Sexual orientation discrimination

neilfoster

The florist, the baker and the photographer- religious freedom and small business

One of the most vexed questions in the religious freedom area at the moment is the clash between religious views and support for same sex marriage, and three cases in which this clash has been evidenced all involve people in what might be called the “wedding support industries”- a florist, a baker and a photographer. The most recent is the decision of the Benton County Superior Court in the US State of Washington in the combined proceedings 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). There Barronelle Stutzmann, proprietor of the business, and her firm, were held liable for breaching the State’s anti-discrimination laws prohibiting denial of a service on the basis of sexual orientation. Stutzmann, who had supplied one of the complaints, Ingersoll, with flowers for some time, declined to do so on the occasion that he invited her to do the flowers for his proposed same sex wedding, on the basis of her Christian commitment and a desire not to support such a ceremony.

Stutzmann’s claim that her refusal to provide the flowers was not based on the sexual orientation of the client (whom she had often served previously), but rather on her desire not to express support for same sex marriage, was rejected by the court. She tried to rely (see lines 12-15 on p 28 of the linked transcript)  on the distinction between conduct and orientation (as to which see my previous post, referring to other cases where this distinction has been not recognised by the courts, and one where it has.) But the court rejected the distinction, saying that there was US Supreme Court authority refusing to recognise it. In Christian Legal Society v Martinez 561 US 661 (2010) at 689, the Supreme Court held that a University legal society could not decline to have as leaders those who engaged in or supported same sex intimacy, refusing to draw a distinction between “status and conduct”. The Washington court held, following the earlier decision in Elane Photography (see below), that same sex marriage was “inextricably tied” to sexual orientation.

The claim that this was in breach of Stutzmann’s religious freedom rights was rejected on the basis that, in accordance with the prevailing judicial interpretation of the First Amendment, Employment Division v Smith 494 US 872 (1990), religious views must give way before a law of “neutral application” not targeted at religion.

The case of the wedding photographer proved influential here. In Elane Photography, LLC v Willock, 309 P 3d 53 (NM, 2013) a wedding photographer who declined to take on the photography duties for a same sex commitment ceremony was also found guilty of sexual orientation discrimination and fined, the US Supreme Court refusing to grant leave to appeal from the decision of the New Mexico Supreme Court.

Across the Atlantic, similar issues have arisen for a firm of bakers, Ashers Baking Company, who declined to produce a cake supporting same sex marriage when requested to do so. See here for more details. This case seems all the more odd, as it was not requested for the celebration of anyone’s wedding; it was simply to bear a slogan in support of introducing same sex marriage into Northern Ireland, which does not yet recognise the institution. While there has as yet been no hearing, the local Equality Commission has brought proceedings against the firm for sexual orientation discrimination.

In each of these cases, the last especially but also in the others, it seems arguable that what is involved is not discrimination against persons of a particular orientation, but a refusal to provide support for an institution (same sex marriage) which is regarded as morally wrong. There does indeed seem to be a valid difference between simple provision of a service (as had often been done by Ms Stutzmann, for example) and the purchase of the artistic skills and talents of a person to celebrate and support the event of a same sex wedding. The courts, if they were minded to, could implement this distinction by finding that refusal to provide artistic support for the event was not in fact unlawful “sexual orientation discrimination”. After all, not all homosexual persons believe that same sex marriage is a good idea. The fact of homosexual identity and support for same sex marriage are not, as the courts seem to think, “inextricably linked”. If the courts are unable to implement the distinction because of previous binding rulings, then legislators could choose to do so. It is suggested they should do so, and provide a clear avenue for recognition of religious freedom in the context of state support for discrimination laws. The comments of the Washington court here, that once same sex marriage had been introduced into Washington State there was a “direct and insoluble conflict between Stutzmann’s religiously motivated conduct and the laws of the State of Washington” (lines 12-13 on p 58), are with respect too pessimistic. There are other avenues where both important interests can be recognised.

neilfoster

Sexual orientation and sexual behaviour: can they be distinguished?

Should the employee of a religious organisation be allowed to be dismissed because of her sexual activities outside work? A recent Australian decision suggests, somewhat surprisingly, that she may be. I will explain here why I believe the court was correct. In Bunning v Centacare [2015] FCCA 280 (11 February 2015) an employee of a Catholic family counselling centre was dismissed because of her involvement in support for “polyamorous” activities. She claimed to have been discriminated against on the basis of her sexual orientation, but the claim was dismissed.

Distinguishing between orientation and behaviour- previous cases

By way of background, one of the most difficult issues in the interaction between religious freedom and sexual orientation anti-discrimination law arises when a believer makes a decision which is based on a person’s sexual activity, and it is claimed that in fact the decision was based on sexual “orientation”. This dilemma arises because, unlike most other prohibited grounds of discrimination, “sexual orientation” discrimination involves serious ethical dilemmas for those who adhere to traditional religious beliefs on sexual morality. That is, long-standing religious views (not only in Christianity but also in Islam and Judaism, for example) teach that same sex sexual behaviour is actually wrong, and contrary to God’s purposes for humanity. But one of the defining characteristics of a person who is of a homosexual “orientation” is a preference (to use a possibly controversial word) for sexual activity with a person of the same sex.

Sometimes believers, when challenged that their decisions are based on sexual orientation, have attempted to argue that in fact those decisions are based on sexual behaviour. That is, the claim is made that there is no intention to investigate someone’s personal preferences or “inclination”; but that engaging in what the religion regards as immoral behaviour, homosexual intercourse, can be a legitimate reason for making a distinction of some sort. An argument of this sort was run in the UK decision in Bull & Bull v Hall & Preddy [2013] UKSC 73 (27 November 2013). There the Christian owners of a boarding house had enforced for some years a rule that they would not let a double-bed room to any couple who were not married. A same sex couple were turned away from the room on this basis and sued for sexual orientation discrimination. The UK Supreme Court upheld the award of damages against the Bulls. In particular, they commented at one point as to whether it made a difference that it was the “status of marriage” which was the criterion for the decision, or not. (At the time same sex couples could not marry each other in the UK.) The majority of the court held that this did not make a difference. In particular, Lady Hale commented in this way on the argument that one could distinguish a decision made on the basis of sexual behaviour, from one made on the basis of orientation:

[52] Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation. As Justice Sachs of the South African Constitutional Court movingly put it in National Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1) SA 6, para 117:

“While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.”

This view, that sexual orientation requires expression in intercourse, and hence that any distinction based on the behaviour will also be a distinction based on orientation, was also affirmed in a recent Australian decision, Christian Youth Camps Limited v Cobaw Community Health Service Limited and Mark Rowe [2014] VSCA 75 (16 April 2014) (for detailed comment on this case see my previous post and linked articles.) The Court there rejected an argument that in denying a booking to a group that was lobbying for the “normalisation” of homosexuality, the Christian group concerned was not basing its decision on the orientation of the group members, but (impliedly) on their “behaviour” of lobbying for a particular viewpoint. Maxwell P supported comments that had been made by the Tribunal below, which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity. (at [57])

(See also Redlich JA:  “sexual orientation [is] inextricably interwoven with a person’s identity” (at [442]).)

Against this background, it is very interesting to find this recent decision that clearly distinguishes between “orientation” and “behaviour”, and finds against a dismissed claimant on these grounds.

Bunning v Centacare

In the Bunning case, Ms Bunning worked in a Catholic family counselling centre in a senior position. (While operating under the “brand” of “Centacare”, the Respondent’s full name from the case documents was “THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE”, and hence it was clear that Centacare was a direct emanation of the Church.)

The Applicant’s own documents revealed the following (see [7]):

her contact details as a counsellor at Centacare [had been] published on a website for the Brisbane Poly Group. These details had been originally published in or around late 2011, or early 2012, following a request from the group for the contact details of a ‘poly-friendly’ counsellor. The Brisbane Poly Group is a group of people involved and/or interested in the polyamorous lifestyle.

The website details had been brought to the attention of her employer, and on this basis her employment was terminated. Para [11] describes the events in the Applicant’s words:

(e) Furthermore, during the meeting the Applicant was told that the ‘Brisbane Poly Group’ goes against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.

(f) The Applicant was told that she was to be dismissed instantly for gross misconduct.

The claim under the Sex Discrimination Act 1984 (Cth) (“SDA”) was that the Applicant had been dismissed, or else put at a disadvantage, on the basis of her “sexual orientation”, and hence there had been a breach of the Act, s 14. Judge Vasta had to determine whether “being polyamorous” was a relevant sexual orientation. His Honour concluded that it was not. He referred to the Macquarie Dictionary definition of “polyamory” as

“The mating pattern of having a number of sexual partners at the same time” – [41] (emphasis in original)

As such the term referred to a certain type of behaviour. But, his Honour said, the word “orientation” as a “state of being” rather than actual behaviour:

[29] Under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as “sexual behaviour”.

He concluded that the Applicant had shown that she adopted polyamorous behaviour, but had not demonstrated that this was a relevant orientation. In a very interesting passage worth quoting at length, he continued:

[33] In argument before me, the Applicant contends that “behaviour” is a “sub-set” of an orientation and therefore is covered by the definition in the Sex Discrimination Act 1984.

[34] If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result would be an absurdity.

[35] This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation.

Having noted that as a matter of legislative history, Parliament had declined to include “lawful sexual behaviour” as an alternative ground of discrimination, his Honour concluded:

[39]…I am led to the inexorable conclusion 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.

Hence the claim for sexual orientation discrimination failed, as the Applicant had not shown that the basis of the decision was a “condition” or “state of being” recognised under the SDA as a prohibited ground.

Comments

The decision in this case is interesting, as previously noted, because it seems to run counter to a tendency in other decisions to treat “orientation” and “behaviour” as interchangeable. It has to be said, however, that the implications of the decision are unclear. The Federal Circuit Court is a successor to the court that was previously called the “Federal Magistrates’ Court”. It is not high up in the Australian court hierarchy, and indeed it seems likely that formally its decisions do not form a precedent for any other courts. The decision here could of course go on appeal to the Federal Court “proper”.

In addition, neither of the judgments noted above, Bull and CYC v Cobaw, seem to have been cited to Judge Vasta. However, it should be noted that the case did not concern the question of “homosexual” orientation, and hence did not directly engage the issues which led to the previous comments. Polyamory, of course, as a formal “lifestyle” (as Judge Vasta noted, the term used by the Applicant herself) is not commonly spoken of as an “orientation”. A claim for discrimination on this basis feels more like a claim for discrimination on the basis of “marital status”, which does indeed focus on behaviour. The definition of “marital status” in s 4(1) of the SDA assumes that there is only one other party to the relationship- see e.g. para (e) “the de facto partner of another person” (emphasis added). Presumably if Parliament had intended to protect persons in multiple relationships, it could easily have referred to “person or persons”.

On balance, it seems that his Honour’s decision is correct. Whether the broadly expressed comments about the difference between “orientation” and “behaviour” will be adopted in later proceedings is more doubtful, but it is to be hoped that they are given due weight. Christians, to take one example, are well used to distinguishing between a “propensity” to behave in a certain way, and the actual behaviour. The Bible teaches that all people are by nature inclined to sinful behaviour, but sees nothing inconsistent in urging people at the same time to resist the temptation to do so. In other areas of life even modern Western society recognises the fact that someone may be, for example, an alcoholic, and regularly tempted to drink to access, but can commend and encourage that person not to act on their impulses and to resist the temptation. Whether this situation is analogous to the orientation of a person to have sex with others of the same sex is a matter of great debate. But it does not seem unreasonable that religious believers ought to be able to make the case that there is a difference between the two concepts of propensity and activity, and to argue that in some cases there is a valid distinction to be made between them.

Finally, it should be noted that even if the Applicant had been able to establish a prima facie case of sex discrimination, it seems possible that the Church would have had a defence under s 37(1)(d) SDA, which says that the earlier provisions prohibiting sex discrimination do not apply to:

any other act or practice of a body established for religious purposes, being an act or practice 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.

Clearly the practice of having multiple sexual partners at the same time (which of course would mean at least one of them was not married to the Applicant) would run contrary to the moral teaching of the Roman Catholic Church. Since the role of Centacare was to counsel on family relationships, presumably the counselling was designed to be given in accordance with those moral teachings, and it would be a fundamental contradiction of those teachings for the church to employ a counsellor whose lifestyle was a living repudiation of those teachings. No doubt, in addition, many members of the Catholic Church would be offended by a person in this situation purporting to deliver counsel on behalf of the Church. On this basis it seems fairly clear that s 37 would have been engaged and entitled the Church to dismiss the Applicant, even if there had been “sexual orientation discrimination”.

However, as clear as this may seem, it has to be said that there is now some doubt about the application of s 37 since the earlier-mentioned decision in CYC v Cobaw, where it was queried whether a religious organisation’s views on sexual behaviour could be said to be part of their fundamental “beliefs” or “doctrines”. As discussed in my previous notes on the case, however, I take the view that the decision of the NSW Court of Appeal on this issue in OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL [2010] NSWCA 155 is binding on lower courts (as an earlier decision on the point by an appellate court) and should be followed on this issue. Christian doctrines on marriage and sexual behaviour have been a fundamental part of the Church’s teaching from the earliest days and were clearly intended by Parliament to be relevant in these contexts.

neilfoster

Religious organisations and their employees- new US decision

Can a religious organisation hire and fire staff in accordance, not just with their commitment to its doctrinal beliefs, but also on the basis of whether they conform to moral teachings? This was the issue in the background of a recent US decision, and it is interesting to note how this might play out in Australia.

The Conlon decision

The United States (Federal) Court of Appeals, 6th Circuit, has just handed down its decision on appeal in Conlon v InterVarsity Christian Fellowship/USA (No 14-1549, 5 Feb 2015), holding that Ms Conlon, who was dismissed as a “spiritual director” by IVCF, cannot file a Federal (or State) sex discrimination claim against the organisation. IVCF is an organisation that operates on many University campuses in the US, supporting evangelical gospel ministry there. (Full disclosure in case it is relevant: I have been a long time supporter of the Australian Fellowship of Evangelical Students, AFES, a similar organisation in this country which is, like IVCF/USA, a part of a wider global network, the International Fellowship of Evangelical Students, IFES.) Ms Conlon worked from 2004-2011 as a “spiritual director” assisting IVCF staff workers in their spiritual growth. When she started discussing problems within her marriage, and in particular flagged her possible divorce in March 2011, IVCF supervisors put her on paid leave to support her while dealing with this issue. When by the end of 2011 that seemed not to be working, her employment was terminated in December 2011.

The employment conditions for IVCF staff, which were made clear by the organisation from the outset, required that staff annually reaffirm their commitment to the IVCF Purpose Statement and Doctrinal Basis. The court quotes early in their decision a phrase (which I assume comes from the Purpose Statement), to the effect that

IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.”

Presumably the IVCF leaders, although the decision does not make this clear, took the view that Ms Conlon would, if she were divorced, not provide an appropriate model of Christian behaviour in this area. I want to be clear that I am not making any comment on the rights and wrongs of this decision. Despite my general support for IFES and its affiliates, I know nothing about the decision in this case and whether it was godly, wise or justified. In fact, it somewhat disturbs me that the court notes that Ms Conlon alleges that two similarly situated male employees were divorced while working for IVCF, but were not disciplined or terminated (see p 3 of the decision.) But of course there are divorces and divorces, and difficult decision have to be made in these circumstances.

The fact that life can be so messy, and that decisions about who should be employed in spiritual leadership are so dependent on a number of fuzzy criteria, may be partly what lies behind the doctrine of the “ministerial exception” in US law, which was successfully relied on here by IVCF. Formally the doctrine is driven by the First Amendment to the US Constitution, forbidding the Establishment of a state church (and excessive “entanglement” by the state in religious groups) and setting out rights of Free Exercise of religion. The doctrine has been applied by lower courts for a while, but received endorsement by the US Supreme Court for the first time a few years ago in its decision in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012). I discussed this decision in detail in an earlier paper, but in brief the main relevant part is that the USSC held (somewhat surprisingly for a religion clause decision, unanimously) that Federal employment discrimination laws could not apply to “claims concerning the employment relationship between a religious institution and its ministers” (at 705).

Applying Hosanna-Tabor, the 6th Circuit here held that IVCF clearly qualified as a “religious organisation” (not only its name, but its mission statement and activities were all directed to religious ends), and that the position that Ms Conlon held of “spiritual director” satisfied at least 2 of the 4 criteria set out by the SC for an employee being regarded as a “minister” : the title of her role, “spiritual” director, and the religious functions she carried out, being responsible for assisting the “spiritual growth” of other IVCF staff. (See the discussion at pp 7-8: the court did not explicitly find that the other 2 factors were not present, being formal theological training and use of the title in public contexts; they just held that there was not enough evidence to make a finding. But the other 2 factors were, in this case, sufficient.)

The result was that under the authority of Hosanna-Tabor the court could not entertain a claim for discrimination under federal law; and they also ruled that since the decision was based on the Constitutional rights granted under the First Amendment, and it had long been held that the First Amendment applied to the States as well as to the Federal Congress, nor could a claim under State law be made (see pp 10-11.)

Australian law?

How would this matter be resolved under Australian law? I will comment on the application of the Federal legislation, the Sex Discrimination Act 1984 (Cth) (‘SDA’)- I think a similar analysis would apply under most State laws.

Under the SDA there would be a possible prima facie claim that a decision to dismiss someone because of their divorce would be discrimination based on “marital or relationship status”, which is one of the alternative grounds of unlawful discrimination in employment- see s 6, and the definition of “marital or relationship status” which includes the state of being “divorced”. I am not sure, in fact, whether this is a claim that would be possible under US law- the court in Conlon refers simply to the differential treatment of divorced men as opposed to the claimant, who is a woman. Under the SDA that might also give rise to a straightforward gender-based discrimination claim under s 5(1), whereby by reason of

(a)  the sex of the aggrieved person…. the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

Under s 14(2)(c), in Division 1 of Part II, it is unlawful for an employer to discriminate on the basis of marital or relationship status, or sex, “by dismissing the employee.”

While there is no general Hosanna-Tabor principle under Australian law, there are “balancing provisions” in the SDA designed to protect the religious freedom of certain organisations. Under s 37(1) in Part II:

  (1)  Nothing in Division 1 or 2 affects:

                     (a)  the ordination or appointment of priests, ministers of religion or members of any religious order;

                     (b)  the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

                     (c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

                     (d)  any other act or practice of a body established for religious purposes, being an act or practice 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.

Should a local student religious group dismiss a staff-worker in similar circumstances to those in Conlon, then it would need to show that the circumstances fell within s 37. It would probably be difficult to establish that a student staff-worker was a “minister of religion” under paras (a) and (b). It is possible that para (c) could apply but that would depend whether a “religious observance or practice” was broad enough to cover not just “rituals” but also the general practice of evangelism and bible studies, for example. Para (d) would probably apply: a group of this sort would be a “body established for religious purposes”, and the “practice that conforms to the doctrines, tenets or beliefs of that religion” would be arguably the policy of requiring staff members to conform to Biblical standards of sexual behaviour, including practices in relation to divorce. Possibly the bar would be set a bit higher in Australian than in the US: whereas under Hosanna-Tabor the court would not even begin to inquire into the religious criteria used, in Australia the organisation might need to make a plausible case that their decision could be justified by a set of doctrines and beliefs that were at least a possible reading of their religious tradition.

There a number of uncertainties, then, as to how an Australian court would deal with these matters. Those uncertainties are unfortunately compounded by the differing views expressed in the Victorian Court of Appeal decision in Christian Youth Camps v Cobaw [2014] VSCA 75, discussed in a previous post. One reading of Cobaw might suggest that matters of sexual behaviour, even decisions about divorce, were not part of the “doctrines, tenets or beliefs” of a Christian organisation (a view I would disagree with.) Another issue is that whether any disciplinary action taken “conforms” to those beliefs, so that the court would be given the task of coming up with an authoritative interpretation of the Biblical material on divorce! (A matter that mainstream Christian churches, and groups within churches, have disagreed on for the last 2000 years…)

In my view, despite what was said in Cobaw, the best approach is for the courts to grant a wide “margin of appreciation” (to use a phrase drawn from European jurisprudence) to religious groups, so that so long as a decision seems to be made in a good faith and consistent interpretation of their own doctrines (not in a “sham” way to achieve a particular outcome), then courts should recognise their freedom to determine who is suitable to work in key positions in these organisations. But whether this is the way that courts go in Australia remains to be seen.

neilfoster

Update- Religious Freedom and a Canadian Law School

In a previous post I noted the ongoing controversy over whether Trinity Western University, in British Columbia, Canada, can train lawyers who will be able to practice in Canada. TWU as a Christian University requires its students to agree to comply with a Code of Conduct, part of which bans all sexual intimacy outside the traditional marriage between a man and woman. TWU’s Law program has actually been approved by the Canadian national accrediting body, the Federation of Canadian Law Societies. But as noted previously, a number of individual Provincial Law Societies have now indicated that, due to the Covenant being viewed as discrimination against persons on the basis of their sexual orientation, TWU graduates will not be admitted to practice law in those Provinces.

The first decision in what may be a number of judicial challenges to the refusal of Law Societies to accept TWU future graduates was handed down on 28 January 2015 in Nova Scotia. In Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, Justice Campbell of the Nova Scotia Supreme Court ruled in favour of TWU. (See press summary here.) His Honour held that the NSBS had acted beyond its powers by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federal FCLS, especially as it was accepted that there was no evidence that TWU graduates would unlawfully discriminate against anybody on the basis of their sexuality. In addition, his Honour held that the NSBS in making its decision was under a duty under the Canadian Charter to take into account the religious freedom rights of TWU students and graduates, and had not done so appropriately. Just a minor point- the final ruling is summed up in para [270] of the decision; the version available on the web today I think accidentally omits the word “not” from the final sentence in that paragraph. But the rest of the decision makes it crystal clear that his Honour thinks that

The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives were not reasonably balanced within a margin of appreciation. (word added)

it will surprise no-one who has read my previous paper on the issues that I agree entirely with the Judge’s decision. If I can say so with due respect, the decision is remarkable for both its learning, its clarity and the breadth of the issues covered, while remaining clearly focussed on the relevant issues. I recommend anyone interested in the balancing of religious freedom with anti-discrimination rights to read it carefully.

neilfoster

Same Sex Marriage- Comparing the US and Australia

The recent decision of the US Supreme Court to grant “certiorari” (leave to appeal) in a same sex marriage case has brought the matter back to attention in the US. The topic is one with many connections to law and religion, and I thought it was worthwhile to compare the current state of play in the US with the situation in Australia.

The “law and religion” connections are in two main areas. First, the law of marriage in Western societies has been shaped by Christianity, which was the shared world-view of the West for most of the previous two millennia. Proposals to now expand the definition of marriage, to extend the status to same sex couples, are seen by many as radically changing the institution, and hence are objected to by many who share the Christian world-view. Second, a change in the nature of marriage has already produced a number of religious freedom challenges. Should religious clergy who are empowered to conduct weddiings, be required to conduct same sex weddings? Should others who are in the “wedding support industries”, such as florists, cake-makers,or those who hire venues, be required to provide their active support to same sex weddings when they may, on account of sincere religious belief, take the view that these relationships are contrary to God’s purposes and wrong? Once the State authorises entry into same sex marriage, is it legitimate for faith-based schools to teach children that such relationships are sinful? Indeed, is it possible for anyone to say as such in the public square and not be accused of “homophobia”?

One common response to these issues on the part of proponents of same sex marriage is to simply recite the slogan “marriage equality”. But, as I have argued previously, it is not “discrimination” to treat things which are in fact different, differently; not is it discriminatory to deny the conferral of a status on a person or persons when they simply do not meet the accepted criteria for that status. No-one denies that a homosexual person should be able to marry; but what is denied is that a relationship with someone else of the same sex would be a “marriage”, for marriage has never previously meant that.

Nevertheless, the arguments in favour of redefining the institution of marriage to include same sex couples have been made vigorously over the last decade or so, and with some success in a number of Western countries.

Both Australia and the United States have seen this pressure for change. Both countries are Federations, with a Federal legislature with defined powers, and other legislative powers exercised by the various States.

United States of America

In the US, it has commonly been thought that questions of marriage are left to the different States. But the over-riding power of the US Constitution means that a State may not legislate to remove a right or privilege given by the Constitution. Proponents of same sex marriage have been arguing for some years that rights of “equality” to be found or implied in the Constitution mean that no State can choose to deny the right to marry to a same sex couple.

So far this argument has not yet been successful; it is expected that this will be the focus of the forthcoming appeals. Far from being uniformly in favour of same marriage, many individual States have passed laws either through their legislatures, or by referendum, affirming that marriage is between a man and a woman, and rejecting any transformation of the term. (This, by the way, is a more accurate description than that sometimes adopted, of laws “banning” same sex marriage. Something cannot logically be “banned” if it never previously existed! The people of these States, through their democratic processes, have chosen not to adopt a proposed change to the law which has been as it now stands for the entire history of the US.) However, in many of those States, a Federal judge or Court of Appeal has ruled that, despite the will of the people of that State, there is a constitutional “right to same sex marriage” buried deep in the terms of the US Constitution, which over-rides what those people have decided.

Until recently the US Supreme Court had not ruled definitively on the point. In 2013 two high-profile decisions of the Court were seen as supporting a general move to recognition of same sex marriage, but only went a certain way. In United States v Windsor, 570 US __, 2013 WL 3196928, No 12-307 (26 June 2013) federal legislation, the Defence of Marriage Act, which defined marriage for “federal purposes” as between a man and a woman, was struck down as invalid. In Hollingsworth v Perry, 570 US __, 2013 WL 3196927, No 12-144 (26 June 2013) it was held that those in California who had organised a successful referendum in that State defining marriage as between a man and a woman, did not have standing to challenge a decision of a lower court judge that the amendment was unconstitutional (and since the California government would not defend the legislation, the lower court decision remained.)

One point is worth noting. Even commentators who supported the Windsor decision had some problem identifying precisely the legal basis for the striking down of the law! But one of the features of the decision was the “swing” vote of Kennedy J (who provided the majority) where he insisted that it was not only the effect of the Federal legislation that homosexual persons felt denigrated, but in fact that this was indeed the “purpose” or “motive” of those who enacted it- to injure and disparage same-sex unions and those who might form them (see eg 133 S Ct 2693). As Smith points out in his excellent critique, the Court was thereby implying that all of the members of Congress who supported the law, and indeed the President at the time, Bill Clinton, were guilty of an irrational “animus” against homosexual persons. Smith demonstrates convincingly that in fact this charge was completely false, that clear public policy rationales were provided by the supporters of the laws, and he laments the fact that in the debates in this area it seems to be impossible for some to concede that those who disagree with them do so for any but irrational reasons.

As Smith points out, it seems that Kennedy J has adopted the popular view that “to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior human beings” (at p 6.) In a telling passage he continues:

The inference from moral disapproval to ascribed judgments of lesser personhood is not only a non sequitur; it is a pernicious non sequitur. That is because if we are to live peacefully and with mutual respect in a morally pluralistic society, it is imperative that we be able to approve or disapprove of different kinds of conduct, or even of different ways of life, without thereby being deemed to have depreciated the humanity of people who live in ways we disapprove. The invalid inference asserted by the Court in Lawrence and tacitly repeated in Windsor would effectively eliminate that possibility. Logically extended, the inference would inhibit judgments disapproving of racism, sexism, or other forms of bigotry: such judgments would violate the commitment to the “equal moral worth” of all human beings by implying that the people guilty of such offensive and irrational attitudes and actions are themselves somehow lesser or inferior persons.

In more recent developments in the United States, since these decisions a number of State constitutional amendments, or local State statutes, that define marriage as a relationship between a man and a woman, have been challenged and struck down as unconstitutional, on the basis that the implication of Windsor is that the US Constitution somehow contains a federal “right to same sex marriage”.

Indeed, President Obama has now said that this is his own view:

President Obama says he now believes that the Constitution guarantees a right to same-sex marriage in all 50 states but expressed support for the more incremental approach taken by the Supreme Court. Mr. Obama opposed same-sex marriage until 2012, when he came out in favor of letting states decide the issue for themselves and urged them to embrace such unions. In an interview with Jeffrey Toobin of The New Yorker, posted online on Monday, he said same-sex marriage should be a right for all Americans regardless of where they lived. But he added that “given the direction of society, for the court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.” The court struck down part of the federal Defense of Marriage Act last year and, in a separate ruling, effectively allowed same-sex marriage to proceed in California.[1]

Of course, even in the US the legal opinion of the President isn’t binding as a matter of law, but it is an interesting illustration of how public opinion has shifted.

The President’s comment was made in the context of a recent “non-decision” of the Supreme Court. Appeals were filed from a number of the decisions of Federal Circuit Courts of Appeal who had ruled State laws defining marriage in historically traditional ways were invalid. On Oct 6, 2014 the Supreme Court, with no explanation (as is often the case in denial of certiorari) refused appeals from those courts. Commentators argued about what this refusal meant, and why, but no-one really knew.[2] The impact on State laws has, however, was dramatic. In effect all those States whose Federal Circuit courts were under the authority of those appealed from were now required to invalidate a local State law affirming traditional marriage. This means that even in a State where the majority of the voters in the State had supported the historical definition of marriage, those laws were invalid. Same sex marriage is now regarded as being lawful in 36 US States, up by 17 from the number before the Oct 6 ruling.

However, the trend of Federal Circuit Courts of Appeal striking down State laws on these grounds was broken with a more decision of the 6th Circuit, upholding the statutes, which finally resulted in the Supreme Court agreeing to resolve the dispute. The stage is now set for the Court to finally hear argument on the substantive question, which it seems it will do in April. However, what is interesting is the way that the Court has structured the arguments. Time has been allocated for argument on two points: (1) whether there is a “constitutional right” to same sex marriage which would over-ride State laws; and (2) if not, whether a State which does not itself recognise same sex marriage should be obliged to recognise the validity of such a marriage carried out in another State (an argument based, presumably, on the “full faith and credit” clause obliging recognition of other laws within a Federation.) it seems possible that this careful structuring of the issues may mean that the conservative minority on the Court may be able to persuade Kennedy J (whose vote is viewed as the “swing vote” on this issue) that it would be going too far to completely over-ride State discretion on marriage for their own citizens; but that a plausible compromise would require recognition across State borders of a marriage entered into elsewhere. In many ways this would be an interesting outcome- the number of States where same sex marriage is recognised would be reduced to those where the State legislature had consciously chosen to change the law, a fairly small number. But it is impossible to predict exactly what the Supreme Court will decide.

Australia

The situation in Australia is that here our Constitution gives “marriage” as one of the topics that the Federal Parliament may legislate on, under s 51 (xxi). It is a “concurrent” power, shared with the States, but where the Commonwealth has exercised its power, then under s 109 of the Constitution Federal law will over-rule any contrary State law. The two quasi-independent Territories, the ACT and the Northern Territory, are also able to make laws on a wide range of topics, but again those laws must give way where the Commonwealth Parliament has spoken.

Here, then, the most natural way to implement same sex marriage would be by way of amendment to the Federal Marriage Act 1961, which has been the exclusive law on the topic since it commenced in 1963. In 2012 an attempted Bill for same sex marriage was defeated in both Houses of Parliament. An attempt by the ACT, a Federal Territory, to go its own way and to enact a same sex marriage law was over-turned by Australia’s final court of appeal, the High Court, at the end of 2013. I have just written an analysis of this decision here which explains its reasoning.

Unfortunately, in my opinion, the High Court’s decision went beyond striking down the ACT law, and offered comments on whether a future law for same sex marriage passed by the Federal Parliament would be valid. As I discuss in my recent note, I regard these comments as unnecessary and unhelpful, particularly as no opposing position was put in the litigation. I think it is still very much an open question as to whether the Commonwealth’s “marriage” power can be used as it stands to support same sex marriage, or whether (as I think) the change could only be made by referendum.

In conclusion, in the US the question whether same sex marriage will be introduced around the country (even over the opposition of large numbers of voters in the various States), or not, will hinge very substantially on what is decided in the forthcoming US Supreme Court decision. In Australia, it seems clear that the matter is one that will have to at least be decided initially by the Federal Parliament, and at the moment the current Parliament shows no enthusiasm for the question. Even if a change should be approved in the future (and this, despite the claims of supporters, is by no means a forgone conclusion- sometimes the “tide of history” goes out again!), there will still in my view be a serious question as to whether the obiter dicta of the recent High Court decision should be accepted, or whether the Court will need to revisit the scope of the marriage power in the Australian Constitution.

[1] Peter Baker Obama Broadens Support for Same-Sex Marriage (New York Times, Oct. 20, 2014) http://www.nytimes.com/2014/10/21/us/obama-broadens-support-for-same-sex-marriage.html?_r=0 .

[2] See, for one of many comments, Suzanne Goldberg, Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples, SCOTUSblog (Oct. 6, 2014, 12:48 PM), http://www.scotusblog.com/2014/10/symposium-the-supreme-courts-opt-out-means-more-marriage-equality-but-continuing-harms-to-gay-and-lesbian-couples/ .

neilfoster

Is Christianity inconsistent with a professional legal education?

This may sound like an odd question, but it is one that has been raised in Canada recently with the application of a Christian University there, Trinity Western, to offer a law degree. The University has a policy which has attracted the ire of some, which requires students to adhere to Biblical standards of sexual behaviour while pursuing their course. This would mean that sexual intercourse outside marriage was precluded, both for heterosexual and homosexual couples. Interestingly the ban on heterosexual sex does not seem to have caused the problem, but the ban on homosexual sex has been interpreted as meaning that homosexual persons would not be able to study law at TWU. Under the Canadian system for accrediting legal practitioners, each Province’s Law Society must approve a particular law degree for its graduates to be able to practice law in that Province, and while at the early stages TWU had received approval from many of the Provincial Law Societies, more recently a number have either refused or reversed an earlier decision to approve.

See here for a detailed comment on the issues as they emerged when the matter was first discussed at the beginning of 2013.

The most recent news update I have seen, here, reports that the New Brunswick Law Society has, by a narrow vote, re-affirmed its support for accreditation. This seems to mean that overall 3 Provinces have now officially voted against accreditation, 2 (including New Brunswick) have voted in favour, and 2 others have not taken a final position. It will be interesting to see whether those who are supposed to be the defenders of the rule of law in Canada, the lawyers, are willing to support freedom of religion, or instead are determined to characterise an adherence to established Biblical morality as “homophobic”. As noted in my 2013 piece, the overall implications for the involvement of committed Christians in public life generally are fairly disturbing. Still, since the Supreme Court of Canada in 2001 has already decided that TWU could train teachers for Canada, I have some hope that if the matter proceeds through the courts the SCC will once again find in favour of religious freedom.

To quote from my previous paper:

Of course it need not be said that if students or staff at TWU engage in unlawful discrimination while studying or teaching, or once they have graduated, then the law will apply to them. But the argument that TWU ought not to be accredited to graduate lawyers boils down in the end to an argument that no-one holding to a Biblical view of sexual morality is fit to hold public office in a Western society today. It is an argument that is not legally sound in Canadian law, and ought to be rejected by anyone who supports a balanced view of human rights, which includes not only anti-discrimination rights, but rights of freedom of religion.

neilfoster

Truck-driving and religious freedom

These two ideas don’t automatically sound related, but they came up in a recent news item from the Boston Globe here. Can a Catholic firefighter object when asked to drive a fire truck in a “gay pride” parade? The court ruled they could not.
I think this case is close to the edge, but on balance went the wrong way. An employee with religious convictions about the sinfulness of homosexual behaviour ought, in my view, be allowed to decline to participate in activities the sole purpose of which is to affirm and celebrate such behaviour. Of course it would be different if, for example, there was a fire involved, even if it were a fire that broke out on one of the floats! There saving life and property would be the issue and employees should, and I imagine would, be happy to do the job. But to be asked to play this supporting role in a purely symbolic affirmation of homosexuality is going too far. It seems that it would have been perfectly possible for the employees to not have been rostered on this duty.
These issues are similar to those which came up in the Ladele case a few years ago in the UK and in Europe. See a recent paper here which comments on some of the issues.