25 Aug Religion should have a voice on same-sex marriage
James Paterson — The Australian — 25 August, 2017
We should extend the freedom to marry to same-sex couples, but doing so shouldn’t come at the expense of other people’s freedom.
As a classical liberal, I don’t believe it is appropriate for the government to prevent same-sex couples from getting married. That’s why I’ll be voting yes in the marriage survey.
But claiming there is no connection between same-sex marriage and religious liberty ignores the difficult and complex questions raised by this debate.
Unless religious liberty is protected, the legalisation of same-sex marriage could have flow-on effects for other people’s freedom.
To avoid this, parliamentarians should agree to address this issue before the survey is returned.
If the vote is carried, there will be minimal time to address these concerns before the legislation is voted on in parliament.
Senator Dean Smith’s private member’s bill is a good starting point. It goes further in addressing religious freedom than most previous proposals.
Like others, it does the bare minimum of protecting ministers of religion from being forced to solemnise marriages that are not consistent with their faith, and it extends that protection to civil celebrants with religious beliefs.
Importantly, it also includes protections for institutions that are religious in nature. This would allow, for example, a religious school to refuse the use of the chapel on its school grounds for a wedding that does not conform to its religious teachings. The narrower protections in other bills would limit this only to actual churches, synagogues and mosques.
But Smith’s bill does not cover people of faith who are not directly connected to religious institutions as are priests, rabbis and imams. If we want to protect these people, we need to turn our attention to anti-discrimination law.
Allowing same-sex marriage won’t change anti-discrimination law but it will provide many further avenues for its application. Legalising same-sex marriage will result in more opportunities for existing anti-discrimination law to be applied in ways that conflict with people’s religious beliefs.
There is a substantial number of Australians with a sincere and genuine belief in the present definition of marriage. If same-sex marriage is legalised they may be forced to choose between their beliefs and complying with anti-discrimination law.
Many are private citizens, and some of them operate businesses in the wedding industry. Unless we believe religious liberty is only a freedom for institutions and ministers of religion, we have to consider what impact a change in the Marriage Act will have on these people.
In a perfect world there would be no need for the law to resolve these conflicts. After all, why would a gay couple seeking to get married choose the services of someone who does not share the joy of their marriage?
The vast majority of couples seeking to get married after a change in the law will likely adopt this approach. The overwhelming majority of wedding industry businesses will welcome the extra customers.
But some will remain committed to the traditional definition of marriage, and not wish to participate in same-sex weddings.
And as the international experience shows, some activists may deliberately seek out these businesses as legal test cases by suing them for discrimination. A draft private member’s bill by senator David Leyonhjelm seeks to address this with amendments to the Sex Discrimination Act.
Its intent is not to allow wholesale legal discrimination against gay people but to ensure that no one is forced by the law to participate in a wedding that is inconsistent with their beliefs.
To use the notorious cake-baker as an example: it would remain unlawful to refuse to bake a cake for someone who is gay, for example, for their birthday. But a baker would have the right to decline to bake a cake for a same-sex wedding. Leyonhjelm’s bill may not be the answer. But more discussion about proposals such as this is warranted.
State anti-discrimination laws also deserve scrutiny. Indeed, simply supporting the traditional definition of marriage may cause someone to violate some anti-discrimination laws — presenting a threat to both religious liberty and freedom of speech.
This has already happened in Tasmania. Both the aborted case against Catholic Archbishop Julian Porteous and the pending cases against street preachers have relied on that state’s anti-discrimination laws, which are the most radical and restrictive in Australia.
Like section 18C of the federal Racial Discrimination Act, this law outlaws conduct that “offends” and “insults” people. But it extends beyond race to cover sexuality, gender and religious beliefs. So an act — or a speech or a pamphlet — that offends someone on the basis of their sexuality is unlawful in Tasmania.
Legalising same-sex marriage will not change Tasmania’s anti-discrimination law. But the surge in same-sex weddings that will likely occur following a change in the Marriage Act will provide many more opportunities for people’s right to free speech to come into conflict with the law.
Criticism of the change to allow same-sex marriage could fall afoul of Tasmanian law.
These laws should be fixed now to protect freedom of speech — regardless of whether we legalise same-sex marriage. But the issue of same-sex marriage should make addressing these laws a top priority.
Most Australians abhor discrimination and value religious freedom. Balancing them when they conflict is not an easy task.
But the parliament should be able to grant the freedom for same-sex couples to be married, and at the same time protect the religious liberty of those who disagree.
This article originally appeared in The Australian.