There have been a number of developments in the past week in the fight for LGBT equality in my home country, which is actually Australia, as some of you would know. I thought that I'd share them.
Righting a historic wrong
During the week, legislation was introduced in the parliament of my home state of Victoria to expunge the convictions of people convicted of criminal offences for their sexuality when it was still a crime before March 1981. From the Australian Broadcasting Corporation:
Under the new legislation, they would now be able to apply to the Department of Justice to have their convictions expunged.
[...]
The Government said applications would be assessed together with "any relevant official records to determine whether the applicant was convicted of an historical homosexual offence and that the act would not constitute an offence today".
The Justice Department would also examine whether the act was consensual and once approved, the courts would be notified to expunge the conviction.
This will eliminate the stigma of having a criminal record and assist in eliminating restrictions on travel and applying for work.
A second shot at marriage equality?
The first law legalizing same-sex marriage in Australia was passed by the Legislative Assembly of the Australian Capital Territory on October 22, 2013. The federal government immediately challenged it in the High Court, claiming that it was inconsistent with the federal Marriage Act, which defines marriage exclusively between a man and a woman.
In our Constitution, marriage is a power enumerated to the federal government, so they can make laws for marriage that also apply to the states. The states cannot pass legislation on marriage inconsistent with federal legislation. Thus, on December 12 last year, it died a fiery death. The High Court unanimously ruled that it was inconsistent with federal law, and struck it down in its entirety.
But it could be coming back, this time in the Australian external territory of Norfolk Island. The Guardian reports:
A notice of intention to introduce the legislation was lodged with the Australian self-governing territory on Wednesday but there will not be a vote until next month at the earliest.
The legislation establishes a law that runs parallel to the Federal Marriage Act but does not interfere with it in the hope the Australian federal government will not strike it down.
If passed it would mean Australian same-sex couples could get married on Australian territory. If the parliament votes to approve it will either go to the island’s administrator, former Howard government minister Gary Hardgrave, or the federal government to be signed off.
I must admit that I'm a bit skeptical about this. I'm not sure how a law that says same-sex couples can marry does not interfere with a law that says they can't. It may have something to do with the status of Norfolk Island, which seems to have more independence from the federal government than the internal territories, like the ACT. We'll see what happens.
Discrimination at the High Court
Finally, an organization known as Christian Youth Camps has appealed to the High Court against the verdict of the Victorian Court of Appeal this past April, which ruled that they had breached the state's anti-discrimination law, the Equal Opportunity Act, when it refused to book a camp for Cobaw Community Health Services, which was looking to run a suicide prevention camp for same-sex attracted young people. (I'm 17, and a guy, and I am attracted to some other guys, so this ruling pleased me a lot.) The ruling upheld a 2010 decision of the Victorian Civil and Administrative Tribunal, where the complaint was first heard.
This case has many similarities with Elane Photography v. Willock from New Mexico:
Both cases involved a ruling by a state Supreme Court that a public accommodation had unlawfully discriminated.
Both cases involved discrimination motivated by religious beliefs.
Both cases involved a defence that the objection was not to a sexual orientation, but a message.
CYC argued that they did not object to anyone's sexual orientation, but only the message that the camp would promote (like, don't kill yourself. How Christian of them). This was rejected by both VCAT and VCoA.
Elane Photography also argued that it did not discriminate based on sexual orientation, because it only did not want to celebrate same-sex marriages. This was rejected by the New Mexico Supreme Court.
Both involved a defence of claiming that religious freedom laws protected the discrimination.
CYC argued that if it had discriminated, then it was permitted to do so by the religious exemptions of the Equal Opportunity Act. There are two. The sections of the exemptions have since changed; the section written is the section of the exemptions when the incident occurred.
Section 75(2) of the Act exempts "a body established for religious purposes" from the Act when discrimination (a) conforms with the doctrines of the religion or (b) is necessary to avoid injury to the religious sensitivities of people of the religion. VCoA unanimously ruled 3-0 that this exemption did not apply, as CYC was not a body established for religious purposes.
Section 77 of the Act exempts discrimination which "is necessary for the... person to comply with [his/her] genuine religious beliefs or principles". VCoA ruled in a split, 2-1 decision, that this exemption did not apply. The majority held that it only applied to natural persons, not corporations.
Elane Photography also argued that the discrimination was protected by the New Mexico Religious Freedom Restoration Act or by the First Amendment. Both claims were rejected by the New Mexico Supreme Court.
The appeal to the High Court will be on the grounds of if the exemptions do indeed apply. Unlike in the U.S, the High Court can reverse state courts on questions of state law; whereas in the U.S., the Supreme Court can only reverse state courts on questions of federal law. There is absolutely no question of federal law posed here. No federal statutory or constitutional provision prohibits states from banning discrimination. The only thing the High Court will decide is if the exemptions apply.
I should also note that the High Court does not have to take the case. Appeals to the High Court are not a right, and special leave to appeal must be granted. I'm hoping that they don't take the case, but it is quite a significant case, so they might. Then again, it wouldn't set a national precedent, nor one that couldn't be changed by the Victorian Parliament changing the laws. So it might not be that important that the High Court decides to take it up.
Finally, another note on marriage equality. While our current federal government opposes it, and will not act for it, we may have them in a position where they couldn't continue to unilaterally block any attempt to legalize it. It's very likely that they will allow their own members to vote for it if they wished. When the High Court struck down the ACT law, we were left wondering "what the hell are we going to do now?" But it hasn't put the brakes on it. We're still pushing, and will keep on pushing until it's legal. Nothing will stop that.