ACL-founded Human Rights Law Alliance is seeking private contributions for a ‘fighting fund’ to run cases that may arise if marriage equality is legalized
The Guardian (05.10.2016) – http://bit.ly/2dsaS8f – An organisation founded by the Australian Christian Lobby plans to bankroll legal cases for business owners who refuse to provide services to gay couples should marriage equality be legalised.
The Human Rights Law Alliance, set up in Canberra last month with seed funding from the ACL, is seeking private contributions for a “fighting fund” to run cases that may arise if changes to the Marriage Act are passed.
The managing director of HRLA, Martyn Iles, said the alliance would “only support cases where people have a conscientious objection to participating in a same-sex wedding”.
“We would not support anybody who was discriminating against anyone because of who they are, that is, because they’re gay,” he told Guardian Australia.
“It’s got to be sincerely held religious belief or conscientious belief and it has to be expressed in good faith. There’s a few requirements there so you would have to have some evidence that that is in fact what they believe.
“It wouldn’t be a situation where it’s arbitrary or someone just claims religious belief because they don’t like a customer.”
The Queensland anti-discrimination commissioner, Kevin Cocks, predicted that most business owners refusing same-sex couples as customers would not be explicit about their reasons, meaning it would be difficult to muster evidence for a discrimination complaint.
“There may be some groups that want to make a point and push things, so therefore if you’re refused service and treated unfavourably because of your [sexuality] then people could make a complaint [but] it would depend upon the context,” he told Guardian Australia.
Iles acknowledged that those refusing wedding customers for religious reasons were more likely to trigger a discrimination complaint because taking a stand would involve giving reasons.
The HRLA is crowd-funding $120,000 to launch, with contributions “over and above that” to help establish casework by a volunteer network of like-minded lawyers and barristers.
“Justice is expensive in this country and if you have a few cases running, you can exhaust a lot of money very quickly. It all depends on what people are willing to give and how successful we are getting established,” Iles said.
For now an arm of the ACL, the HRLA would look to register separately as a charitable organisation.
Iles said it was not clear whether future donations would be tax-deductible, as the alliance was yet to establish whether it would qualify for deductible gift recipient status.
“That’s a question for us in the future. Once we’ve got some work happening, then we will look into incorporating separately, getting charitable status and going out for DGR,” he said.
In a public statement calling for donations the managing director of ACL, Lyle Shelton, said: “This team of Christian lawyers will fight to protect your religious freedom and fundamental rights in the courts of Australia.”
“As you know, it’s becoming harder for Christians to live out our most fundamental convictions in public and social life. There’s an agenda to silence our voice.”
Shelton said last month there was “a long list of people in the US, UK and Canada who have been fined, hauled before courts and demonised out of their jobs for their belief that marriage is between one man and one woman”.
“Cake makers, florists, wedding-chapel owners and photographers are among the many people who have had legal action taken against them,” he said.
Cocks said the difficulty proving discrimination by business providers according to sexuality was similar to proving age discrimination against job applicants, where other reasons for refusal were almost always given.
“To be quite honest there may be some businesses that will refuse [same-sex couples seeking wedding services] but I don’t think they’ll let it be known why they refused,” he said.
“They’ll say they’re booked out, or they’re not working that weekend or ‘we just can’t supply you because we’ve got a number of orders on’.”
A discrimination complaint would usually need to entail an explicit statement from the business owner that a customer’s sexuality was why they were being refused business, Cocks said.
Business owners who withheld their reasons would “have to be a little bit careful of course” as they could be caught out providing the same service to a straight couple after refusing a same-sex couple, he said.
“That could happen but to be quite honest, same-sex couples would want [their wedding] to be a happy time and smart business people will go after their trade. Personally, I don’t think they’d want to prove a point.”
Cocks said it remained open to a “conservative-minded government” to pass a law to allow refusal on the grounds of opposition to marriage equality.
Among the 12 or more cases currently funded by HRLA is the defence of Melbourne anti-abortion activist and mother of 13, Kathy Clubb, who was charged in August under new Victorian laws banning protests near abortion clinics.
The HRLA is also involved in cases of “doctor’s conscience” before the Medical Board of Australia, as well as out-of-court negotiations over alleged cases of religious discrimination in workplaces and a university.
Iles declined to say whether the HRLA had gained the assistance of prominent legal figures among the five or so lawyers working on its cases pro bono or cheaply.
“Exactly who helps out will become clear because those cases will come to light,” he said.
Iles has indicated the HRLA sees itself as filling a void left by the Australian Human Rights Commission and human rights legal centres, which it believes have neglected to uphold freedom of religion, speech, conscience and association.
Its agenda has prompted scepticism from others in human rights advocacy, with lawyer Duncan Fine accusing the HRLA of believing “the worst discrimination imaginable is to curtail their right to discriminate”.
Iles said the alliance was “not here to promote discrimination or to over-promote religious freedom, we’re here to find balance”.
“We believe in the right to non-discrimination, we believe in the right to equality but we believe the right to freedom of conscience, thoughts and religion or belief is not appropriately balanced against some of those equality and non-discrimination rights.
“The great thing about it is this has to be tested in court. Ultimately [a judge] has to decide where the balance is to be struck.”