Is denying same sex marriage unconstitutional?

An article in The Conversation on 30 August 2016,  “Marriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional” by academic Dr Luke Beck, Lecturer in Constitutional Law at Western Sydney University, suggests that, far from proposals to redefine marriage to include same sex couples being a threat to religious freedom, the current law (which does not recognize such relationships) is itself in breach of free exercise of religion principles.

Dr Beck, it has to be said, is one of Australia’s foremost legal experts on s 116 of the Constitution (I regularly cite his many articles on the topic to my students in the “Law and Religion” course I teach.) So it is with some hesitation that I have to say I disagree with his view on this issue. But disagree I do.

As I understand his argument, it proceeds in this way:

  • Section 116 of the Constitution prevents the Federal Parliament from enacting a law that “interfere[s] improperly with religious freedom.”
  • Under s 47 of the Marriage Act 1961 as it now stands, a minister of religion may decline to solemnize any marriage, for any reason whatsoever. [Controversially, Dr Beck suggests that this would even allow a religious celebrant to decline to solemnize a marriage between a couple of different races, if he or she so chose. With respect, as we lawyers say, I am not quite so sure about this. The opening words of s 47 are “Nothing in this Part…(a) imposes an obligation…”. That is, no rule otherwise laid down by Part IV of the Marriage Act 1961 imposes such an obligation. But there is surely an argument that, for example, another valid piece of Commonwealth law, such as the Racial Discrimination Act 1975 s 13, forbidding a refusal to supply “services” to a person on race-based grounds, would make such an action unlawful?]
  • This provision, s 47, then, will prevent ministers of religion being required to solemnise same sex marriages, should such be introduced. “Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages.” [For avoidance of doubt, as noted above, s 47 should probably be expanded to refer to “other laws” not having such an effect, as well as negating the operation of Part IV.]
  • But there are some ministers of religion who would like to solemnise same sex marriages at the moment.
  • However, the current Act prevents this happening. Dr Beck refers by way of a link to s 101 of the Act (which refers to persons solemnising marriages who are unauthorised to do so), but I would like to suggest his case would be stronger if he referred to s 100:

“A person shall not solemnise a marriage, or 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.”

  • There is an interesting technical debate about whether a purported “marriage” under the current law between two parties of the same sex would be “void” or not (or a “nullity”), but I think one could pretty clearly say there was a “legal impediment” to the purported marriage. Section 5 of the Act currently contains a very clear definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
  • Dr Beck then adds that, even if a couple wanted a solely “religious” marriage ceremony, which was not to be regarded as a legally valid one, the law would prevent this happening. He says: “a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple.” Indeed, he points out that the same penalty is applicable for a minister who purports to conduct a religious ceremony for an opposite sex couple, without them having been through a civil ceremony.
  • On this issue, I think he is correct. The law of Australia has been established as it is, to discourage persons entering so-called “marriages” which are not actually recognized as such by the legal system. One obvious example is where a religious group might consider it within their system to marry a 14-year-old girl, for example. If the law allowed an “apparent” marriage of this sort to take place, it would be confusing for the parties and others, and likely to lead people to think the marriage was valid under Australian law, when it is not. For this reason all purely religious ceremonies that purport to “marry” are forbidden, except where the parties concerned have gone through a prior valid civil ceremony.
  • Indeed, the present Chief Justice of the High Court, French CJ, when he was a trial judge in the Federal Court, commented on this matter in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) when he noted that the religious freedom of “non-recognised” religious groups was preserved by the provisions of s 113 allowing a minister of such a group to conduct a religious ceremony:

    “the provisions of s 113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister” (at [14]).

However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

My main reason is that (as Dr Beck would no doubt agree) a person’s religious commitment is not an automatic “trump card” when other principles arise. Not every law that is contrary to a person’s private religious commitments is an “undue” restriction on religious freedom. A law that prevented a revived Aztec priesthood from conducting ritual human sacrifices at noon would be perfectly valid. The law currently forbids marriage under religious law of 14 year olds. It does so for a valid public policy reason concerning child protection. The law currently forbids a celebrant from purporting to solemnise a same sex “marriage”. Agree with that law or not, it does so for public policy reasons related to the support for the traditional view of marriage as between a man and a woman. That is a public policy stance which was articulated with clarity in Federal Parliament by the bi-partisan support for an amendment in 2004 inserting a clarifying definition of marriage into the Act to make it clear that same sex unions celebrated outside Australia would not be recognized as “marriages” within Australia, despite our otherwise generous recognition rules for such marriages. (This 2004 amendment, of course, did not effect a fundamental change in the Australia law, as is sometimes suggested. The definition of marriage as between a “man and a woman” was already contained in another part of the Marriage Act 1961 itself when first enacted, in s 46; and it was later enacted as part of the Family Law Act 1975, s 43.)

To again quote from the decision of French J (as his Honour then was) in Nelson v Fish, at [13]:

“The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution – Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is “subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order” (p 155 per Starke J. – see also 132 per Latham C.J.).”

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

Dr Beck comments that: “There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants.” But the very same logic would justify allowing a polygamous marriage ceremony to take place, or an under-age ceremony, or one where the parties are not both fully consenting, under religious views. Australian law has long taken the view that, in the interests of maintaining clarity about who is married to whom, religious marriage ceremonies may not be conducted where there has been no prior civil ceremony. Community confusion will be bound to be created in these cases, even if (as would by no means always be the case) all the parties who were present were completely clear about the non-binding nature of the ceremony. (I have commented on these issues in a previous paper on the question of whether churches who disagree with the introduction of same sex marriage ought to withdraw from the marriage system if it is introduced.)

There may also be some doubts about the fairly wide view of the operation of s 116 which Dr Beck impliedly supports. On this issue in fact I tend to think he is correct, that the provision ought to allow a challenge to Commonwealth legislation when it “interfere[s] improperly” (to use Dr Beck’s phrase) with religious freedom; or when it amounts to an “undue infringement” of the right to free exercise of religion, as it was put by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 128. There are, however, some authorities which suggest a much narrower scope to the s 116 protection of religious freedom: that it would only prevent a law the main aim or purpose of which was to impair religious freedom: see eg some of the comments in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, esp per Brennan J at 40; more recently Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) at [145]-[150]. I think, however, as Dr Beck seems to suggest, that there is a sound case to be made that the prohibition on interference with free exercise of religion operates more broadly. For example, I would certainly want to maintain that a law recognizing same sex marriage, which required all ministers of religion to celebrate such marriages, would be unlawful under s 116. And my view is s 116 may in fact also operate to protect other religious participants in the “wedding industries” from being required under other Commonwealth laws to provide their artistic services in the celebration of same sex unions.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

Despite Dr Beck’s optimism that the introduction of same sex marriage will not “presage an attack on religious freedom and people of faith in the Australian community”, unless careful consideration is given to these issues, this is likely, in fact, to be the outcome. Of course the freedom of religious groups to allow their ministers to conduct same sex weddings ought to be protected, if the institution of marriage is to change in the way proposed. But it is not those religious groups who find themselves under regular attack from media and politicians alike as “bigots” and “homophobic”. To quote Sir John Latham again, from the landmark Jehovah’s Witness case:

“such a provision as 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).”

Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Religious Freedom in Australia

I was invited to speak to the J Rueben Clark Law Society annual conference on Friday May 29, and gave a paper on Religious Freedom in Australia. (I am not a member of the Society but happy to share in the work of supporting religious freedom with its members.) The paper covers something of the ground I covered in a previous blog post on this area, but in more detail and with footnotes! After the paper one member of the audience noted that I had omitted to mention s 46 of the Tasmanian Constitution Act 1934 which is the only provision for specific religious freedom protection in Australia in a State Constitution. Worth keeping in mind though so far no court has ever had occasion to consider what it means. Those who are interested in a detailed analysis of the somewhat patchwork system for religious freedom protection in Australia at the moment may find the paper of interest.

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.