15 Nov A SSM win is not winner-takes-all
James Paterson — Australian Financial Review — 15 November, 2017
Today at 10am, I will be glued to the TV, eagerly awaiting the outcome of the same-sex marriage postal survey.
I voted “Yes”, and have argued for many years that gay couples should have the freedom to marry. I’ll be delighted if the majority of Australians agree.
I’ll also be thinking about those Australians who voted “No”. Even if the most optimistic polls are right, a substantial proportion of Australians will have voted to retain the traditional definition of marriage. If they are in the minority, the law must – and will – change to allow gay Australians to marry.
But we don’t live in a winner-takes-all society. Just because “No” voters may be in the minority, it does not mean we should dismiss all of their concerns. One of the great things about Australia, and the core principles of any liberal democracy, is that we respect and protect the freedom of individuals and minorities. No one would want to live in a society where 51 per cent of the population unilaterally violates the rights of the other 49 per cent.
That’s why I have sponsored a private members bill to reconcile these two important principles. If there is a “Yes” result, my bill will change the law to allow same-sex couples to marry. But it will also respect the rights of the minority of Australians who voted “No” by providing protections for their freedoms.
Some of the provisions in the bill are controversial. I understand why people may disagree with granting the right to conscientiously object to participating in a same-sex wedding. I wish laws like this weren’t necessary. In an ideal world they wouldn’t be.
Sadly, international experience suggests that protections for those who disagree with same-sex marriage are necessary. There are many cases where small businesses have been sued, fined, and forced to shut down, simply because they didn’t want to participate in a wedding that was against their deeply held religious convictions.
But there are other aspects of the bill that shouldn’t be controversial.
The freedom of speech protections are one such example. Do we really want to live in a society where it might not be legal for people to publicly express their view about marriage?
That is the status quo today. It’s because of an extreme law in Tasmania, which could at any point be adopted by other states.
In 2015, a complaint under Tasmania’s Anti-Discrimination Act was made against Catholic Archbishop Julian Porteous, after he distributed a pamphlet explaining his church’s view of marriage. Because the complaint was withdrawn before it could be ruled on, it is now unclear whether it’s legal to express support for the traditional definition of marriage in Tasmania. There have subsequently been similar complaints under the same law brought against a pastor and street preacher, which are yet to be decided.
My bill would ensure that speech about marriage, provided it is not threatening or harassing, is permitted.
The anti-detriment clause in the bill prevents governments and their agencies from taking adverse action against someone based on their beliefs about marriage. What harm would come from this? What detrimental action do people want the government to take against supporters of traditional marriage?
This is an important part of the bill that would stop a professional licensing body from revoking someone’s registration – such as a doctor or a lawyer – because of their views of marriage. And it would guarantee the ability of religious charities to continue to do their good work in the community without the threat of their funding being withdrawn because of a view they may hold on marriage.
Parents already have the right to remove their children from religious instruction classes in public schools, and often do so. The bill seeks to clarify that they have the same right when it comes to teachings about marriage. This is consistent with Australia’s commitment in multiple international treaties to uphold parents’ rights to control the moral and religious education of their children.
Does anyone really believe children should be forced to participate in classes that conflict with their family’s sincerely held beliefs?
If there is a “Yes” vote today, the parliament should swiftly change the law to allow same sex couples to marry. It is not too much to ask that we protect the freedoms of others when we do so.
This article was originally published in the Australian Financial Review.