s 51(xxi) of the Commonwealth Constitution, the Federal Parliament has a concurrent legislative power over the topic of “marriage”. Prior to 1963 the Federal Parliament had not exercised that power in any substantial way, but with the commencement of the Marriage Act 1961 (Cth) (the Act) it took over the whole area from the States. The Act regulates the whole topic of the celebration and validity of marriages in Australia.

There are currently four categories of persons authorised under the Act to solemnise legal marriages in Australia (“authorised celebrants”). They are (1) ministers of religion of “recognised denominations”- Part IV, Div 1, Sub-div A of the Act; (2) public servants who work at Registry offices- Part IV, Div 1, Sub-Div B; (3) persons appointed as “marriage celebrants” under Part IV, Div 1, Sub-Div C, who may be either “civil” celebrants, or (4) such persons who are ministers of religion but not associated with the major “recognised denominations”. The final category will then include ministers of small, independent churches, for example.

In the interesting decision of the present Chief Justice of the High Court, French J (as his Honour then was as a member of the Federal Court) in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) was asked to decide whether a “minister” of a group called “Gods Kingdom Managed by his Priest and Lord” should be recognised as a marriage celebrant. The case sets out the administrative guidelines used by the Attorney-General’s Department to determine whether or not a group is a “recognised denomination” under s 26 of the Act (see para [4] point 5), and whether or not someone should have been appointed as an independent “religious” celebrant under the provisions of s 39(2) of the Act as it then stood.

(Those who are interested in the history of the law relating to the need for the presence of a celebrant at the celebration of a valid marriage, and what that presence involves, may like to consult the fascinating case of W and T [1998] FamCA 49 (7 May 1998), holding that an authorised celebrant who was at the back of the church while promises were taken by someone else, was to be regarded for the purposes of the Act as “solemnising” the marriage.)

The list of “recognised denominations” for the purposes of s 26 of the Act may be found here. It includes, of course, the Presbyterian Church of Australia.

Withdrawal for celebrant religious freedom reasons

Would it be a good idea for a church to withdraw from a system that recognised same sex marriage to avoid ministers of that church being obliged to solemnise same sex marriages? In my view this would not be necessary under any plausible proposals for same sex marriage in Australia in the near future.

All proponents of the change have said that they would not require ministers of religion to perform same sex weddings. The most recent draft Bill introduced by the Leader of the Opposition on 1 June 2015, for example, provides, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act1961 which says that that a minister of religion may not be obliged (by the Marriage Act or any other Act, such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. Protections of this sort were introduced in the UK when that country’s Marriage (Same Sex Couples) Act 2013 was introduced- see the complicated section 2 of the Act, accompanied by an amendment to the Equality Act 2010, s 25A, which explicitly provides that there is no breach of sexual orientation discrimination laws by a member of the clergy declining to be involved in a same sex wedding. (The complex nature of these provisions, however, seems to point to the need for much more careful drafting than the somewhat minimal s 47 amendments proposed in Australia at the moment.)

There is no denying, of course, that if same sex marriage is introduced there may be political pressure put on ministers of religion to solemnise same sex marriages. (See this report from the UK indicating that, even with the so-called “quadruple lock” protection for the Church of England under their legislation, two same sex activists were threatening to take the church before the European Court of Human Rights to enforce a right to be married in their local Church of England building.) However, it seems to me that that is a battle to be fought in the future. If the law were to change to require all marriage celebrants to solemnise same sex weddings, then consideration could be given at that stage to withdrawal from the system. (Although it would seem to be arguable that such a law would be so extreme that it might even breach the fairly minimal religious freedom protections provided by s 116 of the Constitution, and could be challenged on that basis. See my previous post for discussion of religious freedom protections in general in Australia at the moment.)

Withdrawal on “institutional change” grounds

A stronger argument can be made that the institution of marriage would be so fundamentally altered by introduction of same sex marriage that churches should no longer support it. But in my view, again, this argument is not convincing.

The fact is that marriage as practised in Australia today already falls short of Biblical ideals of life long faithfulness and commitment. But, justifiably, churches continue to solemnise marriages under the current law. Marriage is not a special custom for believers; it is generally recognised that it is what the older theologians called a “creation ordinance”, designed for the general good of mankind. While some examples of marriages take place where the Bible may suggest they ought not to, the good achieved by Christian churches in celebrating marriages generally seems to outweigh the examples of cases where people are being married wrongly. (To give an example, many Christians take seriously Jesus’ words that there are very limited grounds that justify divorce. Yet a person who may have obtained a divorce from a previous marriage in circumstances which would not fall within the category recognised by Jesus, may under our law be free to remarry. The fact that such marriages currently take place, despite them being contrary to God’s word, does not of itself mean that the institution of marriage as a whole should be abandoned.)

There are a number of important benefits, from a Christian perspective, in Christian ministers being willing to solemnise marriages as part of the general legal system. They will have the opportunity to serve members of the community who may have no other contact with a church, by not only celebrating a joyful occasion with them, but also by explaining a Biblical view of marriage. They will have a chance, too, if the couple are interested, to explain other aspects of the Christian gospel. They will make a connection that may see the couple come back, either for themselves or with children who may come along later. Many of these opportunities may be lost if churches decline to continue to solemnise marriages for members of the community at large.

What model of withdrawal is suggested?

The details of any proposed withdrawal from the general marriage system are not yet clear. Most proposals suggest that ministers of religion would no longer be “authorised celebrants” under the Act, with power to solemnise a legally effective marriage. Some suggest that churches might then say that they will conduct some sort of religious “blessing” ceremony after a couple has been to a registry office to celebrate their marriage there. Presumably this could be offered to both church members and to those outside the church if they were interested. It should be noted, however, that a decision to specifically decline to conduct “same sex blessing ceremonies” would still arguably be viewed as a decision which was discriminatory on the grounds of sexual orientation, if those ceremonies were freely available to heterosexual couples. Ironically, the church may then find itself, if not conducting “marriages”, liable for discrimination actions, unless they were able to rely on a “balancing clause” in relevant legislation. (See my previous discussion of balancing clauses in discrimination legislation, noting that courts in the past have given a very narrow reading of such clauses, even in the case of religious organisations.)

It might also be noted that at the moment s 113 of the Act already makes provision for a “religious” ceremony which is separate from a civil ceremony. Under s 113(5), where a couple have been through a legally recognised marriage ceremony, and they produce appropriate documentary proof of the fact, then they are allowed to go through a religious ceremony in front of a minister of religion, who does not need to be authorised to conduct marriages under Australian law. Any document issued by the minister, however, has to specify that the parties were already legally married. The provision seems to have been introduced to allow parties with strong religious convictions, but whose minister was not authorised under the Act, to have a specifically religious marriage ceremony. If an individual minister of religion chose to withdraw from the civil marriage system, they could presumably use the provisions of s 113 to conduct a religious ceremony after parties had been through a civil ceremony.

The detriments of withdrawal

Having briefly considered arguments in favour of withdrawal from the marriage system, let me outline a number of detriments which I see as flowing from such a decision. I have already noted the risk of losing contact with those outside the church who would no longer come where the churches were not providing the service of “marriage”.

Another set of problems arises from the simple fact that the legal system over many, many years has developed an interconnected set of doctrines and principles dealing with the status of marriage, its legal consequences, how it may be terminated in divorce or nullity, and the consequences of such termination for the rights of the parties, including property allocation and child custody issues. Yet if a church proposed to offer its members a form of “religious marriage” distinct from “civil marriage”, it would have to soon start to find ways of dealing with this multitude of issues. What if the parties who entered a “religious marriage” broke up? Would the church develop a “religious divorce” procedure? Presumably if it had separated itself from the “civil marriage” system, then it could not simply rely on “civil divorce”. What would happen if the religious rules would justify a divorce, but the civil rules would not (or vice versa?) Will all churches recognise “religious marriages” celebrated by other churches or religions? What criteria would be adopted for recognition? Who would make the decision?

In short, all the many and varied issues that our legal system has wrestled with for centuries in dealing with the status of marriage, would be up for grabs if churches pulled out of the civil system and started trying to regulate their own “religious marriages”.

Another pragmatic reason for resisting the change would be the possibility for confusion among persons who had been through ceremonies at a church, as to whether they were married or not. If all the paraphernalia of approved forms and registers are no longer used, one’s experience of life suggests that proper records may not be kept, that not all parties will have gone off and got the “civil” marriage before the religious one, and that there may be some serious consequences down the track.

Conclusions

In my view, the Bible takes a very pragmatic view of marriage. While there are clear principles set out for what marriage should be (a man and a woman, able to consent, committed to each other in the sight of the community, for life to the exclusion of all others), through the history recorded in the Bible these rules were not always followed. To summarise what needs to be a long argument (which I explore in slightly more detail here in a piece from a few years ago), it seems to me that in terms of what is needed to constitute a valid marriage, the Biblical view is that a marriage recognised as valid by the community in which one lives, is a valid marriage. For when we have rules forbidding adultery, we need to know who is married to whom with a high degree of certainty. The Bible, it seems to me, knows nothing of people being “married in God’s sight” but not in the view of the community.

Hence it seems to me a bad idea for churches to withdraw from celebrating marriages before the moment (if ever) when they literally have to do so because they are being told to disobey God’s word. Marriage is a good thing; as the letter to the Hebrews puts it: “Marriage should be honored by all” (Heb 13:4). Christians should keep on offering this good thing to the community for as long as they are able.

neilfoster

Same Sex Marriage, Religious Freedom and the Vibe in Obergefell

Much has been written in the last few days about the decision of the United States Supreme Court in Obergefell v Hodges 576 US ___ (2015) (26 June 2015) that there is a previously unknown “right” of same sex marriage in the United States Constitution. In this brief comment I do not propose to analyse in great detail the Constitutional basis for the decision of the majority of 5 Justices, written by Kennedy J, nor the trenchant critique of those reasons offered by the 4 dissenting Justices. Others who are much more versed in US Constitutional law have started to do that already- see, e.g., the helpful collation of reactions from scholars and commentators at the excellent First Things website. But I will try to summarise the decision, before turning to one of the main unresolved issues flowing from it: what are its implications for religious freedom in the US? I will then briefly offer some thoughts on how these issues might play out in Australia.

The Majority Decision

Kennedy J offers a keen insight into the logic of the movement for same sex marriage around the Western world in his opening paragraph:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. (slip op, at 1-2)

The core of the movement is the idea of “freedom”, and not just freedom classically defined as freedom from external restraint (the dissent of Thomas J outlines in some detail this traditional understanding of liberty), but the freedom to “define and express” one’s “identity”. With those opening words there was never any doubt where this judgment was going: to the post-modern world, nothing is “fixed” or “static”, all must be “fluid” and “dynamic”, including of course sexual preference and even gender.

And yet… even here we see a problem. For of course to make the point that we must radically redefine an institution that has formed the basis for society in all human cultures for millennia, Kennedy J wants to appeal to the fact that homosexual persons in fact are “trapped” into an identity not of their own making at all. So we read later of the fact that the “immutable nature” of the homosexual petitioners (slip op, at 4) “dictates” that they must find fulfilment in marriage to a person of the same sex. On the evidence of psychiatry, we later read that “sexual orientation is both a normal expression of human sexuality and immutable.” (slip op, at 8, emphasis added) So, trapped as they are in this unchangeable homosexual nature, Kennedy J for the majority holds that the law must allow them to marry others like themselves, or else be condemned to a “life of loneliness” (slip op, at 14: “Marriage responds to the universal fear that a lonely person might call out only to find no one there”; see also the moving conclusion at slip op, 28: “Their hope is not to be condemned to live in loneliness.”)

There is much of this emotive language, and stress on the personal pain felt by the petitioners in their relationships not being recognised as marriage. And of course if indeed the predominant purpose of marriage is to allow human beings to find solace and fulfilment in the love of another (but of course, why only one other?), then it seems grossly unjust to deny this institution to same sex couples. We see that early on in his judgment Kennedy J stresses this:

Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. (slip op, at 3).

Others have asked, of course, that if emotional fulfilment is what is required, why does the State become involved at all? As the dissenters note, the fact is that marriage has never been seen simply as a vehicle for the benefit of the two parties. It is an institution which is directed toward the regulation of sexual relationships between men and women, because such relationships regularly result in the birth of children, who long experience teaches us are usually best off when raised from birth by their biological parents in an enduring family. Yet it is well into the judgment before Kennedy J notes that marriages relate to children, and where he does so it is to say that same sex marriage protects the rights of children of same sex couples (see slip op, at 14-15). Indeed, traditional marriage laws, we are told in an astonishing remark, “harm and humiliate the children of same-sex couples”! Never mind that in any same sex family where children are present, all of the children will have been deprived, in some cases deliberately and carefully, of the companionship and love of one of their biological parents.

Without going into all the details, the majority judgment finds in the words of the Fourteenth Amendment to the US Constitution, that “no State shall ‘deprive any person of life, liberty, or property, without due process of law'”, a new “liberty” for same sex couples to marry, in an example of what is called “substantive due process”. Roberts CJ in dissent notes that it was precisely this sort of Constitutional “magic trick” that was used by the Supreme Court in the infamous Dred Scott v Sandford 19 How 393 (1857)  decision to find an implied property right that could not be interfered with to set slaves free; and precisely the same logic that was used in the almost equally discredited Lochner v New York 198 US 45 (1905) decision to undermine labour laws aimed at achieving fair conditions for workers, again finding a “right” in employers to not be deprived of income by interference with their “freedom of contract”. Since those cases later decisions had tried to carefully hedge around the ability of the Court to “discover” new rights based on their intuitions of fairness, in cases such as Washington v. Glucksberg, 521 U. S. 702, 721 (1997). But at slip op 18 the majority turn their back on the checks and balances in that decision and strike out to find their ideal of a new right.

The right, they say, is also supported by the “Equal Protection” clause of the Fourteenth Amendment (see slip op at 19) in some mysterious and not quite defined way. Indeed, to an Australian lawyer a number of the passages in the majority decision are more than slightly reminiscent of Dennis Denutio in the classic legal comedy movie The Castle saying when challenged as to what part of the Constitution he was relying on: “It’s the vibe!”

In the end, however they get there, the result is clear:

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. (slip op, at 22)

And “marry”, of course, means marry someone of the same sex.

The Dissenters

There is no space or time here to do justice to the 4 dissenting opinions, each of which in their own way offers clear and, to my mind, compelling reasons why the majority are wrong. Roberts CJ, as noted, compares the constitutional “logic” of the majority with that of previous decisions later regarded as clearly wrong. He stresses that the Court is not a legislature, and should not be taking to itself the role of making a fundamental change in an ages-old social institution.

The Chief Justice is also very clear: such logic as is present cannot be confined to the decision to allow same sex couples to marry each other. The argument from “loneliness” and emotional support inevitably leads to the next stage, which is the recognition of polygamous relationships as valid marriages. Nothing in the majority judgment, apart from, as his Honour notes, a sprinkling of the number “two” at points where it plays no part in the reasoning, prevents this next step.

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. (slip op, at 20)

And, as the Chief Justice notes, there is a decision from Utah at the moment which may present this issue very shortly: see Brown v Buhman, 947 F Supp 2d 1170 (Utah 2013), appeal pending.

Scalia J is his usual scathing self, well worth reading about the threat to democracy by the way the majority reasons. Thomas J analyses the historical roots of the idea of “liberty” and points out how far the majority decision has moved from this concept as referring to freedom from government action. His Honour’s reference to Magna Carta (slip op, 4) rang many bells with me after the recent Oxford conference on this topic. He notes, strikingly, that in the 35 States of the US where the question of recognition of same sex marriage has been put to the people of the State in a referendum, 32 of those States have voted to retain the traditional model of male/female marriage- slip op, 14. Yet these democratic decisions are obliterated by the ruling of 5 Justices.

Alito J at slip op 3 helpfully identifies the focus of the majority decision on the fundamental purpose of marriage as “to promote the well-being of those who choose to marry”. But, his Honour notes at 4:

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

As his Honour goes on to say, slip op 5, even if this model of marriage is not universally accepted in Western societies, surely a State may decide that they do not wish to “contribute to marriage’s further decay” by further departing from the ideal.

Religious Freedom implications

What, then, are the implications for religious freedom flowing from this decision? Here again there is a strong division between Kennedy J for the majority, and the dissenters.

Kennedy J devotes one short paragraph to the issue, at slip op 27, almost literally an afterthought:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

The choice of language seems deliberate. Rather than a robust assertion of a right to the “free exercise” of religion, the literal words of the First Amendment, we see an attenuated concession that believers may “advocate” and “teach” against recognition of same sex marriage. The dissenters pick this up.

Roberts CJ puts it so clearly that I can do little better than provide an extended quote:

Today’s decision… creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The other members of the Court comment in similar fashion- see Thomas J at slip op 14-15:

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect…

In our society, marriage is not simply a governmental institution; it is a religious institution as well… Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

And in a telling footnote to the above quote, his Honour notes that under the terrible regime where racially mixed marriages were forbidden, one State at least made it a criminal offence for a clergyman to celebrate such a marriage, even where his religion allowed him to. The suggestion is that, conversely, under a same sex marriage regime some States at least may try to force clergy to be engaged in celebration of such marriages, contrary to their faith.

Alito J is also unusually blunt:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas- sure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Implications for Australia

I have written in a previous post about the current state of play as far as recognition of same sex marriage in Australia is concerned. In short, unlike the US, “marriage” is a head of legislative power given to the Federal Parliament, not left to the States, and even though it is a “concurrent” power (which can be exercised by either State or Federal Parliaments), any valid exercise by the Federal Parliament will override any conflicting State (or Territory) law. At the moment the clear definition of “marriage” in s 5 of the Marriage Act 1961 (Cth) precludes recognition of same sex marriage at any level in Australia, a result confirmed by the decision of the High Court of Australia in The Commonwealth v Australian Capital Territory [2013] HCA 55, (2013) 250 CLR 441. (For a detailed comment on that decision see my paper here.)

This situation could change, then, if legislation amending the Marriage Act were to pass Federal Parliament. As at the date of writing the Government parties have a firm policy opposing such a change, which they went into the last election promising to adhere to. The main Opposition Party, the ALP, has a policy allowing its members a free vote on the issue, although recently one of the senior leaders of the party suggested that it should make support for same sex marriage a binding plank of party policy in the near future. Minor parties differ in their views among themselves. Press reports suggest that if  the governing Liberal/National Coalition were to allow a free vote of its members, some at least would support a change. But at the moment it is unclear whether there would be a majority for the change even if all members of Parliament were able to vote freely.

There have been various pieces of legislation introduced on the topic as Private Member’s Bills, none of which have succeeded, most of which have not even come to a vote. The most recent was introduced by Bill Shorten, Leader of the Opposition, in the form of the Marriage Amendment (Marriage Equality) Bill 2015 (introduced on 1 June 2015).

From the point of view of religious freedom, the latest Bill does at least make a gesture in that direction by providing, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act 1961 which aims to make it clear that a minister of religion may not be obliged (by the Marriage Act or any other Act such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. But this minimal protection does not go very far in dealing with the sort of issues that are noted by the dissenters in Obergefell  and have become more apparent in recent years: the questions as to whether ordinary believers may be required to compromise their principles by providing support for, and celebration of, same sex weddings. (See my previous posts on some of the “wedding industry” cases, here and here.) Other questions include whether religious institutions generally will be allowed to continue to operate in the public sphere if their view of the morality of homosexual conduct is so contradictory to the new “sexual orthodoxy” which would be represented by Parliament granting the status of “marriage” to same sex couples.

Will the decision of the US Supreme Court have an impact on the law of Australia? Not directly, but the decision (like the recent referendum in Ireland) may have the pragmatic effect of further persuading some members of Parliament that the “tide of history” is sweeping toward same sex marriage, and they should jump on their boards. There is also an interesting comparison between the logic of the majority in Obergefell  and the reasoning of the High Court of Australia in Cth v ACT noted above. In the High Court the court (in a move I have critiqued in my previously noted paper) held that the Constitutional head of power to legislate on “marriage” includes the power to recognise same sex marriage, and part of their logic was that “incidental” features of marriage had changed over the years. Similarly, in Obergefell, Kennedy J for the majority argues that marriage has “evolved over time” (slip op, at 6) because previous features such as the law of coverture have dropped away.

In my paper on the Cth v ACT decision I note at p 8 that the High Court settles on a “core” meaning of the term which manages to include both polygamy and same sex relationships as part of a shifting meaning. But the question remains, both in Australia and the US, as to how one decides what is part of the “core” meaning of the term, and what is an inessential accident? And, one might add, not only “how” does one decide, but “who” decides? In the US the minority’s critique of the legislative-like move made by the majority in Obergefell is very convincing. In Australia we may at least have the matter decided by a Parliamentary body. But in my own view (and I think there is also a plausible legal argument to this effect as well as good policy reasons), such a fundamental change to a foundational social institution should really be settled by agreement of the people as a whole, rather  than by the shifting forces of politics in Parliament.

Even if a referendum were held, of course, I would personally oppose such a change. But at least a referendum would have the benefit of allowing the extent of community support for the change to be properly assessed, and for its supporters to seek to persuade its opponents of the rightness of their cause. Such an opportunity, as Roberts CJ tellingly points out in his decision, has now been lost after the majority ruling in Obergefell:

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

neilfoster

Sesame Street and the Gay Cake

In a previous post I mentioned a series of cases raising the question as to whether Christian business owners who declined to provide their services to support same sex weddings, were guilty of sexual orientation discrimination. (Answer so far: Yes.) In that post I mentioned a case involving bakers in Northern Ireland which at the time had not come before the courts. The decision in that case, Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015) has now been handed down.

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Mr Lee is a member of the “Queerspace” group in Northern Ireland, which had been campaigning for legislative change recognising same sex marriage there (Northern Ireland, while a part of Great Britain, has its own legislature and has not followed the lead of England and adopted same sex marriage.) Shortly after the third debate on the issue in the Assembly, which had rejected proposals for change, he went into the Ashers cake shop and ordered a cake to use at an event marking the celebration of gay rights. (Interestingly the judge describes the event at [6] as “to mark the political momentum towards legislation for same-sex marriage”, an interesting use of the word “momentum” as all the votes that had been held up to that point had rejected the proposal; indeed, since the events at issue in this case there has been a fourth vote on the matter which has also failed.)

He asked for the cake to be made featuring a picture of “Bert and Ernie”, two popular muppets from the children’s show Sesame Street (despite the fact that the producers of the show have previously clearly indicated that Bert and Ernie are not romantically involved!) Ignoring possible copyright issues, the bakers declined to make the cake on the more important grounds that they were Christians who took the Biblical views of appropriate sexual behaviour seriously, and that they were being asked to devote their cake-making skills to a message with which they fundamentally disagreed. With the apparent support of the local human rights organisation, Mr Lee took an action for discrimination against the bakers, alleging both sexual orientation discrimination and also the somewhat unusual category of “political viewpoint” discrimination.

Since this blog is about “law and religion” rather than politics (!), I won’t spend much time on this second ground. I gather that this ground is not very common as a basis for discrimination, and was introduced in Northern Ireland mainly as a result of the very deep-seated resentments between the main political forces in that area after many years of violence and hatred. The difficulty of a prohibition of discrimination on political viewpoint grounds, of course, is that it opens up the question of whether people are free to make decisions on the basis that they disagree with someone’s politics or not.

The UK Human Rights blog, experts in this area, comment as follows on this aspect of the case:

It seems Ashers Bakery were inevitably going to lose this case, on the basis that they directly discriminated on grounds of political opinion. This form of anti-discrimination law is unique to Northern Ireland and designed to deal with the particular problem of someone being treated unfavourably because of their Unionist or Nationalist views. However, the Order is drafted widely enough that it included Mr Lee’s campaigning for same-sex marriage, so the decision that the refusal to bake the cake was discrimination on grounds of political opinion must be correct. This does have the strange effect that, whilst the Northern Ireland Assembly have repeatedly refused to legalise same-sex marriage, it is nevertheless illegal to refuse to bake a cake in support of it!

To turn to the other alleged ground of discrimination, essentially the claim here is similar to that made in the other “wedding industry” cases noted previously, that by refusing to support same sex marriage as an institution, the bakers have treated the customer less favourably than others, and hence have discriminated on the grounds of sexual orientation. District Judge Brownlie said:

[36] I [accept] the Plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.

With respect, her Honour really does not, in my view, give proper weight to the argument that the bakers, as they claimed, were not discriminating against Mr Lee as a person, but were declining to give their support to the message he wanted to convey, which was, literally, “Support Gay Marriage”. But her Honour’s response was that this was not important:

 [40] Additionally, I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non – Christian decorator icing the cake or, alternatively, sub-contracting this order.

For reasons which remain obscure, even on multiple readings, her Honour said that the relevant “comparator” (for the purposes of determining whether sexual orientation discrimination had taken place) was not to consider the situation of a heterosexual person who wanted to order the same cake, but instead to compare the refusal to supply the cake here with how they would have responded to “a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage””- see [42]. The only explanation that seems possible for this comparison seems to be supplied by the very telling comment her Honour goes on to make:

I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation. There is also an exact correspondence between the advantage conferred and the disadvantage imposed in supporting one and not the other.

In Bressol v Gouvernement de la Commaunite Francaise Case [2010] ECR 1-2735, para 56, [2010] 3CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification”.[43] My finding is that the Defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The Plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation. (emphasis added)

The comment can only be read as saying that discrimination here is unlawful because the class of persons who support same sex marriage is identical to the class of persons who are of homosexual sexual orientation. The problem is, of course, is that this comment is palpably false. Again, let me quote the UK Human Rights blog, a source which has never been known to be overly given to conservative views:

[T]he judge’s findings in relation to discrimination on grounds of sexual orientation do not make much sense. One key misstep appears to be that she conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage.

To the list of people who are gay and do not support same sex marriage we may add some homosexual commentators in the Republic of Ireland in the lead-up to the recent referendum in that country.

Still, having found that anyone who opposes same sex marriage must be opposed to homosexual persons (the implications of this equation), it is not surprising that the Judge found that the bakers had discriminated on the basis of sexual orientation.

Assuming that this was the result required by the regulations, her Honour went on, as she was required to, to consider whether the regulations then were inconsistent with the principles of the European Convention on Human Rights. In particular article 9 of the ECHR requires recognition of freedom of religion, subject to limitations which are prescribed by law, intended to achieve a legitimate objective, and ‘necessary in a democratic society’ – see [74]. The regulations clearly qualified as law, and clearly the removal of unjust discrimination against homosexual persons is a legitimate objective. But was it “necessary” to do so by requiring religious believers to support a message completely at odds with their fundamental beliefs?

Indeed, her Honour was taken to a Canadian case where an Ontario court had held that a printer who was required to undertake printing for a same sex support group, would not be required to print material which was in direct conflict with his core religious beliefs. The decision in Brockie v Ontario Human Rights Commission [2002] 22 DLR (4th) 174 was clearly relevant. (Interestingly, Brockie was cited with approval by Redlich J in dissent in the Australian decision in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 (16 April 2014) at, e.g., para [544].For comment on this case, which raises many of the same issues as being discussed here, see my earlier paper.)

However, Brockie  was rejected as being applicable here- see [90]. Partly this came back to the view that the bakers had not been required to “support, promote or endorse any viewpoint”- see [95]. With respect, this again seems wrong. While can perhaps understand a view that says that providing a wedding cake is not to “endorse” the marriage (although even this seems dubious), it needs to be remembered here that this was not a wedding cake. The sole purpose of the cake as requested was to bear a message of support for the institution of “gay marriage”. While of course it would also be eaten, there is no doubt that Ashers would have been more than happy to provide a cake simply to be eaten. But what they were asked to do, contrary to their fundamental beliefs, was to create an artistic creation carrying this message. There was no attempt here to undertake a process of “balancing”, or to consider the harm of acting against conscience with the harm of having to go down the road to another baker.

It may be recalled that other courts have been willing to find differently in similar cases. I have in previous posts referred to an Australian decision holding that it is possible to distinguish between sexual orientation on the one hand, and behaviour motivated by that orientation on the other; and to a recent US decision on almost identical facts to the Asher case (save that a T-shirt is not a cake) where the court ruled that religious freedom protection applied when asked to support a homosexual lifestyle. It is to be hoped that if the decision in Lee v Ashers goes on appeal some of these other matters may lead to a different decision.

It may be thought that decisions are simply minor issues. Clearly they are not minor for those who have been caught up in them, either facing fines or large amounts in legal fees to defend their right to not only live, but to conduct business in accordance with their deepest life commitments. And in a broader sense they raise important questions about whether those who differ from the current moral orthodoxy will be allowed to operate in the public sphere at all. As a recent press report notes, in some cases even where a service is provided, the mere fact that the business operator simply does not approve of the wedding ceremony will be enough to generate outrage. The law ought to be clear- in a plural society, we have to accept that some others in the community will disagree with our lifestyle choices, and where they do us no other harm, to allow them to do so.

neilfoster

Cakes, t-shirts and religious freedom- an update

A brief note about two decisions illustrating radically different approaches to religious freedom developing in the context of laws prohibiting sexual orientation discrimination, both from the United States.

One case, Re Klein dba Sweetcakes by Melissa and anor (Commissioner of the Bureau of Labor and Industries, State of Oregon; Case Nos 44-14, 45-14; 21 April 2015) is in the “genre” of the wedding industry cases I have previously commented on. The owners of a small-town cake shop were asked to make a wedding cake. When they discovered that this was for a same sex “commitment ceremony” (at the time same sex marriage was not legal in Oregon), they declined on the grounds of their Christian beliefs. Soon word got around, they were besieged by protests and in fact had to shut down their shopfront business. In this decision the Commissioner has ruled, on the basis of a previous finding of liability for sexual orientation discrimination, that they should pay $135,000 in damages to the couple concerned for “emotional suffering”.

The argument that the refusal to provide a cake was not based on the sexual orientation of the customers, but based on the fact that the cake was designed to send a message contrary to the shop-owner’s religious beliefs, was rejected. The Commissioner ruled that holding a same sex wedding ceremony was “inextricably linked” to the complainant’s sexual orientation, and “The Respondents’ refusal to provide a wedding cake for Complainants because it was for their same sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation” (p 38, lines 14-16).

Nor was a religious freedom argument accepted. Applying the US Supreme Court decision in Smith (1990), the law in question was a “valid and neutral law of general applicability” and hence the First Amendment “free exercise of religion” right did not assist- see e.g. p 57, lines 1-3. Oregon has no RFRA law designed to restore an earlier, more expansive, view of religious freedom.

The imposition of the fine by the Commissioner is subject to further review, and of course to a potential appeal. Interestingly, a public appeal for funds to pay the fine started on an internet site used for this sort of purpose before, but was then cancelled as the host of the site met complaints that the funds would be supporting “campaigns in defense of formal charges of heinous crimes, including violent, hateful, or sexual acts.” Presumably the act of politely declining to bake a cake was a “heinous” act of “hate”.

The other case could hardly be more different in outcome, though sharing many features with Klein. In Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015) a printer of T-shirts and promotional materials had declined to print advertising for a “Gay Pride” march. The company had been found by the Human Rights Commission to have discriminated against the local Gay and Lesbian Services Organisation in its refusal.

Judge Ishmael overturned the finding of discrimination. His Honour noted that the company had operated in accordance with the Christian principles of its proprietor for some years, and had declined a number of previous printing jobs on the basis of the messages being conveyed (for example, shirts promoting a strip club and others containing a violence related message- see p 9). He also noted that the former president of the GLSO, who had filed the complaint, does not identify as gay and is actually married to someone of the opposite sex. It was a particularly clear case where the refusal of the job was based on the message, and not the sexual orientation of the customer.

In reviewing the Commission’s decision the judge applied Constitutional principles as well as disagreeing with the finding of sexual orientation discrimination. The decision of the Commission was said to breach the company’s First Amendment freedom of speech, because the Commission was in effect requiring them to speak a message they did not support (see p 9). As his Honour said:

HOO’s declination to print the shirts was based upon the message of GLSO and the Pride Festival and not on the sexual orientation of its representatives or members. (at p 10, emphasis in original)

In addition, the Commission’s finding was a breach of religious freedom rights. Here the judge did not need to find his way through the barrier of the Smith decision, because Kentucky statute KRS 446.350 was a State-based version of the RFRA discussed in previous posts. This provision required a Government showing that a substantial burden on religious freedom could be shown to be in furtherance of a “compelling governmental interest” and was the “least restrictive means” to further that interest. Here there was a clear burden in requiring a Christian printing firm to support a message they saw as contrary to the Bible. (In light of the Supreme Court decision in Hobby Lobby (2014), the RFRA provision in referring to “person” should be read as including corporate persons like the company HOO- see p 14). The Government could not demonstrate why it was necessary to do this to further any interest it had- as the judge noted, the complainant organisation had no problems in getting their printing done by another company. (Indeed, HOO in its dealings with the GLSO had offered to find another company who would do the job at the same price that they would have charged, if the organisation had had any problems in doing so.)

Why the different results?

These cases offer similar situations: a commercial service provider who, because of their Christian beliefs concerning sexuality, cannot in good conscience provide their artistic talents to the support of a message favouring same sex relationships, and is alleged to be guilty of sexual orientation discrimination. In my view the second decision was correct, and the first decision ought to have been decided in a similar way. But there are differences that may have made a difference. The differences may lie in:

  • different complainants: in the Klein case homosexual persons, whereas in the HOO case the person requesting the job did not identify as gay;
  • different purposes for which the job was required: in the Klein case the celebration of a wedding between the parties, which of course carries all the sympathies of those who love weddings; whereas in HOO the issue is a public parade;
  • different degrees to which the issue is about “speech”: the HOO case looks to be all about a message, and the US courts are traditionally very keen to support free speech; the Klein case is about a form of speech, when analysed carefully (the celebration of a relationship), but appears on the surface not to be;
  • and the legislative context: it seems that this is one example where the presence of an RFRA made a difference- in Klein the Smith decision (which on top of everything else was about facts which arose in Oregon) receives priority, whereas in HOO the judge applies what is in effect the pre-Smith line of cases reflected in the local RFRA.

Still, it is good in my view to see a judicial decision recognising the strength of the free speech and freedom of religion arguments in these cases, and it may be hoped that this case provides support for a better analysis in other cases.

neilfoster

One step forward, two steps back: religious freedom, vaccination and RFRA’s

I couldn’t help noticing some disturbing features of the debates over religious freedom in the last few weeks. The pattern: a government body makes a decision to improve or uphold religious freedom, and for some reason it then does a “back-flip” so that we arguably end up worse off than before. The two examples: Indiana’s RFRA law and Australia’s guidelines on vaccinations.

Example 1- Indiana

Like many others interested in this area, I previously posted about the proposals to enact a Religious Freedom Restoration Act in the US State of Indiana. In brief, this law was part of a number of similar laws that had been enacted at Federal and State level to provide greater protection for religious freedom, in the face of a very narrow reading of the “free exercise” clause of the First Amendment to the US Constitution. (Incidentally, this week was the 25th anniversary of the decision setting up that narrow reading, Employment Division v Smith, marked by an excellent piece noting it as “Justice Scalia’s Worst Opinion“.)

The law was, as previously noted, the subject of a massive campaign against it in the media, and in the political sphere, with the spectre of mass boycotts of the whole State. (And the incredible tale of a small-town pizza store, the subject of “entrapment” by a local TV reporter, led to answer “No” to the question that presumably no-one had ever asked anyone before, “would you provide your pizzas to cater for a same sex wedding?” The resulting internet “firestorm” saw an online threat to burn down the store, along with a large amount of money donated to the store to encourage them to stay in business.)

The “pizza wedding” furphy, of course, arose because one motivation behind the enactment of increased religious freedom protection is an attempt to deal with the clash created when Christian bakers, photographers and florists are faced with penalties for not wanting to devote their artistic skills to supporting an institution they believe to be contrary to the Bible’s teaching on marriage and sex.

Here, however, is where the back-flip comes in. The Indiana government decided to amend the new law (not even in force yet) to respond to the online discourse that their act was a “license to discrimination against gays”. In doing so they have ended up, according to a number of commentators in the US, with a situation that now restricts religious freedom in this area to a greater degree that had previously been the case. Now the law will make it clear that Indiana citizens who have strong religious beliefs about support for the new institution of same sex marriage may not, apparently, choose to decline to provide their skills in support of this institution. Two steps back.

Example 2- vaccination in Australia

Again, I posted about this recently. The Australian Federal government has decided, to create more incentives for all parents to vaccinate their children against common childhood diseases, to withdraw key social security benefits from those who do not do so. Their initial announcement, which I applauded, included an exemption for those who had religious objections to vaccination.

Now we hear that this religious exemption will not be preserved. In fact the number of groups to whom it would apply was already very small- the main one seems to have been the “Church of Christ Scientist”, usually called “Christian Science”. There is an excellent review of religious objections to vaccination around the world here, which reveals that this and some parts of the Dutch Reformed Church are the only religious groups which can be plausibly said to have genuine religious objections to vaccination.

Even this author concedes, however, that an exemption granted to those with genuine religious objections could arguably be limited enough not to have a major impact on the “herd immunity” factor needed to protect those who cannot be vaccinated for health reasons.

A community can afford to have a small number of conscientious objectors to immunization. (at 2019)

In Australia it seems clear that the number of active members of the Christian Science church is small, around 1000. In fact, the press report noted above suggests that the leaders of the church in Australia had indicated that they no longer objected to their members being vaccinated. So it may be that in practice the new policy will not affect many people. But in my view it is a bad precedent. Australia’s constitution, s 116, requires the Commonwealth Parliament (and, by implication, guidelines and regulations made under authority of legislation passed by the Parliament) not to unduly impede the free exercise of religion. (See my previous post summarising religious freedom protections in Australia.) Withdrawal of a benefit of this sort, which many parents rely on, without allowing at least a theoretical exemption on religious grounds, arguably amounts to undue interference.

I am not so naive as to ignore the possibility that if such an exemption is available, those who object to vaccination on other grounds might try to misuse the provision by making false claims of membership. But as I noted in my previous post, there are clear ways that courts and government bodies can test such claims. Does the person have a history of attending meetings of this organisation before the relevant change of law? Will a respected leader of the organisation testify to their membership? Is there a plausible argument that this is indeed what the religion teaches? Is it a genuine religion? A religious exemption process would involve investigating these matters, but it would allow a better balance between religious freedom and community health concerns than a proposal to ignore religious freedom altogether. Again, we have moved from a situation where there was a religious freedom exemption, even if rarely relied on, to where there is now none. Two steps back.

Is there a lesson to be learned from these two examples? To be honest, I am not sure. Perhaps one clear message is that arguing for the preservation of religious freedom is difficult in a climate where many are cynical about religion, and where it is easy not to spend the time looking into the real harms being done to believers by sidelining their genuine concerns. Even where religious freedom has been gained one day, it can be lost very easily!

neilfoster

Can there be rational reasons for not supporting same sex marriage?

For many people in Australia the “battle” over recognition of same sex marriage seems, in popular opinion at least, completely over. Tim Dick in the Sydney Morning Herald on 1 March tells us that the “public argument is won” and we are now just up to the stage of deciding whether or not to allow “latecomers” to join the party. We are often told that those who do not support extending the legal status of “marriage” to unions involving same sex couples are on the “wrong side of history”. Their stance is often characterised as “homophobia”, a word which has in common parlance (despite its etymology) nothing to do with “fear” and everything to do with an irrational hatred of, and desire to harm, homosexual persons.

In this post I would like to suggest that these comments are wrong. I want to put forward reasons why a sensible, rational human being might hold the view that changing the law to “legalise” same sex marriage is not a good idea. I would challenge those who think that it is impossible that anything could be said on the other side of the debate, to at least recognise that there can be reasons offered to oppose the introduction of same sex marriage which do not stem simply from irrational hatred or invincible stupidity. I would also like to offer reasons that do not require a commitment to a specific “religious” world view, such as Christianity, Judaism or Islam. The reasons I want to offer here could be shared by any person who thinks carefully about human society. That such arguments might be possible is illustrated, for example, by the fact that some prominent gay commentators continue to express their opposition to changing the law to allow same sex marriage.

The best way to address this question, I think, is is to consider some of the arguments that are made in favour of this legal change, and to provide responses.

1. Isn’t recognition of same sex marriage simply a matter of “Marriage Equality”?

The first and in some ways one of the strongest arguments is framed under the deceptively simple heading of “equality”. If heterosexual couples in Australia are entitled to be married, then isn’t it simply a matter of basic equality and non-discrimination that homosexual couples should also be allowed to marry?

Perhaps one of the first things to note here is that it is odd, if this change were simply a matter of non-discrimination, that our Federal government law on discrimination doesn’t already do the job. The Sex Discrimination Act 1984 (Cth), for example, already makes it unlawful to discriminate against persons on the basis of their sexual orientation. But s 40(2A) specifically provides that this law does not impact the law on marriage. The Federal Parliament doesn’t seem to think the debate is concluded simply by reference to “discrimination” as a category.

Indeed, a Federal Court decision on the question, decided under the law as it stood before there was a prohibited ground of discrimination based on “sexual orientation”, held that State Registrar-General’s offices did not “discriminate” on sex or marital status grounds by refusing to register same sex marriages- see Margan v Australian Human Rights Commission [2013] FCA 612 (18 June 2013), esp at [48]:

where State agencies refuse to register same sex marriages because of requirements mandated by the definition of “marriage” is s 5 of the Marriage Act, as a matter of law this cannot involve an “act” or “practice” within the definition of “unlawful discrimination” in s 3 of the AHRC Act.

To put it simply, it is not “discriminatory” to not allow same sex marriage, because for there to be unlawful discrimination in denying a status or benefit to somebody, the person who seeks to gain such needs to fit the standard criteria for that status or benefit. I cannot complain that company A does not pay me a salary, whereas it pays a salary to my friend, when I do not work as an employee for A, and my friend does! The essence of the status “employee of A” is having a job there and doing work for the company. If I don’t do that, it is not “discrimination” to refuse to pay me.

Similarly, under our current law it is not discriminatory to refuse to marry a same sex couple to each other, because they do not currently satisfy the criteria set out in the law of Australia, which is, as Griffiths J notes in the quote above, that under s 5 of the Marriage Act 1961, they be a “man and a woman”. So the question is this: should the law of Australia be changed to allow same sex couples to marry each other? (For more exploration of the “discrimination” argument see my previous paper on the point.)

Of course the “equality” argument would be stronger if same sex couples who are unmarried miss out on privileges and benefits provided to heterosexual married couples. But a series of amendments to various laws over the last decade means that it is very hard find any such areas of law. Most benefits are extended to “de facto” couples, whether heterosexual or homosexual. The remaining arguments are, in essence, about the “label” and the social recognition conferred by the formal status of “marriage”.

What reasons are offered for making the change?

2. Shouldn’t we allow same sex marriage on the basis of “equal love”?

One of the most plausible justifications for changing the law to allow same sex marriage is the argument that all persons are entitled to have their love for their partner celebrated by a marriage ceremony. However, it seems clear that we can’t accept this argument unless we know what purpose the law of marriage serves. It can’t simply be about celebration- we don’t stage a marriage ceremony when someone graduates, for example. There must be some reason why the marriage ceremony is the celebration we choose for a particular couple. After all, discrimination is only wrongful if it is on irrelevant grounds; so to know what is irrelevant, we need to know what is relevant.

One of the difficulties in this area is that there are range of possible functions which are served by the legal institution of marriage. It seems that most people would agree that these at least include:

  1. A celebration of the love that two people feel for each other.
  2. “Authorisation”, in some sense, of a sexual relationship between the parties, under community standards.
  3. A commitment of those people to be faithful to each other, and only each other, in their sexual relationships, with the aim that this commitment will last for a lifetime.
  4. A joining together of the two separate families of the parties, so that they are now connected in ways that they weren’t before.
  5. Providing a stable committed partnership within which children of the parties can be nurtured, by their biological parents, until they are ready to stand on their own as adults.

These are the most important of the functions that the institution has served over most of human history, and in pretty well all human cultures. A public recognition of the commitment of the two partners who are authorised to have sex together provides the context for the future arrival of children, should that happen (as it often does following heterosexual sex!) Of course it may be that not every marriage meets all these initial goals. Some are terminated through divorce. Some, whether by choice of the parties or through unavoidable other circumstances, may not result in children. In some the parties may not be able to have sex together. The parties may have no other living relatives so the wider family connections may not be made. But the core functions of the institution are as above, and the fact that a particular marriage does not fulfil all of those functions does not make it any less of a marriage.

Those who have religious beliefs may see other purposes for marriage. Christians who take the Bible seriously, for example, are told that the joining together of husband and wife plays an important role in reflecting aspects of God’s character and his relationship to his people (see Ephesians 5:31-32.) But the reasons mentioned above are ones that have been shared by human societies since the dawn of humanity. The different functions provide support and encouragement for different persons. The first enables the love-struck couple to invite others to share their joy in each other. The second provides community sanction for their sexual activity together. The third, historically speaking, has provided protection for the wife against the well-known tendency of husbands to seek sexual satisfaction as broadly as possible. A social norm and legal system which penalises adultery makes it harder for husbands to abandon their wives, and in fact also makes it harder for a young woman to be seduced by an older man and then abandoned. The fourth function provides stability for inheritance of property and connections across families. The fifth, which may in the end be the most important of all, provides the security for children to be raised by their biological parents in a stable household.

Sadly, in recent decades in the West (even before the movement towards same sex marriage) the first function of marriage seems to have been given higher priority and, in some eyes, to have completely eclipsed the others. The expense and pomp of the wedding ceremony have become for some the most important part. The second has become less important as the community has come to accept the idea of “free love” and the principle that sex is now widely available to all. The day is now said to exclusively be “the couple’s day”, and so the role of other family members is downplayed or ignored. The importance of the commitment to life long monogamy is diminished to “lip service”, and there is now a social expectation that faithfulness is too demanding, and that minor problems may provide a ground for quick divorce. The role of children in a marriage can sometimes be seen as a secondary, purely optional, issue.

So it is not perhaps surprising that, if marriage has mainly become “celebration of love”, a fulfilment of the goals of the bride and groom, that we now see the calls to extend the institution to same sex relationships. Yet as many commentators have pointed out, if all that marriage does is provide a formal record that two parties, on a particular day, felt that they loved each other- what interest does the State have in this? Why is it formally recorded and accompanied by legal requirements? And since logic matters, why do we provide this celebration only for “sexual” relationships? Should we have “marriage” ceremonies for people who care for each other as friends? Why do we have rules against marriage between close family members? Why not, as some are now arguing, extend the “circle of love” to three or more persons? Interestingly it may be that the second rationale noted above provides a key reason for the move towards same sex marriage- for it provides community sanction for a type of sexual relationship that at most times in the past, and still in the majority of the world, is not regarded as appropriate.

The institution of marriage, though, is indeed a “package deal” which functions in all these five areas. The main interest the State has in marriage is that it provides a framework within which human experience tells us that children will be best cared for. A secondary goal is that marriage in its traditional form provides support for women, particularly those who choose to leave the external workforce to devote themselves to caring for their babies as they grow into mature human beings.

3. Is marriage really all about the children? Don’t children of same sex marriages do just fine?

That the goals of marriage included the protection and nurture of children in stable families has never been seriously doubted until very recently. In an important article, “Same-Sex Marriage and the ‘Reconceiving’ of Children”, (2014) 64/3 Case Western Reserve Law Review,  829-862 (at SSRN: http://ssrn.com/abstract=2532544 ) Professor Helen Alvares from the George Mason University School of Law notes that the US Supreme Court, and other courts in that country, regularly referred to these issues in ruling on marriage questions. She reviews a number of decisions from the 19th century onwards, concluding with a more recent one:

[In] Parham v. J.R. 442 U.S. 584 (1979), a case about parents’ rights to direct their children’s health care, (see 587) the Court stated that “[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.” (at 602)

Similarly, in Australia, when the High Court of Australia was considering the validity of certain provisions of the then-newly-minted Marriage Act 1961 (Cth), Windeyer J commented in AG (Vic) v Commonwealth (1962) 107 CLR 529 (the Marriage Act case):

the Commonwealth power would extend to matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony. (at 580, emphasis added)

His Honour goes on (at 580- 581):

The procreation and upbringing of children is set down in the Prayer Book first among the causes for which matrimony was ordained. If an authority of a different kind be preferred, Voltaire’s Dictionnaire Philosophique (1764), in the article on canon law, said: Le mariage dans l’ordre civil est une union legitime de l’homme et de la femme, pour avoir des enfans, pour les clever, et pour leur assurer les droits des proprietes, l’autoritc de la loi. (Roughly, “Marriage under the civil regime is the legal union of the man and the woman, for having children, for assuring their property rights with authority of Law”). And Puffendorf said that “the natural and regular end of marriage is the obtaining of children whom we may, with certainty, call our own”: Law of Nature & Nations vi, I, 15.

If the nurture of children is an essential part of the institution of marriage, then how can this element be present in a same sex marriage? The response of those agitating for change of the law is that children must just be provided! They can be adopted; technology can be used to allow a surrogate mother to bear a child of one of the parties; or, as more commonly happens, a gay or lesbian couple may be raising a child who was born to one of the parties in a previous heterosexual relationship.

Will children raised in a same sex marriage suffer any ill effects? There is evidence pointing in both directions here, which is highly contested. But as I read some recent studies, there is solid, peer-reviewed data showing that overall children do best when they are raised in a stable married family with a husband and wife who are the children’s biological parents. (And part of this study shows that earlier, contrary findings are often based on small, self-selecting samples.) Of course there are many exceptions to the general rule, heroic single parents and hard working same sex couples who provide fine care for their children. But when the research shows that other models are not ideal, one has to ask how we are justified, keeping the interests of children in account, in conducting what will amount to a decades-long “social experiment” when the preliminary data is not encouraging.

Indeed, it has to be said that in Australia we have already seen what happens when children are deliberately removed from their biological parents (as will have to happen for same sex couples to “have” children), in the interests of a public policy agenda. These days we call it the “Stolen Generations”. Already there is clear evidence that children brought into families through artificial insemination, embryo donation, and other techniques are, like a previous generation of adopted children where no records were kept, experiencing the pain of being cut off from their biological heritage. At least with those earlier social structures we thought that we were doing these things in the interests of the children, however misguided we were. But the current social experiment seems to be being conducted mainly in the interests of same sex couples, in some situations partly to fulfil a social expectation that a same sex marriage “ought to” have children so that it resembles a traditional heterosexual marriage.

4. But how will my same sex marriage have any impact on your traditional marriage? Can’t we all live and let live?

As noted previously, what is at stake is a radical redefinition of the whole institution of marriage. Most of the five characteristics traditionally thought to characterise marriage will be taken away. This, it should be noted, is not simply about the removal of children as a major goal of marriage (and incidentally the further downplaying of wider family involvement) and the change to a homosexual couple. It has to be conceded that very few homosexual relationships are long-lasting or intended to be “monogamous”. Research shows that there is an expectation in the homosexual community of a number of sexual partners. Once sexual fidelity and the intention to create a life-long partnership are removed, along with the possibility of children who are biologically related to both partners- the word “marriage” is reduced to little more than a shell. What remains is a celebration and authorisation of sexual relationship.

The analogy is not perfect but perhaps it will do. If I obtain a University degree from the University of Woop Woop, and some years later that University, in a desperate quest for cash, dumbs down all its courses so that its degrees may as well come from a Weetbix box- then the value of my degree is also diminished. My proud claim to be a Woop Woop alumni is now not heard so much. To come back to marriage, once the law is used to support an institution which we now all know has nothing essentially to do with encouraging the nurture of children, or faithfulness in sexual relationships to one partner, or a lifelong commitment: all marriages are seen to lack these characteristics.

One would be more prepared to accept that “live and let live” would work if it was in evidence in other jurisdictions around the world where same sex marriage had already been introduced. But in fact one of the serious challenges to religious freedom that is developing in the West (there are much more serious elsewhere, of course, but the West is where many of us are), is the fact that once a jurisdiction has authorised same sex marriage, it becomes increasingly difficult for believers to be a part of public life. A teacher at a school, a public servant, even those who are part of the “wedding industries” such as flower sellers and photographers and bakers- all may be required to put aside their serious moral objections to homosexual behaviour in the interests of avoiding “sexual orientation discrimination”, and to not be heard to suggest that same sex marriage is in any way different to traditional marriage. (Nor will they be allowed, in many cases, to respond that their objection is not to the persons, but to their behaviour.)

Summary

This post is far too long, and it has not scratched the surface of what can be said as rational reasons for opposing a change of the law to allow “same sex marriage”. Reasons stem from, among other things, views about the fundamental purposes of marriage, the interests of children being raised in same sex relationships, and the impact of the move on religious freedom. For further reading on this topic let me recommend some other sources:

This is a debate that will continue for some time. Don’t cut it off by assuming those you disagree with are simply irrational.