Protecting religious freedom after “Yes”

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.

I have previously posted about developments in relation to same-sex marriage in Australia. As I write we are awaiting the outcome of a voluntary postal plebiscite, due to be announced on Wednesday November 15, 2017. The Prime Minister has indicated that if the vote is in favour of changing the law to introduce same sex marriage, then the change will need to be made through a Private Member’s Bill, and that members of the Liberal/National Coalition will have a free vote on the matter.

Some months ago, Senator Dean Smith and four other members of the Liberal Party released an Exposure Draft of a Bill they had prepared to implement the possible change, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (which I will call the “Smith Bill” to distinguish it from the Bill put forward recently by Senator Paterson). At the time when the Smith Bill was announced, I posted my concerns about the narrowness of the protections for religious freedom that Bill provides. In effect, the protections that are provided in the Smith Bill are restricted to allowing ministers of religion to decline to solemnise same sex weddings, and allowing religious organisations to decline to offer facilities, goods or services for such ceremonies.

These protections are in fact even narrower than the protections that were put forward in an Exposure Draft Bill that had been released by the Attorney-General, Senator George Brandis, some months previously, at a time when it was proposed that a compulsory plebiscite ought to be conducted. The Brandis Bill at least offered protections for certain civil celebrants as well as for ministers of religion. Nevertheless, I pointed out at the time how the limited protections even that Bill offered were far too narrow.

Subsequently there was a Senate Committee Inquiry into the protections offered by the Brandis Bill, to which I and a number of others made submissions. The subsequent Report of the Committee (in Feb 2017) did not reveal any broad consensus on the suitability of the Brandis Bill, as I noted in my previous comment on the Report. While agreeing that some protections for religious freedom were appropriate, and that clergy should not be required to solemnise same sex weddings, the lack of consensus on other matters was clear. As I previously remarked:

The Committee politely identifies matters on which its members, and many of its witnesses, fundamentally disagree as areas for “further discussion”. These are very broad, and in effect cover (with the single exception of ministers of religion) the whole area of how religious believers are treated under the proposed Bill. So there is no consensus on

  • protection of private celebrants who are not ministers of religion;
  • protection for registry officers who may have a religious objection to solemnising same sex marriage;
  • protection of the ability of religious groups not to offer their premises for use in same-sex weddings;
  • protection of business owners in the “wedding industries” such as florists, photographers and bakers, who do not want to be forced to devote their artistic talents to support ceremonies celebrating a sexual relationship which they see as contrary to God’s will.

It is worth stressing (since there seems to be some confusion on the matter, even among members of the Government) that this Committee was examining the Brandis Bill, not the Smith Bill. The Smith Bill has not been through any Parliamentary committee process that I am aware of.

Without going into it in great detail, the Paterson Bill picks up many of these points and is designed to provide better religious freedom protections. (For a slightly expanded summary, see this Summary of the Explanatory Memorandum posted by Senator Paterson.) The Bill:

  • Ensures ministers of religion and celebrants have a right to refuse to solemnise a same sex wedding (new sections 47, 47A); 
  • Establishes a limited right of conscientious objection, to ensure no-one is forced to participate in a same-sex wedding against their sincerely held beliefs (new sections 88KA, 88M); 
  • Protects freedom of speech so that Australians can discuss their view of marriage without fear of legal penalties (new section 88KA, though not so as to authorise “threatening” or “harassing” speech); 
  • Enacts a narrow anti-detriment clause that prevents governments and their agencies from taking adverse action against someone with a traditional view of marriage. It does not apply to non-government organisations, businesses, or individuals, preserving freedom of association (new sections 88K); 
  • Guarantees parents’ right to choose their childrens’ education by allowing them to opt out of classes that conflict with their values (new section 88R).

(This summary taken from this Huffington Post article with legislative provisions added.)

However, what I want to address specifically here are the claims that the Bill authorises “homophobia” or “discrimination”. When properly understood, it does not.

The word “homophobia”, whatever its etymology, seems now to mean something like “bias against, or irrational hatred of, homosexual persons.” The word “discrimination”, which traditionally had an acceptable meaning (someone who had “discriminating taste” was someone who judged well), is now also a negative word. Again, it refers to bad treatment given to someone on the basis of some characteristic of theirs which is irrelevant to the treatment.

But the protections provided by the Paterson Bill are not predicated on any animosity towards gay people, nor do they authorise such. Perhaps this is best shown by starting with what seems to be a model accepted at the moment by supporters of same sex marriage, the Smith Bill. It allows a minister of religion to decline to solemnise a same sex wedding, and says explicitly that this refusal may be based on the following grounds, under proposed new s 47(3):

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(c) the minister’s religious beliefs do not allow the minister to solemnise the marriage.

This provision correctly recognises that the “doctrines, tenets or beliefs” of a religion may provide that a homosexual marriage would be contrary to God’s will. It also recognises that authorising such a marriage would cause “injury to.. religious susceptibilities” of some adherents of a religion. (This fairly patronising phrase, which makes religion sound like a disease that one has acquired, is best read simply as saying that under firmly held religious views such a marriage would be wrong.)  These are not new criteria- they seem to be copied directly from s 37 of the Sex Discrimination Act 1984 (Cth), which already allows that these matters may authorise a conservative church choosing not to employ, for example, a person who advocates homosexuality as a youth worker for the church. The final clause correctly links the refusal to the minister’s own personal “religious beliefs”, which may in some situations be more “conservative” than those of his or her denomination or local congregation.

If this provision is acceptable (and I acknowledge that many who support same sex marriage will only agree with it with great reluctance), what it shows is that Parliament is prepared to protect the religious freedom of clergy. But international human rights instruments do not restrict religious freedom simply to religious professionals! Rights of religious freedom are enjoyed by all person, lay or clerical, indeed whether or not they are believers (for in some countries around the world the ability to say that one does not believe needs serious protection.)

The question then becomes, to what extent will the religious freedom rights of “ordinary” believers be protected? Of course religious freedom is not an “absolute” right- but then, neither is the right to be free from unjust discrimination. Denying a same sex couple a marriage by the clergyman of their choice is to some extent an interference with their free choice. But does it amount to unlawful discrimination?

A minister of religion who declines to solemnise a same sex marriage on the basis, for example, of Christian moral teaching, is not doing so because they have a hatred of gay persons. They are doing so because the union of the couple represents a sexual relationship which is not that of a man and a woman in a marriage as understood in the Bible. To bless that relationship would be to oppose God’s purposes for marriage.

But the reasons that it is legitimate to allow the minister to decline to bless a same sex marriage, are the same reasons that justify allowing a religious small business owner whose job it is to make weddings look good, from being required to “celebrate” (in the broad sense) a same sex wedding. Cases that have arisen overseas have often involved business owners, such as Baronelle Stutzman in Washington State, who have happily served gay customers for years. But what they do not want to do is to apply their artistic talents to the celebration of a union which their religious beliefs tell them is contrary to God’s will. This is not the same as denying service to a gay person simply because they are gay.

Recognition of this form of religious freedom does of course involve some inconvenience for same sex couples. It involves recognising that some people in society do not approve of their decision to enter into their relationship. But in striking this balance, the harm being caused to the serious religious believer will mean that they would be required to reject the teachings of God. It seems a reasonable compromise, especially as in modern Australia it will almost always be possible to plan ahead and find providers who are happy to serve, to recognise the serious harm this will cause, and allow that this behaviour will not breach discrimination laws.

Providing a “balancing clause” of this kind, which recognises religious freedom, is not “winding back” discrimination laws, or handing out a “license to discriminate” whenever one feels like it. Australian discrimination laws already contain a number of provisions balancing the right to be free from discrimination, with other rights. Section 37 of the SDA, noted above, is one such provision. Section 40(2A) of the SDA currently recognises that it is not discriminatory for celebrants to comply with the Marriage Act. The Paterson Bill, in implementing the decision to provide a system of same-sex marriage (if such is approved in the vote), quite reasonably balances religious freedom protections in doing so by building on these existing provisions.

In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Neil Foster, of Newcastle, NSW.

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