neilfoster

Beards, prisons and religious freedom

The US Supreme Court yesterday issued an interesting religious freedom decision in Holt, AKA Muhammad v Hobbs, Director, Arkansas Dept of Correction (No 13-6827, Jan 20, 2015). (Thanks to Marc DeGirolami at the CLR Forum for the notice.) A Muslim prisoner wanted to grow a 1/2 inch beard for religious reasons. The State prisons policy required that prisoners have no beards, except that those with certain skin problems were allowed to grow a 1/4 inch beard. Holt, the prisoner, successfully sued the State under the provisions of the Federal Religious Land Use and Institutionalised Persons Act 2000 (“RLUIPA”), 42 USC  §2000cc et seq. The SC held that he had shown that the State rule burdened his religious freedom, and that the rule could not be proven by the State to be in furtherance of a “compelling governmental interest” or to be the “least restrictive means” of furthering that interest.

The unanimous decision of the Court (there were clarifications issued by Ginsburg J and Sottomayor J but they agreed with the outcome) is a nice illustration of how many religious freedom claims are dealt with in the US these days. Alito J provides a helpful “road-map” to the way the issues are raised, at part IA of the judgment (pp 2-4 of the linked decision). This case did not directly involve the right to free exercise of religion under the First Amendment to the US Constitution, because the prevailing view in the SC at the moment seems to be that Employment Division v Smith, 494 US 872 (1990) represents the correct approach to the First Amendment. In effect Smith is read to mean that so long as there is some plausible, non-“religiously hostile”, reason for a Government law then it cannot be challenged under the First Amendment. Following Smith, the US Congress attempted to return protection for religious freedom to a broader basis by enacting two Federal statutes. The first was the Religious Freedom Restoration Act 1993 (“RFRA”), which (it was subsequently held in City of Boerne v Flores, 521 US 507 (1997)) applies only to Federal law. The second was RLUIPA, which applies to specific types of State laws covered by Federal legislative power (according to Alito J here at p 3, the “Spending and Commerce Clauses”.) The particular State laws covered by RLUIPA, as its somewhat odd title conveys, are land use laws and laws governing “institutionalised persons” including prisoners in State jails.

Where RLUIPA applies, as with RFRA in its area, the substantive provisions require that a State law which “substantially burdens” the religious freedom of a prisoner, will only be valid if the State can show that:

imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a).

Here the Supreme Court held that

  • the plaintiff was able to show that he had a sincere and genuine religious belief, not motivated by some other reason (evidence at trial established “hadith requiring beards… are widely followed by observant Muslims” – see p 8), and the Court held that it was irrelevant that growing a beard was neither universally followed by all Muslim men, and also that it was not viewed as a “compulsory” part of Islam. Nor was it relevant that the prisoner was allowed to carry out other religious exercises- the specific issue of the beard mattered to him on genuine religious grounds.
  • hence it was a “burden” to be asked to shave off his beard below 1/2 inch (it may have been relevant that Mr Holt had already “compromised” in agreeing to restrict his beard to 1/2 inch, as he would have preferred to not shave at all).
  • The State was not able to show that its claimed interests were “compelling”. The claim that small dangerous items could be concealed in a beard was doubted by the Court in relation to a 1/2 inch beard (nothing that hair could be grown quite long and would provide a better hiding place!) The claim that the beard could be shaved off and make identification harder was met by the answer that two photos of each prisoner could be taken, a “before” and “after” the beard, which would enable adequate identification (a policy followed in many other prison systems.)
  • Nor could the State show that this was the “least restrictive” method of achieving even these limited aims, for similar reasons. The Court noted that of course the judgment of prison officials warranted a degree of deference by the courts, as they had to deal with the issues daily; but they said that there came a point where deference had to give way:

without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting outcontraband. (at p 10)

  • One factor that counted heavily against the State was that the vast majority of other State prison systems, and the Federal system, had no such rules and was able to manage the concerns about smuggling and identification adequately.

In the end, then, all the Court agreed that Mr Holt’s religious freedom had been unduly burdened by a rule which could not be justified under the RLUIPA standard.

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

Churches meeting in public schools

Can a church hold its Sunday meetings (or other activities) in a public school building? The issue doesn’t seem controversial in Australia at the moment (my church, for example, does just that.) But it has proved surprisingly difficult to resolve in New York, and where there is a trend in the US in the area of religious freedom it is worth noting for its possible future arrival in Australia.

I first wrote a paper about this particular dispute at the end of 2011. That paper contains some details about the US First Amendment and why it was invoked here. Essentially, a smallish independent church, the Bronx Household of Faith, had been meeting on Sundays in a public school, but the New York City Board of Education objected. The relevant rule they laid down, after some other versions, was that no organisation could use school property for “religious worship services”. They were effectively claiming that by allowing church services to take place, the “wall of separation” between church and state was being breached, and members of the public would see the City as somehow “entangled” with the church.

The dispute has been characterised by trial judges ruling in favour of the church, and the Second Circuit Federal Court of Appeals then overturning the lower court decision and ruling against the church. There have also been strong dissents from one of the judges on the Court of Appeals. As I left matters at the end of my 2011 note, the US Supreme Court had refused to hear an appeal from the Second Circuit, which had ruled that the City’s regulation was not contrary to the “free speech” part of the First Amendment. But as I said in my note, it had become apparent that there were stronger “freedom of religion” arguments that could have been raised, which opened the way for the school to have another go.

After the Supreme Court’s denial of appeal on the free speech point, the church obtained an injunction from the District Court, in Bronx Household of Faith v. Board of Educ. of City of New York, per Preska CJ (see 876 F Supp 2d 419 S.D.N.Y., 2012; June 29, 2012) preventing the city removing the church from the school, this time on “free exercise” grounds (as the particular regulation targeted “religious worship”), and also interestingly on the “establishment clause” ground that the law “excessively entangled” the government with religion (as government officials had to make a judgement about whether what the church was doing was “religious worship” or not!).

 The Court (a single judge) found that the regulation violated the Establishment Clause under Lemon (see the earlier paper for details of this) because it caused the Board’s officials to become excessively entangled with religion by requiring them to make their own bureaucratic determinations as to what constitutes “worship.” (at p 47 of the transcript)

The US Second Circuit Court of Appeals then heard an appeal from this decision on Nov 19, 2012. On April 3, 2014, the majority of the 2nd Circuit ruled in favour of the City that there was no violation of the First Amendment, either the establishment clause or the free exercise clause. An application for an appeal to the US Supreme Court has now been made. The 2nd Circuit on 10 July 2014 issued a “stay order” which means that the church can keep meeting in the school for the moment until the appeal is resolved.

Meanwhile, in May 2013 the New York City Council passed a motion encouraging the New York State legislature to overturn the particular rule: see here. But there is apparently still some doubt as to whether the State legislature will do this, and so it seems that the outcome of the appeal is still important for the issue. The current New York mayor has said that he favours allowing the church to use the school.

The latest report I have read says that, despite the Mayor’s previously expressed views, officials from the City are still proposing to argue the appeal in the Supreme Court. It is also interesting to note that the litigation has been dragging on for so long that church has now managed to put up its own building! But it would still like to use school premises for the occasional extra activities, so it will also continue the litigation.

Those interested in a full account with links to all the relevant court documents can see it at the excellent Alliance Defending Freedom website on the case.

neilfoster

Vaccination and religious freedom

The question of the effectiveness or possible harm of compulsory vaccinations is of course a hot topic in Australia as it is in other parts of the developed world. My own view is that the evidence for the effectiveness and general safety of most standard childhood vaccinations is overwhelming. But how should the law respond when a parent claims that for religious reasons they do not want to vaccinate their children?

This was the issue that was considered recently in a decision of the Second Circuit of the US Court of Appeals in Phillips v City of New York (DN 14-2156-cv, 7 Jan 2015). NY state law requires all children attending public schools to produce evidence of vaccinations, with two exceptions: where there is a clear medical reason that vaccination should not take place, or where the parents can show a genuine religious objection. But another part of the law specifies that where there is an outbreak of a disease against which vaccination is effective, students who are unvaccinated because of such exemptions being granted, may be temporarily excluded from the school.

In this case two of the plaintiffs had been granted a religious exemption, but complained that their children had been excluded from school during a chicken-pox outbreak. The other plaintiff had had her claim for a religious exemption denied, because she could not cite any doctrines of her church (the Roman Catholic Church) that related to the question of vaccinations. The complaints alleged a breach of the freedom of religious exercise right granted by the First Amendment to the US Constitution.

The facts illustrate a common feature of religious freedom cases, that many involve a clash between religious freedom of the plaintiff and some other right of someone else. Here NY officials claimed that the right to be free from infectious diseases (a specific example of what one might call a general right to be free from unnecessary bodily harm) clashed with the right of parents to exercise religious freedom. The Court, correctly in my view, held that the First Amendment rights of the plaintiffs had to give way in this case to public health considerations. While there was no US Supreme Court decision directly on point on the First Amendment issues, the Court cited dicta from a 1944 decision which was highly persuasive:

a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

In addition, the general approach of the US Courts to religious freedom issues in recent years is to read the right very narrowly, so that if there is a “neutral” (i.e. not clearly anti-religious) reason for a law, it will not breach the First Amendment, following the decision in Employment Division v Smith 494 US 872 (1990). (Without going into detail at the moment, I should say that I disagree with this general approach, which seems to read religious freedom far too narrowly. But that will have to be the topic of a future post.) But even if a more generous approach were adopted, such as has been taken in the US Federal sphere in the Religious Freedom Restoration Act (RFRA) 1993,[1] where restrictions on religious freedom have to have a compelling policy justification and be narrowly drawn, it seems to me that this law on vaccination is perfectly sensible. There are clear and scientifically proven detrimental health effects to others from the spread of disease from those who are not vaccinated (and indeed compelling reasons in the interests of children themselves to do as much as possible to encourage parents to vaccinate.) Even if there are religious reasons not to do so, the potential harm caused by the failure outweighs the harm caused to religious sensibilities.

Indeed, one may go further. While it is true that some who oppose vaccinations on general principles are religious believers, many are not. And even among those who are religious, it is arguable that hardly any of the reasons offered for not vaccinating are drawn from religious reasons. The decision records that the plaintiff who was denied a religious exemption, while she claimed she did so as a Roman Catholic,

testified that she did not know of any tenets of Catholicism that prohibited vaccinations.

In other words, while it was not doubted that she had genuine health concerns for her child, those concerns were not really based on religious beliefs. It may be that others can be offered, and I would not want to deny that some objections to vaccination might be based on genuine religious beliefs. But I think the approach of the court here was correct, to test the claim of a religious belief on the topic by asking the plaintiff to spell out her reasons, and where none of the effective beliefs related to her religious world-view, to not accept that they were religiously motivated.

Religious freedom is a fundamental human right which is protected by international human rights instruments and a long common law tradition. But like all other rights, it occasionally has to give way in the wider public interest, and while accepting that the parents concerned had genuine beliefs, the decision of the Court here seems sensible. It will be interesting to see if the matter is taken up the US Supreme Court, as some of the press reports indicate the plaintiffs plan to appeal.

[1] 42 USC ss 2000bb to 2000b-4.

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

Freedom of speech and terrorism

On a day when French police are still hunting for the killers who murdered journalists at the Paris office of a satirical magazine, probably because of the magazine’s publication of material mocking Islam and Muhammad, is there anything that can be said about law and religion issues for Australia?
The support expressed for freedom of speech in the wake of this terrible event is real and important. But there are of course important questions about the limits of free speech.
“Freedom of speech”, like any other human right, is never and has never been absolute. We restrict speech where it causes physical harm to people (such as an incorrect health warning on medication, or the classic example of someone who shouts “fire” in a crowded theatre and causes death and injury in the resulting stampede.) We also make some speech unlawful where it incites direct violence against others, or falsely destroys someone’s reputation ( through the law of defamation.)
Here the speech of the magazine in mocking sacred Islamic topics will have led, and foreseeably so, to distress and offence among some Muslim people. Indeed, when the original Danish cartoons were published, there may well have been some who were physically injured in subsequent riots, which again were reasonable predictable. Does that mean we should pass laws making it illegal to cause such offence on the ground of religion? It may be that once the current outrage has subsided to some extent, there will be calls for such laws to be enacted or enforced more vigorously.
In my view, this would be a bad idea. I think that there is some limited scope for so-called “religious anti-vilification” laws, provided however that those laws are carefully crafted to only catch speech which incites hatred or violence against persons of a particular faith. But the law should not prohibit the mere causing of “offence”, nor should it restrict robust debate about the truth or falsehood, or good or bad effects, of religions. I make the case for this in a paper which can be downloaded here.
Those who commit violence in the name of offence should be caught and dealt with according to law. It may never be possible to prevent such actions altogether. But we should not restrict freedom of speech in discussing religion because of a fear of such response.

neilfoster

Other useful Law and Religion blogs

Since this blog is so recent the word “other” probably shouldn’t be there! I hope eventually for it to be useful. But the blogs and websites mentioned below certainly are, and will no doubt often be cited here. So I thought it would be helpful to share these with others. Most will allow you to subscribe.

– Law and Religion UK, here

– Center for Law and Religion Forum, mostly US material, here

– International Center for Law and Religion Studies at BYU Law School in Utah offers an excellent daily list of headlines with links from all over the world, here

– “First Things” is an excellent website from a Roman Catholic tradition (but with regular contributions from evangelicals) here

It goes without saying, but since I’m a lawyer I’ll say it anyway, that I wouldn’t endorse or agree with all the articles etc linked at these sites, nor the theology of those who run the sites necessarily. But I have found them to be up-to-date, accurate and mostly sensible comments on important issues in this area.

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.

neilfoster

Discrimination and Freedom of Religion: CYC v Cobaw

One of the most important Law and Religion cases in Australia over the last few years has been the litigation involving the decision of Christian Youth Camps (CYC) to decline a booking from Cobaw Community Health for a camp the purpose of which was to teach that homosexuality is a normal and natural form of human sexuality. (For the original tribunal decision see here, for the appeal decision affirming most of the Tribunal’s findings, see here.) The decision, particularly the 2014 Victorian Court of Appeal decision, is an important one because it deals with one of the most vexed issues facing believers adhering to traditional sexual morality, facing a Western world which is rapidly abandoning previous views.

For many years, even following the so-called “sexual revolution” of the 1960’s, Christians and other religious believers could assume that core beliefs on sexual morality were still generally seen as worthwhile by most of society, even if increasingly not complied with: views applauding faithfulness to marriage vows, warning against the unwisdom of pre-marital sex, supporting heterosexual intercourse as normal and homosexual behaviour as wrong or at least “not normal”. But in recent years views of this sort are not simply seen as outdated and eccentric, they are now seen as positively “evil” (although the irony of using “moral” words like “evil” in a discourse which claims to reject morality is not usually noted.) Hence Christians and others will find their ability to adhere to traditional sexual morality, and not to be required to support other views, is increasingly being undermined.

I believe that a strong support for religious freedom would provide an appropriate balance here. I wrote a paper outlining the CA CYC v Cobaw decision shortly after it was handed down, and suggesting where the majority had gone wrong. At the time I hoped that the High Court of Australia would grant special leave to appeal the decision so some of these matters could be clarified. (See here for a short piece arguing for this published in one of Australia’s mainstream law journals.) Unfortunately, just before Christmas, the High Court declined to grant special leave. I have written a comment on the decision, making some suggestions for the implications for the future. These important issues will not go away, but it seems we may have to wait a bit longer before some of them are authoritatively resolved.

neilfoster

Legal Pressure Points for Christians

I presented a paper at the “Australia Day Convention” in 2014 which discussed some issues which are going to create ongoing pressure points for Christians in the 21st century. The paper can be read here. Matthias Media were kind enough to turn this material into an ebook, which can be purchased here. Some of these issues are ones that developed further during 2014 and I will post on these when I get a chance over the next few weeks. (By the way, for those reading, this is not the sort of blog where you will read something new every day! You can “follow” this blog using the button at the top of the page, but otherwise I will post when I can and you may find it helpful to come back once every few weeks!)