With the commencement of the legislation adopting same-sex marriage for Australia today, 9 December, it seems worthwhile to note some more implications, following my initial comments on the change. The two I would like to address here are the changes to the “monitum”, the summary of Australian marriage law required to be recited by some celebrants; and the possible issues surrounding what I will call “rogue priests”, clergy in one of the mainstream Christian denominations who may wish to solemnise same-sex marriages when their denomination adheres to the historic Christian position that marriage is only between a man and a woman.
Legislation re-defining marriage to include same sex couples passed its final third reading stage in the Commonwealth House of Representatives this evening Australian time, December 7. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will soon become law when it receives the Royal Assent. In this post I want to start exploring some immediate implications for religious freedom and other “law and religion” issues.
Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.
I previously announced that I was offering a summer course at Newcastle Law School, NSW, on “Law and Religion”. Sadly, the course has had to be cancelled for this summer. The official announcement is as follows:
Unfortunately the course Law and Religion has been postponed to 2019. If you are interested in undertaking this course in the future please contact Associate Professor Neil Foster.
I anticipate it being available again in 2019. In the meantime, for those (law students or others) who would like some recommendations on helpful reading in the area, see this List of highly recommended readings which I have prepared.
Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)
I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.
A recent UK court decision upheld the decision of University authorities to remove a student, Felix Ngole, from a post-graduate Social Work course, because of views he had expressed in a public social media forum about the Bible’s view on homosexuality. In my opinion the decision is a shocking breach of principles governing both religious freedom and freedom of speech, and should be over-turned as soon as possible. For Australian readers, it is also a salutary reminder that when the law on marriage changes, it becomes harder to protect religious and other freedoms.
I am presenting a paper on this topic at the University of Notre Dame (Sydney) Law School’s Second Annual Religious Freedom Conference, “Freedom of Belief, Freedom of Action”. The paper is linked here: Freedom to Provide Religious Instruction paper , for those who would like to read it. It surveys recent challenges to the provision of special religious education in public schools, from a religious freedom perspective.