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Pathways for Conscience Protection in Law: German, American and Australian Perspectives

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Pathways for Conscience Protection in Law: German, American and Australian Perspectives PATHWAYS FOR CONSCIENCE PROTECTION IN LAW: GERMAN, AMERICAN AND AUSTRALIAN PERSPECTIVES PATRICK T. QUIRK (1696582) A THESIS SUBMITTED IN SATISFACTION OF THE REQUIREMENTS OF THE DEGREE OF DOCTOR OF PHILOSOPHY THE UNIVERSITY OF ADELAIDE SCHOOL OF LAW 2020 To Peter R. Long and Paul F. L. Stenhouse M.S.C. (“Peter & Paul”) STYLE NOTE Each of the individual articles, which comprise part of this thesis, is presented in a distinct style. This is because each article, so far as possible, has been drafted in the house style of the journal in which it has been, or will be, published. Likewise, some variations in spelling and footnoting may occur due to country of publication for each article. TABLE OF CONTENTS Contextual Statement .....................................................................9 Paper One .....................................................................................22 Paper Two ....................................................................................64 Paper Three ................................................................................113 Paper Four ..................................................................................164 Bibliography ............................................................................. 200 ABSTRACT This thesis considers various interactions between law, conscience, and religion in three countries: Germany, the United States, and Australia. Looking in detail at recent controversies, including those over headscarves and crucifixes, and sometimes exploring philosophical and theological themes, this thesis makes comparisons across these countries based on case law, existing legislation, and constitutional provisions, as well as proposed legislative reform. The thesis also considers debates that occur inside religious traditions and reflects upon how such discussions impact the well-established sincerity test, which prohibits courts from taking positions on theological questions. Understanding a foreign solution to a familiar problem often leads to a more precise grasp of one’s own law. This thesis applies this axiom to inform debate in the future work of Australian federal and state Parliaments as they attempt to protect freedom of conscience and religion in a complex social milieu. DECLARATION I certify that this work contains no material which has been accepted for the award of any other degree or diploma in my name, in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. In addition, I certify that no part of this work will, in the future, be used in a submission in my name, for any other degree or diploma in any university or other tertiary institution without the prior approval of the University of Adelaide and where applicable, any partner institution responsible for the joint- award of this degree. I acknowledge that copyright of published works contained within this thesis resides with the copyright holder(s) of those works. I also give permission for the digital version of my thesis to be made available on the web, via the University’s digital research repository, the Library Search and also through web search engines, unless permission has been granted by the University to restrict access for a period of time. I acknowledge the support I have received for my research through the provision of an Australian Government Research Training Program Scholarship. The first paper in this thesis was published in 2018 in the Tulane Journal of International and Comparative Law: Patrick T. Quirk, The Undefined Remains Unprotected: Tensions between Conscience and the Law in Germany by Way of Joseph Isensee, 27 TUL. J. INT’L & COMP. L. 55 (2018). The second paper in this thesis was published in 2019 in the Fordham Journal of International Law: Patrick T. Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, 43 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2019). The third paper in this thesis has been accepted for publication, forthcoming FAULKNER LAW REVIEW (Spring 2020): Patrick T. Quirk, When My Opt Out Is Your Trigger: Oderberg’s Argument with the Religious Freedom Sincerity Test. The fourth paper in this thesis has been submitted for publication in various US law reviews and journals via Scholastica HQ: Patrick T. Quirk, Josef Pieper: A Lawyer’s Guide to the Apocalypse. Each of these papers contains original research, which I conducted during the period of my Higher Degree by Research candidature, and which is not subject to any obligations or contractual agreements with a third party that would constrain its inclusion in this thesis. Signed: Date: 20 January 2020 ACKNOWLEDGEMENTS Special thanks to my principal supervisor, Paul Babie, of the University of Adelaide Law School, for his exceptional oversight of this project. Thanks also to my external supervisor, Howard Bromberg, of the University of Michigan Law School, for his generous support and advice. Sincere thanks also to all those mentioned in the asterisk footnote in each of the articles which form part of this submission. Particular thanks to Elizabeth D. Boepple, Sebastian Condon, Kevin Fahey, Barry Leech, Darcy McCormack, David S. Morrison, Stuart and Tracey Rowland, Anne Steinemann and Ian Unsworth. I also wish to acknowledge Bernd Irlenborn of the Theologische Fakultät Paderborn and Josef Isensee of the University of Bonn for their kindness and encouragement. This thesis was mostly written during a year of leave from Australian Catholic University, during which time I resided at St. Mary’s College at the University of Melbourne as a Scholar- in-Residence. My sincere thanks to both of those institutions. Final thanks to my family and close friends for their patient understanding during the time of preparation. CONTEXTUAL STATEMENT A. INTRODUCTION Conscience is ubiquitous in our law, but it is usually unexamined, functioning as a presumed shared starting point within every citizen’s cognitive grasp from which the law can do its work.1 This thesis explores legal complications associated with conscience protection and religious freedom in three countries—Germany, Australia, and the United States. It does so by examining selected recent cases, legislation, and constitutional provisions in a broad comparative context while also aiming to unearth shared presumptions and potential portable solutions that may form the basis of future law reform in Australia. There can be no doubt that law, authority, and religion are now interacting with increasing frequency and greater variation around the world.2 Leading Western democracies, including those mentioned above, are at the vanguard of a wave of legal reforms, which are attempting to keep pace with a mass of underlying social and cultural change, religious tension, and prudent accommodation where possible.3 Questions of conscience protection are also becoming caught up in these changes, and attracting further attention in their own right, quite 1 ROBERT K. VISCHER, CONSCIENCE AND THE COMMON GOOD: RECLAIMING THE SPACE BETWEEN PERSON AND STATE 15 (2010). 2 Report of the Pew Research Center on Religion and Public Life, A Closer Look at How Religious Restrictions Have Risen Around the World (July 15, 2019). https://www.pewforum.org/2019/07/15/a-closer- look-at-how-religious-restrictions-have-risen-around-the-world/ (last visited Jan. 14, 2020). This report has appeared for ten consecutive years and notes that “Over the decade from 2007 to 2017, government restrictions on religion – laws, policies and actions by state officials that restrict religious beliefs and practices – increased markedly around the world. And social hostilities involving religion – including violence and harassment by private individuals, organizations or groups – also have risen since 2007, the year Pew Research Center began tracking the issue.” 3 These include Australia’s efforts in reforming discrimination laws through the Religious Discrimination Bill 2019 (Cth) and the associated legislative package, including the Religious Discrimination (Consequential Amendments) Bill 2019 (Cth), and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (Cth). In the United States, high profile cases such as Hobby Lobby v. Sebelius (2013) and Burwell v. Hobby Lobby Stores, Inc. (2014) continue to come before the highest courts. In Germany, an influx of immigrants has fueled contentious debates about religious clothing, freedom of speech, and related issues of “integration.” For an overview of ethically motivated disobedience to the law in Germany from 1949 to 1989 see Tobias Schieder, ETHISCH MOTIVIERTER RECHTSUNGEHORSAM: RECHTSDEBATTEN ZU WIDERSTANDSRECHT, GEWISSENSFREIHEIT UND ZIVILEM UNGEHORSAM IN DER BUNDESREPUBLIK DEUTSCHLAND, 1949-1989 [Ethically motivated disobedience to the law: Legal debates surrounding the right to resistance, freedom of conscience, and civil disobedience in the Federal Republic of Germany, 1949-1989] (2018). apart from religious considerations.4 In December 2018, the Australian Government published the Religious Freedom Review, thereby drawing attention to a “limited understanding in the [Australian] community about the human right to religious freedom, its application, and how it interacts with other human rights.”5 New Australian cases dealing with perennial issues such as those surrounding religious clothing are also coming before the courts with regularity.6
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