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This documents is not to be restricted for publication

Expert Panel Re Religious Freedom 15-2-2018
religiousfreedom@pmc.gov.au
20180215-G. H. Schorel-Hlavka O.W.B. to Expert Panel Re Religious Freedom-Supplement 03
Sir/Madam,
I consider it appropriate to provide this supplement 03 in view of the links I am providing below.
Much has been argued about the creativity and associated rights of individual, including in their
profession but so far to my knowledge no regard was shown to the judiciary.
The Letters Patent of published in the Victorian Gazette (much the same as in other States) was for
the Governor to appoint an impartial administration of justice. While many wrongly belief that
there is no separation of powers in the States, unless one read the statements of the former Victorian
Chief Justice that separation of powers should be respected, it is clear that where the administration
of justice is to be impartial (http://www5.austlii.edu.au/au/other/vic_gazette/1901/2.html) then no
legislation can interfere with the judiciary as to force it to deal with certain matters contrary to a
judicial officer’s rights to be and remain impartial. A judicial officer therefore can recuse
himself/herself or otherwise gold that he/she should discontinue hearing a matter which may
involve matters contrary to the judge views. While there was a settlement between the parties
nevertheless it ought to be understood that members of the judiciary may themselves also have
different positions to which a matter for hearing may be contrary to the views, etc, of the judicial
officer and so may be sufficient for the judicial officer to decline hearing a matter.
QUOTE 15-2-2018 EMAIL
Re: [conlawprof] Myrick v. Warren
People
 Mark Scarberry <mark.scarberry@pepperdine.edu>

 Today at 10:59 (15-2-2018)

To
Message body

I incorrectly thought this was a district court decision.

Here is a link to the EEOC ALJ's decision: https://s3.amazonaws.com/becketnewsite/Myrick-v.-Warren-et.-al.-

16-EEOC-0001.pdf.

Here is a link to the settlement agreement: https://s3.amazonaws.com/becketnewsite/Signed-settlement-

agreement-JW-and-GB.pdf.

Mark

Prof. Mark S. Scarberry

Pepperdine Univ. School of Law

On Wed, Feb 14, 2018 at 2:44 PM, Jim Oleske <joleske@lclark.edu> wrote:

Becket's informational video about this case ends with the following text on the screen:

"In 2017, a federal court ruled that Gayle never should have lost her job, and that the state could provide same-
sex marriage services while still protecting religious beliefs of employees."

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Becket's case page includes this description: "In a landmark ruling, a federal judge said that the government
broke the law when it refused to let her Gayle shift her schedule, especially since other magistrates were allowed
to shift their schedules all the time." And Becket's recent press release about the case is entitled: "Judge rules
magistrates can’t be targeted for beliefs on marriage; Government must find solutions that protect the dignity of
everyone"

Based on those descriptions, it would seem that this case could potentially have "big implications," as Becket
says in the language quoted by Mark below.

But so far as I can tell, no "federal court" has ever heard this case, no finding of religious "target[ing]" has ever
been made, and no decisionmaker in the case has ever ruled that government offices "must find solutions" for
magistrates who object to performing particular weddings.

Rather, an ALJ issued a decision last March in Ms. Myrick's favor on her Title VII claim because "no
accommodation was considered" in her specific case. The ALJ further explained that "mere conclusory
assertions that accommodation would have been an undue burden are insufficient when it is clear that no
consideration was given at all." After noting that the defendants in Ms. Myrick's case "failed to provide any
specific evidence in support of their position" on the undue hardship issue, the ALJ mentioned that Ms. Myrick
had introduced evidence that she could have been accommodated for the two months remaining in her term. So
far as I can tell, nothing in the decision purports to speak to the feasibility of longer-term accommodations for
objecting magistrates, or even whether the government might have prevailed had it actually considered an
accommodation in Ms Myrick's case and given some explanation for why it could not be provided without undue
hardship. Last month, the case was settled with no admission of liability. Ms. Myrick is retiring as a magistrate
pursuant to that settlement, so the parties did not have to address the issue of whether she could be
accommodated going forward.

Becket is certainly entitled to take a victory lap after reaching a favorable settlement for their client (over
$209,000 plus attorney's fees), but I'm having difficulty seeing the big legal implications they are claiming from
the ALJ's decision in this case.

- Jim

On Wed, Feb 14, 2018 at 10:49 AM, Mark Scarberry <mark.scarberry@pepperdine.edu > wrote:
A Becket Fund conference-call forum on Myrick v. Warren is about to begin. It's probably too late for list
members who didn't already know about it to join in, but just in case, the number is 888-752-3232.

Here is the description of the issue from the Becket Fund email announcement:

"A little-known case just concluded this week, but it may have big implications for the important national
dialogue about conflicts between faith and sexual identity. In Myrick v. Warren, a federal judge ruled that the
State of North Carolina violated federal law when it forced a magistrate named Gayle Myrick to resign because
of her religious beliefs about marriage. The ruling comes ahead of the Supreme Court's decision in Masterpiece
Cakeshop v. CCRC. Both Myrick and Masterpiece ra ise important questions about conscience and LGBT rights.
This Teleforum will address Myrick v. Warren and its relationship to the broader issue of LGBT rights and
religious liberty. "

I drafted and submitted (on my own behalf and that of several other lawprofs) a negative public comment (I
think last year) on a proposed change to California's judicial ethics code prohibiting judges from being active in
the Boy Scouts (given the Scouts' then position on gay scoutmasters etc., which now has changed). We
suggested that the change violated the US Constitution in several respects. Whether or not the California
Supreme Court paid any attention to our comment (made as part of the public comment process), the court
adopted the change, which I found regrettable. Myrick v. Warren may raise similar issues, though I haven't yet
analyzed the district court opinion. I think Myrick deals not with association with an organization like the Scouts
but rather with the mere holding of beliefs, perhaps a clearer constitutional violation.

Mark
Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
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END QUOTE 15-2-2018 EMAIL

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It is well known that for example Sharia law doesn’t accept homosexuality between adults. Yet, we
have areas within Australia where I understand Sharia law is applied over and above Australian law.
This then could create a problem that a judicial officer within a Sharia law dominated area having to
seal with homosexual matters may for personal safety reason or other religious/personal views seek
to decline hearing a matter. If the judicial officer ascribed to the Muslim customs/traditions, etc,
then to deal with homosexuals could have a major issue upon himself/herself. Also the parties
appearing before the judge may be denied natural justice in the process.
It is one thing to argue that constitutionally Sharia law cannot override the constitution (as I view it
cannot do so) but reality is we have for example Halal certification that is a tax upon anyone who
uses products regardless being opposed to any Halal tax (as this is what it really is – considering it
also applies to nonfood items nothing to do with what is claimed halal certification is about). Iman’s
themselves reportedly claim that Halal certification is not at all needed. As such a mere gigantic rip
off. However, where clearly many enclaves of Muslims prevent ordinary Australian law to be
applied and enforced and for example woman are denied their rights to equality then it is nonsense
to say it is not happening.
While there are ample of incidents, in the millions, of women dressing in suits it is another matter
if a male dresses up in a skirt or frock, this even so when it comes to the Scotts as an example it is
tradition. We find however that when 2 homosexuals as lesbians get married one dresses up as a
male. One does so even without getting married, as to indicate to be the male personification.
With homosexual males then often one ends up twisting his voice to sound more female. As such
the male-female situation exist generally regardless of being homosexuals of same gender.
A judicial officer who may have to adjudicate upon a dispute between 2 homosexuals as to who
might be the dominant partner and who not may not particularly desire to get involved if this
judicial officer has certain personal views against homosexuality regardless if this is secular or
religious based. The same could be with a court councilor who may desire not having to get
involved in a family dispute involving homosexuals. The councilor would in fact use his/her
creative mind to having to make up a report about the issues in dispute and I view could
legitimately for this decline to deal with the matter. Likewise, a judicial officer who would have to
adjudicate and so use his/her creative mind to hand down a reason of judgment also could on that
basis decline to hear and determine the matter. After all no councilor/judicial officer can simply
take of the shelf some report/judgement as rather it would be a report/reason of judgment that this
person has to make whereas another councilor/judicial officer may arrive at different report/reason
of judgment. It is of concern that the parliament passed legislation with a total disregard to consider
very important issues and to ensure that relevant issues were so to say ironed out before any
legislation was to come in force. It is in my view a total absurdity that legislation is rushed through
for no apparent reason but to be a dictation by some minority group against the constitutional rights
of others. This kind of oppressive conduct should never have been tolerated. Unlike in a time of an
enemy attack where instant decisions may be needed to be made, here it was merely about if
homosexuals could get married. There could have been no deemed emergency as in time of actual
enemy attack to prevent close scrutiny and examination and consideration for legislation to be
enacted. Sanity needs to prevail, but is currently lacking big time, at least in my view.
In my view only shady characters of politicians would vote for irresponsible legislation, this,
because any competent parliamentarian would have understood that citizens are entitled to have
legislation enacted that has withstood the fierce battle of debates and any amendments to ensure that
citizens are not ending yup to be the innocent victims of their ignorance to appropriate legislate.
This documents is not to be restricted for publication, and as such permitted to be published in full!
This document is not intended and neither must be perceived to refer to all details/issues.

Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL®

(Our name is our motto!)
p3 15-2-2018 © G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVD
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Email: admin@inspector-rikati.com. For further details see also my blog at Http://www.scrib.com/InspectorRikati