The 2015 Marriage Act enacted the Thirty-Fourth Amendment of the Constitution of Ireland into law, which legalized same-sex marriage. Previously, same-sex couples could enter into civil partnerships under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Marriage Act amended the Civil Registration Act 2004, inter alia, by adding a provision that allows anything that applies to marriage between two people of the opposite sex to apply to marriage between people of the same sex (Section 5). The Act also provides that nothing therein obliges a religious body to recognize a particular form of marriage ceremony or to solemnize a marriage (Section 7). It also provides for the recognition of certain foreign marriages and registered foreign relationships (Sections 12 and 13) and amends the Guardianship of Infants Act 1964 to allow a married couple of the same sex to adopt a child (Section 16).
Women and Justice: Keywords
Legislation
Public Health Amendment (Safe Access to Reproductive Health Clinics) Act (New South Wales) (2018)
The Act amends the Public Health Act 2010 No 127. It provides for 150-metre “safe access zones” around reproductive health clinics, which are intended to protect the safety and well-being of people entering and leaving such clinics, including employees. The Act creates offenses punishable with imprisonment for interfering with access to clinics (§ 98C), causing actual or potential distress or anxiety to persons in safe access zones (§ 98D), or for taking/distributing photographs of people in safe access zones (§ 98E). The Act also contains exemptions under § 98F, which states that Act does not prohibit conduct in a religious building, near Parliament House in Macquarie Street, Sydney; or “the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.” In enacting the Act, NSW joined other Australian states and territories, which had already enacted laws banning the harassment of women seeking abortions.
Domestic Case Law
Christian Youth Camps Ltd. v. Cobaw Community Health Service Ltd Supreme Court of Victoria Court of Appeal (2014)
This decision concerned the appeal by Christian Youth Camps (“CYC”) against the decision of the Victorian Civil and Administrative Tribunal (“VCAT”) that CYC had unlawfully discriminated against Cobaw, an organisation concerned with youth suicide prevention. CYC, the operator of a camping facility at Phillip Island, had been established by the Christian Brethren Church and was opposed to homosexual activity on religious grounds. Cobaw had sought to rent CYC’s camping resort for the purposes of a weekend camp to be attended by homosexual young people. CYC had refused Cobaw’s request for accommodation. VCAT found that by refusing to accommodate Cobaw, CYC had unlawfully discriminated on the basis of sexual orientation in the provision of accommodation or services. CYC asserted that its refusal to accommodate the youths was necessary to comply with its religious beliefs or principles, and sought to invoke the religious exemption in sections 75(2) and 77 of the Equal Opportunity Act 1995 (Vic). VCAT found that CYC could not rely on the religious exemption as they were not a body established for religious purposes. While CYC had been established by the Christian Brethren Church, VCAT found that the CYC’s purposes and activities were not religious. The Court of Appeal dismissed CYC’s appeal and upheld VCAT’s decision. The Court of Appeal affirmed VCAT’s finding that the refusal to accommodate was made in the course of the conduct of a secular and commercial accommodation business. The Court of Appeal also upheld VCAT’s finding that CYC’s opposition to homosexual activity was a “rule of private morality,” which “carried with it no obligation to convince others to adopt the same rule.”
Case No. B 10/16 – E.G. in Tenhult v. the Region of Jönköping County Arbetsdomstolen (Swedish Labor Court) (2017)
A to-be midwife, E.G., was denied jobs for which she had applied at three different obstetrics and gynecology departments. When applying, E.G. said that she could not participate in performing abortions due to her religious beliefs. The court considered whether the region had discriminated against E.G. according to Article 14 of the European Convention on Human Rights (ECHR) and the Swedish Discrimination Act and whether the region had violated E.G’s rights under Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the ECHR. The Swedish Labor Court found that the region’s decision not to employ E.G. for the positions she applied to, which included tasks that she had declared that she would not perform, did not constitute direct or indirect discrimination. The Labor Court stated that the region’s criteria – that the applicant could perform all tasks falling within the position, including abortion – was motivated by a legitimate purpose, i.e. good healthcare for the women seeking abortion as defined in the democratically adopted law. The criteria was also found appropriate and necessary to reach the aim of good health care. The Labor Court further deemed that it was E.G’s “professional limitations” and not her opinions regarding abortion that had mattered in the region’s decision not to hire her. Therefore, the Labor Court ruled that region had not committed violations of neither Article 9, 10 or 14 of the ECHR, nor the Swedish Discrimination Act.
BVerwG 6 C 25.12 Bundesverwaltungsgericht (Federal Administrative Court) Bundesverwaltungsgericht (Federal Administrative Court) (2013)
The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The girl's parents had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear in accordance with Islamic custom (a burkini).
Das Gericht wies die Revision zurück und bestätigte die Entscheidung der Vorinstanz, dass eine muslimische Schülerin nicht aufgrund ihrer Religion vom obligatorischen Schwimmunterricht befreit werden kann. Unter den gegebenen Umständen gab es keinen ausreichenden Grund, die Schulpflicht von Kindern zu umgehen. Die Eltern des Mädchens hatten bei der Schule eine Befreiung vom Schwimmunterricht mit der Begründung beantragt, dass die islamischen Bekleidungsvorschriften ihrer Tochter die Teilnahme am koedukativen Schwimmunterricht nicht erlaube. Die Schule lehnte den Antrag ab, erlaubte dem Mädchen jedoch, eine dem islamischen Brauch entsprechende Badekleidung (einen Burkini) zu tragen.
International Case Law
S.A.S. v. France European Court of Human Rights (2014)
S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.
Dogru v. France European Court of Human Rights (2009)
Gender discrimination. The Muslim applicant, aged eleven at the material time, was enrolled in the first year of a state secondary school and wore a headscarf to school. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes. The applicant's parents appealed against that decision to the appeal panel. The applicant claimed that expelling her for wearing the headscarf had amounted to an interference with her religious freedom under Article 9 of the Convention. The court however held that her rights were not infringed, following the Turkish case of Leyla Sahin (Leyla Sahin v. Turkey ([GC], no. 44774/98, ECHR 2005-XI) whereby it was found that secularism, as upheld by the French Government in that case, was of fundamental constitutional value in terms of the importance of the protection of women's rights. It was held that secularism was undoubtedly one of the fundamental principles of the State which was in harmony with the rule of law and respect for human rights and democracy. The court thus noted that secularism was the guarantor of democratic values, ensuring that all citizens are treated equally. The court confirmed that the freedom to manifest one's religion could be restricted in order to defend such values. It concluded that this notion of secularism was consistent with the values underpinning the Convention.