Catholic Communications, Sydney Archdiocese,
15 Nov 2012
The ruling by two British Tribunals that a Catholic adoption agency must give access to same sex couples wishing to adopt or lose its status as a charity is the latest example of how religious freedoms are being eroded, says Rocco Mimmo, Founder and Chairman of the Ambrose Centre for Religious Freedom.
"It is perfectly obvious the Catholic Church and perhaps other religious organisations, object to placing children for adoption in circumstances where a mother and father relationship does not exist," he says and points out that such a belief is normal and takes into consideration what is perceived to be in the best interest of this child.
Mr Mimmo, a leading Sydney lawyer and expert on international, human rights and anti-discrimination laws, describes the recent decision by Britain's Upper Tribunal to refuse an Application by the Leeds Catholic Diocese to alter its Charity Constitution as alarming.
For five years the Diocese of Leeds has fought a legal battle on behalf of its welfare agency and registered charity, CatholicCare which has operated an adoption service for more than a century, placing an average of 10 babies with traditional families comprising a mother and a father each year.
The battle to allow CatholicCare's adoption service to adhere to the teaching of the Catholic Church -that children are better served by being placed in an environment with a mother and a father - began in 2007 when the Diocese applied to England's Charities Commission for exemption to Labour's newly-passed Sexual Orientation Regulations, requiring all adoption agencies to consider gay and lesbian couples as prospective parents.
The British Charities Commission turned down the Diocese's application insisting it had to balance the risk of closure of the charity's adoption service and skilled staff against "the detriment to same-sex couples and the detriment to society generally of permitting the discrimination proposed."
The Leeds Diocese appealed the ruling first to the First Tier Tribunal and then to Britain's Upper Tribunal. However early this month, the Diocese lost its second and final Appeal.
Mr Mimmo both as a lawyer and on behalf of the Ambrose Centre for Religious Liberty has strongly criticised the reasoning adopted by both Tribunals as well as the reasoning involved in the original ruling by the Charities Commission.
Each of the decisions has denied the Catholic Church the right to manifest its religious belief, with the teaching of the church that children are better served placed in an environment with a mother and a father not given consideration or regarded with significant importance to justify discrimination against same sex couples who are willing to adopt children, he says.
"Although this belief may have a religious foundation, it should not be lightly overruled," he insists and believes the decisions by the Tribunals and the Charities Commission illustrate how a law can be used to act in an oppressive manner against the public expression of religious belief.
Britain's Sexual Orientation Regulations of 2007 was given further legal weight when the UK Parliament passed the 2010 Equality Act which does not allow discrimination of same-sex couples.
Mr Mimmo says the Equality Act works in similar ways to the Anti Discrimination Laws of Australia and in Britain has already resulted in at least five Catholic adoption agencies being forced to close their doors.
In another separate but equally troubling ruling by England's Charities' Commission cited by Mr Mimmo is the case of a Christian Brethren Group in Plymouth which has had its charitable status removed after "the Commission decided that 'religion' is not always for the public good."
"Australian recently legislated for the establishment of a Charities Commission," Mr Mimmo says and warns although its powers are not clear at present, all religious-based charities including the 67 or so agencies of the Catholic Church, may need to take note.
However what is not yet known here is the substance of governance standards and financial reporting requirements which are to be prescribed by the regulation.
A Bill to establish the Australian Charities and Not for Profit Commission (ACNC) was passed by Federal Parliament in September this year. Amendments to the Bill passed the Senate earlier this month and the Commission which will take over from the Australian Investments Securities Commission and the Australian Taxation Office is expected to open its doors within the next three weeks.
The government has said the statuary definition of charity will codify common law in that it will include "advancement of religion" as a head of charity which is reassuring.
Also in Australia and clearly different to the UK, the state adoption legislation in NSW, recently amended to allow same-sex adoptions, includes an exemption for Catholic adoption agencies. This allows them not to provide services to same-sex couples.
In light of the recent rulings of the British Charities Commission, the Ambrose Centre for Religious Liberty is expected to keep a close eye on its counterpart here in Australia.
Since its establishment in 2009, the Ambrose Centre has fought against increasing secular orthodoxy incursions that restrict and limit religious freedoms and has regarded what is happening in Britain under its new Equality Law as well as the nation's Human Rights Law as a warning and a 'wake up call."
The Archbishop of Sydney, Cardinal George Pell is one of the founding members of the Ambrose Centre for Religious Liberty and is on Centre's Advisory Board which includes other important religious leaders representing Christian, Jewish, Muslim, Buddhist and Hindu faiths along with members of the Judiciary and legal profession.
Full Comment on The Leeds Catholic Care Case by Rocco Mimmo, Founder and Chairman of the Ambrose Centre for Religious Liberty is printed below:
The decision of the England Upper Tribunal to refuse an Application of the Leeds Catholic Diocese to alter their Charity Constitution is alarming.
The decision means that should the Church's Adoption Agency wish to continue to operate then it will be required to place children for adoption with same-sex couples.
The Upper Tribunal was hearing an Appeal by the Leeds Diocese against an earlier decision of the First Tier Tribunal which said that same-sex couples could not be denied access to children open to adoption.
The Ambrose Centre for Religious Liberty has strongly criticised the reasoning adopted by England Upper Tribunal against the Catholic Diocese's Application.
The Leeds Diocese argued strongly that they should be allowed to place children only with a Nazarene family. The Adoption Agency operated by the Leeds Diocese is a registered Charity and subject to the rules operating for all Charities in England. England has what is called an 'Equality Act' which works similar to Anti-Discrimination Laws in Australia.
The Equality Act does not allow discrimination against same-sex couples. Neither the First Tier nor Upper Tribunal considered it significantly important that the teaching of the Catholic Church is that children are better served by being placed in an environment with a mother and father. Both Tribunals did not believe that such a teaching could justify the discrimination against same-sex couples who were willing to adopt children.
Rocky Mimmo on behalf of the Ambrose Centre for Religious Liberty points out those same-sex couples could access adoption though other agencies and did not require the Catholic Adoption Agency to provide adoption services for them.
It is perfectly obvious that the Catholic Church, and perhaps other religious organisations, object to placing children for adoption in circumstances where a mother and father relationship does not existed. Such a belief is normal and takes into consideration what they believe to be the best interest of the child. Although this belief has a religious foundation, it should not be lightly overruled. Both Tribunals have denied the Catholic Church the right to manifest its religious belief. This decision illustrates how a law acts in an oppressive manner against the public expression of a religious belief.
The Tribunals acted on a previous ruling by the English Charities Commission which insisted that the Catholic Church Adoption Agency must be open to placing children with same-sex couples. If they objected to this then they would lose their charity status.
In a separate ruling a Christian Brethren Group in Plymouth has had its charitable status removed because the Charities Commission said that 'religion' is not always for the public good!
Australia has recently legislated for the establishment of a Charities Commission. Its powers are not clear at present but all religious based charities including the 67 or so agencies of the Catholic Church may need to take note.