Sexual orientation discrimination

neilfoster

Homosexuality and “hate speech”

Simply expressing opposition to homosexuality from a religious perspective, not accompanied by incitement to violence, should not be classified as unlawful “hate speech”.

The terrible events at the Pulse gay nightclub in Orlando, Florida, where 49 people were killed by a man claiming to act in the name of the so-called “Islamic State” group, have naturally generated much heated comment online and in the news media. As others have noted, this was almost a “perfect storm” of hot-button controversies in the world today: Islam, homosexuality and gun control being some of the main ones.

In this comment I want to narrow the focus to the issues surrounding speech, and to consider how in the light of these events the law ought to deal with public comments about homosexuality. One of the reasons for this is that it has been suggested that part of the background to these events were previous comments made by Farrokh Sekaleshfar, a senior Shi’ite Muslim scholar who had visited Orlando in March, to the effect that homosexuality was a moral offence which warranted the death penalty. (It should be noted that while Mr Sekaleshfar had indeed made these comments, the recording in question dated back to 2013 on a different occasion, and there seems no suggestion that he actually said anything on the topic in his Orlando visit.)

And oddly enough there was then a direct connection with Australia- Mr Sekaleshfar was at the time of the Orlando events giving lectures at an Islamic centre in Australia. The Sydney Morning Herald reported:

Mr Sekaleshfar said in a lecture in Michigan in 2013 that in an Islamic society, the death penalty should be carried out for homosexuals who engaged in sodomy.

There was then some suggestion that Mr Sekaleshfar’s visa would be revoked on account of his comments, a course that in the end proved unnecessary when he voluntarily returned to the UK. It should be noted that the report also mentions that:

Mr Sekaleshfar told Reuters on Monday he condemned the Orlando shooting as a “barbaric act of terror that was in no way justified”.

The question of Muslim views on homosexuality hit the headlines in Australia again shortly afterwards. The Prime Minister, Malcolm Turnbull, hosted an “iftar” dinner (a traditional event held at the end of a day of fasting in Ramadan) for a number of leaders of the Muslim community at Kirribilli House, the official Prime Ministerial residence in Sydney. As reported by The Australian (June 17, 2016):

Four days after 49 people were shot dead in a gay nightclub in Orlando by Islamic State supporter Omar Mateen, Sheik Shady Alsuleiman was among dozens of Muslim leaders invited to the first ever Iftar — the evening meal at which Muslims end their daily fast during the holy month of Ramadan — to be staged by an Australian prime minister.

Sheik Alsuleiman, who was elected president of the Australian National Imams Council last year, arrived at Mr Turnbull’s Iftar dinner alongside Grand Mufti Ibrahim Abu Mohammad.

“What’s the most common disease these days?” he said in a sermon uploaded in YouTube in 2013. “HIV, Aids, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming.”

He said it was “homosexuality that’s spreading all these diseases”.

The article goes on to note that other Muslim leaders present at the meal said that homosexuality was a sin under Islam, “but it does not mean go kill them”.

In a more recent report in The Australian (June 18, 2016) other Muslim leaders re-affirmed that the death penalty was appropriate for homosexuality under Islam.

Imam Yusuf Peer, the chairman of the Council of Imams Queensland, who is a member of the national peak body, told The Weekend Australian yesterday that it was “not permissible” to be gay and Muslim.

“But we do not have a problem with the people themselves, just the act and ideology,” Imam Peer said. “But this is what the sharia law says and we have to follow that. There is no way around that. When we are talking about gays, we have to be confident (they are gay) and there must be a lot of ­investigating.”

When asked if sharia ­required death, Imam Peer said: “Yes.”

Imam Peer said because a “proper process” involving “committees” applied, it prevented the “random bashing and killing” of homosexuals: “Nobody can implement Islam­ic sharia on their own. There is a procedure, there is arbitration, there is a committee.”

Building on these events, the Opposition Leader Bill Shorten was reported in an online debate as using these comments as an example of “hate speech” likely to be encouraged by the plebiscite on same sex marriage promised by the Coalition Government to happen after the next election.

Opposition Leader Bill Shorten has linked the planned plebiscite on same-sex marriage to the Orlando massacre and the murder of British MP Jo Cox, suggesting the campaign could “give haters the chance to come out from under the rock”.

In the midst of this hyperbole, it might be worth reminding ourselves of some facts about homosexuality, religious perspectives, and the idea of “hate speech”. I’d like to offer five propositions, and comment on them briefly:

1. Homosexual behaviour is seen as immoral by some religions

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

4. There is “hate speech” which ought to be made illegal

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

1. Homosexual behaviour is seen as immoral by some religions

Mainstream religions around the world have long regarded same sex intercourse as contrary to their religious beliefs. In Islam, the primary source, the Qur’an, Sura 7:81 explicitly condemns homosexual behaviour. This article and this one link to other more detailed comment in the Hadith and other sources which make this quite clear.

In Christianity the prohibition on homosexuality is found in the Old Testament in Leviticus 20:13 (and 18:22), and is repeated in the New Testament in Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10. In the Lev 20 verse, the death penalty is laid down for those who engage in same sex relations.

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

However, modern believers in both Christianity and Islam do not intend to say that they “hate” someone when they report that the person’s behaviour is immoral. Indeed, as far as Christianity is concerned, the fact that someone has rebelled against God and is hence a “sinner”, is a fact that is said to be true of all human beings (see e.g. Romans 6:23). Christians are urged to do good to all, including sinners (since all fall into that category!) And the best known verse in the Bible, John 3:16, reports that God “so loved the world” that he sent his Son Jesus to die for its salvation.

So a judgement, on the basis of revealed truth, that behaviour is wrong does not on its own imply “hatred” for someone else.

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

However, it does have to be said that Islam as a religion finds it more problematic to speak of behaviour which is immoral, and not at the same time illegal.

Christianity has a long history of recognising that wrongful behaviour may not need to be punished as such by the State. Indeed, there is a crucial truth about the relationship between Christianity and the laws of the Old Testament that must not be forgotten in these debates.

The simple fact that there is an “Old” Testament (comprised of the Hebrew Bible) and a “New” Testament signals something very important about Christianity. Without exploring the complexities of the debates here, broadly speaking Christians believe that the arrival of Jesus Christ as the promised Messiah of Israel saw a radical change in the way that God related to humanity. In the Old Testament the people of Israel were designed to live both as a political entity and a religious entity, a body politic with laws and punishments and authority structures mostly centred on the area of land known as Canaan or Palestine. With the arrival of Jesus, however, it became clear that the laws which had governed the political State of Israel were no longer applicable to the new people of God, who were now defined as those who had put their faith in Jesus as Lord.

This apparently arcane religious debate has massive ramifications for the way that the Old Testament laws are treated today by Christians. While there have been debates and alternative views taken over the centuries, the mainstream Christian view has been that the laws of a modern political entity do not need to replicate the laws applicable to Old Testament Israel. Jesus, for example, in a startling passage of teaching, told his disciples that all foods were clean (see Mark 7:19), overturning all the OT teaching on clean and unclean foods. He told his disciples that there were certain matters that were the province of “Caesar” (the secular government) and where their rules should be respected- see Matthew 22:21. The apostle Paul taught that Christians were not “under the law” (Galatians 5:18).

Hence no mainstream modern Christians believe that the death penalty ought to be applied by the State for all sinful behaviour prohibited in the Bible, even if that penalty had been imposed by the Old Testament. All Christians believe that some OT ceremonial laws are not applicable at all today; most believe that the moral principles spelled out in OT laws are still applicable but the legal penalties are not. This is not simply a “let’s pick the ones we like and ignore the others” policy, it is a result of detailed unpacking over many centuries of the clear teaching of the New Testament. (See also this recent comment refuting the suggestion that Paul’s letter to the Romans calls for the civil death penalty for homosexuals.) So while the famous episode in the “West Wing” where President Bartlett attacks a “conservative” for opposing homosexual behaviour but not executing children for disobedience may have made amusing TV, it bears no connection to the reality of arguments made on this point by religious conservatives.

Islam, however, tends to have a strong mainstream strand which sees it as a religious duty to work towards the application of Islamic religious (sharia) law to the whole community. Christian philosopher Richard Shumack, in an important work discussing fundamental differences between Christianity and Islam, The Wisdom of Islam and the Foolishness of Christianity (2014) quotes an influential Muslim thinker, Abul Ala Maududi, who says:

The chief characteristic of Islam is that it makes no distinction between the spiritual and the secular in life. Its aim is to shape both individual lives as well as society as a whole in ways that will ensure that the Kingdom of Allah may really be established on earth and that peace, contentment and well-being may fill the world. (from Shumack, p 197, quoting Maududi, “The Islamic Concept of Life.”)

This explains why serious Muslim speakers will continue to argue that the death penalty is an appropriate penalty for homosexuality in certain circumstances- in particular, in a society which has committed itself to full implementation of sharia law. In an ABC TV interview with Farrokh Sekaleshfar before leaving Australia, he explains the remarks for which he has been attacked as being made in an academic discussion of this sort, about a theoretical society where sharia law is implemented, and in relation to a “public” act of homosexual sex.

However, even in the case of Islam is just not true to say that mainstream Islamic teaching requires the death of homosexuals in a Western country. The view that homosexuality is wrong, even the view that in an Islamic society it ought to be punished, may be, and indeed is, offensive to many. But should someone who holds such a view be punished for saying so?

4. There is “hate speech” which ought to be made illegal

There has been a long debate about the validity of laws which forbid so-called “hate speech”. But before we discuss this issue it seems a good idea to define this term. What is it?

Perhaps in popular terms it means “speech which is motivated by the speaker’s hate”. But this is not the way that the term is usually used in legal contexts. The appropriate definition of “hate speech” has to do with its effect on the hearer, not the subjective motivation of the speaker. “Hate speech”, in broad terms, means speech that incites the listeners to “hate” a person or group of people who are the topic of the speech.

One example can be seen in the NSW Anti-Discrimination Act 1977, s 49ZT, which makes it unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of homosexuality. There are various defences that apply to this provision in the interests of free speech. Under s 49ZTA, however, where this incitement is accompanied by a threat of physical violence, or by incitement of others to such violence, then it is a criminal offence and those defences do not apply. These seem to be appropriate laws.

In a previous post discussing the related (though not identical) issues of “religious vilification laws”, I commented as follows:

I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society

So, I think there is a legitimate place for laws prohibiting the incitement of violence against same sex attracted persons.

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

But- not all comments conveying disapproval of homosexual behaviour fall into this category. I have posted before about the unwise nature of laws that prohibit mere “offence”, and supported a proposal to make it clear that open debate on the merits of same sex marriage should never of itself be grounds for legal complaints about “hate speech”. (See “Protecting free speech in the Same Sex Marriage Plebiscite debate” and a follow-up post here.)

In short, the value of free speech as both a fundamental human right and a tool for making sure all views are heard in the search for truth, means that we ought not to use the law to shut down the views of others who are “causing offence,” if that is all they are doing.

Of course, as noted above, I support making unlawful (as they already are) calls for direct violence against same sex attracted persons. But, to draw a line that is foreshadowed above, I do not think such a call is heard when a Muslim scholar suggests what law should be applied in a society governed by sharia law, while acknowledging that Australia is currently not such a society.

Of course, as a Christian I regard such a prospect (an Australia governed by sharia law) as bad, and will argue whenever I have the opportunity to do so that such should not happen. As a Christian I will argue with Muslim scholars that their views on this issue are wrong. But I do not think that expression of these views (outside the context of a call for direct violent action) should be shut down by the legal system. For one thing, I want Australians to be fully aware that Muslims believe this, when considering whether or not to adopt Islam as a religion. I do not want these views hidden from view, but rather to be out in the open where they can be critiqued and challenged.

If there is to be an ongoing and fruitful dialogue with genuine representatives of the Muslim community by leaders in government, it would be unhelpful to draw lines too sharply as to who will, and who will not, be consulted. While the views noted above as being held by the Muslim representatives at the iftar dinner will be deeply offensive to many, they do not represent calls for active violence against same sex attracted persons. Those views may be challenged from many directions, from a shared commitment to diversity and tolerance in a liberal society, to a critique of Islam from other religious perspectives. But open discussion of such views needs to take place in a context where the law allows free speech which does not directly incite violence.

 

 

neilfoster

“Exemptions” in discrimination laws applying to churches

Australia is in the midst of a Federal election campaign at the moment (thankfully, one which will end on July 2, unlike the one being endured by our friends in the United States, which seems to stretch on interminably!) But law and religion has now emerged as one of the election issues.

This time the question is not about same-sex marriage (SSM), although the various parties’ views on that topic are well-known (at the moment, the Australian Labour Party (ALP) has promised to introduce SSM within 100 days if elected, and the Liberal-National Party Coalition, currently in power, has promised to put the matter to a plebiscite after the election if they are returned.) But the latest question has been raised by a minority, but increasingly influential, Greens Party, which has included as part of its election platform a promise to remove “religious exemptions to federal anti-discrimination law“.

At the moment the Opposition ALP (which is fairly closely aligned to the left-wing Greens on many points) has not made a similar promise, but has noted that it will

review the carve-outs in Australia’s anti-discrimination laws, with [Opposition Leader] Bill Shorten leaving open the door to removing further exemptions for religious institutions.

The official ALP electoral platform contains the following promise (in Chapter 9, on p 139):

196. Labor believes that no faith, no religion, no set of beliefs should ever be used as an instrument of division or exclusion, and condemning anyone, discriminating against anyone, vilifying anyone is a violation of the values we all share, a violation which can never be justified by anyone’s faith or belief. Accordingly, Labor will review national anti-discrimination laws to ensure that exemptions do not place Australians in a position where they cannot access essential social services.

In this post I want to briefly review what “exemptions” are being mentioned here, and argue that watering down or removing this provisions (these “balancing clauses”) would be unnecessary to achieve the ALP’s stated aims, and in general a bad idea.

Balancing Clauses in Discrimination Law

Since the current issue has arisen in a Federal election, I will mainly focus on Federal law (although the issues and their resolution are similar in most States and Territories.) In fact, the primary “exemptions” that the Greens and the ALP are referring to are those contained in one Act, the Sex Discrimination Act 1984 (Cth) (SDA). (Interestingly, there are few if any religious balancing clauses in the other Federal discrimination legislation, prohibiting discrimination on the basis of race, disability, and age. These have not been areas where mainstream religions have usually sought exemptions.)

Terminology

First, a question of terminology. What their opponents tend to call “exemptions” to discrimination law are, in my opinion, best described another way. To explain this I would like to quote some extracts from a paper I presented at a conference in Oxford in 2015:

 [R]eligious freedom is recognised in the International Covenant on Civil and Political Rights (art 18):

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his [or her] choice, and freedom, either individually or in community with others and in public or private, to manifest his [or her] religion or belief in worship, observance, practice and teaching.

While it is clear that the “internal dimension” of religious freedom is absolutely protected, it is equally clear that the “external dimension” of the freedom, that is, the freedom to manifest one’s religion and act on one’s religious beliefs, may be subject to limitations in certain circumstances. A fundamental feature of “rights” of any sort, of course, is that, where they are given to more than one person, there is the potential for conflict. Any “freedom” given to a person to do something, will usually involve a “duty” on another person’s part to allow them to do it, even if it interferes with some other freedom or right of that person. Whether it is appropriate for one person’s right to be protected over and above another person’s right or interest requires a consideration of how competing rights and interests are to be appropriately balanced. The need for limitations in certain circumstances on the right to externally manifest one’s religious belief and the need for freedom of religious freedom rights to be balanced with the rights and interests of others is reflected in the ICCPR (art 18(3)):

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The nature of any human rights system, then, is that it must allow the appropriate “balancing” of rights which may occasionally come into conflict. But there is under international law no “hierarchy” of the fundamental rights protected in the ICCPR, all are equal, including both the right to free exercise of religion, and the right not to be unlawfully discriminated against. So it is not helpful to speak of provisions designed to balance these rights as “exemptions” or “exceptions”. As I go on to say in the paper I mentioned above:

Rather than seeing these “defences” as concessions “wrung out” of a reluctant legislature by some powerful lobby group, as they are sometimes painted in the press, it seems to be a better analysis to see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.

Balancing provisions in the SDA

What, then, are the “balancing provisions” contained in the SDA? There is a good summary of these in the report of the Australian Law Reform Commission on “Traditional Rights and Freedoms”. In Chapter 5 the Commission sums up the relevant provisions in the SDA as follows:

5.80     Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:

  • s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;
  • s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’; and
  • s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.

These balancing clauses will operate to delimit the area of unlawful discrimination under the SDA, so that behaviour which falls within those provisions will not be unlawful.

The purpose of the various provisions is not spelled out in the legislation, but seems to be as follows:

  • The s 23(3)(b) provision for accommodation recognises the fact that certain religious bodies have a tradition of running single-sex colleges and residential institutions. They do so partly because they have a conviction, based on their religious beliefs, that sex between men and women outside the bond of marriage is wrong, and hence they provide single-sex accommodation to reduce the temptations to engage in wrongful sexual conduct.
    • (It is worth noting in passing that since amendments in 2013, s 23(3A) provides that the exemption of religious organisations in para 23(3)(b) “does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth-funded aged care”. Hence a religious aged care institution cannot choose to offer single sex residential accommodation, nor can they choose to decline to accept a couple who are living together but not married, or a same sex couple. It is fairly clear that these changes represented an attempt to undermine the general balancing clause provisions by focussing on a purported problem which, to be frank, does not seem to have actually been causing any issues. Still, this “exemption to balancing” provision is now there.)
  • The s 37 provision has mainly been seen as allowing the Roman Catholic Church, and those branches of other churches who read the Bible’s teaching on the point in this way, to decline to appoint women as priests or pastors over congregations. It would also have allowed a religious organisation to decline to appoint to a position of spiritual leadership an unmarried person in a “de facto” relationship (an action otherwise forbidden as “marital status” discrimination), again on the basis of the Bible’s prohibition of sex outside marriage. Since amendment of the SDA in 2013 to add “sexual orientation” and “gender identity” as protected grounds, it will allow a church to decline to appoint to such a position a person in a same sex sexual relationship (based on the Biblical teaching that homosexual activity is sinful), or someone who is of one biological identity but “identifies” as of another gender. (For a recent overview of why many Christians regard transgender identification as theologically problematic, see this piece by Russell Moore from the Ethics & Religious Liberty Commission of the US Southern Baptist Convention.)
    • (Note again that s 37(2) now qualifies this balancing clause in relation to “acts or practices” where the “act or practice is connected with the provision, by the body, of Commonwealth-funded aged care”. Since most of the examples given in the debate on this issue revolved around the provision of accommodation in aged care institutions, it is hard to know whether s 37(2) adds anything above s 23(3A).)
  • The s 38 provision specifically applies to religiously based private schools, and would allow such schools to decline to engage teachers or staff (either as employees or contractors) where doing so would cause injury to injury to “the religious susceptibilities of adherents of that religion or creed.” Putting aside the somewhat patronising reference to “susceptibilities”, which one may assume is intended to refer to religiously based conscientious objection, this would seem to allow a Roman Catholic school to decline to hire (or to fire) a teacher who was in a de facto relationship, a same sex relationship, or was actively pursuing a gender transition. Under s 38(3) the school would also be allowed to decline to accept an application for enrolment from a student in one of these situations. It would also, presumably, be entitled to insist that students conduct themselves in accordance with Roman Catholic moral standards in behaviour at the school.

Are these provisions justified?

Some will immediately say that the examples provided above show why these provisions should not be allowed to operate. Refusing to employ, or sacking, a teacher because of their private moral choices sounds discriminatory. So does allowing a church to decline to ordain women, or sexually active same sex attracted persons, or transgender persons.

But it seems to me that the provisions are justified on the basis of the strong religious freedom rights recognised in international law mentioned above. If we are concerned about “human rights”, we cannot pick and choose only the ones that make us feel comfortable. Indeed, it is the human rights that have become unpopular and applicable to minorities, which will require all the more careful protection.

Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.

As Paul Kelly has commented in The Australian (May 18, 2016)

The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.

The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.

Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.

Implications for the political platforms

From what I have said above, I clearly do not support the draconian demands of the Greens to remove all balancing clauses reflecting religious belief from sex discrimination legislation. Religious organisations ought to be able to choose who they appoint as leaders, and who will teach at schools they set up to pass on their religious world view to those who attend. As others have pointed out, the Greens should not be required to appoint someone who is a climate change sceptic as a research assistant or indeed a front desk receptionist. In this area they need to accept that religious beliefs can be just as strongly held, and passionately followed, as political beliefs.

The only area of plausibility that is lent to these claims is where the Government may have chosen to provide some essential social service to members of the public through a religious group, which may then decide to not make that available to a member of the public on the basis of a religious belief. But while this would present many problems, it has to be said that it seems to be a classic “straw man” argument. No homeless person has even been turned away from a religiously run shelter because they are homosexual. No transgender person caught in a natural disaster has ever been refused assistance by the Salvation Army on the basis of their “gender identity”. While religious organisations will naturally seek to employ staff that share the ethos of the group, they are not in the business of denying help to needy people.

For this reason, it seems that the ALP policy is already satisfied, and no change to the law is needed to meet their concerns about “essential social services” being provided.

Conclusion

Religious groups, motivated precisely by their deep commitment to transcendent values, regularly engage in service to the vulnerable members of the community. They establish schools to pass on their deeply held values and moral commitments to the next generation. They run hostels and accommodation designed to reflect the moral values of their members and supporters.

If our society makes it impossible for believers to undertake these activities, by demanding that they conform to the majority views on gender equality and the new sexual identity politics which requires “affirming” sexual choices that their religion says is wrong, then we run the risk of driving believers out of the public square altogether. In doing so we will be denying the fundamental human right of religious freedom, and also losing the value added to our community by believers who serve the needy.

neilfoster

Free speech and the plebiscite (part 2)

An article in today’s press, “Call to suspend hate laws ‘disgraceful’: Gillian Triggs” reports comments of the Australian Human Rights Commission President Gillian Triggs on proposals to protect free speech in the same sex marriage plebiscite, which I commented on yesterday. As a number of the points made in today’s article were not dealt with in yesterday’s blog, I thought it might be helpful to provide a response. Readers should of course read the previous post first, to get the proper context.

Continue reading

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Wedding Venue Owners Fined for Declining Same Sex Wedding

In the latest in what seems like a long series of religious freedom cases involving Christian small business owners in the “wedding industry”, a New York couple, the Giffords, have been fined $13,000 for declining to make their venue available for a same sex wedding ceremony, and a New York State appeal court has now upheld the verdict: see Gifford v McCarthy (NY Sup Ct Appellate Divn, 3rd Dept; 14 Jan 2016; matter no 520410) (the case is also referred to as Gifford v Erwin).

Facts of the case

The Giffords run Liberty Farm in Schaghticoke, Rensselaer County. A large barn has been used as a venue for weddings, where they provide all the services needed except a celebrant. As reported by the Gifford’s lawyers, Alliance Defending Freedom (ADF):

On Sept. 25, 2012, Melisa McCarthy called Cynthia, inquiring about the use of the farm for her upcoming same-sex ceremony. Because of her Christian faith’s teachings on marriage, Cynthia politely made it clear to McCarthy that she and her husband don’t host and coordinate same-sex ceremonies but left open the invitation to visit the farm to consider it as a potential reception site. Instead, McCarthy and her partner filed a complaint with the Division of Human Rights. After the agency ruled that the Giffords were guilty of “sexual orientation discrimination,” it fined them $10,000 plus $3,000 in damages and ordered them to implement re-education training classes designed to contradict the couple’s religious beliefs about marriage.

A New York statute, the Human Rights Law, declares it to be an “unlawful discriminatory practice” for any “owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the . . . sexual orientation . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof” (Executive Law § 296 [2] [a]).

Was the booking declined on the basis of sexual orientation?

The Giffords argued that they had not declined the booking “because of the sexual orientation” of the parties, but because as Christians they could not support the celebration of a same sex “marriage”, believing it to be contrary to God’s word in the Bible. In other words, their refusal was on the basis of the message of celebration that would be conveyed by the event, in which they would have to be intimately involved as hosts of the venue.

The ADF draw a helpful analogy to a different set of facts. As they note, the

law does not require the Giffords to coordinate or host every event that a person…requests. For example, if the infamous Westboro Baptist group asked the Giffords to host an event that would express their false message that God hates people in same-sex relationships, the Giffords would not be discriminating based on religion if they declined the event because they did not want to host expression that violates their belief that God loves everyone…. The statute does not require that they treat all messages equal.

Note that this case, like others of its nature, is not about a right to decline to provide services to gay people because of some form of unreasoned hatred. Instead, the question of whether a service provider whose work is essentially artistic and creative, should be required to use their skills to provide support for, and celebration of, a message that they find clashes with their deep religious commitments.

But the court rejected this argument. Peters PJ, with whom the other judges concurred, said (at pp 6-7):

Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected (see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of the Law v Martinez, 561 US 661, 689 [2010]; Lawrence v Texas, 539 US 558, 575 [2003]; Bob Jones Univ. v United States, 461 US 574, 605 [1983]). The act of entering into a same-sex marriage is “conduct that is inextricably tied to sexual orientation” and, for purposes of the Human Rights Law, we hold that there is “no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct of publicly committing to a person of the same sex” (Elane Photography, LLC v Willock, 309 P3d 53, 62 [Sup Ct NM 2013], cert denied ___ US ___, 134 S Ct 1787 [2014]; accord Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015]). Accordingly, petitioners discriminated on the basis of sexual orientation when they refused to host the McCarthys’ wedding on the premises. (emphasis added)

Readers of past blog posts here will recall some of these cases. In a general post on the “wedding industry” cases I mentioned the Elane Photography decision cited above, which was one of the first where a State Supreme Court upheld a ruling that a Christian wedding business (there a photographer) was guilty of sexual orientation discrimination by declining to offer their services to a same sex wedding. In that post I mentioned the decision in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015), involving a florist. The Masterpiece Cakeshop decision noted above involved refusal to create a wedding cake celebrating a same sex marriage, as did the decision in  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) mentioned in this post. Outside the US, in Northern Ireland the Ashers Bakery case mentioned in this post is still before the courts- an appeal is to be heard from February 3.

A common theme in all these decisions is the view that a decision not to provide artistic and creative support for a same sex wedding must amount to discrimination against the persons involved on the basis of their sexual orientation. This is a view which I have suggested is wrong, and in a previous post about an Australian decision, “Sexual orientation and sexual behaviour: can they be distinguished?” I noted that there is at least one court ruling that supports my view. In Bunning v Centacare[2015] FCCA 280 (11 February 2015) the judge commented at para [39] that

“sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

I have also noted previously one US decision recognising the difference, 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), where a T-shirt printer escaped liability for declining to print a shirt with a message supporting “gay pride”.

The forthcoming Ashers Bakery case may provide the best opportunity for a superior court to clearly distinguish between support for a “message” and discrimination against a person themselves; the cake in that case was not going to be used at a wedding, but simply as a political statement, and may provide a good chance for the appeal court to stress the distinction between these things.

A religious freedom defence?

To return to the Gifford decision, having found the act of declining to offer their premises amounted to sexual orientation discrimination, the court went on to consider whether the Giffords, whose reason for not wanting to make the premises available related to their religious commitments about the nature of marriage, could rely on a defence based on religious freedom.

Unfortunately the discussion of this point followed the pattern familiar from most of the previous decisions. A claim that the discrimination law amounted to a breach of the Gifford’s “free exercise of religion” guaranteed by the First Amendment to the US Constitution, was rejected on the basis of the currently accepted Supreme Court orthodoxy of Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872, 879 (1990), holding that:

a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment (quoted at p 8 of Gifford)

The local New York version of “free exercise” was held to require a “balancing” of interests, and given the “strong” protection against discrimination under NY law, the court found that the interests of the Giffords were not strong enough. They retained the right to “believe” what they will! A generous concession, but not of course what religious freedom calls for. “SDHR’s determination does not require them to participate in the marriage of a same-sex couple”, Peters PJ said; though since their normal practice was to be heavily involved in all aspects of the ceremony and reception except for the actual celebration, her Honour does not quite explain how this was supposed to work.

A free speech defence?

The court also briefly addressed a “free speech” argument derived from the other limb of the First Amendment, the Giffords having argued that compelling them to host and organise a same sex wedding required them to impliedly assert their support for the institution. As the court summarised their point (at p 10):

petitioners maintain that wedding ceremonies are “inherently expressive event[s]” and that, by hosting a same-sex ceremony on the farm, the Giffords would effectively be communicating and endorsing messages about marriage that are antithetical to their religious views on the issue.

An argument I think that has a lot of weight. Clearly the very point of a wedding ceremony is the “celebration” (in the broad sense) of the relationship by the guests. But according to Peter PJ (at pp 10-11):

reasonable observers would not perceive the Giffords’ provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage…the conduct allegedly compelled is not sufficiently expressive so as to trigger First Amendment protections.

What “reasonable observers” would perceive does not seem to have been the subject of evidence; the court presumably takes “judicial notice” of the perceptions of “reasonable” members of the New York public in the relevant part of the State.

How might the matter be decided in Australia?

Interestingly there have been no reported cases of this sort arising in Australia yet. In theory such a case might be brought. There are laws at both State and Federal levels prohibiting sexual orientation discrimination in provision of services, and the balancing provisions explicitly recognising religious freedom interests are mostly confined to “religious organisations” such as churches and church schools, and do not directly extend to believers conducting a small business generally.

In fact there is one major Australian decision dealing with a somewhat related issue, the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Services Limited [2014] VSCA 75 discussed here and in papers linked from that post. While that case involved the provision of camping services rather than wedding services, there are a number of similarities: the event in question was clearly conveying a message contrary to the religious beliefs of the business owner (the camp was avowedly about “normalising” homosexual activity), and the business owner was said (by the court) not to be a religious organisation. Sadly the same logic used in many of the US decisions noted above was adopted by the majority of the court: refusal of the booking on the basis of support for homosexuality was held to amount to discrimination against the persons involved. There was not even a plausible religious freedom argument involved, as in Australia the protection of s 116 of the Constitution only applies to Federal laws, not to State laws; and at the relevant time the Victorian Charter of Rights which includes at least a nominal religious freedom right was not in force.

Given the increased recognition in recent years of an implied “freedom of political speech” in the Commonwealth Constitution, it is possible that free speech arguments might be made. One could argue, for example, that the question of expressing support, or not, for the institution of same sex marriage is very much a hot “political” topic in Australia at the moment, and that a law which imposed expression of a particular view on the matter contravened the Constitutional prohibition on impairment of free speech on such matters. However, this is so far an untested area in Australia.

For reasons canvassed in my previous papers I believe the Cobaw decision was deeply flawed; unfortunately the High Court of Australia declined to consider its correctness when invited to do so. In my view if a “wedding industry” case were to arise in Australia the principles in Cobaw ought to be reconsidered, and the important value of religious freedom given much more weight than it has been so far, either in Australia or the United States.

neilfoster

First they came for the Catholics…

The proposed action for sexual orientation vilification against a Roman Catholic bishop for teaching what the Roman Catholic church believes about marriage, which I noted at an early stage in a previous post, is now becoming broader.

I have an opinion piece today on the issues in the online version of Eternity, “Tasmanian Anti-Discrimination Commission finds all Catholic Bishops might have a “case to answer”” (Nov 13, 2015). I had originally prepared these comments based on previous reports that the anti-discrimination claim was being made simply against Archbishop Julian Porteus, from Hobart, but I have now added a few additional remarks by way of introduction about the announcement today that the action is apparently now being taken against other Roman Catholic bishops around Australia. I encourage readers to click on the link to the Eternity article before reading the rest of this blog post.

For those who are interested in the legal background to whether a discrimination claim under one Australian State’s law can be enforced against people in another State, see Burns v Gaynor [2015] NSWCATAD 211 (14 Oct 2015), a case which raised related issues (in that it dealt with alleged “homosexual vilification” of a person who had not been named but was making a claim simply as someone of a homosexual orientation). There the NSW Civil and Administrative Tribunal held that a person who posted material on a computer in Queensland could not be held liable for a “public act” under NSW discrimination law. Similar logic would suggest that the Tasmanian law is intended to refer to conduct engaged in, in Tasmania, rather than outside that jurisdiction.

Continue reading

neilfoster

Legal rights of same sex couples and married couples: an “urban myth”?

A recent article in the Sydney Morning Herald , “It’s an urban myth that same-sex couples and married heterosexuals have equal legal rights” (Nov 8, 2015; Tracey Spicer) suggests that there are large gaps between the legal rights of same sex couples and those of married couple. It reports a sad sequence of events, where one member of a same sex couple committed suicide, and in the aftermath the funeral took place at the directions of the deceased person’s parents, rather than as their partner wished. The article goes on to use this set of events as an argument for recognition of same sex marriage.

The case used in the article, however, seems on closer investigation not to make this point. The claim that equality of legal relationships is an “urban myth” proves to be wrong. The Tasmanian legislation relevant to this case means that this gentleman, as a member of a same sex couple, had prior rights as next of kin which should already have been recognised as superior to those of the deceased person’s mother, even without being formally “married”.

Tasmania has a “registration” system for relationships already. If the couple were committed to each other in a long term relationship they could, of course, already have been registered. Their situation was in that respect similar to that of a heterosexual “de facto” couple who chose not to marry. But even without registration the law would give the remaining partner important rights.

Under the Tasmanian Coroners Act 1995 s 3A a “spouse” has seniority of rights as a “next of kin” over a parent. Under that Act “spouse” means “other party to a significant relationship, within the meaning of the Relationships Act 2003″ (“RA 2003”). The RA 2003 s 4 says that a “significant relationship” can include a same sex couple, even if their relationship is not “registered” (though of course registration makes it easier to prove.)

So, what happened in this case? We don’t know from this report, which seems more concerned to make a political point than to be precise about the facts (and note at the end of the article, that the reporter’s trip to Tasmania was partly sponsored by the lobby group “Australian Marriage Equality”.) It may be that the relevant police or officials weren’t aware of the law, or it may be that this “spouse” didn’t make the situation clear. Some official may have behaved badly. But that happens all the time, sadly. As far as the law is concerned, no change in the law is needed to have given this gentleman seniority in “next of kin” arrangements.

The truth is that to call equality of general rights between same sex couples and married couples a “myth” is to denigrate the hard work done by those lobbying for protections for same sex couples over many decades. All Australian jurisdictions over the last 20 years have amended their laws to provide equality of legislative rights to same sex couples in almost all areas. The Commonwealth Parliament alone enacted a suite of such changes to over 80 laws in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth). There may be one or two minor areas where there is differential treatment in law, but this example from Tasmania does not seem to be one of them. It does not provide a convincing argument for changing the law of marriage.

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

Indiana Laws and the Raiders of the Lost Freedom

Probably the most likely context in which most Australian readers will have heard of “Indiana” is in the famous movie series from the 1980’s, alluded to in my cringe-worthy blog title! But the internet has been alive in recent days with headlines trumpeting the fact that this otherwise innocuous American State seem to be suddenly riddled with gay-hating “homophobes”. As exalted a figure as Tim Cook, CEO of Apple, describes recent legislation enacted there and elsewhere as “Pro-discrimination ‘religious freedom’ laws“. His reference to “days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms” implies that such laws are somehow authorising behaviour the moral equivalent of the worst sort of racial discrimination practised in the Deep South before the civil rights era. Even an article in the local Sydney Morning Herald tells us that under this dreadful law “a bar could use the law to refuse service to gay clientele” and it is “a licence to discriminate.”

All of this sounds horrible, and it would be- if it were remotely attached to reality! But the fact is that both the origins of the law, and its actual legal effects, have been misrepresented in these articles and other internet coverage- misrepresented so seriously that it is hard to avoid the conclusion that those running the “campaign” against the law in the US are doing so intentionally. I’d like to try and set the law in context, describe how it might operate, and offer a few comments about similar issues that may arise in Australia in the future.

The Indiana Legislation and its background

Others on the internet have already done a good job of outlining the background and operation of the Indiana law, here, here, here and especially here. But it may be helpful just to run through it again.

First, the Act itself. Despite what you might think from reading about it on some websites, it is not called the “License to Discriminate Act” or anything similar. Here is a link to the whole thing- it isn’t very long. It is the “Religious Freedom Restoration Act”, due to commence operation on July 1, 2015, as chapter 9 of the Indiana Code. The legislation sets up the principle that if the Government or some other public entity of Indiana wants to interfere with religious freedom, then they have to show that there is some compelling reason, and that they have chosen the least burdensome way of dealing with it. The core provision is s 8:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Is this a radical new idea? No. Some 19 other States of the US have enacted similar legislation, most of them called by the same name, RFRA. The reason for the name is that this State legislation is modelled on Federal legislation which was enacted back in 1993 by the US Congress (almost completely unanimously, and signed with great celebration by President Clinton and Vice-President Gore.) That legislation was thought to be needed because in a very narrow interpretation of the “free exercise of religion” clause in the First Amendment to the US Constitution, the US Supreme Court in Employment Division v Smith 494 US 872 (1990) had held that there would be no protection for freedom of religion when Congress had enacted a “neutral law” (i.e. one not specifically targeted at religion) of general application. This effectively removed a lot of protection for religious freedom that had previously been applied by the Supreme Court, and the RFRA was designed to “restore” this previously enjoyed religious freedom. (See my previous post on the “Muslim prisoner beard” case which describes the operation of similar legislation.)

The effect of the legislation, then, is to provide some protection for people who have serious religious objections to complying with a law that otherwise applies to everyone in the community. An Amish person, for example, may not want to have their photo taken because they believe this breaches prohibitions on making “graven images”; their right here will have to be balanced against the State’s general interest in identifying drivers through photo licenses.

The Indiana RFRA does go slightly beyond some of the other State laws of a similar nature, though not radically so. First, it provides protection for religious freedom of some corporate entities, as well as for that of individuals. Under s 7 the definition of “person” extends to companies where persons who have “control and substantial ownership of the entity” have shared religious beliefs. In doing so it departs from all but one other State RFRA. However, most of those other Acts were passed before the US Supreme Court handed down its decision in the Hobby Lobby case in 2014, where a majority of the court held that the word “person” in the almost identical Federal RFRA extended to include “closely held corporations”, where religious beliefs of the corporate owners could be identified. So in effect the Indiana RFRA is really mostly recognising the reality of the way all the similar legislation will have to now be interpreted, since the US Supreme Court has provided that authoritative ruling.

The second point of distinction for the Indiana law is that it can be invoked as a defence in litigation between private individuals, not just in a case against the government. Section 9 provides that a person whose religious freedom is burdened

may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

(The drafting is a bit odd here. While s 9 seems to indicate religious freedom can be a “claim” in actions involving private parties, s 10 of the Act when describing the result of such an action simply says that the court “shall allow a defense against any party”, while adding that other remedies such as an award of damages may be sought from a “government party”. I think on balance the “defence” operation is what is intended here in private party cases.)

The application of the RFRA to private party cases is only explicitly provided for in one other State RFRA. However, other State courts have interpreted their laws to allow such actions, so again it is not unique.

Allowing bars to deny service to gays?

What, then, does all that have to do with “anti-gay” laws and refusing service in bars? Well, not very much. But it is true that the law might apply in some cases involving gay couples. In a previous blog post I discussed a series of cases involving “wedding service providers”, where it has been suggested or found that someone declining to provide photography, florist or baking services to support same sex marriage was guilty of “sexual orientation discrimination”.

Proponents of the Indiana law do think that this legislation might allow a better balancing of “freedom of religion” with the right to “freedom from discrimination” than has previously been provided in these cases. Where a wedding service provider with a genuine religious belief that same sex relationships are sinful, is asked to provide support and celebration to such a relationship, it does indeed seem to be a substantial burden on their religious freedom. To support the validity of such a rule, the government would need to show that the law furthered a “compelling government interest” and did so in a way which was the “least restrictive means”.

There is no guarantee, of course, that the provider would win their case. The court will still have to weigh up these important issues. However, it would seem to be at least arguable that, where there was no real shortage of such services elsewhere in the community, presumably from providers who would actually provide a better service because they genuinely wanted to assist in the celebration of the union, it would seem to be burdensome and achieving no real gain to dragoon a believer into reluctantly providing the service (or else giving up their livelihood).

But notice that the effect of the law, even if were applied in this way, is incredibly limited. It does not authorise wholesale denial of services to gay persons! (Indeed, there is quite some irony here in the fact that Indiana as a State does not have any general prohibition on sexual orientation discrimination anyway. So at the moment, in most of the State, there is no obligation to serve a gay couple to which the RFRA would provide a defence. Still, some local city laws do have such provisions, so the issue is a live one in some areas of the State.)

No- the provision would only operate where there was a genuine religious belief (and courts are more than capable of making judgments about these things), and where there was a plausible case that what was being requested went against the belief. No religion that I know of requires bartenders to refuse to serve homosexual persons! Indeed, there is a very important threshold issue in all the “wedding provider” cases, that to decline to support the institution of same sex marriage may not of itself amount to discrimination against homosexuals. Many “straight” persons support same sex marriage; some gay persons do not. Arguably refusing to support the institution is not relevant “discrimination”. (This argument was rejected in two of the cases mentioned in my previous post, but I think it still ought to be considered.)

So- the Indiana law is not the “anti-gay” monster that it has been painted. It would take another blog post to properly analyse the reasons why it has been so painted, and the way that the mainstream media picks up on distorted views of the law without checking for themselves. But that seems to be the situation. Of course persons of good will may still disagree about the balance to be struck in these areas. But it would be nice if arguments were made in light of the facts, instead of being put forward from mere prejudice. The “lost freedom” of free exercise of religion is being diminished to the point of vanishing in some of this discourse.

Australia and similar issues

Finally, then, how are these issues being dealt with in Australia? And how might they be resolved here?

As I have previously noted, there is no over-arching religious freedom protection in Australia. A Federal prohibition on sexual orientation discrimination, if it was thought to be breached by a wedding service provider, might in theory be challenged under s 116 of the Constitution as an “undue” infringement of religious freedom (to quote Latham CJ from the JW’s case noted in the previous post.) However, the interpretation of the free exercise clause here has in the past been just as narrow as the Smith approach in the US, so it is quite unclear whether this would be useful.

At the State level some States have a Charter of Rights which provides some protection for religious freedom. And most States, where they have discrimination legislation, include some type of “balancing clause” to protect such freedom. However, in most such legislation that protection is extended to “religious organisations”, not to individuals. (Interestingly, such a provision in the NSW Anti-Discrimination Act 1975 was held to allow an evangelical group, the Wesley Mission, to decline to place a child for fostering with a same sex couple, in OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).)

One notable exception to the rule that most “balancing provisions” apply to religious organisations is Victoria, where s 84 of the Equal Opportunity Act 2010 (applying to “persons” generally) provides:

Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

While the provision seems at first glance very broadly worded, any fears that it might prove a “license to discriminate” against gay people can probably be laid to rest in light of the decision of the Victorian Court of Appeal in the CYC v Cobaw (2014) case, noted previously. There the Court read the provision so narrowly that a group called “Christian Youth Camps” and their manager were not able to rely on their commitment to a conservative view of Biblical sexual morality in declining to take a booking for a week whose stated aim was to “normalise” homosexual behaviour to a group of young people.

While there have so far been no reported cases in Australia involving “wedding industry” religious believers declining commissions to assist in celebration of same sex ceremonies, this may mostly relate to the fact that same sex marriage is still not recognised in Australia. (For good reasons, in my view.) Should it become legal, or should there be some move to formalise “de facto” same sex relationships with “wedding-like” ceremonies, then these questions may arise. In my view it would be sensible for Australian governments to consider enacting religious protection laws which would allow appropriate balancing of rights. Of course the furore over the Indiana laws may discourage politicians from daring to do so (as indeed may be its purpose). But I would encourage those responsible for lawmaking to remember their commitments to govern for the good of all the citizens in a democracy, not just those with the loudest voice in the media.