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
With 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).