Anti-Discrimination and the Victorian Christian Campsites Case

This week I have been reading with interest Judge Felicity Hampel's finding in the case of Cobaw Community Health Services against Christian Youth Camps and Mark Rowe.

The case arose when CYC first rejected a camp booking from WayOut, a Victorian youth suicide prevention group which supports homosexual young people in rural areas.

It seems from the judge's findings that CYC did not handle the issue well.  They should have anticipated that a complaint of this nature was likely to arise – based on many cases in other jurisdictions – yet the person who handled the booking did not keep adequate records of his conversation with the WayOut representative. CYC also had inadequate policies about who should be allowed to book the site.  Futhermore although the campsite had refused to accept a booking from this group on the basis of beliefs about sexual practice outside marriage, it did not have a policy of informing other groups who booked the site that it was unacceptable for unmarried people to have sex on the site, or that groups which used the site should not promote sex outside marriage while using the site.  Thus the judge concluded: "Their conduct in respect of bookings generally, and their requirements, or lack of them, in respect of the conduct of attendees at the adventure resort to which I have already referred is in stark opposition to such a contention.” [i.e. a contention that their religious doctrines compelled them to reject a booking from a group which affirmed sex outside marriage].

It also seems to have been a poor choice for CYC to employ a barrister closely connected with the Brethren church.  In contrast CCHS was represented by a team from a well-resourced city law firm, led by Debbie Mortimer, who also represented the Islamic Council of Victoria in their religious vilification complaint against Catch the Fire.

It is quite striking in Judge Hampel's findings that she preferred the complainaint's evidence concerning the facts of the case, on almost every point.  She also severely criticized the CYC's expert witness, Canon Peter Adam of Ridley College, while accepting the expert evidence of Dr Rufus Black of Ormond College given for CCHS. 

The case was made out under the Victoria's 1995 Equal Opportunity law.  A new EO law has been passed by parliament which will come into effect in 2011, so the future application of Equal Opportunity laws in Victoria will be judged by different criteria from this one.  In the new law,  the basis for religious exceptions has been broadened somewhat in some respects, and narrowed in others. For example,  exceptions are no longer on the basis of the 'doctrine of the religion' alone, but also can be on the basis of the 'principles' or 'beliefs' of the religion.

Even though the Victorian Civil and Administrative Tribunal is an inferior court,  some benchmarks were established by Judge Hampel which could affect other cases.

Judge Hampel found that, based on Victoria's Human Rights Charter, principles protecting individuals from discrimination should be interpreted broadly, but exceptions (e.g. for consideration of religious freedom) should be interpreted narrowly.  This has the effect, when balancing equality with religious freedom, that equality considerations have the stronger position.

 Working from this position, Judge Hampel made findings on a number of issues which are significant for all Victorian religious bodies that offer services to the public, e.g.:

1. Judge Hampel argued that if a body offers substantial services with a secular component, this weakens any claim to be considered a body established for religious purposes, and the body is correspondingly less protected from discrimination claims by the exemptions in Equal Opportunity legislation.
2. Judge Hampel found that not everything in scripture is part of Christian doctrine.  She found, for example, that Biblical statements concerning same-sex relations reflected prevailing cultural beliefs at the time, and are not part of doctrine.  More generally, the 'absence of any reference to marriage, sexual relationships or homosexualty in the creeds or declarations of faith which Christians including the Christian Brethren are asked to affirm as a fundamental article of their faith demonstrates that the Christian Brethren beliefs about marriage, sexual relationships or homosexuality are not fundamental doctrines of the religion.'  She is saying that just because something is in the Bible doesn't make it Christian doctrine. To be part of doctrine, it should be explicitly in the creeds or doctrinal statements of a religious group.  On this basis, and the evidence given to her from Dr Black, she ruled that opposition to homosexual practice is not part of Christian doctrine.
3. The key word 'conforms' was important in Judge Hampel's reasoning.  Acts which 'conform' to the doctrines of a religion have some protection under the law.  However Judge Hampel accepted an argument put by the Equal Opportunity Commission that 'conforms' must be interpreted narrowly.  Thus she ruled: 'conforms imports a sense that the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did.'  In other words, someone is only protected by religious exceptions if their doctrine compels them to act in a particular way.

 Here are a few general comments about these findings:

1. It does seem that the Victorian Human Rights Charter has had the effect of weakening the value of religious freedom provisions in Victorian Equal Opportunity law.
2. It is concerning that a secular tribunal is making rulings on what constitutes Christian doctrine, not just for an individual body, but for Christians in general.  That VCAT will make theological rulings on doctrine is a inevitable result of the way the EO law is written, and we are likely to see more examples of this in the future.  (In the case of the Islamic Council of Victoria against Catch the Fire, a VCAT judge also made theological rulings, in respect of Islamic doctrine.)
3. The role of the Uniting Church expert in this case is significant: as the respondent's expert, Canon Peter Adam, was  rejected by the Judge, the views of Dr Black stood.  Some might take the view that the Tribunal has turned Uniting Church theology into a ruling which will bind the adherents of other Christian sects.  It is a pity therefore that other denominations did not make submissions to the Tribunal on this issue.
4. This ruling illustrates how denominations which have less detailed doctrinal statements are disadvantaged under by Equal Opportunity laws.  The Catholic church, which has highly detailed declarations of doctrine should do much better in VCAT, because so much more will be included in what is obligatory for its followers to believe and do as part of their religion.  Religious groups which have a much looser and more independent approach to doctrine, relying more on individuals and groups to interpret the scriptures, will be less protected from legal cases.  This suggests, as I have argued elsewhere, that Equal Opportunity laws can have the counter-intuitive effect of privileging hierarchical authoritarian religions over ones which leave more to the individual's or the congregation's conscience.  Non-conformist Christian groups - unless they have highly detailed doctrinal statements - are more likely to lose in complaints because they are less likely to be able to prove that their religion compels them to conform by acting in a particular way.  Therefore groups which by their nature allow more religious liberty to their adherents will have less protection under the law from anti-discrimination claims.  In this sense the EO law is against religious liberty.
5. The reasoning of Judge Hampel is further evidence that denominations will come under pressure to apply uniform standards on issues such as homosexual relations – and indeed any issue subject to anti-discrimination provisions – across all groups who come under their doctrinal umbrella.  If protection only applies if the doctrine demands particular behaviour, then evidence that a group does not insist on conformity on a particular ethical issue can be used to prove that conformity is not required by the doctrine of the religion.  This could put increasing pressure on groups like the Anglicans who currently have a diversity of views on anti-discrimination-related theological issues.
6. This ruling also has interesting implications for cases where the discrimination is based on religious rather than sexual identity attributes.  E.g. is it demanded by Anglican doctrine that a church refuse a booking from a Wiccan group to use the church hall for a social evening?  On the basis of the 39 Articles, the Creeds and the Prayer Books, I suspect not.  So a parish which refuses such a booking might be breaking the law.
7. Finally I note that the Equal Opportunity Commission might consider itself entitled to inform Christian groups in future that discrimination in provision of services based upon sexual identity is illegal in the provision of facilities for hire.  The Commission could be more entitled now to launch an investigation into provision of services by religious groups, a potential allowed for by the new Victorian law.

There are many things which are unclear from this ruling from Judge Hampel.  Whether all her findings will stand remains to be seen.  I do not know if CYC Is planning to appeal all or part of the ruling.  In any case, this does seem to be a useful indication of which way the winds are blowing for religious liberty in the state of Victoria.

Making a Difference for Pro-Life This Sunday November 26 - Vic State Elections

The site http://www.lifevote.org.au/ gives information on which candidates are pro-life, and how to assist them in the state election this Sunday.  I encourage those who are concerned about this issue to visit the site and determined which of their local candidates have a track record of voting prolife.

On Abortion, Slavery and Censorship

Abortion is one of the most challenging and troubling moral issues of our times.  We should not be surprised, as is the case for most great moral challenges, that there are deep and powerful psychological pressures which work against abortion being openly considered, discussed and named for what it is. 

I am convinced that if most Victorians reflected, on the basis of accurate factual information, on what late-term or even mid-term abortion consists of, as an actual medical procedure, from the perspective of the unborn child, they would be repulsed. We do not desire to undergo this dark act of contemplation, so instead we avoid it at all costs.  We also banish contemplation of what it does to medical staff who are required to perform 'termination of pregnancy' procedures on a regular basis. 

We have found many ways of censoring our thoughts on the subject of abortion.

One way is to accuse those who wish to raise the issue of being disgusting, dishonest, misrepresenters of the truth, fanatics, extremists, or some other cowardly label of abuse. The resistance against having the discussion is so great that it is more convenient  to mount an attack against those who would bring the matter to our attention. 

The main part of this is fear – fear that we will find ourselves to be barbaric. 

Another way of silencing is to banish all concessions to the humanity of the unborn child from our thoughts.  This is why Victorian abortion laws make no provision for pain relief for foetuses being aborted – despite  evidence that they suffer pain – and we have no law which specifically protects the right to life of an aborted baby who has the misfortune to be born alive.  The USA has such a law, brought in as result of evidence  that such children were just being left to die – or worse, being killed – in America's hospitals.  The censoring of compassion is all about aborting our mental acts – banishing anything from our thoughts which might cause us to look upon the unborn child as a human person.  A a result, a newborn kitten has more legal rights in Victoria than an unborn human child: more right to live, more right to protection from physical harm, and simply more right to being treated with dignity.

Another censorship technique is to use the same old linguistic tricks which always cover over the shedding of blood. We prefer not to refer to foetal deaths, let alone killing the unborn, but instead speak of a 'common procedure',  to 'terminations of pregnancy', or even more clinically just to "TOPs".  Thus we tame with out tongues what our minds refuse to contemplate. 

I have found it deeply disturbing that when I rose to speak on this subject at two Melbourne Anglican Synods, I was prevented from speaking each time because members of the synod introduced procedural motions to stop the debate.  But I will not be silenced.  I will not simply shut up and simply submit to the fact that that my own church has rendered itself officially voiceless on this subject. We Melbourne Anglicans, as a denomination, have blood on our hands.  On my hands, if I remain silent.  This is why I am writing now. Out of a sense of communal guilt.

The reasons for having the discussion are compelling.  We repress them at our moral peril.



In this connection, I have been pondering the legal debates over slavery in American in the nineteenth century.  It is striking that the arguments for slavery back then seem so eerily parallel to arguments for abortion today.  Augusto Zimmerman has written persuasively on the subject:

In a famous case decided in 1857, the US Supreme Court declared that black people had no human rights and, therefore, were entirely subject to the rights of slave-owners. A century later, in 1973, this very court also decided that unborn children had no human rights and, therefore, were entirely subject to the rights of women. Similarities between both sentences are too obvious to be just ignored. One of the justices who gave his dissenting vote on the abortion case declared quite prophetically: "From now on, women are free to abort for any reason and for no reason at all."

In 1857, the U.S. Supreme Court, in its famous Dred Scott case, defended slavery in these terms: 1) black slaves belong to their masters; 2) black slaves are not human persons before the law; 3) black slaves can only acquire human rights if they become free individuals; 4) those who think slavery is morally wrong do not need to have slaves, but shall not impose their 'personal' opinion upon others; 5) masters have the right to do whatever they want with their property, including black slaves; 6) slavery is better for the black people. Otherwise, they would have to face complex moral choices which their so-called 'inferior' condition not allow them to resolve satisfactorily.

In 1973, the U.S. Supreme Court, in Roe vs. Wade, employed these arguments to decriminalise abortion: 1) unborn children belong to their mothers; 2) unborn children are not human persons before the law; 3) unborn children can only have human rights if they are born alive; 4) those who think abortion is morally wrong do not need to have an abortion, but shall not impose their 'personal' opinion upon others; 5) women have the right to do whatever they want with their property (bodies), which includes unborn children; 6) abortion is better for unwanted and/or disabled children. Otherwise, they would suffer on account of maternal rejection and/or mental and/or physical condition.

As can be seen, the U.S. Supreme Court adopted a similar reasoning in order to decide on both cases of slavery and abortion, with judges denying the moral status of black people and unborn children. If we compare the arguments used by the court to justify slavery and abortion, it becomes clear that unborn children were regarded as the same beings of an inferior order as black people from a century earlier.

The comparison was put movingly by former African-American US presidential candidate Alan Keyes, in a speech given in San Francisco on March 4, 2000:

See, people wonder why it is, Alan, everywhere he goes, he always brings up this issue of abortion. And I never go anywhere without mentioning it. Why? Because abortion is to our time what slavery was to the 19th century. If anyone of conscience went anywhere in the 19th century and did not confront the American people with the evil of slavery, then they were not doing what statesmanship required. Slavery was what discarded and rejected and denied the fundamental principle of right and justice in America. And what was done in the name of slavery then is done for the sake of abortion now. The paradigm of it is quite clear.

What is it that is the argument made in favor of abortion? You can see it in Roe vs. Wade and everything else. It's a privacy argument. And privacy based on what? "Well, this is the woman's body and she has the right to decide what goes on with it." You start from that. And this child, this babe, this fetus in the womb, what is it? "Well, it's a part of her body, utterly dependent on her body, not viable apart from her body. She has, therefore, absolute power over this being, and given that absolute power, she has the absolute right to dispose of it according to her will."

We don't recognize what that's saying. What that's saying is that power makes for right. Might makes for right. If I have you in my power, I may dispose of you and your life according to my will. And if that argument is now accepted and we have embraced it as a fundamental principle of law, then we have rejected the right principle. For, if our most basic and conditional right, the right to life itself, comes to us not from God but from our mother's choice, then there is no human right that transcends in its claim human choice and human power. Abortion is the paradigm – the ultimate paradigm – of despotism, tyranny, oppression, slavery, holocaust.

And I see this all the time. I was down in South Carolina not long ago, and a young lady comes up to me, after I had given a talk just like this, and she says, "I was listening to your speech, and I want to know how come you can prefer the rights of potential persons to those of actual persons." I'll never forget that moment, because she was the very paradigm. If you want to think of some little slip-of-a-thing that projected the very wonderful wholesome air of American womanhood--and she was speaking to me in, what? In the chilling language of holocaust and atrocity. And she didn't even know what she was doing.

I looked at her and I said, "You know, I have a 17-year-old son. How old are you?" And she said, "19." And I said, "You know you make a very rash assumption in what you ask me there," and she looked at me quizzically. And I said, "Because, given my experience with my 17-year-old son, I have to tell you, there are many days on which I'm not entirely sure that people of your age are actual persons at all."  

And then to drive the point home even further, I looked at her and I said, "And I hope you don't think that I will hear those words and forget that 120, 130-odd years ago, Frederick Douglass had to go in front of audiences with a speech entitled, 'That the Negro is a man,' to prove that he and others like me were 'actual persons.'"

See, why do people forget this? They speak this cold-blooded language to people like myself, as if we're too stupid to remember that the day before yesterday we were not considered "actual persons," and that if today we deny the principle on which we stood in order to demand respect for our humanity, if we deny it to those human beings in the womb, it will be denied once again to us and to others. Because then it just becomes a matter of who you can get on your side to draw the line between humanity and non-humanity, personhood and non-personhood. And then the majority can oppress, and the powerful can abuse, and those who end up on the wrong side have nothing.

Of this I am convinced, that future generations will look back in horror upon us, and wonder at our callous cruelty.  This is how I regard the state of Victoria today, at the present time.  On this issue, our moral state is comparable to that of slave owning societies in North America before the civil war.  No, it is worse.  Their moral crimes resulting in the imprisonment of human beings.  Ours result in deaths.

Not for the sake of politeness; nor for the sake of being well thought of by my peers; nor for the sake of avoiding offending the sensibilities of others; nor for the sake of wishing to appear 'moderate' – not for any of these reasons will I remain silent about abortion in this state.