Friday, 25 April 2008

New case: gay couple awarded $10000 from Uniting Church

In OV and another v. QZ and another, a gay couple enquired of the Uniting Church's Wesley Mission to be foster parents. They were knocked back twice. They were told

The NSW Administrative Decisions Tribunal awarded each of the couple $5000 compensation for discrimination, but refused to grant the asked for apology, instead ordering that the Wesley Mission ensure that its members undertake appropriate training and development to enable them to properly identify acts of unlawful discrimination, and that the mission develop and implement programs and policies aimed at eliminating unlawful discrimination in the facilitation and provision of foster care.

While the Wesley Mission accepted applicants for foster parents, irrespective of their marital status, OV and QZ were refused because: "As part of Wesley Mission our policies must align with the ethos and values of that church, which does not support same-sex couples".

When OV and QZ complained to the Tribunal, they said that they had been discriminated against on two grounds: marital status and homsexuality. The Uniting Church said that the first ground was misconceived and the second had occurred, but because of the religious exemption, the Church was allowed to discriminate.


Was there discrimination due to marital status?

The Tribunal held that there had not been, because it was clear that the refusal to provide the service of allowing the couple to apply to be foster parents was due not to their marital status but because they were gay.

Could the Church rely on the religious exemption?

This is where it gest really interesting. The long and short of it is: no.

There were three issues:

1. was the Wesley Mission a body established to propagate religion?


2. did the act of discrimination conform to the doctrines of the religion?

3. was the discrimination necessary to avoid injury to the religious susceptibilities of the adherents of that religion?

The tribunal held that the Wesley Mission, having religious as well as other objectives was a body established to propagate religion.

To be able to decide grounds 2 and 3, the Tribunal had to look at the question of what was a religion. The Tribunal held that the religion was Christianity, even if the doctrine was that of the Uniting Church. As an alternative, the Tribunal considered that there might be a religion of the Uniting Church.

The Tribunal said:
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....

It is common ground that the Uniting Church Assembly, the national governing council of the Uniting Church, has not made a formal pronouncement deciding the question of what stance to take doctrinally in relation to homosexuality and homosexuals within the Church. The question has been raised most acutely in relation to the ordination of clergy. In 2003, the Assembly passed a resolution, which affirmed that it was for local presbyteries to consider applicants for ordination and to take into account various criteria, include sexual orientation. It seems that some presbyteries take the view that Christian scriptures and theology prohibit the appointment of homosexuals to the clergy whereas other presbyteries think that there is no scriptural prohibition on homosexual clergy.

It is also agreed that only the Assembly can pronounce doctrine on behalf of the Uniting Church as a whole and that a constituent body of the Church, such as the Wesley Mission, does not have authority to declare doctrine on behalf of the Uniting Church. Where the Assembly does not pronounce or declare doctrine on a particular issue, the weight of evidence before us is to the effect that it is then for the congregation, as Reverend Swadling put it, ‘to wait upon God’s Word, and to obey God’s will in the matters allocated to its oversight....

That Wesley Mission, as with any congregation or group of congregations within the Uniting Church, is free to pronounce doctrine on matters where the Assembly has not done so, does not elevate any doctrine it might pronounce to a doctrine of the ‘religion of the Uniting Church’.

For these reasons, applying the alternative definition, we are not persuaded that the nominated doctrine is a doctrine of the ‘religion of the Uniting Church’.

Conclusion The respondents have failed on balance to establish that the nominated doctrine is a doctrine of either ‘the religion of Christianity’ or ‘the religion of the Uniting Church’. Accordingly it is not necessary to determine whether the offending conduct was ‘done in conformity with the nominated doctrine’.



Necessary to avoid injury to religious susceptibilities

The Tribunal held:

members of the Uniting Church hold a range of views on the issue of homosexuality. The position taken by Wesley Mission that homosexual people are not suitable to take on the role of foster carers is not universally shared throughout the Church. It is a matter of common knowledge that the Uniting Church is not the only Christian denomination where the issue of homosexuality is a contentious issue.

Even if established that the prohibition against homosexual foster carers was necessary to avoid injuring the religious susceptibilities of the members of the ten congregations that make up the Wesley Mission (a point not conceded by the applicants), this would not satisfy the second limb of section 56 as it would only establish that it was necessary to avoid injury to ‘some’ or ‘an unknown proportion’ of the adherents of Christianity.

Given the diversity of views among adherents of the Christian religion about homosexuality, the prohibition against homosexual foster carers applied by Wesley Mission cannot be said to be necessary to avoid injury to the religious susceptibilities of the adherents of the Christian religion.

Similarly if the alternative definition were to be applied it could not be said that the prohibition against homosexual foster carers is necessary to avoid injury to the religious susceptibilities of the adherents of the religion of the Uniting Church. In reaching that conclusion we note the range of views within the Church on the issue of homosexuality. We also note the evidence that a designated agency operated by the Uniting Church (not Wesley Mission) has authorised as ‘authorised carers’ persons who are openly homosexual and placed children in their care. There is no evidence that this has caused injury to the religious susceptibilities of the members of the Uniting Church.

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