neilfoster

Prison for “husband” in under-age marriage

It has just been reported that a 27-year old man has been jailed here in Australia for 10 years after pleading guilty to “persistent sexual abuse of a child”. The man, from Lebanon, had seen a 12-year-old at his local Newcastle mosque and began “pursuing” her to marry her. The leaders of the mosque he attended quite rightly told him that they would not perform the ceremony, as it was illegal under Australian law, but he managed to find another self-described “cleric”, Sheikh Muhammad Tasawar, an Iranian based at a different mosque, who agreed to perform the “ceremony” at a local house. Disgracefully, the girl’s father agreed. The man took his “bride” to Sydney and had sex with her on a number of occasions.

I commented about this case in a press report in February 2014, when at the time it had been reported that the “groom” had been arrested but there was no mention of the liability of the “cleric”. I noted at the time:

Section 100 of the Marriage Act 1961 makes it an offence for a person to “purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.” Anyone who carried out a wedding ceremony involving a 12 year old girl in Australia would have “reason to believe” that the marriage would be void, as they would be aware of the age of the child. They should be aware because s 42 of the Act requires a “notice of intended marriage” to be provided, which must be accompanied by a birth certificate for each of the parties. Section 99 of the Act also makes it an offence for an “authorised celebrant” to solemnise a marriage without requiring such a notice.

As it turned out, even on the day my opinion piece was published (so that I can’t take credit for it!), the police had already arrested the cleric. The latest article notes that

In March 2014,  Tasawar, 35, pleaded guilty to the offence of solemnisation of a marriage by an unauthorised person. He was fined $500 and his religious leader visa was cancelled.

The sentence of the husband was not for his breach of the Marriage Act 1961, although as I noted he had indeed breached that Act. But it seems a sensible decision to charge him, as was done, with the more serious offence of sexual relations with a minor. Sadly the report notes that the 12 year old girl was later hospitalised with an ectopic pregnancy, and miscarried. It is good to see that the court handed down a serious sentence for this terrible behaviour.

I concluded my previous note as follows:

Is this an interference with the right to free exercise of religion? Yes, it is to some extent. The right to religious freedom is a fundamental and important right, recognised in international law under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. Religious freedom under Commonwealth law is also recognised by the important s 116 of our Constitution. But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.

The authorities in Australia should be concerned if any religious group is conducting “marriage ceremonies” leading to relationships that are not regarded as valid marriages under Australian law. Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought. Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct “looks like” a marriage service but cannot lead to a recognised marriage under the law of Australia. As well as the under-age “marriage” involved here, another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions to evade the Australian law.

It is good to see that leaders of the major Islamic organisations have unreservedly condemned the alleged “marriage”. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted to send a clear message about the law, and in the interests of the vulnerable children or women who may be harmed by entering what they think are marriages, but are not.

neilfoster

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

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

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

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

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

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

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

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

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

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

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

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

What reasons are offered for making the change?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

His Honour goes on (at 580- 581):

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

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

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

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

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

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

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

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

Summary

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

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

neilfoster

Submission on Religious Freedom in Australia

Recently the Australian Law Reform Commission has had a consultation on Rights and Freedoms in Australia. Just the sort of thing I should have made a submission to, you might think. And so did I; except that, in the rush of getting ready for semester 1 teaching the Feb 27 deadline made a whooshing sound as it rushed by! So I was immensely pleased to discover that Freedom 4 Faith, an Australian group set up to further religious freedom, had put forward an excellent submission; in fact, far better than the one I might have prepared! I encourage you to read it. The submission clearly sets out the international obligations Australia has to protect religious freedom, the various limits on religious freedom, and how they should be approached. In particular it identifies very clearly the fact that there is a lingering tendency in those from the “mainstream” human rights area to cast religious freedom in a secondary role, even if they do so because they are unaware of their own presuppositions. See, for example, the paragraph in the ALRC discussion paper noted on page 4 of the F4F submission, where protection of religious freedom is simply labelled “discrimination” and a warning is issued about the needs of “vulnerable” people. The F4F paper clearly but politely points out some of these issues and proposes a model which would better balance out the right to religious freedom and the right to be free from discrimination. I hope that the ALRC will give it a great deal of weight in coming up with their final proposals later in the year.

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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

Canadian Supreme Court creates right to assisted suicide

Legal issues around the beginning and end of life have a long history of intersecting with religious beliefs on those same fundamental topics. Longstanding debates about abortion and euthanasia involve questions about the limits of the law, and the signals sent by the legal system on these topics. This area came to the fore again yesterday with the decision of the Supreme Court of Canada in Carter v Canada, 2015 SCC 5 (6 Feb 2015), in which a unanimous 9-member bench ruled, on the basis of s 7 of the Canadian Charter of Rights and Freedoms, that Federal Canadian law prohibiting suicide was invalid to the extent that it prevented

physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

A previous SCC decision had ruled in 1993 that there was no such Charter right. But now the court has changed its mind. In other words, despite a clearly enunciated rule on this topic passed under the democratic process by the Federal Canadian Parliament, the 9 members of the Supreme Court have now decided that Parliament got it wrong.

There are two major problems with this decision. One is the way it was made, the other is the substance of the decision. (Apart from that, all was fine…) The way that it was made illustrates the legitimate concerns that many have had in Australia about a “Bill of Rights” which allows courts to immediately substitute their judgments on significant policy issues, for the judgments of elected Parliamentary representatives. I happen to think that there is a legitimate place for a Bill of Rights of some sort in the Australian context. However, if such a thing were to be introduced, it should follow the model of being an “advisory” jurisdiction under which the courts would flag an issue, but there would be no legal consequence until Parliament had chosen to respond.

The problems of the Canadian model, where the courts immediately over-ride Parliament, are apparent here. The Supreme Court, having said that the current Federal law is invalid under the Charter, then “suspends” its ruling for a year to allow Parliament to respond. Why? Because it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is “unendurable”? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things? (In a very brief comment at [132] the Court says that the rights of patients and physicians in this area “will need to be reconciled”.) But one might remark that if it would be inappropriate for the Supreme Court to sully its hands with the gruesome details of implementing a policy, there may be something to be said for the view that they are an inappropriate forum to be making binding pronouncements on such policy.

One feature of the Charter which is not often mentioned may provide a “fallback” position. Section 33, sometimes known as the “notwithstanding clause”, does allow a Canadian legislature to over-ride a court ruling on certain provisions of the Charter (including s 7, the “right to life”, which with extreme irony was the provision invoked here to support a “right to death”), so long as it does so explicitly. Press reports suggest that some are already arguing that this is a case where s 33 ought to be invoked.

Why is the substance of the decision questionable? The arguments about opening up the door to legalisation of suicide generally are fairly well known, as are the arguments against allowing open slather in assisted suicide. But briefly, the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life. Any provision which allows others to make decisions to end human life weakens that value in the community. While the criteria set down by the Supreme Court here sound plausible and reasonable, the problems lie both in the implementation and also in the future development of the law. The implementation issues arise because fallible human beings have to make these decisions, and in many cases they will be under pressure from others. Family members of a dying person may have their own reasons for showing that the person’s illness is sufficiently grave, and their pain sufficiently unendurable, for a physician to assist in death. In many cases someone who is so gravely ill will have impaired judgement, and these decisions will have to be made by others. And once a law like this is introduced, there is an observable tendency in jurisdictions around the world for the grounds on which these decisions are made to be broadened.

All these issues have been long debated, and will continue to be debated. Sadly, the Supreme Court of Canada has decided that it has much more wisdom on these matters than the legislators of Canada, and foreclosed a debate that should be had in full, and with all relevant interests being considered carefully.

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

Protection of Religious Freedom in Australia

Since today is Australia Day, it seems like an appropriate occasion to make some comments about freedom of religion in Australia! Those of us who are blessed to live in this wonderful country have many things to be grateful for, and one of them is a tradition of free exercise of religion. However, this right is not protected here in precisely the same way as it is protected in other jurisidictions which share our common law heritage. In this post I want to outline briefly how the law protects freedom of religion in Australia.

One of the key features of the Australia legal system is that we are a Federation, governed by a written Constitution. The Commonwealth Parliament is given certain specific areas in which it can legislate; the States hold the “residual” powers of legislation, although if the Commonwealth has passed a valid law it can over-ride State law on that topic. This Federal division of powers is an important background to considering how religious freedom is protected.

A. Religious Freedom Protection under Commonwealth law

The Commonwealth Constitution contains a clear restriction on Federal law-making powers, designed to protect religious freedom. This is s 116 of the Constitution:

Commonwealth not to legislate in respect of religion 

  1. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

(Of course s 116 also deals with “establishment” issues, whether the Commonwealth can create or support a religious body, and religious tests. But for today we will focus on the “free exercise” clause.)

The provision is similar to, and was enacted in clear knowledge of, similar words in the First Amendment to the Constitution of the United States of America. But it has become clear in later interpretation that the High Court of Australia, in the few cases where the provision has been considered, will not automatically follow the US Supreme Court. There are only a half dozen High Court decisions dealing with the free exercise clause of s 116; to my mind the most important, and still the best, of these decisions is the WW2 era decision of Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.

Briefly, the issue that arose in that case was one which is still a hot topic today: where do we draw the line between protecting religious freedom, and protecting national security? During World War 2, the theology of the JW’s involved the views that all organised political entities (up to and including the British Empire) were “organs of Satan”, and that it was the duty of all JW’s to not participate in human wars. In addition they would refuse to take an oath of allegiance to the King.

While these views were unpopular even in peacetime, at the height of World War 2, when many Australians were fighting and dying overseas for the British Empire, they were pretty explosive. So much so that under a general regulation-making power given by the National Security Act 1939 (Cth), regulations called the National Security (Subversive Associations) Regulations 1940 had been made, and under those regulations the Governor-General had declared the Jehovah’s Witnesses to be a subversive association, and the Commonwealth had taken over its main meeting centre.

The High Court held  that the regulations were invalid. But interestingly for our purposes, the reason for their invalidity was not that they breached s 116! The court effectively held that they went beyond either the regulation-making power, or else beyond the Constitutional power involved, as being too far-reaching. In particular one of the features that struck the judges concerned was that under the Regulations organisations were prohibited from advocating “unlawful doctrines”, which were defined to include “any doctrine or principle advocated by a declared body”. Since the JW’s were within a tradition that honoured the Bible, their doctrine included such subversive tenets as the Ten Commandments! Overall 3 out of the 5 judges ruled that the regulations were too broad and were, in effect, a disproportionate response to the danger posed by the JW’s.

However, the court did consider the question whether, if the regulations were otherwise valid, they would have been contrary to s 116. I think the best of the judgments on this question was that of Latham CJ, who emphasised the importance of religious freedom, but held that in effect s 116 had to be read as posing the question whether a law amounts to an “undue” infringement of freedom of religion, taking into account other important interests (at 128). Hence a law which impaired religious freedom (as this law clearly did) would still be valid if it was aimed at achieving an important government interest (national security, here), so long as it was not an “undue” infringement of religion taking into account the importance of the interests.

Other judges read s 116 in slightly different ways, and later decisions of the High Court (most of which were comments in passing, rather than directly on this issue) offer a slightly narrower view of s 116. (See e.g. Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1.) But it seems to me that Latham CJ’s decision captures the real importance of the provision, while recognising that it cannot provide “absolute” protection where other important interests are at stake.

An important point to note about s 116, however, is that it does not apply to laws passed by a State, as opposed to the Commonwealth. The wording of the provision is clearly limited to the Commonwealth (and here in Australia our High Court has not made the step that the US Supreme Court took in Cantwell v Connecticut 310 US 296 (1940) of extending the free exercise limb of the First Amendment to the States.) Indeed, there is some academic and judicial debate as to whether s 116 even extends to Federal Territories, which are set up under authority of Commonwealth laws (although I think that there are strong hints in recent High Court decisions that, should the issue come up today, the High Court would apply s 116 to a Territory law- see Wurridjal v Commonwealth (2009) 237 CLR 309, which extended a similar limitation on general Commonwealth law-making powers to govern Territorial laws.)

B. Protection of religious freedom other than through s 116

How is religious freedom protected in Australia, then, where s 116 does not apply (in particular, under State law?) There are a number of possibilities which have been put forward, which I will briefly note.

(a) Protection under International Conventions?

There are a number of important international treaties which protect religious freedom. Probably the most important one, which Australia has undertaken to be bound by, is the International Covenant on Civil and Political Rights (the ICCPR), s 18 of which provides for a broad right of religious freedom.

But under Australian law international treaties are not “incorporated” into our domestic law automatically; Parliaments need to take a further step and pass implementing laws. Unless the Commonwealth or a State/Territory enacts specific legislation, the most that can be said (and this argument has been run in a couple of cases) is that as a matter of judicial discretion in interpreting ambiguous legislation, the courts should presume that Parliament would intend to comply with international law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.) But so far no statute has been found to be sufficiently unclear in the area of religious freedom for this principle to be applied.

Of course international conventions can provide a model to encourage legislation, and as we will see in a moment there is some local legislation which to some extent specifically adopts the ICCPR. But it cannot be litigated on directly in domestic courts.

(b) Common law protection for religious freedom?

While the common law has a long tradition of protecting freedoms in general, there is not a strong common law religious freedom tradition. In fact, of course, the common law developed in a country (Great Britain) where there was an established church, the Church of England, and at various points in history there were legal disabilities imposed on those from other religions. In Grace Bible Church Inc v Reedman (1984) 36 SASR 376 the South Australian Supreme Court held that there was no implied principle of religious freedom constraining State laws.

On this question the most promising angle is the approach seen in a Federal Court decision, Evans v NSW [2008] FCAFC 130, where the Full Court in ruling on the invalidity of some regulations constraining religious comment during “World Youth Day”, that where legislation was ambiguous it would be interpreted so as to favour the internationally recognised right of religious freedom to the maximum extent possible, referring at para [79] to the fact that “[an] important freedom generally accepted in Australian society is freedom of religious belief and expression”.

(c) Protection under specific charters of rights

As most people are aware, Australia has no general Federal “Charter of Rights” (unlike the US or even, today, the UK where the European Convention on Human Rights has to some extent been incorporated into local law.) But individual jurisdictions have chosen to implement such charters, and both the State of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14) and the Australian Capital Territory (Human Rights Act 2004 (ACT) s 14) have enacted general human rights instruments which contain explicit protections for religious freedom.

(d) Discrimination laws and “Balancing provisions”

Freedom of religion is also protected in two different ways under legislation which prohibits unlawful discrimination around Australia. In most jurisdictions (all except NSW and the Commonwealth), one of the grounds of unlawful discrimination is religious belief, so that it would be unlawful to sack someone, or deny them services, on the grounds of their religious belief. Related to this, and also present in the other jurisdictions, are provisions of laws that are designed to “balance” religious freedom with the right not to be discriminated against. So that, for example, while there is a general prohibition on employment decisions being made on the basis of gender, all jurisdictions allow churches or other religious organisations to decide only to appoint male clergy, because that is seen by some religious groups as a key part of their teachings. Agree with these teachings or not, the law takes the view that it reasonably preserves the religious freedom of believers in these groups, and the groups as a whole, to allow their religious freedom to be exercised in this way.

Of course there is a great deal more that could be said about all these areas, but hopefully this will provide a useful overview of religious freedom protection in Australia. On the whole our history has been fairly free from serious religious conflicts, and it is be hoped that we can continue to enjoy the freedom to live in accordance with our fundamental beliefs, while respecting the rights of others.

neilfoster

Article in The Australian on freedom of religion and human rights

There is a brief article in The Australian newspaper today (Friday, Jan 23) by Chris Merritt, “Left hijacks human rights arena”, which quotes me, and some other Australian commentators, on the unfortunate tendency to trivialise freedom of religion (a clearly recognised human right under major international conventions) and to elevate general rights of “non-discrimination”. For those who are interested in further reading, there is an excellent discussion of some of these issues in a chapter by Professor Patrick Parkinson, “Christian Concerns about an Australian Charter of Rights” (in Babie & Rochow, eds, Freedom of Religion under Bills of Rights, Uni of Adelaide Press, 2012) 117-151, esp from p 121. (The book as a whole may be downloaded for free here.)