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Prof. Patrick Parkinson: Why all political parties ought to care about religious freedom

Read Prof. Parkinson's address to the Freedom17 Conference on Wednesday 14 June 2017 and see his Powerpoint presentation here. You can also listen to the audio recording of his talk.

WHY ALL POLITICAL PARTIES OUGHT TO CARE ABOUT RELIGIOUS FREEDOM

Prof. Patrick Parkinson AM - University of Sydney

The polarisation around religious freedom

For centuries, religious freedom has been a foundational concept for liberal democracies. Freedom of religion is one of four interrelated freedoms without which there is simply not a free society. The others are freedom of conscience, freedom of speech and freedom of association. These are four intertwined and indivisible freedoms.

In the past, freedom has not been a polarising issue. In the United States, for example, it has been fundamental to the worldview of Republican and Democrat alike. The speeches of Democrat presidents such as John Fitzgerald Kennedy and Jimmy Carter spoke as eloquently of the cause of freedom as their Republican counterparts – perhaps more eloquently. There has similarly been bipartisan support for freedom in Australia, as the participation of its armed forces in various conflicts over the last 70 years has demonstrated.

Yet increasingly, the liberal consensus on the fundamental importance of freedom is fracturing, and this is particularly true in terms of freedom of speech, freedom of association and religious freedom. Freedom of speech is being challenged by definition inflation in terms of what is called ‘hate speech’, which is increasingly conflated with speech that merely offends. Freedom of association is being challenged by the ever-expanding scope of anti-discrimination law, which has blurred the distinction between public and private worlds.

But there is no greater polarisation than in relation to religious freedom. In the United States, it is being seen as a catchcry of the Right (and in particular, the “Bible Belt”). Even in Australia, religious freedom is increasingly becoming a subject on which there is sharp disagreement. Its champions have included the former Human Rights Commissioner, Tim Wilson, a man who professes no religious convictions and is now a Liberal MP. He comes to the issue from a classic liberal position on the centre-right of politics. The Australian newspaper also has spoken out for religious freedom, but it too is associated with the right of politics. Meanwhile, the protection of religious freedom seems to have few champions on the left. To the contrary, in the name of ‘equality’ and ‘non-discrimination’ there has been a sustained attack on exemptions within anti-discrimination legislation, and efforts made, especially in Victoria, to make it extremely difficult for faith-based schools to insist on employing staff who hold the relevant faith, except perhaps for religious studies teachers and school principals.

This is a dangerous trend. If this continues, we risk a situation where fundamental freedoms are perceived as belonging only to one side of the political spectrum. There are very good reasons for trying to avoid this degree of polarisation.

The immediate context for polarisation – same sex marriage

In the short term, these issues are most likely to be played out in the debate about whether, and if so how, to legislate for same-sex marriage. This issue has already tested Parliament sorely, and it will continue to do so; but what may be less recognised is that it will test each of the major political parties internally as well. How the political parties deal with this issue, and in particular, how they respond to dissenters if same-sex marriage is enacted, will shape their futures in ways that perhaps many MPs have yet to fully appreciate.

The same-sex marriage debate is no longer just about the definition and meaning of marriage; more than this, it is about how Australians are going to manage difference. The ugliest way will be the way of polarisation; but this is where we are headed unless the political parties can address their internal conflicts on this issue and find within their core values, a way to accommodate different positions on this difficult problem.

The way forward, if we are not to sink deeply into the swamp of polarisation, is to try to understand our different points of view, and to approach the problem from a position of empathy. As social psychologist Jonathan Haidt has written, in The Righteous Mind:

“No matter how good our logic, it’s not going to change the minds of our opponents if they are in combat mode too. If you really want to change someone’s mind on a moral or political matter, you’ll need to see things from that person’s angle as well as your own. And if you do truly see it the other person’s way – deeply and intuitively – you might even find your own mind opening in response.”

 

Points of agreement

It is appropriate first to recognise the extent to which there is common ground between proponents of same-sex marriage and those who would uphold the traditional definition of marriage.

Different forms of marriage in the Marriage Act

The first area of agreement is that Australia will continue to recognise different concepts of marriage and means of solemnising it.

There is no one law of marriage in Australia, even though there is just one Marriage Act. Fundamentally, the legal requirements for solemnisation of marriage differ markedly depending upon whether a civil or religious marriage is contemplated. Although there are common requirements for eligibility for marriage (for example, a minimum age of marriage) the law allows a great range of wedding ceremonies.

If the ceremony is civil, then the legislation stipulates the words of commitment that are required for a valid marriage. If the ceremony is religious, it is enough that the celebrant be listed on the Register of Marriage Celebrants (a list provided to the Government by the religious organisations of their priests, ministers or equivalent). A celebrant who is thereby authorised, can conduct the wedding in accordance with whatever ceremony, and using any words of promise and commitment, that the faith community requires or permits.

Even civil marriage is no longer a matter of having one’s relationship solemnised by a state official as it is in England or continental Europe. People may get married in a registry office with a state officiant, or they may purchase the services of a private marriage celebrant.

There is therefore an acceptance of a wide variety of means of getting married, involving a clear differentiation, within the Marriage Act, between marriage in a religious tradition and civil marriage. Those who propose legislative amendments to allow same-sex couples to marry propose no change in this respect.

Not only does Australian law allow for a diversity of means of solemnising marriage, but marriage itself has different meanings for people. To the devoutly religious Christian, marriage is a covenant made to another person in the presence of God and is as much a promise to God as to the other spouse. In other faiths, marriage may be understood in more contractual terms. Those without a faith may have their own understandings of what marriage involves, without the sacred element to the union. There is also the option of contracting out of the Family Law Act insofar as the financial consequences of marriage are concerned.

Understanding that marriage can take many different forms, both religious and secular, does allow a possible way forward on the contentious issue of same-sex marriage. It may mean recognising that the requirements for marriage in a religious tradition may well be different from civil marriage, which has itself become almost indistinguishable from a de facto relationship. That is, the way of empathy can allow us to live and let live by abandoning the fiction that there is only one kind of marriage in Australia, and to allow the State to define civil marriage in a way different from the way it is understood in certain religious traditions.

Freedom of conscience for religious celebrants

The second area of agreement is that ministers of religion will not be compelled to perform marriages for same-sex couples. That simply confirms the position under the current law. Section 47 of the Marriage Act provides that no minister of religion shall be compelled to marry anyone. This section has a very long history. Originally it was enacted at a time when in some religious communities, remarriage was forbidden after divorce, or at least there were conditions under which it was deemed possible.  The law recognised that a minister of religion might have an objection to marrying a divorced person notwithstanding that his or her denomination permits it. Section 47 reflects the Australian Parliament’s commitment to a very strong version of freedom of conscience in this area.

Recognising this offers perhaps another basis for agreement if we move beyond polarisation. For ministers of established Christian denominations such as the Catholic and Anglican Churches, or leaders of established religions such as Judaism and Islam, are not the only religious celebrants. It is little understood that over 500 civil celebrants registered under the Marriage Act are actually pastors or other leaders of churches. Many lead non-denominational churches which, because they are not affiliated to a larger organisation, do not come within the provisions in the Marriage Act for religious denominations to nominate marriage celebrants. Some are recognised pastors of the Australian Christian Churches, often serving in country areas, who do not have full accreditation from the denomination as pastors. These are in the same position as clergy of established denominations.

If the Marriage Act can recognise the freedom of conscience of religious leaders from established denominations, what could be the objection to the recognition of freedom of conscience for ministers of religion who do not belong to established denominations, and who must, under the current law, register as civil celebrants?

What about other celebrants other than priests or pastors? There are both private marriage celebrants, and no doubt some celebrants in state registry offices, who have worked for years in this role and commenced this work long before same-sex marriage was even a possibility. After all, it is a very recent development internationally. If any of these celebrants have a conscientious objection to conducting ceremonies for same-sex couples, should their freedom of conscience not be respected? Australia is, after all, a signatory to the International Covenant on Civil and Political Rights which provides, in Article 18(1) of the ICCPR:

Everyone shall have the right to freedom of thought, conscience and religion.

This is not limited to ministers of religion. It applies to “everyone”. This is one of the very few non-derogable rights in the Covenant, rights which cannot even be suspended in a time of national emergency. If marriage changes quite radically from what it was when people began their careers as marriage celebrants, should not some accommodation be made to those who object?

This is an example of an issue on which we have seen unnecessary polarisation. The Exposure Draft released at the time that plebiscite legislation was proposed did have some protections for freedom of religion and conscience. In particular, it covered marriage celebrants. However, strikingly, given Australia’s commitment to Article 18(1) of the International Covenant on Civil and Political Rights, the Australian Human Rights Commission opposed any concession to individual freedom of conscience. Bizarrely, it cited Tasmania and Victoria’s refusal to respect the freedom of conscience of doctors who do not want to refer patients to abortion providers as a justification for not expanding freedom of conscience in other areas. This illustrates the tendency amongst the taxpayer-funded guardians of human rights in Australia to have a curiously Animal Farm approach to human rights. This is ultimately very damaging, not only to the credibility of human rights organisations, but to the whole discourse of human rights in Australia.

A commitment to non-discrimination

Beyond the right of celebrants to have a conscientious objection to the solemnisation of a particular marriage, or a kind of marriage, there are other issues which this divisive debate has brought to the surface. A major one is protection from discrimination for those who hold to traditional views about marriage. Incidents of serious discrimination based upon people’s beliefs concerning marriage continue to mount. Perhaps no example is more shocking and egregious than the refusal of two large provinces in Canada to recognise law degrees from Trinity Western University in British Columbia because students at the University are required to make a commitment to adhere to traditional views of Christian sexual ethics.

The astonishing case of the complaint against the Catholic Archbishop of Hobart for putting out a booklet endorsed by the Australian Catholic Bishops Conference defending the traditional view of marriage is an indication that freedom of religion and speech are increasingly under threat in Australia as well. What was astonishing about this case was not that a complaint was made – anyone can make a complaint to an anti-discrimination body whether or not it has merit – but that it was accepted by Tasmania’s Anti-Discrimination Commissioner, before eventually being withdrawn. There could hardly have been a clearer indication that in Tasmania at least, freedom of speech on this issue will not be tolerated.

Such discrimination would attract loud criticism if it were directed towards those who favour change to the law. Yet on this again, our human rights bodies remain silent. All human beings are equal; but some are more equal than others.

Managing difference

The issue of same-sex marriage may seem to be an intractable one. There are a great many who consider that the legal definition of marriage in the Marriage Act should continue to reflect two millennia of Christian thought. On that view, the law should no more change the heterosexual nature of marriage than it should its monogamous nature. There would seem to be a larger group, both within the Parliament and outside of it, who feel strongly that the law should recognise, as marriages, the relationships that people choose for themselves. The view that I should be able to marry whomsoever I love will eventually lead to recognition of polygamous and polyamorous relationships as marriages, for there will be no credible intellectual argument for opposing this.

Specialist family lawyers are already being consulted on the legal consequences of such polygamous and polyamorous relationships amongst secular, liberal people, and they are also occurring in the Islamic community. The debate about same-sex marriage is not the final frontier in moving away from Judaeo-Christian values about marriage. Already, 35% of all babies born in Australia are born outside of marriage and in various European countries, the percentage exceeds 50%. Australian law treats people as if they were married if they live together for two years or have a child together. Already, we have long since abandoned Judaeo-Christian marriage as the normal foundation for family life.

So the question really is, how will we manage difference? This is an issue for all political parties, if they are to be true to their values.

The internal conflicts in the political parties

The issue of same-sex marriage will eventually be resolved by the Parliament (with or without a plebiscite). If it is resolved in favour of a change, then each of the political parties will need to consider how they address the concerns of dissentients. It is not good enough to assert that it will make no difference to people who do not support the change. The examples given above indicate that for those who hold to a traditional view of the nature of marriage, there are reasons for concern about freedom of religion and conscience issues.

For the Coalition, any legislation permitting same-sex marriage, particularly without a plebiscite in support, is fraught with difficulty. The position it took to the last election is that the people should decide the matter through a popular vote. That option has been blocked in the Senate. If the issue were now to be resolved by a conscience vote in Parliament, many core Liberal and National Party voters would be deeply upset. That may not affect the Coalition vote in the Lower House, but it could affect voting patterns in the Senate for a generation.

It follows that if the Coalition is even to contemplate a shift in its position, urgent consideration will need to be given to how to protect dissentient voices. The Liberal Party has a long tradition of believing in freedom of religion, of conscience, of speech and of association. The National Party comes from a similar philosophical tradition. It must follow therefore both as a matter of politics and philosophical tradition, that the Coalition ought to support the widest protections for freedom of belief and conscience that can be accommodated within legislation that allows for same-sex marriage.

Consideration was given to these issues in the Exposure Draft that accompanied the plebiscite legislation. Given the mounting intolerance directed towards those who hold traditional views about marriage, the case now for anti-discrimination provisions is a strong one, as part of a package of measures to balance the human rights of different members of the society if this change in the law were to occur.

These issues are also very important for Labor. Its adoption of a policy in favour of same-sex marriage is a very recent one, and it cannot be expected that all those who held a position in support of the traditional view of marriage yesterday, will be enthusiastic supporters of the opposite position today.

In about July 2004, some thirteen years ago, I was privileged to share a platform in the Great Hall of Parliament on the issue of same-sex marriage in which the other speakers included the then Prime Minister John Howard, the Deputy Prime Minister John Anderson, and the Shadow Attorney-General Nicola Roxon. The major parties were then united in opposition to same-sex marriage. Nicola Roxon, on behalf of Labor, gave a strong speech expressing the opposition of the Party. I spoke to her personally about it before the meeting, and she made it clear that this was a very firmly held view within Shadow Cabinet. I had no reason to doubt, and a large audience in the Great Hall that day had no reason to doubt, that this was the sincerely held position of Labor’s leaders, many of whom continue in positions of leadership in the Party today.

Shortly after that event in the Great Hall, a Bill passed the Parliament to amend the Marriage Act in order to state explicitly that marriage is defined as a union of a man and woman, as has been the long-standing definition at common law. The reason for this legislation was to clarify the position under Australian law in relation to those entering into same-sex marriages in one or two other countries which had, by that stage, legalised it.

Labor voted for that Bill. I accept of course that this was not a unanimous view within the Parliamentary party. There were those, like Senator Wong, who voted against their conscience; however it does seem that at that stage, they were a minority within the Parliamentary party.

It was only a few years later that the position of the Party changed, first of all to allow a conscience vote on the issue of same-sex marriage and then to mandate that by 2019 no-one could stand as a Labor candidate for Parliament unless he or she supported same-sex marriage. That is a major change of position.

I do not, for one moment, criticise the Labor Party for changing its mind. It is entitled to do so, and I have no doubt that some senior leaders in the party who used to be opposed to same-sex marriage have genuinely come to a different view, while others are prepared to keep their mental reservations to themselves while voting in favour of the new policy. The question is how the Party and indeed the Parliament, should respond to those who have not changed their minds – those who do not have a different view from the one that they held just over 12-13 years ago. If the argument is all about ‘equality’, what would it mean to show equal respect to the deeply held positions of these people on this issue? Many Labor voters are not persuaded by the argument for change to accommodate same-sex marriage. they are to be found particularly in the outer suburban constituencies of our major cities. Many of them are also religious, or come from cultures in which there is a strong religious identity to the culture – for example the Greek community. The Catholics among them represent a historically significant cohort within Labor and the union movement, and many MPs have in the recent past identified with that cohort. The MPs’ consultations within constituencies only a short while ago indicated that there are Labor constituencies where people who are strongly opposed to same-sex marriage are in a substantial majority.

The Greens may appear at first glance to have no need to worry about internal division on this issue. The position of the Greens, as with the Labor left, is that same-sex marriage is a human right.

That begs the question then of how the Labor left and the Greens will support all human rights that are engaged. People often make claims about human rights to support whatever policy position they hold; it has become part of the rhetoric of advocacy; but it is a quite fundamental principle for anybody who articulates arguments based upon human rights, that those human rights are indivisible. One cannot cherry pick those human rights one likes and discard those that one does not. That is what dictatorships do (some of which have the finest constitutionally protected human rights charters).

Consistency of principle requires that all those who base their arguments on international human rights should give detailed and careful consideration to how different rights can be balanced and respected on a contentious issue such as same-sex marriage. “Balancing” does not mean that one right is crushed under the weight of the other. 

Conclusion

My freedoms are your freedoms. Constraints upon my freedom will eventually provide the justification for constraints upon your freedom even if the uses to which we put our freedoms are quite different.

Gone are the days when religious leaders were tortured, beheaded or burnt at the stake for their beliefs, as occurred during the Reformation period. Gone are the days when people needed to board the Mayflower to find a new country in which they could practice their faith freely and without impediment.

The search for a country in which to practice one’s faith freely is not part of the foundation story for Australians as it is for Americans; nonetheless, it is deeply rooted in our national DNA. The South Australian wine industry was established by devout Lutherans who had to leave northern Germany because of religious persecution. Some died on the long sea voyage. Pastor Kavel, one of their leaders, wrote about Australia in 1839: “We have found what we have been seeking for many years – religious liberty – and with all our heart we are desirous of being faithful subjects and useful citizens.” The industry and honesty of devout people of faith has provided the backbone for the Australian economy over many generations.

More recently, many refugees have come to our shores, fleeing persecution because of their religious beliefs. For many, this is inseparable from their ethnic identity. However, we fail to understand them, or to respect their self-identity, if all that we see is their ethnicity and do not understand the importance to them of faith.

Managing difference means listening to the concerns of all those for whom faith is important. The three pillars of freedom of religion in relation to marriage, freedom of conscience, and freedom from discrimination offer foundations on which perhaps people of goodwill on different sides of the debate can agree.

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