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September 12th 2017 print

Augusto Zimmermann

Gay Marriage: After the Honeymoon

The ballots are in the mail and the question could not be more bland: "Should the law be changed to allow same-sex couples to marry?" After that, should the answer be 'yes', what next? If the overseas experience is any guide, religious liberty and freedom of conscience will be in peril

gay bibleWith same-sex marriage activists, the federal attorney-general, and five MPs working on a same-sex marriage bill arguing that there are no consequences for religious freedom to changing the definition of marriage, it is worth considering whether this might be really true. Let’s take this argument in light of what is actually happening in countries that legalised same-sex marriage, even when it was thought that religious freedom would receive full protection by the law.

It makes sense to especially consider the Canadian experience. There are important cultural and institutional similarities between Australia and Canada. The effects of redefining marriage in Canada – restrictions on free speech, parental rights in education and autonomy rights of religious institutions – is the best evidence of the short-term impact of same-sex marriage in a society very much like Australia’s.

Ever since the Canadian Parliament legalised it, in 2006, same-sex marriage must be treated identically to traditional marriage in law and public life. Civil celebrants were the first to feel the remarkable consequences of such legal change. Several provinces refused to allow civil celebrants a right of conscience to refuse to preside over same-sex weddings. At the same time religious organisations were fined for simply refusing to rent their facilities for post-wedding celebrations. Finally, ‘Queer theory’ is now part of the compulsory school curriculum, and business owners do not have freedom to deny any service to gays and lesbians for religious reasons.

Related to this situation, in the United States, soon after that country’s judicial elite arbitrarily imposed the legalisation of same-sex marriage, the Obama administration handed down regulations requiring all entities contracting with the federal government to adhere, without exception, to absolute non-discrimination on the basis of sexual orientation and gender identity. In addition, a number of state and local governments have banned the participation of any organization that refuses to be publicly committed to non-discrimination concerning sexual orientation, gender and gender identity.

In Massachusetts, a venerable charity was forced to stop its activity of placing children through adoption because it refused to violate church teachings by accepting a total anti-discrimination policy on grounds of gender identity and sexual orientation. Finally, ever since marriage was re-defined to enable two people of the same sex to marry in that country, businesses owners have been fined and put out of business when they have declined to provide services for same-sex weddings. Consider the following examples:

  • Christian bakers in Oregon were found guilty of discrimination for declining to provide a wedding cake for a lesbian couple.
  • A Colorado baker who declined to provide a cake for a same-sex wedding was ordered by the State’s Civil Rights Commission either to serve gay couples or face fines despite it being against his beliefs as a Christian.
  • New Mexico’s Supreme Court ruled that Christian photographers who declined to photograph a same-sex union violated the state’s Human Rights Act.
  • A Christian florist in Washington was prosecuted for refusing to provide flowers for a same-sex couple’s wedding. 
  • In New York owners of a farm were found to have violated the civil rights of a lesbian couple when they declined to host the couple’s same-sex ‘marriage’ ceremony and fined $13,000.

These cases are the leading edge of a massive reorientation of public life and law. Here in Australia even Tim Wilson (former Human Rights Commissioner and gay MP) admits that businesses and churches might face prosecution under anti-discrimination laws once same-sex marriage is legalised.  Wilson believes that basic freedoms still might be protected by providing exemptions for businesses and religious organisations. This can be criticised on grounds that such exemptions could conflict with other laws, so that the courts would be able to decide how effective these exceptions might be. Referring to this problem, Peter Kurti, a research fellow at the Sydney-based Centre for Independent Studies, reminds that:

Judges charged with identifying the appropriate balance between exempt and discriminatory behaviour may well move in the direction of developing a narrowing conception of religious liberty as they accord priority to issues of sexual identity over those of religious belief and practice. The campaign to promote same-sex marriage, which actively pursues the diminution of the religious sphere in liberal society, would therefore form part of the same wider social trend that pursues its goal of equality both by attempting to secure the removal of all differences between people, and by reducing the range and scope of exempted conduct.

Nonetheless, supporters of same-sex marriage in Australia (including Attorney-General George Brandis) dismiss the possible impact of the legal change on the exercise of religious freedom. Senator Brandis has told in Parliament that the Turnbull government ‘will not be tricked by those who are trying to turn a debate about one issue [i.e.; whether same-sex couples should be allowed to marry] into a broader debate about religion freedom, because that’s not what this is about’. In sum, Senator Brandis claims that the same-sex marriage plebiscite has nothing to do with freedom of speech and religion.

This is an astonishing statement! The Attorney General basically claims that religious people have nothing to worry about because their freedoms will have ‘very thorough’ protections if same-sex marriage is made legal in Australia. Responding to concerns raised by church leaders about ‘inadequate’ protections for religious freedoms, Senator Brandis said constitutional protections would be in place through exemptions in anti-discrimination laws. However, these exceptions to religious organisations are most likely to be temporary for the following reasons (notwithstanding the examples above):

The 2012 ALP dissenting Senate report on a Same-Sex Marriage bill warned that such assurances are hollow and tactical in nature rather than a matter of substance. They pointed out how Denmark has passed legislation to compel churches to officiate at Same-Sex Ceremonies.

  • The Greens have called for an end to the exemption of religious bodies from the operation of anti-discrimination laws.
  • Thirty LGBTI, human rights and legal lobby groups to the 2012 inquiry into the Consolidation of Commonwealth Anti-Discrimination Laws argued that they wanted no exemptions or narrow or temporary exemptions only for faith-based organisations, let alone for businesses and other group.
  • At least one prominent Australian lawyer, David Glasgow, has publicly repudiated any idea of exceptions and exemptions from anti-discrimination law or a same-sex marriage bill saying that it is not reasonable for business with religious objections to opt out of participating in Same-Sex Marriage.

As the country’s ‘First Law Officer of the Commonwealth’, Brandis should know that we need only to look at what happened in countries that have legalised same-sex marriage. Consider Canada for example. Anyone in that country who dares to reject the idea of same-sex marriage can be legally charged with anti-homosexual bigotry. In late October, 2016, Canada’s Senate passed Bill C-16 by 67-11 vote, which adds prohibitions against discrimination on the basis of gender identity and gender orientation to the Canadian Human Rights Act. The legislation amended the Criminal Code to extend protection against hate speech and allows judges to take into account when sentencing whether a crime was motivated by hatred of the victim’s gender identity or expression. In Canada, Dawn Stefanowicz explains:

Freedom to assemble and speak freely about man-woman marriage, family and sexuality are restricted. Activists often sit in on religious assemblies, listening for anything discriminatory towards GLBT, so a complaint can be made to the Human Rights Commission. Most faith communities have become politically correct to avoid fines and loss of charitable status.

Consider also the example of Ireland. Following the May, 2015, landslide defeat for opponents of same sex-marriage – the referendum went 62% in favour of gay marriage to 38% against – the Irish Parliament stripped away all laws which protected the rights of people to freedom of religion when in conflict with ‘gay rights’. This parliament voted unanimously to repeal Section 37 of the state’s Employment Equality Act. Section 37 granted specific exemptions for ‘religious, educational or medical institutions’ which allows them ‘to maintain the religious ethos of the institution’. Removing the section means that LGBT teachers will be free to talk to school pupils about their personal relationships, even in faith schools.

One could also take the example of Sweden. Same-sex marriage has been legal in Sweden since 2009, although priests can decline to celebrate weddings under the country’s Marriage Code. However, just eight years on from re-defining marriage, the Swedish government has recently indicated that it is currently working to ensure all priests must consecrate everyone, including same-sex couples. In an interview with a church magazine, the country’s prime minister, Stefan Lofven, has advocated the repeal of exemptions protecting religious freedom and conscience on the grounds that ‘the church must stand up for human equality’.

For many supporters of same-sex marriage, such infringements of religious freedom are not morally wrong; quite to the contrary. Georgetown University law professor Chai Feldblum, a member of the U.S. Equal Opportunity Commission, contends that so-called ‘marriage equality’ should always trump the constitutional right to religious liberty:

[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried … couples and all gay couples, this is a point where I believe the ‘zero-sum’ nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.

Increasingly, the Australian LGBT lobby is urging the adoption of anti-discrimination laws to prevent dissenting voices from expressing their views in the public square. The Labor Party enthusiastically supports same-sex marriage and it is entirely committed to the further suppression of free speech on grounds of alleged ‘anti-homosexual discrimination’. Hence, once same-sex marriage is legalised, there is an enormous possibility that the law will equate the traditional view of marriage with the notion of ‘homophobic’ bigotry. As a result, anyone who dares to criticise the homosexual agenda will be subject to very harsh legal treatment.

Above all, there are numerous precedents overseas rejecting the assumption that when same-sex marriage is introduced, religious freedom will be fully protected. Instead of addressing these issues, most of the country’s political elite think they can ignore them, calling them ‘alarmist’ and/or ‘irrelevant’. Contrary to what they say, I regret to inform that the redefinition of marriage will have broadly cultural consequences and wider social implications for this country. This is why the outcome of the marriage plebiscite will be so important for the future of our individual rights and freedoms in Australia, in particular freedom of conscience and freedom of religion. 

Dr Augusto Zimmermann is Director of Postgraduate Research and former Associate Dean (Research) at Murdoch Law School. He is the recipient of the Vice-Chancellor’s Award for Excellence in Research at Murdoch University (2012). Dr Zimmermann is also Professor of Law (Adjunct) at the University of Notre Dame Australia (Sydney campus), a former member of the Law Reform Commission of Western Australia, and President of the Western Australian Legal Theory Association (WALTA). 

 

 

Comments [31]

  1. Jody says:

    With 50% of the Aus parliament populated by gays is there any surprise SSM is such a febrile debate. Toxic.

  2. Joel B1 says:

    It’s all about frocks and church weddings.

    Mark my words.

  3. Doubting Thomas says:

    It’s the blatant dishonesty of the “Yes” proponents that disgusts me. Paul Kelly nailed it in in the Oz today. This debate, if it’s fair to call it that, well illustrates the pathetic infantilism of modern Australian society and its institutions.

  4. Peter OBrien says:

    If you need any convincing that freedom of speech and religious freedom are at risk, you only need to read Paul Kelly, who can normally be relied upon to take a Leftist position on almost anything. If he believes there is a wider agenda,you’d better believe it.

    • Jody says:

      I don’t agree Kelly normally takes a “leftist position”. I find him well-reasoned, moderate, sensible and intelligent almost all of the time. He’s a wise counsellor in media terms.

      • Warty says:

        I agree with Peter O’Brien, in that Paul Kelly can be politically ambiguous, and I certainly wouldn’t describe him as a conservative: there is too much of the MSM about him. But you’ve heard these arguments before, Jody.

        • Jody says:

          I’ve read his columns regularly and his book “Triumph and Demise” about Labor. Well written and researched; he’s a man I can respect.

          • Doubting Thomas says:

            I agree, Jody. But his views on things like global warming still stir my memories of those long-gone days when I disagreed with most of his opinions in the Oz. It will be interesting to see if those virtual clones of the younger Kelly, van Onsolen and Bramston, eventually mature, as he did, into credible commentators rather than the disingenuous ALP shills they are in their current stage of development.

  5. Homer Sapien says:

    I find it bizzare to even talk about this sordid affair.

  6. Warty says:

    One aspect Zimmermann hasn’t entered into, is how legislation aims to deal with Muslims, particularly Islamic schools, should the ‘Yes’ vote get up. We may all have heard of our Muslim community remaining mute on the issue, because they hope to piggy-back polygamy, once SSM is legislated. For them this would seem far less divisive that SSM, but they’d be prepared to wear the indignity of it until Sharia becomes the law of the land, and then nobody would be able to intercede to save the LGBTI mob.

  7. StephenD says:

    Many traditional rights will be infringed if SSM is legalised, not only rights of freedom of religion, but also the rights of freedom of conscience (whether religious or not), freedom of speech, freedom to form voluntary associations and so on. Unfortunately the big impact will be on children. I’m afraid that in my view LBGT is a sick perversion, and same sex ‘marriage’ is an abomination. I’m saying this now to avoid prosecution later.

    • Doubting Thomas says:

      And now the effective “grooming” of children for sexual abuse has become mainstream policy in state education departments.

      I despair.

      • Patrick McCauley says:

        Our whole society is absolutely being ‘groomed’ into ‘homonormality’ … which in itself will enable homosexuality (and make it fashionable to the vulnerable). ‘ Grooming’ could be viewed as the doppelgänger to ‘Education’ … in that it seeks to deceive the ‘student’ “Grooming’ is based in deception. If we ‘believe’ that homosexuality is equal to heterosexuality .. it will happen (build it and they will come) If we ‘believe’ that wind power and alternative energy will be able to power aluminium smelters and melt steel … we will find a way. Humanity has never been so alone , now – without God … like Moses … our gender explorers lead us into their godless world (the genders part like the Red Sea parted) … for us to make our way to the ‘promised land’ of Genderlessness. Fatherless children are motherless – displayed by race and gender and eye colour – in hospital factories – at different prices (for married Gay couples).

  8. Bill Martin says:

    Besides being extreme!y wary of the consequences of the legalisation of SSM on freedom of speech, religion and conscience, I do look forward to the first case of a Muslim florist, baker, photographer, etc. being charged with discrimination due to refusing to be involved with a same sex wedding for religious reasons.

  9. Keith Kennelly says:

    This pc crap was started by Mao on 1949. He wanted us to be all the same.

    No wonder it’s got to the stage of deceit and oppression it has so quickly.

    I wonder how long it is going to be before queer sexual behaviour becomes compulsory, and you’ll be regarded as homophobic if you refuse to undertake its practise.
    .

    • Lacebug says:

      You should see the PC bilge that is vomited in the form of children’s books these days. Where once we had The Railway Children, now we have the Very Hungry Caterpillar (surely a metaphor for capitalism), and books on reconciliation. My child borrowed a book yesterday called The Famous Five Go for Gender Reassignment Surgery.

      • Jody says:

        My grandson’s teacher tells him “don’t leave the light on or you’ll kill the Barrier Reef”. My eldest has got to get those kids out of state schools ASAP.

      • whitelaughter says:

        Lacebug, the good news is that those Famous 5 books are deliberately over the top. Other examples include Five Give Up The Booze, Five Forget Mother’s Day and Five On Brexit Island.

        The How It Works series also has a series of spoofs – I can recommend How It Works: The Dog. The assistance dog for helping people overcome their allergy to dog hair being a high point.

        Learning that The Very Hungry Caterpillar is wrong was a shock (Butterflies come out of chrysalises not cocoons) and the habit of children’s book of ignoring basic science is annoying. Sure, put an animal in a top hat – kids know that it is fantasy. But at least get the animalistic aspects of them correct.

  10. Lacebug says:

    I figure anything that GetUp supports can’t be a good thing. Indeed, I would make Getup my go-to-guide if you are ever in doubt about an ethical dilemma.

  11. pgang says:

    Has anybody actually received one of these pleb-shite forms yet? A monumental cockup from the disaster that is Australia Post is almost inevitable.

  12. pgang says:

    And I still don’t understand why getting people’s opinion on something carries any weight whatsoever. If the No vote gets a majority, which I suspect is likely, it will just make the brown shirts even more shrill and determined. It will just be proof that ‘more needs to be done’ to fix the broken thinking of the nobodies.

    On the very rare occasion that this issue is raised in conversation in every day life (because let’s face it – people have better things to to do than give consideration to garbage like SSM), the general mood is most definitely, ‘WTF?’.

  13. Keith Kennelly says:

    Here is a personal anecdote.

    Recently I find I am being asked by young people especially young women what my view is.

    I’ve find they are not seeking anything new but to confirm their own intuitive feelings.

    All I’ve said is I don’t agree with marriage at all, I resent being forced to choose between two options I don’t support.

    They usually laugh.

    Then I ask them to vote according to the truth in their hearts.

    I get the feeling young women are going to overwhelmingly vote no.
    Boys well they think many stupid things are ‘gay’. That prejudice is never ever going to chang. Maybe tempered but never ever changed. They have seen gay boys — up close.

  14. ArthurB says:

    Even if the plebiscite returns a No majority, SSM will still be inflicted upon us when Labor wins the next election, with accompanying legislation making any dissent a thought-crime. There may even be a police raid on Quadrant’s office, so that anyone who has posted a comment disagreeing with SSM can be identified and charged with homophobia, with an appropriate punishment. Once SSM has become law, the Left will then turn its focus on the next step, perhaps legislation to make Islamophobia a hate crime.

    I am baffled by the supine attitude of so many people, particularly the young, to the incremental loss of our freedom.

    • pgang says:

      The young are easily manipulated, just ask MacDonalds who have convinced young people to eat their expensive garbage for decades. That’s not surprising, and most of them will wise up with maturity. There is nothing we can do about this new order. The totalitarians are using our systems of power and influence to turn that power inwards. It only takes a few of them, while the general population can only look on and watch freedom evaporate. It is the recycled story of history.

  15. Keith Kennelly says:

    If the no vote is overwhelming like tween 60 and 80% Malcolm will resign in days and at the next election Shorten will see the biggest losing margin in history, if he is still leader.

  16. Keith Kennelly says:

    People have had enough.