"In Australia you're going to have to be absolutely aware that your laws have to be crystal clear to protect freedom of conscience and diversity," Professor Iain Benson says.
Professor Benson, a legal philosopher from the University of Notre Dame, says there is plenty of evidence as the negetive effects of introducing same-sex marriage. In particular, the numerous legal challenges that inevitably arise.
He points to a current Supreme Court case in Canada where an evangelical law school's accreditation is being challenged because it doesn't support same-sex marriage.
"So what's going on," says Professor Benson, "is a very serious debate, right at the heart of law, about whether 'diversity' will allow different views on marriage."
Professor Benson warns that the Australian provisions for protecting freedom of conscience are even weaker than the ones enacted in Canada. He believes that Australians are currently proceeding as though there won't be the attacks on religious people and conscientous objectors to same-sex that have occured in other countries.
"And that's a tremendously naive approach, given what we've seen in England, or in South Africa, or in Canada."
Professor Benson believes that limiting the protection of liberty and conscience to clergy, as though marriage were the only issue, is woefully inadequate.
"For example, is your charitable status going to be threatened because you advocate traditional marriage? Or is your school going to be threatened because its curriculum wishes to portray marriage as heterosexual?"
Diversity of opinion, he says, is the most important thing.
"In any free and open society it's extremely important on matters particularly as heated as same-sex marriage to ensure that both side have their viewpoints protected."
The following are excerpts from an address by Professor Patrick Parkinson, a specialist in Family Law at Sydney University. In this section he focuses on the need for political parties to take care resolving the same-sex marriage debate, not only because of Canada's misteps, but especially because Australia is a signatory to the International Covenant on Civil and Political Rights, which specifically protects freedom of conscience.
Everyone shall have the right to freedom of thought, conscience and religion.
Article 18(1) of the Internationall Covenant on Civil and Political Rights, to which Australia is a signatory, is a clear call to respect the conscience of the individual. 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.
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.
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.
In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Michael Kellahan of Sydney for Freedom for Faith.
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