The Institute for Civil Society (Mr Kennedy and Dr Rodrick) gave evidence to the Committee on 23 January 2017 and undertook to take the following question on notice.
Mark Sneddon – Executive Director
Simon Kennedy – Research Analyst
Dr Sharon Rodrick – Research Analyst
30 January 2017
Senator Pratt – Would you not look to more generalised exemptions that deal with the kinds of circumstances in which you are talking—for example, someone who refuses to conduct a marriage because of a large age difference between those getting married?
….You know, if I were running around promoting the idea that 85-year-old men should get married to 18-year-old women, and people started discriminating against me for exercising that belief, in very similar circumstances to those which you outline, why should those exemptions be applied differently in those two circumstances within this act?
Mr Kennedy: We are not suggesting they necessarily should not. We are only stating the view in relation to this exposure draft, and the terms of reference were to do with religious liberty. I suppose, if the exposure draft included questions of age difference then we could have a view.
Senator PRATT: We are talking about the exposure draft and the way in which exemptions are applied, so if you could turn your mind to whether more generalised exemption might be appropriate, in the sense that we are looking at tweaking this draft and therefore that question can be applied to it.
Answer to QoN 1
Our submission addresses the Committee’s terms of reference as to the terms of the exposure draft Bill and the adequacy of the protections of religious freedoms in the exposure draft Bill which would permit same sex marriage. The only change to the definition of marriage proposed in the Bill is to permit two people of any gender to marry, rather than only a man and a woman. The Bill does not modify any other requirements about marriage such as marriageable age nor create new restrictions about age differences.
The debate over the issue of same sex marriage has been marred by polemic and intimidation. Our submission is concerned with the need to reduce, as far as possible, current and foreseeable legal conflicts between those in favour of same sex marriage and those whose conscientious or religious belief is that marriage is between one man and one woman and to foster a climate for debate without intimidation.
We have pointed to substantial evidence of intimidation, discrimination and use of legal process to harass people who simply hold or express the view that marriage should be between a man and a woman. Our submission addresses that real problem disclosed by the evidence, which we expect will continue as this Bill and others like it is debated and will continue if such a Bill is enacted. Our suggested protections (like a general anti-detriment provision) are targeted at that real problem.
We do not see any value in trying to address hypothetical conflicts over possible religious objections to other possible changes to the conditions for marriage which are not in evidence and are not the subject of the Bill. A more generalised exemption is not necessary. Since it would be based on hypothetical religious objections to hypothetical changes to marriage without real experience to guide its parameters, there would be a significant risk of over-inclusion and under-inclusion and unintended consequences.
QoN 2: Senators Pratt and Kitching – Consumer Boycotts
Senator PRATT: In addition to that, surely a consumer boycott and whether you are affected by that is a counter expression of religious view and it would be people’s right to undertake such a boycott? ….
Senator KITCHING: Just to follow on from that, do you feel that there is any limit to a boycott?
Answer to QoN 2:
Individual consumers should be free to make choices about whether they acquire goods and services as consumers from particular providers. Ideally in the context of this discussion that freedom should be limited to decisions based on religious or conscientious conviction of the consumer but it is impractical to enforce that limitation.
Accordingly, a prospective consumer should be free not to acquire goods or services from a particular provider on the basis that that provider has expressed support for traditional marriage, without being subject to the proposed anti-detriment provision.
Likewise a prospective consumer should be free not to acquire goods or services from a particular provider on the basis that that provider has expressed support for same sex marriage, without repercussions under anti-discrimination laws.
We therefore propose that the anti-detriment provision would not apply to the decision of an individual acting as a consumer not to acquire goods or services supplied by a person who supports traditional marriage. Because this is a protection for consumer boycott decisions, the normal limits of a consumer boycott apply:
- The protection only applies to a boycott by a natural person acting as a consumer (that is acquiring for their personal or domestic consumption), not a government or corporation or partnership or to an individual acting in a business capacity (eg as a sole trader).
- The protection only applies to a decision not to acquire goods or services as a consumer and not to any decision whether or not to supply goods or services.
The committee may wish to consider whether there should also be prohibitions on inducing such consumer boycotts by offering financial or economic benefits to people to join a consumer boycott.
Part IV Division 2 of the Competition and Consumer Act 2010 (Cth) contains provisions prohibits secondary boycotts and may also impose limits on the right to boycott.
We propose the insertion of the following provision in our proposed anti-detriment provision to give effect to this proposal:
- (3) Sub-section (1) does not apply to an individual’s conduct of refusing to acquire as a consumer1 goods or services supplied by a person described in paragraphs (1) (i) (j) or (k).
Note: Acquisition of goods or services as a consumer would be defined using s 4B of the Competition and Consumer Act 2010 which broadly covers acquisition for a price under $40,000 or an acquisition of goods and services of a kind ordinarily acquired for personal domestic or household consumption and not for retail or use in transformation to make another product or service.
QoN 3: Balance of Harms – Senator Fawcett
CHAIR: In your submission, toward the end you talk about the concept of a balance of harms as governments and states at various times try to balance the rights and obligations under the ICCPR and competing rights. You reference an article or comments by Berg. I cannot find anything that actually says who Berg is or the context of his comments, but there is a small section that talks about the gravity of harm. On notice, could you provide the committee with a bit more background about who Berg is, the context and a bit more fulsome explanation around the issue of how you assess the gravity of harms in seeking to understand that balance?
Answer to QoN 3:
The quote at the end of our submission is from Dr Greg Walsh’s submission and the Thomas Berg article is from (2010) 5 Northwestern Journal of Law and Social Policy 206. The article is attached to these answers and we commend it to the Committee in relation to the balance of interests and harms.
Our discussion of balance of harms in our submission was in the context of a refusal of goods or services to a same sex couple by a religious or conscientious objector to same sex marriage. It did not relate directly to the general anti-detriment provision. Such refusal could be in the context of the wedding but could also occur long after eg concerning the provision of adoption or fostering services to a same sex married couple (as same sex marriage implies more same sex parenting), concerning the provision of married accommodation in religious schools and colleges to same sex married couples or concerning the celebration of an anniversary of the wedding.
We noted that such a refusal is likely to cause the same sex couple dignitary and emotional pain as well as the inconvenience of having to seek an alternative supplier of such goods or services. It is highly unlikely that permitting conscientious objectors to refuse to supply commercially available goods or services related to marriage to same sex couples who are to be married or are married would lead to an actual inability of such couples to access those commercial goods or services. It is difficult to imagine a case where there were no alternate commercial providers of such goods or services who could not undertake the supply.
The balancing of harms then comes down to balancing the dignitary and emotional harm to the same sex couple and the inconvenience of arranging an alternative supplier on the one hand against the harm in forcing a conscientious objector to act against their religious or conscientious conviction or cease that line of business or go out of business or pay damages or fines as well as likely facing criticism and social media vilification of their deepest beliefs with the accompanying dignitary and emotional harm and possibly public protest and damage to their business as has happened in some US cases.
A longer extract from Berg’s article may be helpful to the Committee.
“[At 228] Denials of service do affect gay couples by causing them disturbance, hurt, and offense. While acknowledging that harm, one must also acknowledge, I think, that the harm to the objector from legal sanctions is greater and more concrete. In most cases, the offended couple can go to the next entry in the phone book or the Google result. The individual or organization held liable for discrimination, by contrast, must either violate the tenets of her (its) faith or else exit the social service, profession, or livelihood in which she (it) has invested time, effort, and money. One simply has not given the religious dissenter’s interest significant weight if one finds that offense or disturbance from messages of disapproval are sufficient to override it.” As Andy Koppelman and George Dent put it nicely in a forthcoming book, “actual people should not be harmed for the sake of symbolic gestures.” 142
One implication of that thesis is that gay people should not be kept from adopting or from receiving the benefits of civil marriage-denials that concretely affect their ability to form families and raise children-for speculative or symbolic reasons. But another implication is that the wedding photographer should not be punished simply because the same-sex couple is disturbed, and Catholic Charities should not be driven out of providing adoption services in order to make a symbolic statement about nondiscrimination.
Professor Feldblum proposes to take seriously both the identity claims of gay couples and the belief claims of traditionalists, 143 but she fails to follow through. She rejects accommodation in every case but a very narrow category where an organization is not just religious, not even just engaged in religious teaching, but “is specifically designed to inculcate values in the next generation” and “seek[s] to enroll only individuals who wish to be inculcated with such beliefs.”144 Not only small commercial businesses, but virtually any religious social service would be unprotected, as would adult education programs, and perhaps even schools if they failed to meet strict standards of clarity in their advertising. Feldblum says this approach is necessary so that “the individual who happens upon the enterprise is not surprised by the denial of service,” which constitutes an “assault” on “gay people’s sense of belonging and safety in society.” 145
Of course there has been terrible violence inflicted on gay persons, and in too many places harassment continues on a regular basis. But the religious organizations or individuals whose objections can legitimately be accommodated do not come close to committing, let alone endorsing, violence, intimidation, or harassment. The records in cases like Catholic Charities,’ the wedding photographer’s, or the small landlord’s show organizations or individuals expressing disapproval of homosexual conduct and seeking to avoid what they see as direct facilitation of it. The experience of direct disapproval can be disturbing, but it cannot be equated with reasonable fear of violence or harassment-not if we seek to preserve room for the religious objector too. And as others have observed, people cannot be protected from the knowledge that others disapprove of their behavior. 146
142 ANDREW KOPPELMAN & GEORGE W. DENT, MUST GAY RIGHTS CONFLICT WITH RELIGIOUS LIBERTY?
143 Feldblum, Conflicting Liberties, supra note 83, at 124. See supra notes 83-84 and accompanying text.
144 Feldblum, Conflicting Liberties, supra note 83, at 154.
145 Id. at 153.
146 Laycock, supra note 37, at 198; Koppelman, supra note 87, at 136 37.
QoN 4: Would making religious belief and practice a protected attribute under anti-discrimination law solve the concerns being addressed
Senator SMITH: So on notice could you review the suitability of including religious belief as a protected attribute in federal discrimination law—the suitability of that approach in terms of allaying some of the concerns that you have detailed in the submissions?
Answer to QoN 4
Making religious belief and practice a protected attribute under anti-discrimination law is a significant law reform with many implications that go far beyond the issue of accommodating religion and conscientious objections to same sex marriage.
We would encourage consideration of making religious belief and practice a protected attribute under federal and all other Australian anti-discrimination law. (It already is under the law of several States and Territories.) However, such consideration would involve careful thought including as to:
- any “exemptions” which some groups and individuals (including same sex couples) might seek from a general rule prohibiting discrimination on the grounds of religious belief or activity,
- the breadth of discretion in the Commission administering the Act including to grant exemptions form the prohibition; and
- the extent to which religious people would have confidence that such a Commission would impartially administer complaints about religious discrimination given the history of such Commission’s stated preferences for equality rights in relation to sexual orientation over religious belief “exemptions”.
In addition, making religious belief and activity a protected attribute does nothing to protect freedom of conscience which is not religiously based.
We therefore consider that the Committee should prefer our targeted proposal of an anti-detriment provision linked tightly to religious or conscientious belief that marriage is between a man and a woman and which does not rely (or at least not exclusively) on enforcement through Commissions which have already declared their preferences against religion in this debate.
It is also very important to note that religion is not just protected in international law as a species of protected attribute under the equality right. It is a standalone liberty right like freedom of speech or freedom of association. No one would think those rights were adequately protected simply by making them into types of protected attributes under an equality right. A law which bans all free speech on a topic or the expression of all religious views on a topic (or all public worship of any type) by all persons regardless of their religious beliefs may be non-discriminatory but it tramples on freedom of speech and of religion.
If the Committee were minded to recommend a broader protection of religious and conscientious belief, it should consider the US Religious Freedom Restoration Act of 1993, 107 Stat. 1488, codified at 42 U.S.C. § 2000bb which has led to a range of US State Religious Freedom Restoration Acts. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”] The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.2
We also note that consideration would need to be given to whether the Commonwealth has constitutional power to make religious belief and practice a protected attribute under federal law (presumably under the external affairs power). Because our proposed anti-detriment provision is tied to religious and conscientious convictions about the nature of marriage we consider it is supported by the marriage power and may well be supported by the external affairs power.
Senator Fawcett: How operationally would the anti-detriment provision work? In operation, how would that broad anti-detriment provision work, given it is spanning both government entities and the private sector?
Following our evidence we have given further consideration to how the anti-detriment provision would work and provide a more detailed draft (AA below) (cautioning again that it is only an early draft which needs consultation and further thought).
We have also added a specific anti-detriment clarification for charities (BB below) because it is not clear that it would be covered by the drafting in AA.
The Broad Anti-Detriment Provision
The broad anti-detriment provision (AA below) is intended as a shield to protect persons with a genuine religious or conscientious conviction that marriage is between a man and a woman from a range of detriments that they may be subjected to or threatened with by government or non-government organisations and individuals. It would bind the States and Territories because their laws and programs and funding decisions can impose detriments on the basis of that religious or conscientious conviction.
As discussed above, individual consumers should be free to choose not to purchase as consumers from suppliers because of disagreement with the supplier’s views on marriage. So we have excluded from the scope of the anti-detriment provision an individual’s consumer boycott decision not to acquire goods or services supplied by a person with a conviction in favour of traditional marriage (see sub-s AA(3)).
We have included two enforcement mechanisms for the provision. One is court-based allowing the person who suffers the detriment to seek a declaration of contravention from a court and if that is granted a range of compensatory or preventative orders may follow (see sub-s AA(4)). The second is to make conduct in contravention of the anti-detriment provision a new form of prohibited discrimination under the AHRC Act which would enable a complaint to be made about it to the AHRC and ultimately federal court proceedings (see sub-s AA(5)).
However, we note that the AHRC may be perceived by many as biased and incapable of being a neutral arbiter of such complaints in this context and this second enforcement mechanism may not be effective.
We have expanded the indicative drafting of the provision to include additional anti-detriment protections (sub-s(1)(l) to (o)) so that associates, employers, suppliers and customers of those who have religious or conscientious convictions that marriage is only between a man and a woman are not targeted as a way of causing detriment to the persons with the religious or conscientious conviction . This would cover for example detriment sought to be imposed on the Mercure Hotel because it proposed to rent a room to a group in favour of traditional marriage or to a publisher of a book or an advertisement in favour of traditional marriage who might be subject to threats and intimidation for publishing.
Draft provision – Detrimental treatment of persons with religious or conscientious belief in traditional marriage
AA (1) Notwithstanding anything in any other law or enactment (including any enactment of a State or Territory) it is unlawful for a person3 to treat or propose to treat another person unfavourably, or subject or propose to subject another person to any detriment or disadvantage or denial of any benefit, whether directly or indirectly, in relation to:
- engagement as a contractor or volunteer
- academic, trade or professional qualifications or accreditation or licensing
- provision of grants, funding or subsidies or other economic benefits
- supply or acquisition of goods or services
- administration of Commonwealth, State, Territory or local government laws and programs including the allocation, limitation or denial of funding to entities pursuant to those laws or programs
- membership of any group
because the other person4:
- holds genuine religious or conscientious beliefs that marriage is between one man and one woman
- acts or refuses or omits to do any act in accordance with a genuinely held religious or conscientious belief that marriage is between one man and one woman
- expresses an opinion that accords with a genuine religious or conscientious belief that marriage is between one man and one woman;
- has a characteristic that appertains generally to persons described in paragraphs (i) , (j) or (k); or
- has a characteristic that is generally imputed to persons described in paragraphs (i), (j) or (k);
[Note: We have added below in paragraphs (l) to (o) some secondary anti-detriment provisions to prevent pressure being applied to associates, employers or suppliers or customers of a person who has the relevant religious or conscientious belief)
- associates with or is a member of a group which includes a person who is described in paragraphs (i), (j) or (k);
- employs or engages (or has not refused to employ or engage) as a contractor or volunteer a person who is described in paragraphs (i), (j) or (k);
- provides goods or services or funding or subsidies or other economic benefits to a person who is described in paragraphs (i), (j) or (k) (or has not refused to do so);
- acquires goods or services from a person who is described in paragraphs (i), (j) or (k) (or has not refused to do so).
- (2) This section binds the Crown in right of the Commonwealth and of a State and Territory.
Consumer Boycotts not affected
- (3) Sub-section (1) does not apply to an individual’s conduct of refusing to acquire as a consumer goods or services supplied by a person described in paragraphs (1) (i) (j) or (k).
- Court Remedies
- (4) (a) Any person affected by conduct in contravention of sub-section (1) may apply to a court of competent jurisdiction for a declaration that a person has contravened or attempted to contravene sub-section (1) or has induced another person to contravene sub-section (1).
- (b) Where a court makes a declaration under paragraph (a), if the court finds that a person who is a party to the proceedings (first person) has suffered or is likely to suffer loss or damage by conduct of another person engaged in in
contravention of sub-section (1), the court may also make any or all of the following orders:
(i) an injunction against the person who engaged in the conduct or a person who was involved in the contravention in such terms as the court thinks appropriate;
(ii) an award of damages for loss or damage suffered by the first person against the person who engaged in the conduct or a person who was involved in the contravention;
(iii) such orders as the court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention if the court considers that the orders will compensate the first person In whole or in part for the loss or damage or will prevent or reduce that damage.7
[Alternative Remedy – Prohibited Discrimination Complaint and Action
(5) [Add to the definition of “unlawful discrimination” in section 3 of the Australian Human Rights Commission Act 1986 any acts, omissions or practices that are unlawful under this section.]
[Note – we have added a possible remedy of a prohibited discrimination complaint under the Australian Human Rights Commission Act 1986 in sub-section (5). This would have the effect of enabling a person to complain to the AHRC of conduct in contravention of sub-section (1) as a form of prohibited discrimination. Thereafter the complaint is treated as usual under the AHRC Act. There may be an inquiry by the President and a compulsory conciliation conference. If the compliant is terminated without resolution the complainant can bring an action in federal court for loss or damage.
The prohibited discrimination remedy has the philosophical problem that it uses the discrimination/equality framework in the AHRC Act to remedy breach of a liberty right – see our answer to QoN 4. While this may work for some cases of detriment it may not work where the detriment is imposed on all relevant persons regardless of religious belief.
A second, practical difficulty with this alternative is that people with religious and conscientious convictions opposed to same sex marriage may have little confidence that the AHRC would impartially assess their complaint of detrimental action. This is because of the history of the AHRC’s stated preferences for equality rights in relation to sexual orientation over religious and conscientious belief “exemptions”, which is continued in its submission to this inquiry. 8
For this reason the Committee may prefer to adopt only the court remedies in sub-s (4). Or the Committee could consider recommending both court remedies and an AHRC c of remedy for contravention of the anti-detriment provision and let those who suffer detriment choose which course to pursue.]
We note that Professor Parkinson has proposed an anti-detriment provision which prohibits detrimental action against a person who “holds a genuine religious or conscientious belief about marriage”, rather than our formulation which protects a person who “holds genuine religious or conscientious beliefs that marriage is between one man and one woman”. We respectfully suggest that Professor Parkinson’s language is too broad. First, its stated policy goal is to protect persons who support traditional marriage from demonstrated examples of detriment caused by persons or policies or programs supporting same sex marriage. But the language used will cover a wide range of beliefs about marriage (eg for arranged marriage only, for same sex marriage, for sibling marriage, for more than 2 person marriage) where there is no evidence of any detriment being visited on persons with such beliefs, so it is addressing hypothetical problems which have not been shown to exist. Second it will allow the provision intended as a shield for persons with a religious and conscientious belief in traditional marriage into a sword to attack such persons. If a person or organisation with a religious or conscientious conviction in favour of traditional marriage (eg a Muslim or Catholic religious association) refuses to provide grants or married accommodation or membership to a person because the other person has a religious or conscientious belief in same sex marriage, the other person could deploy the anti-detriment provision to sue or complain against the Muslim or Catholic religious association.
We accept that our drafting is differentiating one type of belief about marriage from another but that is exactly the debate our society is having. It is in the context of that debate that some supporters of one belief are imposing or threatening detriment to supports of the other belief. Our proposal and drafting is not discriminatory but is a permitted differentiation in international law. The United Nations Human Rights Committee (UNHRC) has said that under the International Covenant on Civil and Political Rights (ICCPR) not all differentiation of treatment constitutes unlawful discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.9 Here the objective is to protect the right to freedom of religion and conscience in Article 18 and the criteria for the differentiation between traditional marriage and same sex marriage are reasonable and directly tied to protecting the Article 18 rights.
Examples of Anti-Detriment Provisions in other jurisdictions
In our submission we referred to other examples of anti-detriment provisions in Canada and 9 US jurisdictions. There are now anti-detriment or religious freedom protection statues in 22 US jurisdictions and Bills in 22 others.10 In addition 21 states have passed Religious Freedom Restoration Acts and 10 more were considering such Bills in 2016.11 There is a Model Anti-Detriment/Religious Accommodation Bill – see http://mirrorofjustice.blogs.com/mirrorofjustice/2009/08/memosletters-on-religious-liberty-and-samesex-marriage.html
We also refer the Committee to an anti-detriment Bill (the First Amendment Defense Act12) in 2015-2016 in the 114th Congress which had 130 sponsoring members in the House of Representatives but did not come to a vote during President Obama’s term.
Anti-Detriment Protection of Charities
For the reasons given by Mark Fowler in his submission we consider that charities should be free to adopt and implement a religious or conscientious conviction in favour of traditional marriage in their charitable purpose without being at risk of forfeiting their charitable status because that purpose is alleged to be contrary to public policy (if same sex marriage were legalised). This has happened to Catholic adoption charities in the UK and the USA so is not a fanciful risk.
We recommend an amendment to the Charities Act along the following lines proposed by Mark Fowler:
- BB. For the avoidance of doubt, an organisation or entity that holds a belief about marriage as being between a man and a woman does not for this reason fail to satisfy the requirement in subparagraph (b) (i) of the definition of charity in section 5 of the Charities Act 2013 and does not have a disqualifying purpose within the meaning of s.11 of that Act.
Limited Carve Out from prohibitions on discrimination and vilification.
We have not further addressed this additional protection proposed in our submission because it is not part of the broad anti-detriment provision raised by QoN 5.
The Committee may wish to refer to the Model provisions proposed by a group of US scholars (some for and some against same sex marriage) seeking to accommodate both same sex marriage and religious and conscientious convictions against it. These are set out below and they are explained in the scholars’ letter to the Hawaii State legislature at http://mirrorofjustice.blogs.com/files/hawaii-special-session-letter-10-17-13-1.pdf
We are not presenting the Model Provision as our preferred option but drawing the Committee’s attention to some of the careful definitions and balancing required in this type of provision
Section ___ (a) Religious organizations protected.
Notwithstanding any other provision of law, no religious or denominational organization, no organization operated for charitable or educational purposes which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to
- provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or
- solemnize any marriage; or
- treat as valid any marriage if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.
This subsection shall not permit a religious organization engaged in the provision of health care, or its individual employees, to refuse to treat a state-recognized marriage as valid for purposes of a spouse’s rights to visitation or to surrogate health care decision making.
(b) Individuals and small businesses protected.
(1) Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required to
(A) provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or
(B) provide benefits to any spouse of an employee; or
(C) provide housing to any married couple if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs.
(2) Paragraph (b)(1) shall not apply if
(A) a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship; or
(B) in the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer’s sincerely held religious beliefs.
(3) A “small business” within the meaning of paragraph (b)(1) is a legal entity other than a natural person
(A) that provides services which are primarily performed by an owner of the business; or
(B) that has five or fewer employees; or
(C) in the case of a legal entity that offers housing for rent, that owns five or fewer units of housing.
(c) No civil cause of action or other penalties.
No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall
(1) result in a civil claim or cause of action challenging such refusal; or
(2) result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.
1 Acquisition of goods or services as a consumer could be defined using s.4B of the Competition and Consumer Act 2010 which broadly covers acquisition for a price under $40,000 or an acquisition of goods or services of a kind ordinarily acquired for personal domestic or household consumption and not for resale or use in transformation
3 “Person” will need to be defined broadly to cover individuals, corporations and federal state and territory governments and government agencies.
4 Interpretation provisions will need to be included to define when the “other person”, if a body corporate, can hold or act on or express religious or conscientious beliefs. For example closely held for profit corporations where the shareholders and managers hold the religious belief and that belief is part of the culture of the company. Such companies where 5 or fewer shareholders held more than 50% of the shares were held to have religious freedom rights (to support the owner’s religious freedom rights) under the US Religious Freedom Restoration Act 1993 107 Stat. 1488, codified at 42 U.S.C. – see the US Supreme Court decision in Burwell v. Hobby Lobby, (2014) 573 U.S. Another example of drafting which protects small businesses can be found at http://mirrorofjustice.blogs.com/files/hawaii-special-session-letter-10-17-13-1.pdf
5 Acquisition of goods or services as a consumer could be defined using s.4B of the Competition and Consumer Act 2010 which broadly covers acquisition for a price under $40,000 or an acquisition of goods or services of a kind ordinarily acquired for personal domestic or household consumption and not for resale or use in transformation
6The Bill will need to confer jurisdiction on relevant courts.
7 Example lists of such orders are contained in s.87 of the Competition and Consumer Act 201 and s.46PO(40 of the Australian Human Rights Commission Act 1986.
8 In its submission to the Committee, the AHRC continues its stand in favour of the primacy of equality on the basis of sexual orientation over religious freedom and freedom of conscience. It reads the international human rights and jurisprudence about freedom of religion narrowly and arguably wrongly (see the submissions by Mark Fowler and Professor Patrick Parkinson). It recommends only a limited religious freedom “exemption” for ministers of religion (and not for civil celebrants or any other Australian). It recommends no “exemption” for non-religious conscientious objection for anyone at all. It recommends against an “exemption” for religious organisations to refuse to supply facilities, goods or services for a same sex marriage if that is broader than the exemption for “bodies established for religious purposes” in the Sex Discrimination Act. In short the AHRC
presents more as a supporter of equality rights for same sex couples over against freedom of religion and conscience in this debate, rather than an impartial advocate or complaints handling body which seeks to respect and maximise protection of all competing human rights. See also Parkinson, P, “Christian Concerns About an Australian Charter of Rights” (2010) 15 Australian Journal of Human Rights 83-121.
9 Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994) para 13.
10 Note that the scope of these varies and we have not had time to analyse them. The solemnisation protection provisions are collected at http://www.ncsl.org/research/human-services/same-sex-marriage-religious-exemptions-statutes.aspx but most of these Bills also provide additional anti-detriment protection beyond solemnisation.
12 https://www.govtrack.us/congress/bills/114/hr2802/text This Bill would have prevented the federal government from imposing certain detriments on persons and organisations because of
3. Protection of the free exercise of religious beliefs and moral convictions
(a) In general
Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.
(b) Discriminatory action defined
As used in subsection (a), a discriminatory action means any action taken by the Federal Government to—
(1) alter in any way the Federal tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under section 501(a) of the Internal Revenue Code of 1986 of, any person referred to in subsection (a);
(2) disallow a deduction for Federal tax purposes of any charitable contribution made to or by such person;
(3) withhold, reduce, exclude, terminate, or otherwise deny any Federal grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or other similar position or status from or to such person;
(4) withhold, reduce, exclude, terminate, or otherwise deny any benefit under a Federal benefit program from or to such person; or
(5) otherwise discriminate against such person.
(c) Accreditation; licensure; certification
The Federal Government shall consider accredited, licensed, or certified for purposes of Federal law any person that would be accredited, licensed, or certified, respectively, for such purposes but for a determination against such person wholly or partially on the basis that the person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.