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Is Same Sex Marriage a “Human Right”?

The question posed by the title of this post is simply this: is it a denial of a fundamental human right, for a legal system not to extend the category of marriage to include marriage between parties of the same sex?

The question was posed in a stark way by recent reported comments of the President of the Australian Human Rights Commission, Prof Gillian Triggs. Prof Triggs, for whom I have great respect as a scholar and academic, was delivering the annual Sir Anthony Mason Lecture at Melbourne Law School on 4 August, 2016. She strongly criticised a lack of commitment to human rights in recent decisions of the High Court of Australia, and the Commonwealth Government. In a short paragraph near the end of her address, she also said the following:

A recent example of the failure of Parliament to protect fundamental rights is the decision to hold a plebiscite on marriage equality.  Why do we hold an expensive, potentially divisive compulsory but non–binding national vote on the right to equality before the law.. a long recognized common law principle? The US Supreme court decision last year on marriage equality in Obergefel is yet another reminder of the limited role of the Australian High Court that has no power to interpret and apply a Bill of Rights.

The implication of this statement is that “marriage equality” (by which is meant “recognition of same sex marriage”) is simply an “equality” right which should be uncontroversial. Indeed, there is a suggestion that recognition of same sex marriage is really a right that flows obviously from Australia’s international human rights obligations, such as our accession to the International Covenant on Civil and Political Rights (ICCPR). Prof Triggs has been previously reported as telling a Parliamentary inquiry that there is a “right to marriage equality”.

In a later defence of this position in an opinion piece, “Genuine marriage equality is more than overdue in Australia” (Sydney Morning Herald, 28 Jan, 2016) Prof Triggs said:

Under article 26 of the  International Covenant on Civil and Political Rights  all people “are equal before the law and entitled without any discrimination to the equal protection of the law”. The Australian Human Rights Commission considers that this principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

Yet the same piece frankly points out that international human rights bodies do not all agree with this assessment:

It remains true that international human rights law does not mandate recognition of marriage between same sex partners. Rather, the principle of equality under the ICCPR is considered by the UN Human Rights Committee to neither prevent recognition of same sex marriage nor to impose a positive obligation on states to do so.

In this post I want to briefly note the UN Human Rights Committee decision referred to here, and some decisions of another important tribunal, the European Court of Human Rights, which make it clear that at the moment it is not true to say that same sex marriage (whether under the guide of “marriage equality” or more accurate terminology) is a recognised “human right”. I will comment briefly on the terminology of “equality” before noting the relevant decisions.

Equality and Same Sex Marriage

As catchy and heart-warming as the phrase “marriage equality” is, it has to be said that it is fundamentally misleading in its description of the change of marriage laws needed to extend the institution of marriage to same sex couples.

I have commented on this matter previously: “Opposing same-sex marriage is not discrimination” (2011). But let me sum up briefly here. While a call for “equality” is right where people are being denied access to goods or rights on the basis of irrelevant characteristics, it is simply misleading when the matters to which access is demanded are defined in ways which require persons to be differentiated from each other. To use an example given in my previous paper, if I claim to be entitled to the status of “employee of Microsoft”, and hence the right to receive a salary from the company, then I need to fulfil the prerequisites of such a status. Unless I have a contract of employment with the company, and carry out the work I have been contracted to do, I have no right to complain of a lack of “employment equality” when I don’t receive a salary from Bill Gates.

So the question that must always be addressed when a claim for “equality” is made, is – “equality” in what respects? for what purposes? In the area of marriage, the question is, is denying two people of the same sex the right to enter the legal relationship, irrational because it discriminates on an irrelevant ground? What is marriage for? And the answer that communities have offered for millennia, is that “marriage” is an institution with certain core meanings. At its core, it is a social institution designed to facilitate the care of children who are born of a sexual relationship between a man and a woman, and to encourage both to be committed to the children and to each other.

Of course there are differing conceptions of marriage in modern Western societies. Marriage has always had the additional blessing of providing a place of care and support and fulfilment for the parties. In recent decades the role of marriage as providing mainly for the emotional and sexual needs of the parties to the marriage has come to the fore. But as many have pointed out, if marriage is centrally and primarily concerned with the preferences of two consenting adults, why does the legal system now need to be involved at all? The law has always regulated and recognised marriage primarily in the interests of children and families.

The UN & the ICCPR

This role of marriage can be seen in the provisions of the main UN document on the topic of “human rights”, the ICCPR, in article 23, which provides that:

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognised. (emphases added)

Notice that art 23(2), which deals with the “right to marry”, does so in context of an article which is about the “family”, and the right to marry is inextricably linked with the right to “found a family”. And the fact that the bearers of that right are identified as “men and women” leads naturally to the assumption that this article concerns the usual form that marriage has taken throughout human history, the union of a man and a woman who will raise the children of their sexual union together.

It should not be surprising, then, that when the UN Human Rights Committee was asked to offer an opinion as to whether there was a “right to marry” which extended to same sex couples, in Joslin v New Zealand (Human Rights Committee, Views: Communication No 902/1999, 75th sess, UN Doc CCPR/C/75/D/902/1999; 17 July 2002) the Committee said there was not. After considering the arguments of the parties in detail, the Committee ruled that there was no issue of “discrimination” under art 26 of the Convention. They said:

8.2 The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry.

Given the existence of a specific provision in the Covenant on the right to marriage,
any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. (emphasis added)

The UNHRC is by no means a “conservative” body. It has made a number of controversial decisions, extending discrimination rights on the basis of “sex” to the grounds of “sexual orientation”, for example. But on this issue it was quite clear- the ICCPR did not of itself make a failure to recognise same sex marriage a breach of human rights.

Of course the decision in Joslyn has its critics. In a detailed academic piece, “Marriage: A Human Right for All?” (2015) 36 Sydney Law Review 643 the authors Gerber, Tay & Sifris argue that the decision was wrong, and that in any event that the ICCPR is a “living instrument that should be interpreted and applied in light of present circumstances”, so that it would be decided differently today. Prof Triggs in her 2016 opinion piece, noted above, argues that “the law is evolving to accept marriage equality”. Different views can be offered on this point, of course. But one thing seems clear- it is not currently right to say that same sex marriage is a “human right” recognised by the international community.

The European Court of Human Rights

The situation is even clearer when decisions of the European Court of Human Rights are taken into account. The European Convention on Human Rights replicates many provisions of the ICCPR, one of which is art 12:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

In Schalk and Kopf v Austria (ECHR, App 30141/04; 24 June 2010) the Court ruled that the Convention did not require States party to introduce a system of same sex marriage. The Court also referred to the use of the phrase “men and women” as supporting the traditional view of marriage, and also said that (at the time of its decision) there was no “consensus” among European nations as to whether same sex marriage should be recognised. It concluded:

63. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple such as the applicants access to marriage.

Since then three other decisions of the Court have reaffirmed its earlier decision that the European Convention does not contain a “right to same sex marriage”: Hämäläinen v. Finland (application no. 37359/09; 16 July 2014); Oliari and Others v. Italy (application no. 18766/11 and 36030/11); and Chapin and Charpentier v. France (application no. 40183/07; 9 June 2016).

Conclusion

The debate about whether or not Australia should extend the institution of marriage to include same sex couples will of course continue. But the point being made here is simple: it is misleading to speak as if this change were simply a matter of implementing an internationally recognised “human right”. There is no such human right. The matter must be resolved by a careful consideration of the nature of the institution of marriage and the implications of change. It cannot be resolved simply by an appeal to “equality” or “human rights”.

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Religious Vilification claim in Victoria rejected

The second development I want to briefly note today is a decision of the Victorian Civil and Administrative Tribunal, Sisalem v The Herald & Weekly Times Ltd [2016] VCAT 1197 (19 July 2016). This is an important and helpful decision, in my opinion, supporting free speech on religiously related issues.

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Religious Freedom victory in Nova Scotia

Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.

First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.

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More Law & Religion events and a paper

A number of interesting events are coming up in the Law and Religion area in Australia, and I also wanted to mention a new paper exploring some important issues.

Australasian Christian Legal Convention 2016

The ACLC will be held on Brisbane from 29 September to 1 October. It is specifically a gathering for those interested in the intersections between Christianity and the law.

From the website:

The theme of the Convention will be “Redeeming the law for the kingdom of God in Australia.“ The conference is open to lawyers, law students, persons involved in the administration of justice and those with a concern for justice in our community.

The international key note speaker for the Convention is Mike Schutt from the USA, the director of the Christian Legal Society (CLS) Law School Ministries and of the Institute for Christian Legal Studies, a cooperative ministry of the CLS and Trinity Law School, where he is a Visiting Professor.

There will be a number of other speakers, including <cough> myself. Should be an interesting event.

Religious Liberty Conference ‘Varieties of Diversity’

Coming up more quickly, the University of Notre Dame, Sydney, Law School will be hosting 2 days of material on religious freedom on August 18-19. (See here for a flyer with all the details.) The event opens on the Thursday evening Aug 18:

The Conference will begin with the University’s Annual Religious Liberty Lecture on Thursday 18 August. This year’s lecture will be presented by Iain Benson, Professor of Law at Notre Dame. Iain has also been appointed as an Extraordinary Professor of Law at the University of the Orange Free State in South Africa in recognition of his status as an international constitutional and human rights lawyer, and as a religious liberty expert.

There will be a range of interesting speakers on other topics on the Friday:

Learn how you can protect religious liberty in Australia:

  • How anti-discrimination and same-sex marriage interfere with your freedom to practice your religion.
  • Is it appropriate to think of equality without considering religious equality?
  • How “safe” is the safe schools program?
  • Parental authority and consultation in relation to education.

The Democratic Deficit

Finally, I wanted to flag for those who haven’t seen it yet an excellent recent research paper by Peter Kurti, from the Centre for Independent Studies, entitled The Democratic Deficit: How Minority Fundamentalism Threatens Liberty in Australia. From the summary:

We are faced with a new kind of fundamentalism – call it ‘minority fundamentalism.’ It has all the features of religious fundamentalism, such as ideological fanaticism, intolerance of dissent, and a Manichaean certainty about truth and falsehood. The goal of the minority fundamentalists is to eradicate all forms of discrimination in the name of liberating those deemed to be oppressed. In this age of the new intolerance, punishment by intimidation and vilification is meted out to those who think differently. This leads to what is known as a ‘democratic deficit’ – a growing discrepancy between our expectations and our experience of democratic institutions. This widening of the democratic deficit is indicative of an increasing readiness on the part of self-appointed guardians of the moral and social order to privilege the sensitivities of the minority over those of the majority. Minority fundamentalism poses a threat to the normal political and social functions that we take for granted.

Some very sharp insights here into current debates in Australia and elsewhere.

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Some upcoming Law & Religion events

A short post plugging some forthcoming Law & Religion events here in Australia which look to be excellent.

Last year I was honoured to help host the Freedom for Faith 2015 conference. This year there are two conferences sponsored by this excellent organisation, both of which look terrific. “Freedom for Faith”, to quote their website, is “a Christian legal think tank that exists to see religious freedom protected and promised in Australia.”

The first one-day conference, on Friday August 12 in Sydney, is aimed particularly at Christian leaders. Speakers include Dr Michael Ovey (Oak Hill College London), Professor Iain Benson (Notre Dame Law School), Rev Kanishka Raffel (Anglican Dean of Sydney), Dr Megan Best – ethicist, Dr Sam Chan – Evangelist City Bible Forum, Archbishop Julian Porteous – Catholic Archbishop of Hobart, Lyle Shelton – Australian Christian Lobby & more.

The second, on Friday September 23 in Melbourne, features a range of academics and other policy makers.  The theme for this one is ‘Religious freedom in an age of equality’. The keynote speaker is Father Frank Brennan. Other speakers include: Anne Robinson (Founding Partner ProLegis Sydney), Prof. Iain Benson (Notre Dame Law School Sydney), Mark Sneddon (Melbourne Bar), Prof. Patrick Parkinson (Sydney University Law School), Asssociate Prof. Patrick Quirk (Australian Catholic University Law School).

As I say, both look to be great events and would be good value for anyone interested in Law and Religion issues in Australia.

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Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

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Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

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Homosexuality and “hate speech”

Simply expressing opposition to homosexuality from a religious perspective, not accompanied by incitement to violence, should not be classified as unlawful “hate speech”.

The terrible events at the Pulse gay nightclub in Orlando, Florida, where 49 people were killed by a man claiming to act in the name of the so-called “Islamic State” group, have naturally generated much heated comment online and in the news media. As others have noted, this was almost a “perfect storm” of hot-button controversies in the world today: Islam, homosexuality and gun control being some of the main ones.

In this comment I want to narrow the focus to the issues surrounding speech, and to consider how in the light of these events the law ought to deal with public comments about homosexuality. One of the reasons for this is that it has been suggested that part of the background to these events were previous comments made by Farrokh Sekaleshfar, a senior Shi’ite Muslim scholar who had visited Orlando in March, to the effect that homosexuality was a moral offence which warranted the death penalty. (It should be noted that while Mr Sekaleshfar had indeed made these comments, the recording in question dated back to 2013 on a different occasion, and there seems no suggestion that he actually said anything on the topic in his Orlando visit.)

And oddly enough there was then a direct connection with Australia- Mr Sekaleshfar was at the time of the Orlando events giving lectures at an Islamic centre in Australia. The Sydney Morning Herald reported:

Mr Sekaleshfar said in a lecture in Michigan in 2013 that in an Islamic society, the death penalty should be carried out for homosexuals who engaged in sodomy.

There was then some suggestion that Mr Sekaleshfar’s visa would be revoked on account of his comments, a course that in the end proved unnecessary when he voluntarily returned to the UK. It should be noted that the report also mentions that:

Mr Sekaleshfar told Reuters on Monday he condemned the Orlando shooting as a “barbaric act of terror that was in no way justified”.

The question of Muslim views on homosexuality hit the headlines in Australia again shortly afterwards. The Prime Minister, Malcolm Turnbull, hosted an “iftar” dinner (a traditional event held at the end of a day of fasting in Ramadan) for a number of leaders of the Muslim community at Kirribilli House, the official Prime Ministerial residence in Sydney. As reported by The Australian (June 17, 2016):

Four days after 49 people were shot dead in a gay nightclub in Orlando by Islamic State supporter Omar Mateen, Sheik Shady Alsuleiman was among dozens of Muslim leaders invited to the first ever Iftar — the evening meal at which Muslims end their daily fast during the holy month of Ramadan — to be staged by an Australian prime minister.

Sheik Alsuleiman, who was elected president of the Australian National Imams Council last year, arrived at Mr Turnbull’s Iftar dinner alongside Grand Mufti Ibrahim Abu Mohammad.

“What’s the most common disease these days?” he said in a sermon uploaded in YouTube in 2013. “HIV, Aids, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming.”

He said it was “homosexuality that’s spreading all these diseases”.

The article goes on to note that other Muslim leaders present at the meal said that homosexuality was a sin under Islam, “but it does not mean go kill them”.

In a more recent report in The Australian (June 18, 2016) other Muslim leaders re-affirmed that the death penalty was appropriate for homosexuality under Islam.

Imam Yusuf Peer, the chairman of the Council of Imams Queensland, who is a member of the national peak body, told The Weekend Australian yesterday that it was “not permissible” to be gay and Muslim.

“But we do not have a problem with the people themselves, just the act and ideology,” Imam Peer said. “But this is what the sharia law says and we have to follow that. There is no way around that. When we are talking about gays, we have to be confident (they are gay) and there must be a lot of ­investigating.”

When asked if sharia ­required death, Imam Peer said: “Yes.”

Imam Peer said because a “proper process” involving “committees” applied, it prevented the “random bashing and killing” of homosexuals: “Nobody can implement Islam­ic sharia on their own. There is a procedure, there is arbitration, there is a committee.”

Building on these events, the Opposition Leader Bill Shorten was reported in an online debate as using these comments as an example of “hate speech” likely to be encouraged by the plebiscite on same sex marriage promised by the Coalition Government to happen after the next election.

Opposition Leader Bill Shorten has linked the planned plebiscite on same-sex marriage to the Orlando massacre and the murder of British MP Jo Cox, suggesting the campaign could “give haters the chance to come out from under the rock”.

In the midst of this hyperbole, it might be worth reminding ourselves of some facts about homosexuality, religious perspectives, and the idea of “hate speech”. I’d like to offer five propositions, and comment on them briefly:

1. Homosexual behaviour is seen as immoral by some religions

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

4. There is “hate speech” which ought to be made illegal

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

1. Homosexual behaviour is seen as immoral by some religions

Mainstream religions around the world have long regarded same sex intercourse as contrary to their religious beliefs. In Islam, the primary source, the Qur’an, Sura 7:81 explicitly condemns homosexual behaviour. This article and this one link to other more detailed comment in the Hadith and other sources which make this quite clear.

In Christianity the prohibition on homosexuality is found in the Old Testament in Leviticus 20:13 (and 18:22), and is repeated in the New Testament in Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10. In the Lev 20 verse, the death penalty is laid down for those who engage in same sex relations.

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

However, modern believers in both Christianity and Islam do not intend to say that they “hate” someone when they report that the person’s behaviour is immoral. Indeed, as far as Christianity is concerned, the fact that someone has rebelled against God and is hence a “sinner”, is a fact that is said to be true of all human beings (see e.g. Romans 6:23). Christians are urged to do good to all, including sinners (since all fall into that category!) And the best known verse in the Bible, John 3:16, reports that God “so loved the world” that he sent his Son Jesus to die for its salvation.

So a judgement, on the basis of revealed truth, that behaviour is wrong does not on its own imply “hatred” for someone else.

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

However, it does have to be said that Islam as a religion finds it more problematic to speak of behaviour which is immoral, and not at the same time illegal.

Christianity has a long history of recognising that wrongful behaviour may not need to be punished as such by the State. Indeed, there is a crucial truth about the relationship between Christianity and the laws of the Old Testament that must not be forgotten in these debates.

The simple fact that there is an “Old” Testament (comprised of the Hebrew Bible) and a “New” Testament signals something very important about Christianity. Without exploring the complexities of the debates here, broadly speaking Christians believe that the arrival of Jesus Christ as the promised Messiah of Israel saw a radical change in the way that God related to humanity. In the Old Testament the people of Israel were designed to live both as a political entity and a religious entity, a body politic with laws and punishments and authority structures mostly centred on the area of land known as Canaan or Palestine. With the arrival of Jesus, however, it became clear that the laws which had governed the political State of Israel were no longer applicable to the new people of God, who were now defined as those who had put their faith in Jesus as Lord.

This apparently arcane religious debate has massive ramifications for the way that the Old Testament laws are treated today by Christians. While there have been debates and alternative views taken over the centuries, the mainstream Christian view has been that the laws of a modern political entity do not need to replicate the laws applicable to Old Testament Israel. Jesus, for example, in a startling passage of teaching, told his disciples that all foods were clean (see Mark 7:19), overturning all the OT teaching on clean and unclean foods. He told his disciples that there were certain matters that were the province of “Caesar” (the secular government) and where their rules should be respected- see Matthew 22:21. The apostle Paul taught that Christians were not “under the law” (Galatians 5:18).

Hence no mainstream modern Christians believe that the death penalty ought to be applied by the State for all sinful behaviour prohibited in the Bible, even if that penalty had been imposed by the Old Testament. All Christians believe that some OT ceremonial laws are not applicable at all today; most believe that the moral principles spelled out in OT laws are still applicable but the legal penalties are not. This is not simply a “let’s pick the ones we like and ignore the others” policy, it is a result of detailed unpacking over many centuries of the clear teaching of the New Testament. (See also this recent comment refuting the suggestion that Paul’s letter to the Romans calls for the civil death penalty for homosexuals.) So while the famous episode in the “West Wing” where President Bartlett attacks a “conservative” for opposing homosexual behaviour but not executing children for disobedience may have made amusing TV, it bears no connection to the reality of arguments made on this point by religious conservatives.

Islam, however, tends to have a strong mainstream strand which sees it as a religious duty to work towards the application of Islamic religious (sharia) law to the whole community. Christian philosopher Richard Shumack, in an important work discussing fundamental differences between Christianity and Islam, The Wisdom of Islam and the Foolishness of Christianity (2014) quotes an influential Muslim thinker, Abul Ala Maududi, who says:

The chief characteristic of Islam is that it makes no distinction between the spiritual and the secular in life. Its aim is to shape both individual lives as well as society as a whole in ways that will ensure that the Kingdom of Allah may really be established on earth and that peace, contentment and well-being may fill the world. (from Shumack, p 197, quoting Maududi, “The Islamic Concept of Life.”)

This explains why serious Muslim speakers will continue to argue that the death penalty is an appropriate penalty for homosexuality in certain circumstances- in particular, in a society which has committed itself to full implementation of sharia law. In an ABC TV interview with Farrokh Sekaleshfar before leaving Australia, he explains the remarks for which he has been attacked as being made in an academic discussion of this sort, about a theoretical society where sharia law is implemented, and in relation to a “public” act of homosexual sex.

However, even in the case of Islam is just not true to say that mainstream Islamic teaching requires the death of homosexuals in a Western country. The view that homosexuality is wrong, even the view that in an Islamic society it ought to be punished, may be, and indeed is, offensive to many. But should someone who holds such a view be punished for saying so?

4. There is “hate speech” which ought to be made illegal

There has been a long debate about the validity of laws which forbid so-called “hate speech”. But before we discuss this issue it seems a good idea to define this term. What is it?

Perhaps in popular terms it means “speech which is motivated by the speaker’s hate”. But this is not the way that the term is usually used in legal contexts. The appropriate definition of “hate speech” has to do with its effect on the hearer, not the subjective motivation of the speaker. “Hate speech”, in broad terms, means speech that incites the listeners to “hate” a person or group of people who are the topic of the speech.

One example can be seen in the NSW Anti-Discrimination Act 1977, s 49ZT, which makes it unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of homosexuality. There are various defences that apply to this provision in the interests of free speech. Under s 49ZTA, however, where this incitement is accompanied by a threat of physical violence, or by incitement of others to such violence, then it is a criminal offence and those defences do not apply. These seem to be appropriate laws.

In a previous post discussing the related (though not identical) issues of “religious vilification laws”, I commented as follows:

I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society

So, I think there is a legitimate place for laws prohibiting the incitement of violence against same sex attracted persons.

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

But- not all comments conveying disapproval of homosexual behaviour fall into this category. I have posted before about the unwise nature of laws that prohibit mere “offence”, and supported a proposal to make it clear that open debate on the merits of same sex marriage should never of itself be grounds for legal complaints about “hate speech”. (See “Protecting free speech in the Same Sex Marriage Plebiscite debate” and a follow-up post here.)

In short, the value of free speech as both a fundamental human right and a tool for making sure all views are heard in the search for truth, means that we ought not to use the law to shut down the views of others who are “causing offence,” if that is all they are doing.

Of course, as noted above, I support making unlawful (as they already are) calls for direct violence against same sex attracted persons. But, to draw a line that is foreshadowed above, I do not think such a call is heard when a Muslim scholar suggests what law should be applied in a society governed by sharia law, while acknowledging that Australia is currently not such a society.

Of course, as a Christian I regard such a prospect (an Australia governed by sharia law) as bad, and will argue whenever I have the opportunity to do so that such should not happen. As a Christian I will argue with Muslim scholars that their views on this issue are wrong. But I do not think that expression of these views (outside the context of a call for direct violent action) should be shut down by the legal system. For one thing, I want Australians to be fully aware that Muslims believe this, when considering whether or not to adopt Islam as a religion. I do not want these views hidden from view, but rather to be out in the open where they can be critiqued and challenged.

If there is to be an ongoing and fruitful dialogue with genuine representatives of the Muslim community by leaders in government, it would be unhelpful to draw lines too sharply as to who will, and who will not, be consulted. While the views noted above as being held by the Muslim representatives at the iftar dinner will be deeply offensive to many, they do not represent calls for active violence against same sex attracted persons. Those views may be challenged from many directions, from a shared commitment to diversity and tolerance in a liberal society, to a critique of Islam from other religious perspectives. But open discussion of such views needs to take place in a context where the law allows free speech which does not directly incite violence.

 

 

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Religious Instruction in schools and “soliciting”

Press reports today (e.g.”Qld govt to review religious education“, Courier-Mail, 7 June 2016) indicate that a school Principal in Queensland has written to parents at his school indicating that he is cancelling the usual Religious Instruction (RI) classes, on the basis that he has discovered the lessons involve “proselytising” (a term which he says refers to “soliciting a student… to change their religious affiliation”). The Queensland Government in response to the press reports has indicated that it will be reviewing materials used to ensure they comply with relevant rules.

Does this mean a radical change has recently taken place in a program which has been operating for many years allowing parents to send their children to RI (elsewhere sometimes called “Scripture” or “Special Religious Education”) classes for a short period each week? Actually, no. It seems that the Principal has misread the relevant provisions, and the Queensland Government really doesn’t need to react to the misleading interpretation.

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