Religious Freedom for churches after a possible “Yes” vote to same sex marriage

Associate Professor Neil Foster

Associate Professor Neil Foster [1]

If the same-sex postal survey returns a majority “Yes” vote, what are things that Christian churches which are committed to a Biblical view of sex and marriage need to be thinking about? This brief paper will simply outline some issues, all of which will need careful further thought.[2]

One preliminary point worth noting is that many of these matters are issues which would have come up even if the Australian public does not vote to change the definition of marriage to include same sex couples. Biblical Christians have been “out of step” with the broader Western culture’s views on sex and marriage for some time.[3] But there may well be some specific issues that arise with the change of the nature of marriage, especially around the law on solemnising marriage. And there seems little doubt that the “moral imperative” to approve homosexual behaviour given by the statutory recognition of same sex marriage (SSM) would encourage further opposition to the Christian views on this matter.

As at the time of writing this note, it is not known which legislation will be put to Parliament to authorise SSM if it is approved in the survey. A draft Private Member’s Bill prepared by Dean Smith was put forward some time ago, and the ALP has indicated that they will support this Bill.[4] (Note however that it is still at the moment, prior to 2019, possible for an ALP member or senator to vote against SSM, and there are at least a couple who have expressed a desire to do so.) In this note I will comment on how the Smith Bill deals with the issues I raise, if at all. Today as I write (Mon 13 Nov) a rival draft Bill has been released by Senator Paterson. I will also note briefly how this Paterson Bill deals with the issues.

Issues arising around wedding ceremonies

– whether ministers of religion, who are currently authorised to celebrate marriages under Australian law, will be obliged to celebrate same sex marriages.

• In general, at the moment, all parties concerned have said they will support the right of a minister of religion to decline to solemnise a same sex marriage
• Currently s 47 of the Marriage Act 1961 (Cth) (“MA”) says that “nothing in this Part” of the Act obliges a minister of religion to celebrate any marriage
• It seems that to better secure this right the law should state that this will over-ride provisions in the Sex Discrimination Act 1984 (Cth) (“SDA”) which otherwise penalise “sexual orientation” discrimination, and also similar State and Territory laws which might be said to apply
• The Smith Bill does this by amending s 47 of the MA to provide that “despite anything in this Part” a minister of religion may decline to solemnise a same sex marriage on the basis of the “doctrines, tenets or beliefs” of their religion, or if doing so would cause “injury to the religious susceptibilities of adherents of” that religion, or if their own private religious beliefs would prevent them from doing to. 
• All well and good as far as it goes, but the amendment arguably does not extend its protection to obligations that may be said to arise under other Commonwealth laws (eg the SDA) or State and Territory laws. For the SDA, the Smith Bill proposes a new s 40(2A) which would over-ride that law, but it does not clearly express that it is intended to operate despite the State and Territory discrimination provisions. It should.
• The Paterson Bill deals with this issue more clearly. Its new s 47 (item 25 in Sched 1) makes it clear that the right of a minister of religion not to solemnise a marriage applies “despite anything in this Part or any law of a State or Territory”.

– the right of other, civil, celebrants to decline to celebrate a same sex marriage, including not only “private” celebrants but also Government registry officers;

• Apart from ministers of religion, other celebrants may find that their religious convictions do not allow them to solemnise a same sex wedding. These celebrants are not currently protected, but so far there has been little occasion where an objection may arise. But with the new law, with its radical and unbiblical definition of marriage, there may be many who will want to decline.
• The Smith Bill does not provide any protection for these people (those usually called “civil” celebrants and registry officers). It should be provided.
• Interestingly the Smith Bill provides for a “religious marriage celebrant” to decline to solemnise a same sex wedding, in s 47A. But since the Bill’s definition of “religious marriage celebrant” in s 39DA(b) requires that such a person be a “minister of religion”, and since s 47 already applies to “ministers of religion”, it seems to me that s 47A adds nothing to the protections.
• The Paterson Bill is better. It sets up a separate category of “traditional marriage celebrant”, qualification for entry to which (under new Subdiv D of Div 1 of Part IV) includes both State registry officers (new s 39DA(a)) and those who are “marriage celebrants” under Subdiv C and are either ministers of religion, or hold a “religious or conscientious belief” about the nature of marriage as the union of a man and woman- new s 39DA(b).
• There is then an exemption from solemnising under new s 47A, which will apply to ministers of smaller churches not from mainstream “recognised denominations” who are currently Subdiv C “marriage celebrants”, to those who are called “civil celebrants”, and to State registry officers.
• Note, however, that those who are qualified as “traditional marriage celebrants” have to be identified as such on the register of marriage celebrants already kept under current s 39B. Presumably this has been done so that those who are seeking a same sex marriage are not embarrassed when they approach a potential celebrant. I personally am not convinced that this is a good idea (the list of such celebrants may be used by activists to target those opposed to same sex marriage; and since ministers of religion of recognised denominations are not required to have their names on the register there will still be the potential for awkward conversations.) But it is the process suggested by the Bill, and I would not oppose the Bill on this ground alone.

– whether individual businesses involved in the “wedding industry” will be able to decline to offer their artistic support for services for same sex ceremonies;

• This is a major area where supporters of SSM are inclined to refuse all recognition of religious freedom. They argue that provisions allowing such a refusal would be a “license to discriminate”. They are wrong. What is being objected to, is support for the message of the ceremony, and the demand that artistic talents be devoted to such celebration.
• The Smith Bill contains no protection here.
• The Paterson Bill contains clear protections.  Under new s 88KA a person holding a “relevant marriage belief” does not breach discrimination laws by acting on that belief. In particular, to avoid any doubt, under s 88M a person holding such a belief may decline to provide goods or services for the purposes of solemnising a same sex marriage. A legislative note to s 88M(1) specifically says that it applies for the benefit of bakers, florists, etc.

– whether religious organisations who offer their premises for weddings will be able to decline to offer them for such ceremonies;

• Here the Smith Bill does offer protection under s 47B for “bodies established for religious purposes,” who may refuse to “make a facility available, or to provide goods or services” for a same sex wedding.
• Hence a church or religious group may decline to hire out a hall or a building. If there were such a thing as a “religious guild of wedding cake makers” this might provide protection to such people, but since there is no established pattern of such groups it will probably not help.
• The Paterson Bill extends the ability to decline to provide premises beyond religious organisations, to all “persons or entities”- see again s 88M.

Other issues arising from SSM apart from ceremony matters

– whether religious schools will be able to teach their pupils the views of their religious traditions about marriage, once same sex marriage is lawful;

• Under the current law, religious schools are already able to teach the views of their religion without much restriction, with the exception of Tasmania.

– There is no impact on school curricula under the Cth SDA.

– In NSW there is a prohibition on “homosexual vilification” in s 49ZT of the Anti-Discrimination Act 1977 which could in theory provide a ground for complaint about a school’s teaching the Bible’s view that homosexuality is a sin, except that:  i) to breach the provision one would have to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons”, which a sensible presentation of Biblical views would not do;  ii) in any event, there is a defence under s 49ZT(2)(c) for material “done reasonably and in good faith for …religious instruction; iii) arguably s 56(d) of the ADA would also provide a defence.iv) However, in Tasmania there is a controversial provision making it unlawful to “offend” someone on the basis of their sexual orientation, in s 17 of the Anti-Discrimination Act 1998 (Tas), and the most general defence provision, s 55, does not apply to “religious purposes”; this was the provision under which Archbishop Porteous was sued.

• The Smith Bill contains no defence relating to this issue.
• The Paterson Bill deals with the matter. Section 88KA(1)(b) provides protection against the operation of a “vilification law” (including one like Tasmania’s) where an entity is teaching a “relevant marriage belief”. However, it does not extend to situations where conduct will “threaten or harass” persons. I think this is a reasonable line to draw, though I personally would have liked the bar set a little higher (eg “intimidate” as opposed to “harass”, given the fairly wide range of behaviour which might be described by some as “harassing”.)

– whether financial support currently offered to religious organisations who provide important services to the community will be conditioned on support for same sex marriage;

• This has become an issue overseas, where some Christian groups have had their funding revoked or been forced to close after not accepting same sex marriage.
• The Smith Bill does not deal with the issue.
• The Paterson Bill deals with the issue in a prohibition on “unfavourable treatment” from public authorities in s 88K, and a specific prohibition on denial of funding under s 88N. In addition it clarifies that holding a traditional view on marriage should not impact charitable status- see s 88O.

– whether there will be further pressure on those who think that same sex marriage is a bad idea to not be able to put forward their views in public under “vilification” or similar laws. Will Christians be able to present the Bible’s teaching that homosexuality is wrong in a public forum? Or even in their own meetings?

• The laws mentioned above on “homosexual vilification” and the like (State and Territory laws) are relevant here. The current defences in most States allow teaching in church, but there would be more uncertainty if views were presented at a public forum outside a church meeting. Still, outside Tasmania I think that even this would be OK at the moment.
• The Smith Bill does not deal with this issue.
• The Paterson Bill specifically addresses “vilification” laws in s 88KA saying that expressing a traditional view of marriage in a way that does not amount to “threatening or harassing” behaviour will be lawful. Sections 88J and 88JA also provide a broad right of free speech in this context, though their precise legal impact is a little unclear to me.

Precautions that might need to be taken

• Until the precise form and wording of the legislation is settled, we don’t know exactly how churches should respond. However, I think the following are sensible policies to consider.
• It may be wise for churches to be very clear that their “doctrines, tenets or beliefs” extend to the Bible’s views on sex and marriage, as well as to the more formal theological creeds that are followed. This should be done, I think, by both the larger denominational churches, and also by smaller independent churches.
• The reason is that churches will want to be sure that these matters fall within the relevant protected area, especially in light of the fact that the decision of the Victorian Court of Appeal in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 held that beliefs on sexual morality may not fall within the meaning of the word “doctrine”.[5]
• One option would for the governing body to issue a document headed “Doctrines, tenets and beliefs” (a somewhat odd title, but I am recommending following the wording of the Smith Bill as a possible model that might be adopted, which itself follows the wording of s 37 of the SDA). This document might say that, in addition to the formal theological doctrinal statement of the church (contained in existing sources), the doctrines and tenets of the church include a commitment to a Biblical view on marriage and sexual morality, including that (for example)

– Sexual relationships are only legitimate when between a man and a woman who are married to each other;

– Marriage is a union between one man and one woman to the exclusion of all others, voluntarily entered into with the intention of that lasting for the joint lives of the parties;

– A person’s gender is determined by their biological sex at birth, except in the rare case of true “intersex” individuals with a disorder of sex development where there is a clear physiological ambiguity;

– Homosexuality is not part of God’s good purposes for humanity.[6]

• The above document might also spell out that the church expects that all those who exercise pastoral leadership or responsibility will adhere to Biblical standards of sexual morality, and that deviation from those standards may be a ground for Biblically based church discipline.
• It might also want to provide that the church will decline to hire out or make available premises or services to bodies or individuals who do not support Biblical standards of sexual morality. This may support the application of a provision such as s 47B of the Smith Bill.

Associate Professor Neil Foster

13 November, 2017

[1] See https://lawandreligionaustralia.blog for more material on related issues.

[2] For a more detailed analysis, see my paper “Legal implications of same sex marriage for Christian life and ministry”, available at http://forbetterorforworse.org.au/resources/neil_fosters_paper.pdf (Oct 2016).

[3] Of course, to be “out of step” with a popular modern trend does not automatically mean to be wrong! C S Lewis captured this brilliantly in The Voyage of the Dawn Treader where Prince Caspian responds to a local governor objecting to his abolition of the slave trade: “But that would be putting the clock back,” gasped the Governor. “Have you no idea of progress, of development?” “I have seen them both in an egg,” said Caspian. “We call it Going Bad in Narnia…” (chapter 4)

[4] See my blog post “Religious Freedom protections in new same sex marriage proposals: too few, too narrow” https://lawandreligionaustralia.blog/2017/08/06/religious-freedom-protections-in-new-same-sex-marriage-proposals-too-few-too-narrow/ (Aug 6, 2017) for my response to the Bill when it was first released.

[5] See paras [276]-[277], adopting the views of a lower Tribunal.

[6] Support for these views, and options for better wording if desired, might be found in the Nashville Statement – see https://cbmw.org/nashville-statement , and in the Sydney Diocese statement on these matters A Theology of Gender and Gender Identity https://www.sds.asn.au/sites/default/files/ATheologyOfGenderAndGenderIdentity(SydDoctrineCommission).Aug2017.pdf?doc_id=NTQ3NjY= .

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