Christian wedding photographer Jason Tey was taken to the West Australian Equal Opportunity Commission after he agreed to photograph the children of a same-sex couple but disclosed a conflict of belief, in case they felt more comfortable hiring someone else. At the conciliation hearing, it was demanded that Mr Tey provide an admission of discrimination as well as a written apology to be published publicly on the homepage of his website and all social media pages associated with his photography business for at least two months. The Australian, 16 Nov 2018: J Kelly, “Religious freedom lost as White magazine shuts”

The common thread, of course, is the view of a business owner about same-sex marriage, or more broadly homosexual activity. It is just over one year since Australians voted, in a postal survey the results of which were released on Nov 15, 2017, to change the law to allow same-sex marriage. A number of commentators have pointed out that, at the time, it was a common claim by advocates for the reform that, apart from the one issue of same-sex couples being able to marry, “nothing would change”. That this was clearly not true was evident at the time, for anyone who had been watching what had happened elsewhere where this change had been made. It is now apparent that one of the changes that has been accelerated by the change in the law, is the popular feeling that any opposition to homosexuality must be punished, and can no longer be tolerated. There are a couple of helpful comments that have been posted already today on these issues, from Stephen McAlpine and David Ould. But I thought it would be helpful to add my comments on the legal issues. It would be easy, perhaps, for the casual reader to assume that both the parties who have been “punished” here by popular pressure, have done something illegal. In fact, as I want to explain, on the facts as reported in the press today it seems likely that neither of the parties had broken the law at all. Not that this means they do not suffer for the positions they have taken. In the case of White magazine, for example, it seems clear that they have been put on an informal “black list” by some wedding industry advertisers. The idea of a “black list”, a list of those who deserve to be punished for some wrong, goes back a long way. The Oxford English Dictionary cites an example from 1624. It seems that people have long enjoyed the convenience of knowing who should be punished in some way by referring to such a list. From other notorious historical examples, such as the black-listing of artists and writers in the era of McCarthy, we have now come to the point where those who accept the traditional Christian view of sexual behaviour will be boycotted and banned unless they change their minds. But for the moment, expressing such views is not illegal.

The Wedding Magazine

The complaint made against the publishers of White is that they chose not to feature same-sex weddings in their magazine. Was that unlawful? No. The only plausible way that could be said to be unlawful under Commonwealth and NSW law would be to argue that the publishers were denying a “service” to same sex couples. But it seems likely that the action of publishing a curated magazine featuring articles selected by the editors, does not amount to the provision of a “service” to those submitting articles and hoping to be published. Section 22 of the Sex Discrimination Act 1984 (Cth), for example, makes it unlawful for someone who provides “goods or services” to discriminate against someone else on the grounds of, among other things, “sexual orientation”. The word “services” is defined as follows in s 4 of the Act:

“services” includes: (a)  services relating to banking, insurance and the provision of grants, loans, credit or finance; (b)  services relating to entertainment, recreation or refreshment; (c)  services relating to transport or travel; (d)  services of the kind provided by the members of any profession or trade; and (e)  services of the kind provided by a government, a government authority or a local government body. Sex Discrimination Act 1984 (Cth), s 4(1)

While the question is not completely beyond doubt, it seems that all the areas covered here are those where these services are provided to members of the public at large. But the editor of a magazine does not offer to publish articles by anyone who offers those articles. As is well known, magazines have their own “style” and criteria they adopt to reach target audiences. While it would be discriminatory to refuse to sell copies of the magazine to persons on the ground of sexual orientation, it does not sound plausible to say that the editors of the magazine must not apply their own artistic and editorial judgment as to which articles will appeal to their readers. Some magazines are blatantly targeted at “demographic” groups which would otherwise constitute protected grounds: a woman’s magazine, say, or in the US Ebony magazine which targets African-American readers. In fact White did not market itself as a “Christian” wedding magazine. But it seems plausible that many Christian readers were attracted by its moral stance “Celebrating love and relationships – rather than selling products”, as noted on its website. And it seems reasonable for the editors to apply their own Christian principles in selecting articles they wished to publish. Some of the activists who have targeted the magazine claimed that they were simply asking for “transparency“, wanting the magazine to be open about not featuring same-sex weddings. Of course, the result of such transparency seems likely in the current context to have been the same result that followed the magazines’ being “called out” online- a flood of hateful messages and a withdrawal of advertising. At any rate, it seems to me that there was likely to have not been anything unlawful in the magazine’s policy, as they were not providing “services” to potential contributors.

The Wedding Photographer

Briefly, it also seems to me that the photographer in WA did not break any laws. It has been reported that he did not decline to provide the photographs requested by the same-sex couple, but rather was “transparent” about the fact that, while he would do the job, he was uneasy about it because of his Christian faith. In so doing he did not, in the language of s 35O of the Equal Opportunity Act 1984 (WA), treat the couple “less favourably” than he would have treated a heterosexual couple. He was still prepared to provide the service requested. Simply being aware that someone does not agree with one’s moral choices does not seem to be sort of “less favourable” treatment that should attract a legal remedy. In that respect this case seems similar to another Western Australian decision I have previously discussed: see https://lawandreligionaustralia.blog/2017/06/21/no-religious-discrimination-where-school-has-optional-clause-in-creed/ . In that case it was held that a school had not applied a “detriment” to a pupil where the school had a “school creed” mentioning God, but the pupil was not required to recite that part. As I noted, “the Tribunal noted that “detriment” for the purposes of the legislation needed to be “a matter of substance and not directed to trivial distinctions, and that the test is an objective one”- [140].” In fact this wedding photographer case reported today has apparently gone to a further hearing before a Tribunal, which will have to decide whether there was relevant “less favourable” treatment. As I say, however, I think it is unlikely that any legal wrong has been committed.

What is lawful may still not be popular

Here, then, as I have tried to show, it does not seem that either of these wedding industry participants have behaved unlawfully. But at least in the case of White magazine, they have been “tried and convicted” in the court of popular opinion. Sometimes those caught in this situation will decide to ride this out; sometimes it will not be possible, especially where an economic boycott mustering a withdrawal of advertising takes place. That is what seems to have happened here. Indeed, it may be interesting at some stage to explore the possibility that “concerted action” online to cause advertisers to withdraw business from a magazine, might not itself amount to an unlawful “secondary boycott” of the sort prohibited by s 45Dof the Consumer and Competition Act 2010 (Cth). (Such boycotts are permitted in limited circumstances allowed by s 45DD of that Act, including for environmental protection and consumer protection, but not for the sort of purposes displayed here.) Whether or not legal protections are available, it seems that those who wish to live in accordance with Christian teachings will continue to be under attack. This should not, in my view, lead to despair. Our legal system still provides some protections for free speech and religious freedom, and it may be that more are possible. But in all cases those who follow Jesus Christ will want to follow his radical teaching to “love your enemies and pray for those who persecute you, that you may be children of your Father in heaven” (Matthew 5:44-45).   This article first appeared on Professor Neil Foster's website, Law and Religion