High Court upholds rejection of inter-state vilification orders

In a Federation like Australia, different jurisdictions (States and Territories) may have different rules on what amounts to “discrimination” or “vilification”, and how those things interact with religious freedom. One of the pressing issues here in recent years has been whether there will be a “race to the bottom” in freedom of speech on religious issues, with one jurisdiction in particular, Tasmania, raising deep concerns with a very broad prohibition on causing “offence” related to matters such as sexual orientation.

Today the High Court of Australia, on appeal from NSW, has affirmed the decision of the NSW Court of Appeal that State and Territory “tribunals” (non-judicial panels usually used in discrimination issues) have no jurisdiction to impose penalties on residents of other Australian jurisdictions under their own local laws. The important decision in Burns v Corbett [2018] HCA 15 (18 April 2018) (court-prepared summary available here) is a good outcome, and at the very least will force Australian jurisdictions to consider very carefully whether they want their local law to apply in other parts of the country. If they do, they will be required to give jurisdiction in those cases to their courts, rather than to lower tribunals.

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Same sex marriage implications for Christian health professionals

I am presenting a paper on this topic this evening to a group of Christian health professionals in Newcastle. The paper may be downloaded here: Same Sex Marriage and Christian Health Professionals. The PowerPoint slides are also available: Foster RF for Health Professionals presentation.

Anglican cleric disciplined for entering same sex marriage

The recent decision of the England and Wales Court of Appeal in Pemberton v Inwood [2018] EWCA Civ 564 (22 March 2018) upholds what was in effect disciplinary action taken against a Church of England clergyman, the Reverend Canon Jeremy Pemberton, on account of his entering into a same-sex marriage. The decision is a sensible one which upholds the religious freedom of the Anglican church to operate in accordance with its fundamental religious beliefs.

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“Irrational and illogical” to believe that sexual orientation can never change: Federal judge

A judge of the Federal Court of Australia, Justice Jagot, handed down a decision recently in which her Honour said that a Tribunal’s reasoning, based on the assumption that a person could never change their sexual orientation, was “affected by illogicality of the kind required to constitute jurisdictional error”- para [15]. The decision, in Abboud v Minister for Immigration and Border Protection [2018] FCA 185 (2 March 2018), was a sharp reminder that bureaucratic decisions must be based on evidence and not pre-conceived policy stances. The comments may have wider implications for arguments that are often unthinkingly presented about the possibility of someone changing their sexual orientation.

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Declining to make a same sex wedding cake is not discriminatory

A recent decision by a California Superior Court Judge holds that a bakery cannot be required by discrimination law to make a same sex wedding cake, where the owner has a religious reason for declining to do so. In Department of Fair Employment and Housing v Cathy’s Creations Inc (Cal Sup Ct, Kern Cty; BCV-17-102855; Lampe J, 5 Feb 2018) Judge Lampe refused an injunction against Cathy Miller, proprietor of Tastries Bakery, which would have required her to create a wedding cake for the same sex wedding of Mireya and Eileen Rodriguez-Del Rio. The basis for the decision was the free speech clause of the First Amendment to the US Constitution, the judge holding that creating a wedding cake was a constitutionally protected form of “free speech”.

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Large fine for refusing to supply same sex wedding cake upheld in Oregon

There have been a number of “wedding industry” religious freedom cases arising in the United States and the UK over the last few years. On 28 December 2017 the Oregon Court of Appeals, in Klein v. Oregon Bureau of Labor and Industries (CA Or; Dec 28, 2017, — P.3d —-, 2017 WL 6613356; 289 Or App 507 (2017)upheld a $135,000 fine levied on the Kleins, wedding cake makers, for declining to make a cake for the wedding of Rachel and Laurel Bowmen-Cryer. The case is another example of religious freedom (and, arguably, freedom of speech) being over-ridden in the name of “dignitary harm” to same-sex couples. It is a good example of the issues being presented to the current Ruddock Inquiry into Religious Freedom being conducted in Australia at the moment.

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Religious groups and employment of staff

Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?

These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved. 

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