BY ANJA HILKEMEIJER

 

Two days before the release of the result of the Same Sex Marriage Survey, Liberal Senator James Paterson made public a Bill that would allow anyone who has a strong belief in ‘traditional marriage’ to refuse to provide goods and services in relation to a same sex marriage. This Bill meets the demands of the religious right as expressed in the popular press, academic literature, government inquiries and the courtroom. These demands are alarming in their implications for Australia’s multicultural liberal society.

This post argues that the Paterson Bill has no foundation in international human rights law, and indeed is at variance with legislation and court decisions in countries with legislative or constitutional human right protections. The post is divided into three sections. First, I deal with the parts of the Bill regarding refusal of the provision of goods and services in light of human rights treaties and the decisions of international and national courts. This analysis demonstrates that the Bill is premised on an unjustifiably broad notion of religious freedom.[1] Secondly, I demonstrate that the conscientious objection analysis relied on by Senator Paterson is a flawed analogy.  Finally, the Bill contains some unrelated protections – including for parents to withdraw children from class if the subject is objectionable to them – which have no basis in the human rights jurisprudence of other Western democracies.

An unjustifiably broad right to freedom of religion or belief

The 2009 National Human Rights Consultation recommendation for a national legislative charter of rights was successfully opposed by the Christian right, despite 87% of the 35 000 submissions supporting this proposal.[2]  While rejecting the recommendation of a comprehensive human rights act, some on the Christian right now lobby for national legislative protection of one right only – i.e. the enactment into law of article 18 of the International Covenant of Civil and Political Rights (ICCPR) (see for e.g. the submissions by the Ambrose Centre for Religious Liberty, Ass. Prof Neil Foster and the Christian Legal think tank, Freedom for Faith).

Article 18 of the ICCPR provides:

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

In short, this provision protects the manifestation of religion and belief individually or in community with others; in public or private; and in worship, observance, practice or teaching. Patterson’s draft Bill (clause 88JA) widens the scope of this right to include manifesting a belief by way of “any action or refusal to act”.  For absolute clarity of the intended extent of this additional ‘right’, a note in the Bill explains that it includes:

[A]cting, or refusing to act, in the course of engaging in any of the following for the purposes of preparing for, solemnising or celebrating a marriage:

(a) a for-profit or a not-for-profit business; or


(b) duties as an employer or an employee; or

(c) activities related to community and public affairs.

Nowhere in international law is there authority for such a right. In fact, international human rights law says quite the opposite. Recent international and comparative judicial decisions have consistently found against the existence of a right to refuse service to same sex couples. Other Western democracies have legislated to protect same sex couples against such discrimination; for example, in the Netherlands it is illegal for civil marriage celebrants appointed after 2014 to refuse to conclude a same sex marriage. Where anti-discrimination law has been challenged on religious freedom grounds, national and international courts have affirmed the validity of anti-discrimination law. Christian pro bono law firms such as the Alliance Defense Fund, the Becket Fund, and the American Center for Law and Justice in the United States, the Christian Legal Centre in the United Kingdom and the Australian Human Rights Alliance continue to litigate these matters but so far they have met with little success. This makes sense because article 18 expressly provides that the right to manifest religion may be limited to protect the rights and freedoms of others, including the right of people to be treated equally. It is for this reason that a piece of legislation that protects only religious freedom is anathema to human rights law.

In an interview on the Sunrise program on the morning of the release of his draft Bill, Paterson claimed that his proposal is merely implementing a United Nations’ requirement.  It is true that in its recent Concluding Observations on Australia’s 6th Periodic Report, the UN Human Rights Committee expressed concern about the ‘lack of direct protection against discrimination on the basis of religion at the federal level’ (at [17]). However, the UN Committee is not arguing that Australia should legislate a right to discriminate against others. Rather, the UN Committee notes that the Commonwealth should include religion as one of the protected attributes under its anti-discrimination legislation. Similar provisions exist in some state anti-discrimination law and would ensure that no one is discriminated against on the basis of their religion, say in the context of employment or accommodation.

Why does comparative and international law not provide that religious freedom entitles people to discriminate?  One reason is that Article 18 expressly allows for religious freedom to be limited to protect the rights of others including the right to be treated equally. A second reason is the lack of a sufficient nexus between the belief (or the core part of the belief) and the discrimination.  This was established as long ago as 1978 in the European Commission of Human Rights decision in Arrowsmith. In this case, which concerned the handing out of anti-war leaflets by a pacifist, the Commission held that the right does not cover ‘each act that is motivated or influenced’ by that belief. In 2013, the European Court of Human Rights (ECHR), in Eweida confirmed that there must be a ‘sufficiently close and direct’ nexus between the belief and the act or refusal to act (at [82]).

The need for a nexus in the protection of religious freedom is illustrated by two recent cases.  In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd, the Victorian Court of Appeal made it clear that religious freedom did not extend to the conduct of a secular accommodation business operating in the market place.  This activity was wholly secular and did not have an intrinsically religious character. Similarly, in the October 2017 case of Ngole the United Kingdom High Court held that commenting on an online news story was not a manifestation of religion and was therefore not protected by human rights law.

The late United States Supreme Court Justice Scalia summed up the reason for a nexus between a person’s belief and their action: the ‘unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself’ (at 890). Without a nexus requirement, every person’s genuinely held belief could be the basis for a claim to depart from the general law.  This is not a fanciful concern; pacifists, for example, have sought to rely on this right in refusing to pay tax because some of it is used to fund the defence force. Even though this manifestation of their genuine belief does not impact on the right or freedoms of others, courts have consistently rejected it.

There is a further argument why human rights law does not protect the right of people to discriminate against same-sex couples that derives from the right to human dignity.  The House of Lords in the 2005 case of Williamson made it clear that the ‘belief must be consistent with basic standards of human dignity or integrity.’ (at [22]). This requirement was recently affirmed by the ECHR in Eweida, and applied by a UK Employment Tribunal in Mr S T Uncles v NHS Commissioning Board and others. The Tribunal in Uncles recognised ‘English nationalism’ as a genuine and coherent philosophical belief system but allowed it no protection because it offended human dignity. Mr Uncles advocated breaches of the right to life and the right to religious freedom based on his anti-immigrant and anti-Islam sentiments.

There is a strong argument that allowing discrimination against same sex couples by the refusal of service offends the right to equality essential to human dignity and, therefore, deserves no human rights protection.

Conscientious Objection cannot be the basis of discrimination

Sprinkled through the Paterson Bill are references to conscientious beliefs. The draft Explanatory Memorandum also refers to conscientious freedom (at [16], [19]-[20]). The analogy with the conscientious objection is fraught.  There is no express right to conscientious objection under international human rights law. A right to conscientious objection has been recognised by the United Nations Committee on Human Rights and the ECHR in only limited circumstances such as in relation to military service and abortion.  To allow conscientious objection to justify departure from the general law comes up against the difficulty Justice Scalia warns against: it would open a floodgate of claims to depart from the general law.  Indeed, in a recent paper New Zealand academic Rex Adhar warned that:

It can give rise to an expanding number of claims over some highly contentious activities, not to mention, at times, some perverse or outlandish outcomes [footnote omitted] (at 11).

Furthermore, the ECHR cases of conscientious objection to military service, relied heavily on the fact that almost all Council of Europe states provided that protection under national law. As shown above, that is not the case here. In fact, most countries that have legislated for same sex marriage, have anti-discrimination laws in place to prevent discrimination on the ground of sexual orientation.

Finally, conscientious objection, by its nature, relates to the believer being compelled to engage in an act to which they have a strongly held opposition, for example, to kill another person or perform an abortion.  Anti-discrimination law does not require those opposed to same sex marriage to enter such a marriage or indeed to officiate at one. What Senator Paterson is proposing would be like allowing a Jehovah’s Witness to a refuse to sell a backpack to someone who would use it during military training or a Christian pharmacist to refusing to sell contraceptives.  Conscientious objection exemptions have never extended that far.  In Australia, the High Court has even held that someone with a conscientious objection to war cannot refuse to attend military training during peacetime.

But the Senator Paterson Bill does not stop at legislating for an overly broad right to freedom of religion and belief. It also prohibits discrimination on the ground of religion (clause 88K).  A prohibition of discrimination on the ground of religion and belief, as construed by national and international courts, is a well-recognised human right that includes the right not to be refused employment or accommodation on the basis of religion.  However, that is not quite what Paterson’s provision is aimed towards.  The anti-discrimination provision in the Paterson Bill aims to protect persons who discriminate in relation to same sex marriages from being discriminated against by others in response.  There is plenty of contemporary evidence that same-sex marriage opponents such as the Coalition for Marriage are regularly refused various services.  For example, in October 2017, the Federal Hotel group cancelled a same sex marriage event at the Wrest Point Casino in Hobart because it could not find enough staff who were willing to work at the event. The Mercure Hotel refused to take a booking but the University of Tasmania, after an initial refusal, allowed the event to take place on its campus.

Again, there is a serious floodgates problem. Someone might strongly believe that conservative Christians are threatening the fabric of multicultural society and should not be served, another might believe that human beings that eat meat are immoral, and yet another might believe in the science of climate change (see UK decision in Grainger) and refuse to do work with climate change deniers.

Schools to notify ‘objectionable’ content and allow removal from class

Another part of this Bill with a tenuous link to same sex marriage is the section that provides schools with an obligation to notify parents (or students over the age of 16) in writing one week before a lesson of material that is taught that is ‘objectionable’ to them (ss 88Q and 88R) as well as the right of parents to take their children out of such classes. Apart from being a completely unworkable requirement, no international or national human rights jurisprudence permits such a law.  In fact, the Ontario Superior Court of Justice in the case of E.T. v Hamilton-Wentworth District School Board, rejected an argument for such a right.  The Court held that:

Accommodation by non-attendance, which is sought by the applicant, would allow him to isolate his children from aspects of the curriculum that in his religious belief would amount to “false teachings”. However, isolation is antithetical to the competing legislative mandate and Charter values favoring inclusivity, equality and multiculturalism (at [100]).

Other departures from human rights law

There are two further ways in which the draft Bill departs from accepted human rights law. First, the Bill attaches the right to discriminate on the ground of religion and belief to legal entities (ss 5AB(2), 5AD(2), 88J(2)). Attaching human rights to corporations is highly controversial. Arguments have been made that corporations may have a right to property but to suggest they have a right to religion or belief is more farfetched. The United States Supreme Court in its decision in the Hobby Lobby case recognised the right of a family owned company to act on its religious objection to contraceptives. However, an argument that a corporation could rely on the religious exemptions under anti-discrimination law was rejected in Cobaw.  Furthermore, Shawn Rajanayagam and Carolyn Evans have argued that, despite the Hobby Lobby decision, corporations should not be accorded religious freedom rights because to do so would deny a corporation’s separate character.

Secondly, the Senator Paterson Bill provides that religious organisations, such as welfare and adoption agencies, which discriminate in relation to same sex marriage or ‘express’ views on traditional marriage, will not be deprived of Commonwealth funding or their tax-free status (s 88N). The connection between Christian welfare and adoption agencies and the celebration of a same sex marriage is unclear. Perhaps the only reason these provisions are included is that they address another major concern of the Christian right: to retain the financial privileges of religious organisations as well as exemptions to anti-discrimination law (see Mark Fowler’s written and oral submissions to the Commonwealth Parliamentary inquiry into Freedom of Religion and Belief).

Finally, and perhaps most alarmingly, the Paterson Bill, includes a criminal offence of ‘victimisation’ (s88S).  Victimisation is defined as threatening to subject someone to detriment for making a claim or otherwise interacting with the Human Rights Commission and asserting rights. There is a defence if the allegation of discrimination can be shown to be false and not in good faith.

It is not clear who is intended to be captured by this offence: same sex marriage couples who might refuse a taxi ride to someone who is bringing a claim of discrimination under this Act or Christians who have claims of discrimination brought against them? But then the defence is even stranger: it suggests that ‘victimisation’ of someone interacting with the Australian Human Rights Commission is permissible if the person being ‘victimised’ made a false complaint and acted in bad faith. When does the law ever provide for victimisation as a remedy for a civil wrong?  This provision seems to be inspired by a kind ‘eye for an eye’ biblical style response to the use of legitimate avenues of legal redress.

Conclusion

Senator Paterson’s Bill, if enacted into law, would wind back federal and state legislative protection of same sex couples from discrimination. Giving everyone who believes in ‘traditional marriage’ the right to refuse services in relation to same sex marriage goes well beyond the scope of human rights law, including as interpreted by courts in countries with strong human rights protection.  Permitting discriminatory action of this kind undermines the human dignity of same sex couples and would further fuel conflicts and division in the community.

 

[1] Incidentally, to the extent that legislation is not reasonably necessary to implement a specific treaty obligation it will not be supported by the external affairs power: Victoria v Commonwealth (‘ILO case’) (1957) 187 CLR 416.

[2] National Human Rights Consultation Report Canberra 2009, xxxiv. This Report is no longer available online.

 

Anja Hilkemeijer is a lecturer in law at the University of Tasmania

Suggested citation:  Anja Hilkemeijer  ‘Senator Paterson’s Same Sex Marriage Bill: Incompatible with International Human Rights ‘ on AUSPUBLAW  (15 November 2017) <https://auspublaw.org/2017/11/senator-patersons-same-sex-marriage-bill/>