ABSTRACT

The existence of a civil society is premised on the coming together of individuals. Each of those individuals has certain rights, but some of those rights must be limited in order for a society to function. The eternal struggle of Anglo-American liberalism has been to find the proper balance between the taking of some rights with the protection of others. This tension between two fundamental needs of a democratic society has been thrust into the news recently in the cases of Mullins v. Masterpiece Cakeshop, State v. Arlene’s Flowers, and Elane Photography v. Willock. In these cases, a cake-maker, a florist, and a photographer refused to, respectively, create a custom wedding cake, create custom wedding flower arrangements, and photograph a wedding. The couples each brought suit using their state’s statute which prohibited refusing service on the basis of sexual orientation. The service providers raised two defenses based in the First Amendment: the right to be free from compelled speech and the right to free exercise of religion. While both arguments are germane to the issues presented in the cases, this Note’s purpose is to provide a more thorough and searching analysis of the individual rights that are being threatened. In particular, this Note will examine three potential bases for alternative arguments supporting the liberty interests in those cases. These potential bases include the Thirteenth Amendment and its prohibition of involuntary servitude; property law and the right to exclude; and contract law and the freedom to, or more specifically from, contract. While arguments based on these doctrines are not often raised in modern constitutional jurisprudence, a broader analysis based on these doctrines can shed light on the various interests at stake in these cases and offer new ways of thinking about the timeless struggle to balance rights in American society.

INTRODUCTION

Liberty is an illustrious concept, an ideal that fills the hearts and minds of each successive generation with promises of a better tomorrow, and a principle that serves as a foundation of western civilization. However, liberty is as elusive as it is illustrious. Sometimes, liberty is even counterintuitive. In today’s world, there are many conflicts between positive rights, those which must be given, and negative rights, those which are there to take away. In order to pursue the greatest liberty for the most people, negative rights must be emphasized, because giving positive rights to some inherently involves taking negative rights from others.

The distinction between positive and negative rights is often at the forefront of political and legal debates. The right to abortion expounded in Roe v. Wade1 is a negative right, and the Court denied the positive right to a required abortion funding in Maher v. Roe.2 The Hobby Lobby case balanced the negative right of the owners of Hobby Lobby, a closely held corporation, to their religious beliefs with the positive rights of the workers to health insurance that covered contraceptives.3 Every election there seems to be debate about taxes, freedom from which is a negative right, and social safety nets, which are positive rights. These conflicts are common place in today’s society. This Note examines one such clash.

I. THE PROBLEM

A. Masterpiece

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodation laws to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.4

In July 2012, Craig and Mullins, a same sex couple, entered Masterpiece.5 Masterpiece, located in Lakewood, Colorado, is owned by Jack Phillips.6 Mr. Phillips creates custom cakes: “Custom designs are his specialty: if you can think it up, Jack can make it into a cake!”7 Craig and Mullins asked Phillips to make them a custom cake for their wedding, but Phillips refused due to his religious beliefs.8 Mr. Phillips made it clear that he would be more than willing to sell or make them any other sort of baked good, just not a cake for their wedding.

Craig’s mother later called Phillips; he informed her that Masterpiece did not make cakes for same-sex weddings due to Phillips’s religious beliefs and because same-sex marriages were not recognized in Colorado at the time. 10 Craig and Mullins then filed charges of discrimination against Masterpiece.11

Colorado’s statute, which was the basis for the suit, declared it unlawful for a place of public accommodation to refuse to provide a service for someone, among other reasons, because of sexual orientation. 12 In Colorado, a place of “public accommodation” is “any place offering services . . . to the public . . . .” 13 Mr. Phillips defended himself by claiming the statute, as applied, violated his First Amendment rights to free exercise of religion 14 and freedom from compelled speech. 15 The Court handed down a decision in favor of Mr. Phillips, but it was on limited grounds. 16

B. Arlene’s Flowers

The state of Washington has a similar statute prohibiting discrimination by service providers.17 This statute is the basis for a case similar to Masterpiece—State v. Arlene’s Flowers, Inc. 18 Barronelle Stutzman owns Arlene’s Flowers Inc., located in Washington.19 Stutzman, though she had been happy to sell the couple flowers in the past, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed, a same-sex couple. 20 Stutzman says she then gave Ingersoll the name of another florist.21 Both the flower shop and the couple drew a slew of media attention.22 Ingersoll received a variety of offers from other florists to do his wedding about twenty times over.23 But the media coverage was far from unified; Stutzman received threats to her business, and the couple received so much attention that they scaled down their wedding and had it in their own home.24 Stutzman defended the suit on grounds similar to those in Masterpiece.25

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† Law student, Northern Illinois University Law School.

1 Roe v. Wade, 410 U.S. 113 (1973).

2 Maher v. Roe, 432 U.S. 464 (1977).

3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 1 (2014).

4 Masterpiece Cakeshop, Ltd., v. Colo. Civ. Rts. Commission, 584 U.S. 1 (2018).

5 Id.

6 Id. at 3.

7 Masterpiece Cakeshop, https://masterpiececakes.com (last visited Oct.  8, 2018).

8 Masterpiece Cakeshop, 584 U.S. at 1.

9 Id. at 4.

10 Id.

11 Id. at 1.

12 “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” COLO. REV . S TAT. § 24-34-601(2)(a)(2018).

13 Masterpiece Cakeshop, 584 U.S. at 5.

14 Id. at 7.

15 Id.

16 See id. at 18.

17 “(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.” WASH. REV. CODE ANN. § 49.60.215(1)(LexisNexis 2011).

18 State v. Arlene’s Flowers, Inc., 389 P.3d 543, 551 (Wash. 2017).

19 Id. at 548.

20 Id.

21 Id. at 549.

22 Id.

23 Barronelle Stutzman, I’m a Florist, but I Refused to Do Flowers for My Gay Friend’s Wedding, THE WASHINGTON POST (Jan. 10, 2018), https://www.washingtonpost.com/posteverything/wp/2015/05/12/im-a-florist-but-i-refused-to-do-flowers-for-my-gay-friends-wedding/?utm_term=.3a3c313b6351).

24 Arlene’s Flowers, 389 P.3d at 549.

25 Id. at 552.

 

ABSTRACT

The nations of Europe have been characterized in recent years by a significant increase in cultural and religious diversity. While this has brought a cultural richness, it has also increased cultural tensions. As one commentator has noted, “Clashes, provocation, and dissent between religiously and culturally different groups have characterized many mainstream European concerns.”1

In E.S. v. Austria (2018), the European Court of Human Rights (ECtHR) upholds Austria’s effort to promote “religious peace” and “mutual tolerance” by convicting an individual for making statements highly critical of Mohammad.2 The ECtHR does so by offering Austria a wide margin of appreciation to determine how to navigate the difficult challenges of religious and cultural diversity, but also by largely ignoring the text of the European Convention of Human Rights – and even other principles of international law on which it purports to rely.3 It does so also in the name of strengthening freedom of religion. But the ECtHR is mistaken. Not only does E.S. severely restrict freedom of expression, it also may actually reduce the freedom of religion as understood in the Convention.

Part One of this Article focuses on the unique factual and political circumstances that gave rise to the prosecution of E.S. as well as the analysis of the courts, from the Austrian national courts to the ECtHR. Part Two discusses how the ECtHR’s decision in E.S. v. Austria is deeply flawed in three ways. First, the ECtHR engages in almost no serious textual analysis of the relevant Convention articles. Second, in the place of meaningful textual interpretation, the ECtHR applies the margin of appreciation doctrine to support its own analysis which offers little clarity or certainty and leads to a troubling result. Third, the ECtHR reaches a decision that puts it in tension with other key international law standards that it identifies as relevant to the case.

I. PART ONE: CASE HISTORY

A. Facts of the Case

In January of 2008, the Freedom Party Institute (Bildungsinstitut der Freiheitlichen Partei sterrecihs) held several seminars entitled “Basic Information on Islam” (Grundlagen Des Islams).4 The Freedom Party is a right-wing populist and national-conservative political party in Austria.5 The party began attacking the influence of Islamic extremism in the early 1990s after the issue of immigration became an increasingly important issue for voters in Austria.6 In 1993, the Freedom Party was among the groups promoting the controversial “Austria First” initiative, which sought to collect signatures for a referendum on immigration restrictions.7 The party expanded its attack on Islamic extremism to include Islamisation and the increasing number of Muslims in general.8 The party has also fought the practice of distributing free copies of the Koran.9

The “Basic Information on Islam” seminars were open to the public and were publically advertised on the Freedom Party website.10 In addition, the party had distributed a leaflet specifically aimed at young voters, promoting the seminars.11 Two seminars were held on October 15th and November 12th of 2009, with thirty participants each.12 E.S.13 was the main speaker and spoke for a total of twelve hours during both seminars.14

E.S. made two statements during this twelve hour period that placed her in legal jeopardy with the Austrian court:

and;

E.S.’s statements concerned the marriage of Muhammad to Aisha as recorded in the Sahih Al-Bukhari, one of the Kutub al-Sittah (six major hadith collections) of Sunni Islam.17 Sahih Al-Bukhari provides, “It is reported from Aisha that she said: The Prophet entered into marriage with me when I was a girl of six . . . and at the time [of joining his household] I was a girl of nine years of age,” and also, “Khadija died three years before the Prophet departed to Medina. He stayed [alone] for two years or so. He married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.”18

E.S.’s statement, “[w]e have huge problems with that today, that Muslims get into conflict with democracy and our value system” referred to child marriage in many predominately Muslim countries.19 The Sahih Al-Bukhari has influenced domestic law concerning the age of marriage in many predominately Muslim countries. This practice has been condemned by the UN Committee on the Rights of the Child that states, “[g]irls [in many Muslim nations] cease to be [a] minor after [nine] lunar years. Thus, after this age, they are excluded from the protection of the Convention on the Rights of the Child.”20 “According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old” were married, a phenomenon largely rooted in predominately Muslim countries.21 “The minimum age for marriage in Iran is 13 years for girls and 15 for boys.”22 It has been reported that in Iran, 43,459 girls under 15 years became married in 2009 and 716 girls under 10 years married in 2010.23 The Grand Mufti of Saudi Arabia said in 2012 that girls are ripe for marriage at 12 years, and it is only since 2013 that the minimum age of marriage for girls was raised to 16 and the consent of the child required.24

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† Jeffrey Brauch is a professor at Regent University School of Law and the executive director of the school’s Center for Global Justice, Human Rights, and the Rule of Law. Among other courses he teaches International Human Rights and International Criminal Law.

†† Cody Goings attends Regent University School of Law. He is thankful to Professor Brauch and his wife, Leigh Goings.

1 Parvati Nair, Cultural and Religious Diversity in Europe: The Challenges of Pluralism, IEMED. MEDITERRANEAN YEARBOOK 328, 328 (2014), https://www.iemed.org/observatori/arees-danalisi/arxius-adjunts/anuari/anuari2014/nair_religious_diversity_europe_pluralism_IEMed_yearbook_2014_EN.pdf.

2 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶¶ 41, 44 (2018).

3 Id. ¶ 44.

4 Id. ¶ 7.

5 HANSPETER, KRIESI ET AL., POLITICAL CONFLICT IN WESTERN EUROPE 52 (Cambridge Univ. Press 2012); JOHANNES JÄGER & ELISABETH SPRINGLER, ASYMMETRIC CRISIS IN EUROPE AND POSSIBLE FUTURES: CRITICAL POLITICAL ECONOMY AND POST-KEYNESIAN PERSPECTIVES 110 (Routledge, 2015); Wolfram Nordsieck, Austria, PARTIES & ELECTIONS EUR. (2017), http://www.parties-and-elections.eu/austria.html.

6 Susi Meret, The Danish People’s Party, the Italian Northern League and the Austrian Freedom Party in a Comparative Perspective: Party Ideology and Electoral Support, SPIRIT PHD SERIES 1, 194 (2010), http://vbn.aau.dk/files/20049801/spirit_phd_series_25.pdf.

7 Id.

8 See id. at 198–99; see also Vexed in Vienna, ECONOMIST, May 21, 2016, at 50.

9 Disaster averted—for now, ECONOMIST, May 28, 2016, at 12.

10 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶ 7 (2018).

11 Id.

12 Id. ¶ 8.

13 The Court granted E.S. anonymity on the Court’s own motion under Rule 47 § 4 of the Rules of Court; which provides: “Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorize anonymity or grant it of its own motion”. Eur. Ct. H.R., Rules of Court, at 24–25, (Aug. 1, 2018), https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf.

14 E.S., App. No. 38450/12 ¶ 34.

15 Id. ¶ 13.

16 Id.

17 HAROLD G. KOENIG & SAAD AL SHOHAIB, HEALTH AND WELL-BEING IN ISLAMIC SOCIETIES 30–31 (Springer 2014) [hereinafter KOENIG & SHOHAIB].

18 Zahid Aziz, Age of Aisha (ra) at time of marriage, LAHORE AHMADIYYA MOVEMENT, http://www.muslim.org/islam/aisha-age.htm(last visited Feb. 21, 2019).

19 E.S., App. No. 38450/12 ¶ 13.

20 GREGOR PUPPINCK, Written Observations in the Case of E.S. v. Austria, 8 (Eur. Ctr. for Law & Justice 2017), http://9afb0ee4c2ca3737b892-e804076442d956681ee1e5a58d07b27b.r59.cf2.rackcdn.com/ECLJ%20Docs/Written%20Observations%20E.S.%20v.%20Austria.pdf[hereinafter Puppinck].

21 Id.

22 Id.

23 Robert Tait, Alarm as hundreds of children under age of 10 married in Iran, TELEGRAPH (Aug. 26 2012), https://www.telegraph.co.uk/news/worldnews/middleeast/iran/9500484/Alarm-as-hundredsof-children-under-age-of-10-married-in-Iran.html.

24 Sara Anabtawi, Girls ready for marriage at 12 – Saudi Grand Mufti, ARABIAN BUS. (Feb. 20, 2019), http://www.arabianbusiness.com/girls-ready-for-marriage-at-12- saudigrand-mufti-455146.html#.V0NBKfmLRaQ.

INTRODUCTION

On December 10, 2015, the Supreme Court of British Columbia overturned a decision by the Law Society of British Columbia (“LSBC”) that previously stood to usurp the religious rights of Trinity Western University (“TWU”) and its expected law school attendants by denying the school accreditation due to the school’s religious-based sexual restrictions on students and faculty. 1 The procedural history leading up to the Supreme Court is as follows:

The LSBC, in denying accreditation, overstepped its powers conferred upon it by the Federation of Law Societies of Canada (“FLS”).3 While the LSBC generally has jurisdiction to decide whether to approve a law school’s faculty, this jurisdiction only extends to the academic qualifications of the school. 4 This Comment will discuss how the Court correctly decided in favor of TWU, taking into consideration the otherwise sufficient academic requirements of the school and why TWU imposes sexual restrictions on its faculty and students so as to reflect evangelical Christian beliefs and practice. This Comment will also discuss how this decision serves as a great advancement for religious rights in Canada because it makes the legal profession more inclusive, and does not serve as a restriction on the LGBT community or the community at large, nor does it entail state sponsored religion.

I. THE FACTS

Evangelicalism, a protestant subculture, represents approximately 11-12% of the Canadian population, therefore forming a minority religious subculture. 5 TWU is the largest privately funded evangelical Christian school in Canada, currently offering education to roughly 4,000 students.6 The law school was still a proposal, pending accreditation, prior to the Supreme Court decision.7 TWU’s mission statement is as follows:

Certain restrictions on sexual activity are practiced by Evangelicals and are therefore encompassed by the school’s mission statement.9 Such restrictions include a belief that marriage may solely exist between one man and one woman and that premarital sex is also in violation of the sanctity of marriage.10 Ultimately, students and staff are required to “sign a covenant pledging to abstain from sexual intimacy outside of marriage between one man and one woman. Critics claim it infringes the rights, in particular, of lesbian and gay students.” 11 These restrictions on sexual behavior are ultimately what triggered the LSBC to deny accreditation to the school by refusing to approve the faculty. 12 After being denied accreditation, “TWU sought a declaration that the society’s decision is ultra vires and invalid and that it unjustifiably infringes on their Charter rights.”13