16 Nov The people have spoken, so now give freedom a fair go
Jennifer Oriel — The Australian — 16 November 2017
James Paterson’s bill on same-sex marriage deserves a more considered response by the Prime Minister, the Coalition partyroom and the Senate. It provides a comprehensive approach to same-sex marriage legislation that balances freedom and equality by appeal to enduring principles of liberal democracy and international case law. While I do not agree with all sections of the Paterson bill, it provides substance and a genuine foundation for reasoned parliamentary debate where the Dean Smith bill rings hollow.
Democracy is supposed to provide what a dictatorship does not, namely choice. In a two-party system, the left is expected to promote equality while the right prioritises freedom. The freedom of the political right is distinctive. It is not anarchy. It is the form of freedom that provides the spiritual, social, economic and political foundations for the flourishing of Western civilisation. We are free to the degree that we understand the form of Western freedom, advance it and leave its bounty as a legacy for future generations.
If MPs choose to embrace freedom in marriage reform, they will restore the natural balance of the two-party system. If they choose to follow Smith’s more illiberal approach, a third party will take the place of the Liberals to defend liberty in parliament.
Those up in arms about enshrining core freedoms in same-sex marriage legislation should compare the bills. The Smith bill is a little over two pages. Paterson has done the hard work to provide a well-reasoned bill and explanatory memorandum that details case law and international precedent to justify his approach. It illustrates respect for parliamentary debate and provides a foundation for public reason.
The bill fills a void left by Liberal MPs who ditched universal freedom in the pursuit of marriage reform. It is a direct result of the denial of freedom as a founding Liberal Party principle and political virtue. Instead of defending freedom, some Coalition MPs have adopted a markedly statist approach to same-sex marriage. They first tried to subvert the people’s vote. After moderate and conservative MPs united to ensure the Coalition kept its election promise for a people’s vote, members of the left swung into action against protecting freedom of religion and speech in respect of same-sex marriage. Just as they were wrong about the plebiscite, so too are they wrong to deny substantive protections for freedom of speech and religion in same-sex marriage legislation.
The Smith bill represents the worst of conservatism and progressivism; it reserves freedom for the clergy while binding freethinkers under a state regime of political correctness. There is no substantive protection for freedom of speech.
There is no protection against the lawfare used internationally to silence dissenters and purge them from public life. There is no protection from the state forcing people’s speech to conform to central tenets of queer ideology. And this is a bill for queer marriage, not same-sex marriage. It will legalise marriage “regardless of sex or gender”.
The Smith bill could usher in a regime of state-funded censorship, lawfare and purging of those who dissent from queer ideology. The appendix of Paterson’s explanatory memorandum on the Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 provides a brief list of cases against freedom of speech and religion in the context of same-sex marriage.
MPs are aware of the threat to individuals and communities of faith posed by hardline activists who will use queer marriage as a weapon to attack religious freedom. They know it will happen in Australia because it is happening in overseas jurisdictions where same-sex marriage has been legalised.
The Smith bill could empower such vexatious litigation by placing the onus on individuals and communities of faith to prove that their objection to marriage reform “conforms to the doctrines, tenets or beliefs of the religion”. The Smith bill also may produce an unintended consequence: Christian persecution. For example, a kosher bakery or halal butcher may be protected because their food preparation is ritualised in scripture and certified. However, Christian scripture does not demand similar adherence to religious rituals. Thus, a case such as the baker in Northern Ireland prosecuted for not writing the political slogan “support gay marriage” on a cake could occur in Australia.
Smith’s proposed bill does not offer adequate protection for Australians, given the dozens of international cases brought by activists who revel in the persecution of Christians and other politically incorrect folk. By contrast, Paterson’s new bill reflects a fuller understanding of the animating principle of religious freedom in the flourishing liberal democracy.
The new bill is generally more consistent with a moderate and conservative approach to reform. It restores some semblance of balance between freedom and equality. By so doing, it upholds the Prime Minister’s stated commitment to religious freedom ahead of the vote.
It could prevent vexatious litigation, defamation, slander and discrimination against people exercising freedom of religion.
While the religious freedom protections outlined in Paterson’s bill deserve serious consideration, the general argument to support a category of exemption for “conscientious belief” is less persuasive. The bill leaves the term “conscientious belief” undefined. As such, it could create an unintended consequence of negative discrimination against gay and lesbian couples.
All sides need to ensure a reasonable balance between equality and freedom in legislation. If the Smith bill proceeds without amendment, it will tip the scales in favour of hardline activists and empower state-funded discrimination against Christians.
Just as they tried to push same-sex marriage through parliament without the people’s vote, so too are impatient MPs trying to push Smith’s bill without amendment. Many are new to parliament. It will take a concerted effort by more temperate MPs to ensure the bill is amended in the interest of democracy.
Marriage reform advocates worked for victory in the postal plebiscite survey. Don’t squander the victory by making debate about same-sex marriage legislation a zero-sum game.
This article is originally published in The Australian.