Clash of Rights Looms in Marriage Debate

Paul Kelly

Paul Kelly Editor at Large The Australian 12 August 2017

 While the flawed postal vote plebiscite has provoked furious rival responses, the pivotal problem is just emerging — the failure in any draft bill by Coalition or Labor MPs to fully protect religious freedoms once same-sex marriage is legislated.

This is set to become an explosive issue within the Coalition parties. The alarm has been sounded and if, as expected, the plebiscite returns a “yes” vote, it will be triggered. This will become a serious problem for Malcolm Turnbull and Attorney-General George Brandis.

Tony Abbott, a number of other prominent Liberals and church leaders will direct much of their campaign against same-sex marriage on to the failure of the parliament to confront the religious freedom issue and exploit public doubts on this front.

Beyond the campaign lies the great dilemma. The proposition is lethal — that it would constitute a historical betrayal of the values of the Coalition parties if they “backed” a bill post-plebiscite on same-sex marriage that exposed individuals and institutions to retaliation for their beliefs because the government failed to strengthen A

ustralia’s woefully inadequate laws on religious freedom and protection.

Abbott said if people had fears for their freedom, their right to express the traditional view of marriage without retaliation, they should vote “no”. In tactical terms, this shifts the issue from same-sex marriage, which has majority support, to the trade-off of rights ­involved: winning same-sex marriage at the sacrifice of freedom of conscience, belief and religion.

The evidence strongly backs Abbott’s claims. Indeed, it is overwhelming as documented in submissions to and in the February 2017 report of the Senate select committee on the draft bill released by Brandis. The further truth is the political class is split on these protections, with the prospect that passage of same-sex marriage will have a second and far more important consequence — an assault on religious freedoms made possible by inadequate laws that will see a major shift in Australian society.

Since the postal plebiscite was announced, comments

by Abbott, ACT Liberal senator Zed Seselja, Liberal backbencher Andrew Hastie, the Anglican Archbishop of Sydney Glenn Davies and the Moderator General of the Presbyterian Church of Australia, John P Wilson, signal they want to enshrine religious freedom as a core issue in the vote. It is likely this will become a universal position of the Christian churches. It would be remarkable if it did not.

Nobody should be surprised by these events. It highlights the essential weakness of the same-sex marriage case, a point obvious for years. Despite the insistence of politicians, religious freedom has not been properly addressed and many inadequate bills testify to this. The draft bill released by Brandis, the subject of the February 2017 report by the Senate ­select committee, was not authorised by the cabinet or the partyroom. It has no standing. Yet this bill was assumed to be the model to inform the original plebiscite had it been approved.


about this bill and other bills including that proposed by senator Dean Smith, despite the broader guarantees surrounding the same-sex marriage ceremony Brandis and Smith drafted, is obvious from the submissions made to the Senate committee.

Its chairman, South Australian Liberal David Fawcett, tells ­Inquirer: “My concern is that if we don’t get this right, if this issue is just put into the too-hard basket, then we will be left with inadequate state anti-discrimination laws and there will be action taken against individuals because there is inadequate protection for ­religious freedom.”

In his foreword to the report Fawcett says: “If Australia is to remain a plural, tolerant society where different views are valued and legal, legislators much recognise that this change will require careful, simultaneous consideration of a wide range of specialist areas of law as opposed to the common perception that it ­involves just a few words in one act of parliament.”

The Turnbull government has ignored the spirit or letter of this advice. Hastie identified this flaw when he said to this paper during the week: “Will people, churches, schools, charitable organisations and businesses be protected if they hold to the common view of marriage?” The Senate committee report shows they will not. This issue goes far beyond the ceremony itself to wider society.

Saying the Smith bill is defective, Hastie says it “only offered protections to individuals involved in the conduct of weddings” and, as a result, “failed to grasp the far-reaching significance of redefining marriage”.

This is the core point. It is the challenge the Coalition will abandon only at the price of betraying the principles basic to its life since the inception of these parties. Will Turnbull before the next election face the prospect of believers in traditional marriage being penalised or intimidated because his government refused to provide legal protections? If so, how will conservative voters react?

The irony is that Smith agrees religious protections are inadequate and should be addressed. He tells Inquirer: “I think there is legitimacy to a broad discussion of religious freedom in Australia.”

But Smith doesn’t want this to interfere with his bill or the passing of same-sex marriage. He wants this as a separate discussion.

Brandis makes no secret of the approach he took as A-G. His focus was on the same-sex marriage bill itself and he was ambitious in pushing the boundaries against much LGBTI sentiment

to ensure that marriage celebrants as well as ministers of religion can refuse to solemnise marriages. Smith also pushed the boundaries with these provisions.

But this ignores the real problem, which far transcends protections around weddings as such. The current law leaves wide open many avenues of intimidation against individuals, schools, charities, businesses, adoption agencies and civic ­organisations. This includes consumer boycotts promoted by ­social media and even commercial boycotts against other commercial entities.

The Senate committee after reviewing the landscape said: “Overall the evidence supports the need for current protections for religious freedom to be enhanced. This would most appropriately be achieved through the inclusion of ‘religious belief’ in federal anti-discrimination law.”

Incredibly, this was the view of the whole committee. Many bodies supported this recommendation in their submissions. Human Rights commissioner Ed Santow said: “You could have a stand-alone statute that specifically dealt with freedom of religion or you could expand the Racial Discrimination Act.” Even the Australian Human Rights Commission agrees there should be a specific protection in federal law protecting religious belief.

Yet nothing has been done. Of course, this is a big project. The Turnbull government should have tied such measures to the same-sex marriage issue from the start, an omission it will regret. Because it is proposing to legislate same-sex marriage before Christmas if the plebiscite is passed, the signal is that the government intends to do nothing, or give an extremely low priority to any further religious protection concerns.

Equally significant, there is no plan within the government if the plebiscite is carried for the cabinet or partyroom to consider any planned private member’s bill that would be the subject of a free vote. Inquirer has been told there would be informal “consultations” over such a bill. That’s all. How satisfactory is this?

It raises a core issue: will the cabinet and partyroom tolerate a situation where their government paves the way for such a historic social change simultaneous with a manifest failure to properly provide for protections in relation to conscience, belief and religion? What would this reveal about the values of the Liberal Party in 2017 or its sense of blind panic about getting same-sex marriage off the political agenda?

University of Sydney law professor Patrick Parkinson welcomes the protections for ministers of religion and for marriage celebrants but says this is far from sufficient. “In certain sections of the community, there is now deep hatred expressed for people of faith,” he says.

“Provisions are required to protect people from discrimination on account of whatever views they may hold about marriage, whether they are opposed to same-sex marriage or in favour of it.”

He says it must be made lawful for any person or entity to express an opinion that accords with a religious or conscientious belief about marriage. He advocates laws to protect people or entities in relation to employment, contracting, academic, trade or professional qualification, accommo­dation, education and adminis­tration of commonwealth laws and programs.

Institute for Civil Society executive director Mark Sneddon summarises his views based on his submission to the Senate committee: “I am extremely concerned about the lack of legal protection across this country in terms of freedom of conscience, belief and religion for people who support traditional marriage.

“These protections are far less than those for people who support same-sex marriage. Yet it is those who support traditional marriage who are more susceptible to ­actions … from government bodies and commercial ­organisations.

“Where persons hold the traditional view of marriage not on grounds of religious belief, they have no protection under federal, state and territory anti-discrimination laws or the Fair Work Act. If they hold the traditional view of marriage on the grounds of ­religious belief they have no protection under federal anti-discrimination law, no protection under NSW or South Australian anti-discrimination laws and some protection under the anti-discrimination laws of the other states or territories but only for individuals and not organisations.”

The Senate committee was provided with examples of prejudicial treatment of people and institutions because they support traditional marriage. Provided by the Institute for Civil Society, it is a long and startling list.

There was the closure of all Catholic adoption agencies in England and Wales or the transfer of their operations to secular entities because their charitable status was removed due to their position and practices on same-sex marriage.

There was the intimidation of Trinity Western University in British Columbia, a Canadian Christian university, in which the province’s teachers board refused accreditation to its graduates on grounds they might discriminate against LGBTI students, a decision reversed by the Supreme Court of Canada after years of litigation.

But when Trinity Western applied to open a law school, Canadian legal institutions including the Canadian Bar Association and a number of provincial law societies voted not to accredit its graduates because they had signed a required university covenant to abstain from sex unless it was between a husband and wife.

The attitude of large corporates is a major concern. Last year ­numerous US companies threatened to boycott the state of Georgia after legislation was tabled seeking to expand religious freedom exceptions in relation to same-sex marriage. The companies included Disney, Intel, Coca-Cola and Unilever. Disney said: “We will plan to take our business elsewhere should any legislation allowing discriminatory practices be signed into state law.”

Given the support Australian companies have offered same-sex marriage, any idea

they would not pursue this cause against religious freedom seems forlorn. Indeed, it is hard to find any statement of meaningful support for religious freedom and belief from a senior Australian corporate executive on this issue, a telling omission.

At home there was huge pressure for the sacking by IBM of Mark Allaby and by Macquarie University of Steven Chavura unless they resigned from other bodies perceived to oppose same-sex marriage. A boycott was imposed by hotels against Coopers Brewing because it sponsored the Bible Society, which ran a video not against same-sex marriage but one that put both sides of the debate.

In the US, Chick-fil-A, a sandwich franchise, was subject to consumer boycotts and government and commercial retaliation when a senior executive supported traditional marriage. Brendan Eich, co-founder of Mozilla Corporation, known for its browser Firefox, triggered a consumer boycott because he had supported an anti-gay marriage position. He was forced to step down.

In Sydney the Mercure Hotel, which was hosting an event of various Christian groups to form a strategy against same-sex marriage, was threatened with violent

protests such that staff safety could not be guaranteed. It had to cancel the event, an example of how easily the technique of intimidation can deliver. The most celebrated domestic case is the decision by Tasmania’s Anti-Discrimination Commissioner that the Catholic Archbishop of Hobart, Julian Porteous, had a case to answer for distributing a book in schools defending traditional marriage.

The evidence and examples rebuff the lazy response from politicians that this is not a serious issue. Referring to the overseas examples, Sneddon says: “I cannot see why these more extreme actions taken … in North America would not also be taken here.”

The Senate committee report corrects a near universal misconception repeated in this debate: that same-sex marriage is an established human right. This was disposed of in many submissions notably by Mark Fowler, from Neumann & Turnour lawyers.

In international law, the right to marry is contained in the International Covenant on Civil and Political Rights. This provision does not extend to same-sex marriage, an issue tested in the ruling Joslin v New Zealand. This position has been affirmed by the ­European Court of Human Rights in its rulings that there is no such right to same-sex marriage.

Such a right is typically claimed in polemical debate but its legal ­viability does not

hold up. The Senate committee accepts this view, saying “under current human rights instruments and juris­prudence there have been no decisions to date that oblige Australia to legislate for same-sex marriage”. By contrast — and ironically — freedom of religion is one of the few non-derogable rights in the ICCPR.

Parkinson says: “While the case in international human rights law for saying that same-sex marriage is a human right is very weak, the case for protecting religious freedom, and in particular freedom of conscience, is quite overwhelming. There have been numerous bills introduced in parliament to enact same-sex marriage over the last few years and what has been common to most of them has been a minimalist protection for freedom of conscience.”

The plebiscite idea originated with Peter Dutton. Its implementation via the Bureau of Statistics came from Brandis. But it will occur only with the approval of the High Court and nobody can second-guess that outcome. Smith is right when he says his bill has more protections than anything likely to come from a Labor government. But this cannot gainsay the gaping hole left in this pivotal area of our national life and values.

For years the typical response from politicians to the religious freedom issue has been patronising and dismissive, buttressed by the claim that religious ministers would be protected. Any notion that will suffice is ludicrous.

The resistance falls into three categories: those who care only about achieving same-sex marriage; those who think protection around the ceremony is the only issue that matters; and those, like the champions of progressive ideology, who see this social change as an integral step in driving religion from the public square.Paul Kelly

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