Any attempt to introduce same-sex marriage is obliged to respect those with conscientious objections. To dismiss concerns for the inevitable lawfare against florists, bakers and ministers as “a trick”, to use George Brandis’ words, denigrates freedom of thought, worship, speech and association
As the recent proposal by Senator Leyonhjelm to amend the Sex-Discrimination Act to protect conscientious objectors to same-sex marriage demonstrates, one of the central issues in the deliberations about whether to introduce same-sex marriage is the safeguards that should be provided to conscientious objectors. Such individuals may understand marriage only as a pre-State institution that is inherently heterosexual, that the change may not be in the best interests of children, that the redefinition of marriage will harm members of the community or that it is contrary to their religious beliefs.
For those who understand marriage as a religious institution established by God the issue is of particular gravity. Requiring these individuals to facilitate same-sex marriages forces them to affirm an understanding of marriage that violates religious beliefs and for which they will be accountable to God. The seriousness of the issue for conscientious objectors is demonstrated by those who have refused to facilitate same-sex marriages despite suffering grave consequences, including being fired, denied government benefits, forced to close businesses and sentenced to prison (which occurred in the US case involving Kim Davis).
Conscientious objectors to facilitating same-sex marriage should be protected, considering that a failure to do so will violate the right to religious liberty. The importance of this right is strongly affirmed under international human rights law and the right has been interpreted as protecting both religious and non-religious convictions. The Commonwealth government is clearly obliged to respect religious liberty in the laws and policies it adopts and a failure to provide adequate protections will violate its commitments under international law.
However, as international human rights law makes clear, the right to religious liberty can be limited when necessary to protect other important rights. The right to equality is obviously central to the same-sex marriage movement and is frequently relied upon to argue that there should be no, or very few, concessions made for conscientious objectors to same-sex marriage. This is particularly the case considering same-sex couples who are denied services relating to their marriage often experience such rejections as a profound assault on their dignity, emotional well-being and, in some cases, their economic security and health.
There are some important responses to such a criticism.
As with religious liberty, the right to equality can also be limited when necessary to protect other rights. The “significant harm” same-sex couples may suffer from a service denial must be acknowledged, but this will often be outweighed by the greater harm suffered by the conscientious objector who loses their job, is forced to close their business or is required to defend themselves against costly and lengthy litigation.
It would also be rare for a same-sex couple to encounter a service provider who was unwilling to provide services to them. National polls routinely identify majority support for same-sex marriage which should closely correspond to the number who would be willing to provide services for same-sex marriages. The actual number may even be higher considering the financial benefit involved in providing the service and the potential for protests and boycotts if it became widely known that the business was unwilling to provide their services for same-sex marriages. Further, with support for same-sex marriage significantly higher in younger generations the number of individuals with concerns about facilitating same-sex marriage is likely to continue to decrease.
A critic of the merits of protecting conscientious objectors could argue that we should not permit discrimination against same-sex marriages as we would never permit discrimination against interracial marriages even if the objection were based in religion and that the religious adherent would suffer grave harm if legally required to facilitate the inter-racial marriage. Although such an argument may appear persuasive, an important distinction between the two positions is the legitimacy of viewing marriage as inherently a relationship between one man and one woman. Such an argument was made in the US Supreme Court decision of Obergefell that affirmed the right of same-sex couples to marry. Although the majority of the justices were in favour of same-sex marriage they nevertheless declared that ‘[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here’. On the rational basis for understanding marriage as an institution between one man and one woman Chief Justice Roberts wrote
universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
In contrast, attempts to prevent interracial marriage were motivated by irrational views that assessed the worth of individuals according to skin colour and aimed at subjugating those considered inferior. The skin colour of individuals is irrelevant to whether their relationships constitute a marriage, while the reproductive capacity of heterosexual relationships is the essential reason why the institution of marriage was ever established. The legitimacy of the position that marriage is between a man and a woman and the respectful attitude of conscientious objectors towards same-sex couples effectively distinguish their position from those who would refuse to facilitate an interracial marriage.
The claim that a State committed to respecting the right to equality must introduce same-sex marriage is also contestable, considering international jurisprudence on the right to equality and same-sex marriage. International bodies such as the Human Rights Committee and the European Court of Human Rights have held that the right to equality is not violated if a state decides not to redefine marriage to include same-sex couples. Considering the current lack of certainty regarding the meaning and applicability of the right to equality in current international human rights jurisprudence, any claim that a failure to facilitate same-sex marriage is a clear violation of the right to equality under international human rights law cannot be supported.
Further, the right to equality is a broad right that protects a range of different grounds including the grounds of religion and political opinion. A failure to protect conscientious objectors can be regarded as a violation of their right to equality as it unjustly subjects them to a detriment that they only suffer because of their religion or political opinion. The ability of both sides to rely on the right to equality indicates a need to go beyond a mere rhetorical appeal to equality and for law makers to assess the actual impact of the different approaches that the law can adopt. The comparatively greater harm typically suffered by religious adherents compared to same-sex couples provides strong support for protecting those with a conscientious objection to facilitating same-sex marriage.
Considering that conscientious objectors can rely on the rights to religious liberty and equality (as well as many other rights such as freedom of association, freedom of expression and the right to privacy) any law that introduces same-sex marriage should provide strong protections to these individuals so that they are not required to violate their deeply held beliefs about the nature of marriage. Such protections should permit individuals, companies and religious bodies with a conscientious objection to decline to facilitate a same-sex marriage and provide them with protection against discrimination by government bodies, companies and individuals for holding and acting upon their beliefs about marriage.
The importance of providing such protections should be apparent to everyone especially parliamentarians committed to introducing same-sex marriage in a manner that is respectful to all members of the community. Unfortunately, the same-sex marriage bills that have so far been introduced have failed to demonstrate adequate respect for conscientious objectors. It is particularly disappointing that most (but not all) Liberal politicians have failed to show leadership in this area especially considering that the Liberal Party’s constitution claims the party believes in ‘those most basic freedoms of parliamentary democracy — the freedom of thought, worship, speech and association’. Considering how these freedoms are threatened by poorly drafted same-sex marriage legislation it is easy to understand why so many Australians have lost confidence in the Liberal Party and have joined other political parties, such as the Australian Conservatives and the Liberal Democrats, that are more committed to respecting all members of society.
Dr Greg Walsh is a Senior Lecturer at the University of Notre Dame Australia lecturing in a range of units including human rights law. This article is an edited version of the article ‘Same-Sex Marriage and Religious Liberty’ published in the University of Tasmania Law Review.