September 27th 2014

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Articles from this issue:

COVER STORY It's the science, not the reef, that is being polluted

NATIONAL AFFAIRS High time to introduce family-friendly taxation

CANBERRA OBSERVED Forrest's bold plan for indigenous Australians

RELIGIOUS FREEDOM Same-sex marriage and property rights clash in U.S.

REPRODUCTIVE TECHNOLOGY Like 'baby-farming', donor conception robs children of their identity

OPINION Stopping sexualisation of children must be our priority

EDITORIAL Obama's campaign against IS can't work

TRIBUTE 'Simon Leys', the China-watcher who couldn't lie

ENVIRONMENT Melting Antarctic ice sheet, or more climate alarmism?

TECHNOLOGY Using technology to live wisely and well


CINEMA A community wounded by the loss of God

BOOK REVIEW Sombre appraisal of the 'good war'

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Same-sex marriage and property rights clash in U.S.

by Neville Rochow

News Weekly, September 27, 2014

A recent United States decision in which issues of religious freedom and discrimination have arisen in the context of same-sex marriage is discussed here by Adjunct Professor Neville Rochow SC of the School of Law, University of Notre Dame Australia.

Melisa McCarthy and Jennifer McCarthy are a same-sex couple living in the State of New York. Cynthia Gifford and Robert Gifford are a devout Catholic married couple who own and control a corporate entity, Liberty Ridge Farm LLC. The Giffords and Liberty Ridge Farm LLC own and control a farmland property in Albany.

Cynthia and Robert Gifford

From 2012, the Giffords have used their farm property for various social functions, including marriage ceremonies and wedding receptions. This activity supplemented the regular farming activities which were also conducted on their property.

In October 2011, Jennifer proposed to Melisa while picking apples at an orchard in the Albany area. They found the Liberty Ridge Farm LLC website on the Internet. The Giffords, however, did not permit their property to be used for activities contrary to their religious beliefs and conscience, including same-sex weddings and same-sex wedding receptions. The website did not state these policies.

In September 2012, Melisa McCarthy and Cynthia Gifford spoke by telephone while Jennifer listened in. In that conversation, there was discussion about renting the property for the purpose of holding a wedding between June and August 2013. During the conversation, Melisa was invited by Cynthia to visit the farm.

While arranging a time, Melisa made reference to her fiancée as “she”, which prompted Cynthia to say that there was a problem because they did not hold same-sex marriages at the barn. When challenged by Melisa about the legality of that policy, Cynthia explained that they ran a private business and it was a decision of her husband and herself.

At this point the telephone conversation ended, with Melisa saying that the policy was “very disappointing” and that the McCarthys would not take up anymore of her time.

The McCarthys, subsequently, made a complaint variously describing the effect of the refusal upon them as “shell-shocked”, “horrible”, “heart-breaking” and a blow to Jennifer McCarthy’s “coming out process”. In the ultimate result, the McCarthys found a nearby Albany farm at which to celebrate their nuptials.

The relevant legislation made it an offence “for any person , being the owner … of any place of public accommodation … because of the … sexual orientation … or any person, directly or indirectly to refuse, withhold from or deny to such person any of the accommodations, advantages or privilege thereof …”.

A club, institution or place of accommodation which was “distinctively private” or which applied “selection criteria … in evaluating applicants for membership and in the conduct of its activities, so long as such selection criteria do not constitute discriminatory practices …” was exempt.

The Respondents’ argument that their farm was not “a place of public accommodation” was unsuccessful because the farm was run as a business for public hire. The Respondents’ argument that they held a “specific religious belief regarding marriage”, namely that it should be between a man and a woman and that only allowing such couples to marry on their property was the application of permissible selection criteria, was also rejected. This policy was found to be an impermissible denial of access to a public place of accommodation.

The Respondents were ordered to pay US$3,000 in damages to the Complainants ($1,500 each) and to pay $10,000 by way of civil fine and penalty to the State of New York for having violated the relevant legislation. The Respondents were required additionally to undergo anti-discrimination training and cooperate with the division in any investigation into their compliance with directives made to them. The Respondents were also required to display a copy of the decision on their website.

This case is one of the most recent in a line of cases in which business owners, who have been either required to trade contrary to their conscience and religious convictions or to pay a penalty despite conscientious or religious convictions.

The case is important in an Australian context, as similar issues arose under Victorian anti-discrimination legislation in a recent Victorian Court of Appeal decision. If the special leave sought in that case is granted, the High Court will have to decide both the content and ambit of religious organisation defences in cases where religious organisations are involved in trade and commerce but wish to reserve space for conscience to be obeyed.

Moreover, the argument that sexuality is integral to identity will have to be considered against the point, that so too are matters of religious conviction and conscience. To date, none of the authorities have addressed the fact that the alleged offence goes both ways.

Neville Rochow SC is an Adelaide-based barrister who is also adjunct professor at Notre Dame University, Sydney, and at the University of Adelaide law school. The above article originally appeared in On the Case (issue 7, 2014), an online journal of the University of Notre Dame Australia’s Schools of Law and is reprinted with permission. The original article contains footnotes and references.

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