The essential legal point in yesterday’s decision on ordination is not one about women’s rights.
The judge who originally refused the injunction to prevent the ordination, Justice Rogers, thought that this was the key issue. In refusing the injunction he said federal anti-discrimination law would prevent him from ruling that the ordinations be prevented.
That ruling was overturned by the NSW Court of Appeal. It said then that the issue was not a question of women’s rights. It was a question of whether some members of an organisation could enforce in the courts the rules of the organisation against other members. It granted, several days after Justice Rogers’s decision, an injunction to prevent Bishop Dowling from going ahead with his proposed ordination until a full hearing on the merits could be held.
That was held before a differently constituted court judgment reserved till yesterday.
Yesterday’s judgment maintained the line that the issue was one of whether some members of an organisation could use the courts to enforce the organisations ruled. Two judges said no (unless property were involved) and one said yes (but in this instance the rules had not yet shown whether they prevented women’s ordination).
Ironically enough, yesterday’s ruling could be used against women trying to assert rights. It puts the rights of an organisation to conduct its own affairs without the interference of the courts as virtually paramount. Women, for example, fighting an organisation that had discriminatory rules might get little comfort from the general courts which would insist the organisation sort the matter out for itself. However, Federal law could come to their rescue in some circumstances.
In the case of the church, the rule that the courts would not interfere went further in that the court held that members of the church came together as a consensual compact shared by faith and religious conviction, not upon common-law contract.
The decision also makes clear that the Church of England does not have any special place in Australia, as in England. NSW statute law would provide the strongest basis for that if it were true. Yesterday’s decision said that the constitution of the church in NSW did not have the effect of binding law by virtue of the Church of England Constitutions Amendment Act 1902.
As a legal issue the question to which an organisation can discriminate against women has hardly been raised. In cases of public bodies or bodies that derive their existence from statute of get public monies, anti-discrimination provisions are more likely to apply. However, in cases of smaller private organisations getting no public money, it may well be that this case gives comfort to the view that people can discriminate as they please as to who will be a member or hold “”offices” in that organisation.
Yesterday’s judgment leaves it open to the women whose ordination has been prevented and others to obtain damges for inconvenience. However, given the charitable statements of the women to date about those who have postponed their ordination it seems likely that, just as the judges have rendered unto Caesar, these women will turn the other cheek.