Saturday, 26 April 2008

New case alters religious defence in Churchie cases

The decision by a NSW Tribunal in OV and another v QV and another, which I commented on yesterday, may well alter the landscape for schools seeking to defend excluding gay and lesbian students from school formals, or even from the school.

It may well mean that at least Christian religious schools in the ACT, NSW, Victoria, SA and WA will not be able to use religion as the reason that gay or lesbian students can be prevented from bringing their partners to the school formal.

The decision meant that an arm of the Uniting Church, the Wesley Mission, was not able to discriminate against two gay men who had applied to be foster parents.

The Church admitted that it had discriminated against the men on the basis of their homosexuality, but that the religious defence was made out. The Tribunal held that the religious defence had not been made out.

To establish the religious defence under NSW law, there had to be shown three things:

- that there was a body established to propagate religion;
- that the offending conduct was either:

(i) an act or practice that conformed with the doctrine of the relevant body’s religion or,
(ii) necessary to avoid injury to the religious susceptibilities of the adherents of the religion the body was established to propagate.

The Tribunal held that the Wesley Mission was "a body established to propagate religion".

I don't think that it will be terribly hard for religious schools or religious hospitals to show this.

The question is whether the act or practice conformed with the doctrine of the relevant body's religion, or it is necessary to avoid injury to the religious susceptabilities of the adherents of the religion.



What States does this defence apply in?

It applies in the ACT, NSW, Victoria, SA and WA.

It
does not apply in Qld, Tasmania or the NT.

How is the defence changed?

The starting point is to look at what religion applies. A principal of say a Catholic or an Anglican school may say that the religion is "Catholic" or "Anglicanism". The Tribunal held that the religion in question, when dealing with the Uniting Church was "Christianity", and that the Uniting Church view of the world was merely doctrine:

The applicants [ the gay partners] propose that the Tribunal find that the religion in question in this case is Christianity. The respondents contend that, in the context of this case, a more nuanced finding ought to be made, namely, that the religion propagated by Wesley Mission is ‘the religion of the Uniting Church as practised by Wesley Mission’. We think that this draws a distinction without a difference because it begs the question, what is the religion of the Uniting Church?

The answer to that question, in our view, is simple: Christianity.

The fundamental flaw in the respondents’ contentions is that it bases the argument concerning the definitional question on what they perceive to be the consequences of a finding that Christianity is the relevant religion in this context. But it is the consequences that flow from the definition and not the reverse.

The respondents argue that if the applicants are correct and the relevant religion is Christianity it would render the exception ...useless insofar as it tries to protect acts and practices done to conform with ‘the doctrines of that religion’ – because of the multiplicity and plurality of beliefs within Christianity that one could never properly identify ‘the doctrines of Christianity’. They argue that Parliament must have intended that people should be allowed to conform to the doctrines of a wide range of genuine religious positions – in other words, different streams of Christianity must be recognised as just that: different.



A Reverend Swadling gave evidence for the Church:

The Reverend Paul Swadling’s oral evidence on this issue is revealing. He testified that if in the context of the conduct of the national census or hospital admission, he was asked what was his religion he would reply, ‘the Uniting Church’. He went on to clarify, ‘My religion in fact is Christianity but that’s not normally what people mean when they ask [that] question’. Reverend Swadling was ordained in the Methodist Church the year before the establishment of the Uniting Church.

Reverend Swadling, rightly in our view, in that comment, drew careful theological, ecclesiastical and semantic distinctions. He, unlike many lay people in the community, understands well, because of his training and experience, the distinction between a religion and a church or a denomination.

That distinction is important in this case.

The term ‘religion’ is not defined in the Act.


We agree with the [Wesley Mission] that it is common knowledge that within Christianity there are a number of streams all springing from the same source. It is also a matter of common knowledge and history that the Christian church divided into Eastern and Western churches in its early centuries and that the Western or Roman church divided in the Reformation period into various streams. On the Protestant side of the Reformation divide there were also further divisions. These are the various denominations with which virtually all educated persons in the West are familiar at least by name: Anglicanism, Lutheranism, Quakers, Baptists and so on.

That there are various streams within Christianity does not, however, turn each into a separate religion.


It is common ground that Wesley Mission forms part of the Uniting Church of Australia. The faith or religion of the Uniting Church is the Christian faith and none other. It seems to us that the respondents cannot argue around that fundamental point.

116 We accept that Parliament intended, by inserting section 56 in the Act, to protect religious practice, to preserve freedom of religion and to promote tolerance and acceptance within the broader community of those with particular religious views. Parliament no doubt had in mind the lessons of history and, in particular, sought to protect the community as a whole from the divisive effects of sectarianism, and minorities from persecution and harmful discrimination.

117 Nevertheless, in our view that does not lend support to the respondents’ argument, which would require a warping of the plain language of the statute where it uses the word ‘religion’. We understand their argument concerning consequences and that they contend that Parliament cannot have intended those consequences. It is, unfortunately, sometimes the case that legislation has unintended consequences.

118 Whether, in this case, there are unintended consequences is a different question from the definitional issue with which we have been dealing.

119 For these reasons we find that the relevant religion is Christianity.



The Tribunal then decided to protect itself, if it were criticised for getting religion wrong:

In case our understanding of the meaning of the word religion in the context of [the defence], in the interests of completeness, we will proceed to determine what is the religion of Wesley Mission, if the ordinary meaning of the word religion is accepted to include a denomination, and this is what Parliament meant by its use of the term.


Would the act of excluding gays or lesbians from the formal be consistent with the doctrine of Christianity

The Tribunal held:

Evidence was adduced in these proceedings that the leadership of the Wesley Mission believe it to be a fundamental Biblical teaching that ‘monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal’. However, it does not follow, and nor is it asserted, that that belief can properly be described as a doctrine of the Christian religion.

It is common ground that there is a diversity of views and beliefs within the Christian religion on the issue of homosexuality. The debate within the Uniting Church, about which much evidence was given in these proceedings, is but one of many examples that can be cited to illustrate this point.

In our view the respondents have failed to establish that the nominated doctrine constitutes a doctrine of the Christian religion.



The Tribunal went on to say that it was not persuaded that the doctrine was that of the religion of the Uniting Church.

The Tribunal accepted the submission of the gay couple that the exemption will only apply where the ‘act or practice’ is necessary to avoid injuring the religious susceptibilities of all (or at least a significant majority) of the adherents at once’. Because of the diversity of views iwthin the Christian religion (indeed even in the Uniting Church) about homosexuality, it was not possible to offend the religious susceptabilities of all or most Christians, and therefore this exemption did not apply.

Applying the case to the school formal

A Christian religious school that seeks to rely on this defence will have the immediate difficulty of the incredible diversity of views within Christianity as to homosexuality. As long as the Metropolitan Community Church for example, exists, then it can be legitimately be argued that there is not a defence open to the school based on religion in preventing same sex students from going to the formal.

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