Protecting religious freedom after “Yes”

Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)

I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.

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Printing T-Shirts and Religious Freedom

In an encouraging development, the Kentucky Court of Appeals has affirmed a lower court decision that the action of a Christian small business owner, in declining to print a T-shirt celebrating “Gay Pride”, is not unlawful. This case is one of a number that have raised issues about the freedom of those with religious convictions that homosexual behaviour is wrong, to decline to provide services in support of the opposite view. It is a significant decision which may influence the course of similar cases elsewhere. 

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Flowers and Freedom: the Arlene’s appeal in Washington State

Barronelle Stutzman, who runs a florist’s business in Washington State in the USA, has just lost another appeal in court proceedings based on her decision to decline to prepare floral arrangements for a same-sex wedding. In State of Washington v Arlene’s Flowers Inc and Stutzman, (Wash SC, En Banc, No 91615-2; 16 Feb 2017) the 9 members of the Washington Supreme Court upheld an earlier order that she pay damages and also the costs of her opponents, likely to run into hundreds of thousands of dollars. (Note that, of course, this is not a decision of the final court of appeals, the US Supreme Court; whether or not there is an appeal to that court remains to be seen.)

You can see Ms Stutzman speak about the circumstances in a video here. In short, she had catered for one member of the couple by supplying flowers for him for many years, knowing he was gay. But it was only when he asked her to devote her artistic talents to the celebration of a same-sex marriage, a union she saw as contrary to God’s will according to her Christian faith, that she politely declined. She was then sued both by the State of Washington (under the Washington Law Against Discrimination, WLAD, which includes “sexual orientation” as a prohibited ground of discrimination), and in separate proceedings by the couple themselves.

The Arlene’s case is only one of a number of examples of cases involving participants in what might be called the “wedding support industry,” who have been sued for sexual orientation discrimination after declining to devote their skills to the celebration of a homosexual marriage relationship. (I have mentioned this specific case in a previous blog post here, and other cases here.) I dealt with a number of the issues in my article on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5/3 Oxford Journal of Law and Religion 385-430. Following the approach taken in that article, I want to analysis this most recent decision under the headings:

  1. Is this sexual orientation discrimination?
  2. If so, is there or should there be some “balancing clause” applicable to recognise religious freedom?

I will then turn to briefly discuss the policy issues that arise in these cases, and address the fear that recognition of religious freedom here would lead to serious impairment of other rights and freedoms.

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Australian inter-State vilification orders overturned

In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.

While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.

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Why proposed same-sex marriage balancing clauses would be constitutional and right

Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)

While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.

I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.

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Update on 2016 Law and Religion issues and preview for 2017

It seems a good time of the year to take stock of the current status of some important Law and Religion issues discussed this year, and to flag some upcoming issues for the New Year.

A. Same Sex Marriage

1. Making the change in Australia?

As previously noted, the Government’s foreshadowed plebiscite on whether marriage should be redefined to extend the status to same-sex couples will probably not be going ahead, given the legislation was defeated in the Senate. Someone living under a rock for a year or so, reading that comment, might have supposed that this meant there was a “conservative” majority in the Upper House which was opposed to the change. Of course the opposite is ironically the case; the generally conservative Liberal/National Coalition were putting forward the plebiscite as a way of achieving the change (a change supported by the current Prime Minister and other Cabinet ministers), but the legislation was defeated by an informal coalition of “progressive” parties and independents who would also like to see the change made, but seem to fear that the majority of the Australian people might not agree with them. (To be fair, the stated reason for opposition was the impact of the plebiscite on same sex attracted persons. There is a lot of debate about whether such an impact was likely, given, for example, positive comments about the referendum on the same matter in Ireland.)

Their strategy now is to seek in 2017 to somehow put pressure on the Government to allow a “conscience” vote on the matter in the Parliament. Again, this is full of irony. The major opposition party, the ALP, has in fact formally ruled out a “conscience” vote on the issue for their own members after the next election, one of whom at least has been forced to resign over the matter. But they are in favour of a conscience vote for their political opponents, banking on the fact that enough of them disagree with their party’s current policy to provide a majority in both the lower and upper Houses of Parliament.

The major problem with this strategy is that the current Government were elected, and in particular it seems clear that the current Prime Minister was elected as leader by his party, on the basis that the only way the reform could be made was if it were supported at a plebiscite of the Australian public. Unless some individual MP’s could be persuaded to break with the party and cross the floor, it seems unlikely that the current Government will support a mere Parliamentary vote.

Where this leaves the issue at the next election is still unclear. Will the Government change its platform? Its majority at the moment is wafer-thin, and it might be thought that there are a number of sitting members who are both popular enough in their electorates to win even without party endorsement, and passionately opposed to changing the traditional meaning of marriage, to make any attempt to change policy on the issue very dangerous. Of course it seems that if the ALP wins office the change would be made- but again, the Australian electorate (consciously or not) tends to not give their Governments a Senate majority, and so there could be no guarantees that an ALP government could get same sex marriage legislation through the Senate. All in all, interesting times.

2. Protecting Religious Freedom if there is a change

Should same sex marriage be introduced, one of the major concerns of religious groups and individual believers is whether religious freedom in this area will be protected. I have summarised many of these issues in a paper delivered earlier this year (and you can even watch a video of the presentation should you now be over being “entertained” by Christmas fare!) In short, there are some protections for religious freedom provided in the draft amending legislation which was intended to be presented if the plebiscite had succeeded. But in my view the protections in the draft Bill did not go far enough.

In fact, for those who are interested in this area, the Senate before breaking up this year for Christmas appointed a Select Committee to look into the Bill: the “Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill“. It invites submissions on the Bill by the very tight deadline of 13 January 2017. I encourage folk to have a look and see if there are things they want to draw to the attention of the Committee. (I have made a submission already; the general matters raised were similar to those I mentioned in my previous blog post on the draft legislation.)

One of the areas where there will be continued debate on the issues is the ability of ordinary believers in the “wedding industry” to decline to offer services in support of same sex ceremonies. I mention the current status of a couple of these cases overseas below. While I feel I have said this many times before, since those who distort the motives of believers involved in this case continue to do so, it bears repeating: the people involved in these cases are not arguing for a general right to deny all services to same sex attracted persons! They are simply saying that, when they are asked to engage their creative skills in a specific way, in celebration of a same sex relationship which their religion tells them is contrary to God’s will, they cannot do so. That is an area which will continue to be contested.

3. Wedding Industry cases

On this blog I have previously mentioned a number of cases where believers have been sued and required to pay damages, or undergo “training”, because they have declined to provide services for a same sex ceremony. Three of those cases are still before the courts at a high level and further proceedings are likely in 2017.

(a) The Ashers “Gay Cake” case

I discussed the latest substantive court proceedings (in October) in this case, where Belfast bakers have been penalised for not providing a cake with a motto and picture in support of same sex marriage, previously. After the Northern Ireland Court of Appeal upheld an order for damages imposed on the bakers (and note that no actual wedding was involved, this cake was simply requested for a political event urging that the law be changed!), that court on 21 dec 2016 formally denied an application for leave to appeal to the UK Supreme Court. However, the Ashers still have a right to make their own application for leave to appeal, direct to the Supreme Court, and they have indicated that they will be doing so in the New Year.

My take is that the Supreme Court, if it grants leave to appeal, may well overturn the decisions of the Northern Irish courts. The many press articles, even from normally “progressive” outlets, decrying the decision illustrate that many people feel that this is a case where free speech is being attacked without the justification of it causing specific emotional or other harm to a couple planning to be married. The fact that the decision was even challenged by the Northern Ireland Attorney-General demonstrates this as well. Still, there is always some uncertainty in this area, so it will be very interesting to see the outcome.

(b) The “Hands On Originals” Gay T-shirt case

A decision from the US which was handed down some time ago concerns similar issues. 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 T-shirt printer was found to be entitled to decline to support a message of “Gay Pride” (see my previous comment in “Cakes, t-shirts and religious freedom- an update“, April 28, 2015). This was one of the few such cases in the US where the religious freedom of the service provider had been protected; again, like the Ashers case, it did not involve an actual same sex ceremony, so was more clearly a case of free speech being challenged with a failure to support a popular cause.

Despite the length of time since the original decision, an appeal against this decision was heard on Dec 13, 2016 before the Kentucky Court of Appeals- see here for the excellent resource centre on the case supplied by ADF, the attorneys acting for the small business. This local news report suggests that the appeal decision may be handed down within 90 days.

(c) The Masterpiece cake case

In Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015] the Colorado Court of Appeals upheld the decision of a lower tribunal to impose a penalty on Jack Phillips, owner of Masterpiece Cakeshop, for declining to produce a cake for a same sex commitment ceremony. To quote the ADF summary:

That decision ordered Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations. The decision also ordered Phillips to comply with Colorado’s Anti-Discrimination Act by re-educating his staff and filing quarterly “compliance” reports for two years.

After the Colorado Supreme Court by majority refused to accept an application for leave to appeal, a petition for a “writ of certiorari” (request for leave to appeal) was filed with the US Supreme Court on 22 July 2016. The petition has not yet been heard, and this may mean that it will need to be dealt with by the Supreme Court after the next appointment is made by the incoming Trump administration. The latest information from a key Supreme Court tracking blog indicates that the case might be discussed at a “conference” considering pending petitions on Jan 6, 2017, but it seems very unlikely that it will be disposed of before the new administration takes over. Who will be the 9th Justice appointed to replace Scalia J, of course, is unknown, but it seems likely that it will be a “conservative”, and hence there may be a majority on the Court to at least give the appeal a hearing.

B. Religious Freedom generally

Protection of religious freedom, of course, is a much broader issue than what may flow from recognition of same sex marriage. Here I just mention briefly some updates on previous matters, and another Parliamentary inquiry.

1. Updates on transgender rights issues

In my earlier blog, “Bathrooms and discrimination” (April 24, 2016) I mentioned that the State of North Carolina had generated controversy by passing legislation, generally called “HB2” (officially the Public Facilities Privacy & Security Act (“PFPSA”)), specifying that in multiple occupancy public bathrooms only those whose birth certificated indicated they were male, could use male bathrooms, and only those whose birth certificates indicated they were female, could use female bathrooms. This legislation was in response to an ordinance passed by the city council of Charlotte, the capital, which required all bathrooms to be available, apparently,  to all genders. In particular it was seen as allowing those who “identify” as a gender opposite to their biological sex to use the bathroom set apart for that gender, regardless of whether they had undergone surgical or other treatments to allow their birth certificate to be changed. (While many may object to these laws, in particular these sort of laws raise long-term religious freedom issues for believers in religious traditions such as Christianity, which clearly states that male and female are exclusive categories and should not be confused.)

In recent days, after an election which saw a Democrat Governor take office in North Carolina, there were negotiations between the city council and the State legislature after which a deal seems to have been reached that the city would repeal the relevant changes to its ordinance, and the State would repeal HB2. However, recent press reports suggest that while the city has repealed its ordinance, the legislature in a special session leading up to Christmas could not agree to repeal the Act: see “HB2 Stays: North Carolina Lawmakers Decline to Repeal Controversial Anti-LGBTQ ‘Bathroom’ Bill” (Dec 21, 2016). Clearly the debates will continue- there seems to be some indication that the repeal of the city ordinance was conditional on the legislation being repealed by Dec 31, so the whole debate may be re-ignited in the New Year.

In that earlier blog post I also mentioned litigation, G G v Gloucester County School Board, in which an injunction had been granted to require a local school to allow a student born biologically female, who now identified as male, to use the boy’s bathroom (see this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016). However, on August 3, 2016 the US Supreme Court issued a “stay” order halting the implementation of the lower court’s injunction while a petition for certiorari (application for leave to appeal) is being considered. This slightly unusual step suggests that at least four of the current 8 Justices consider the appeal to have merit. The current schedule for hearings means, as noted at the Supreme Court monitor “SCOTUSblog”, that the application for certiorari may not now be heard until March or April ( “increasing the chances that a ninth justice may have taken the bench by the time the case is argued.”) In addition, since the case revolves around an interpretation of a statute provided by an Obama administration official, the arrival of the new administration on January 20 may see that interpretation changed, and the matter may then need to be referred back to the lower courts to account for the change.

Clearly the question of transgender rights is going to continue to be a major issue in the coming year, in the US, the UK and in Australia. For those who are interested in some resources which outline the issues and present important scientific information challenging some of the common popular assumptions about this area, I recommend the following for further reading:

  • for Australia, where the so-called “safe schools” program continues to generate controversy, an important paper by Professor Patrick Parkinson from Sydney Law School reviews the literature: see “The Controversy over the Safe Schools Program – Finding the Sensible Centre” (September 14, 2016). Sydney Law School Research Paper No. 16/83. Available at SSRN: or
  • from the UK, a recent paper from the Christian Institute helpfully outlines many of the issues: see “Transsexualism” (2016), with a link at the end to supporting literature;
  • released earlier in the year, this lengthy study from the journal New Atlantis (Fall, 2016) “Sexuality and Gender: Findings from the Biological, Psychological and Social Sciences“, by Dr Lawrence S Meyer and Dr Paul R McHugh, is a goldmine of a literature review on the area. From the summary: “this report shows that some of the most frequently heard claims about sexuality and gender are not supported by scientific evidence. The report has a special focus on the higher rates of mental health problems among LGBT populations, and it questions the scientific basis of trends in the treatment of children who do not identify with their biological sex. More effort is called for to provide these people with the understanding, care, and support they need to lead healthy, flourishing lives.”
  • and from Australia again, an important paper by Professor John Whitehall from Western Sydney University: “Gender Dysphoria and Surgical Abuse” Quadrant (Dec 2016).

2. Another important Parliamentary Inquiry

Finally, worth noting that the Federal Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade is conducting a summer inquiry, “Inquiry into the status of the human right to freedom of religion or belief“. The terms of reference are very broad:

The Committee shall examine the status of the freedom of religion or belief (as recognised in Article 18 of the International Covenant on Civil and Political Rights) around the world, including in Australia. The Committee shall have particular regard to:

  1. The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses;
  2. Action taken by governments, international organisations, national human rights institutions, and non-government organisations to protect the freedom of religion or belief, promote religious tolerance, and prevent violations or abuses of this right;
  3. The relationship between the freedom of religion or belief and other human rights, and the implications of constraints on the freedom of religion or belief for the enjoyment of other universal human rights;
  4. Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.

The inquiry should have regard to developments since the Committee last reported on Australia’s efforts to promote and protect freedom of religion or belief in November 2000.

The nature of the Committee, and aspects of the terms of reference, suggest that overseas developments are its main focus. However, it also includes Australia as part of its remit. These are important topics, and again there is a tight deadline for submissions to close, on Friday, 10 February 2017. I will be aiming to put in a submission, and I encourage others to do so as well.

Well, this “brief” review has already been too long, so I will finish there and wish all those who read all the best for the New Year, when it looks like there will continue to be lots of material on Law and Religion to talk about!

Three controversial Victorian bills defeated

A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law. 

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