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.