QED

Same-Sex Marriage and Religious Liberty

gay question markAs 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 protections that should be provided to conscientious objectors. Such individuals may have a conscientious objection on the understanding that marriage is 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 the redefinition of marriage 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 their 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 adverse consequences including being fired from their job, denied government benefits, forced to close their business or sentenced to prison (which occurred in the US case involving Kim Davis).

Conscientious objectors to facilitating same-sex marriage should be protected. 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 that 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. Same-sex couples who are denied services relating to their marriage often experience such rejections as an assault on their dignity or emotional well-being and in some cases their economic security and health.

This essay, along with three others addressing same-sex marriage, will be re-printed in the upcoming October edition of Quadrant
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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 harm that 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 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 inter-racial 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, “Many 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:

…the 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 inter-racial 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 inter-racial 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 in Joslin v New Zealand and the European Court of Human Rights in Schalk and Kopf v Austria 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 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 an article published in the University of Tasmania Law Review.

13 comments
  • lloveday

    In the USA some homosexuals source businesses they know will refuse the service, bypassing closer businesses that would welcome the custom, merely to cause trouble and stress to the proprietors (and, hopefully, get a “damages” payout as a bonus).
    I can already envisage the AHRC’s Dr Tim Sabcdefghijklm touting for business.

  • [email protected]

    Our forebears of even just a generation ago – were they to witness the controversy over SSM – would be bewildered, if not driven insane. How did we get here, where it is considered “inappropriate”, even bigoted, to maintain the attitude that homosexuality is not normal, that people of the same sex could not possibly be considered married regardless of any legislation and needing legal protection for voicing and acting accordingly to that attitude? It is a nightmare without the prospect of awakening to sanity.

  • Jody

    We are living in brutal and tyrannical times that daily remind me more and more of the behaviour of the Bolsheviks in 1917. The default position of the Left is ALWAYS tyranny and repression and they’re demonstrating that in spades. It will come back to haunt them; I’d mortgage my house on it!!

    And my eldest son is fighting a one-man war at his childrens’ primary school, refusing to stand for “Welcome to Country” and disallowing his children from going on ‘aboriginal excursions about ‘the Dreamtime”. He told his son he wouldn’t be missing anything, “just some aboriginal dancing and a man farting through a hollow log”!! I’m outraged at the politicization of school education; it’s right out of the Goebbels book of Hitlerjugend. And scandalous that this is occurring from Kindergarten. My son has GOT to get his children out of the state education system!!

    • ianl

      The Enlightenment evolved over about 150 years as the Age of Reason 1670-1820.

      Devolution to Disenlightenment took about 60 years 1955-2015. In this Age of Identity Politics and Post-Modern gobbledegook, reason is a discarded hostage already shot through the head, twice.

      So the imputation is that the Enlightenment was a short-lived if glorious spark in human history. And I do hope its’ brevity is just inadequate sampling.

      • Jody

        Honestly? I don’t think the current and prior younger generations know anything at all about the Enlightenment, its goals and ideals. Nor are they interested in something they regard as abstract and somehow tied to the Church. They’ve been force fed so much pap – largely through popular culture and its bastard child, ‘modern education’ – that they cannot separate rubbish from fact. The few souls who do venture into the study of history do so through the prism of modernism and its self-loathing acolyte, political correctness.

        It’s abuse in its purest form.

        • ianl

          > ” I don’t think the current and prior younger generations know anything at all about the Enlightenment, its goals and ideals”

          Jody, that’s my point. Google and its’ hidden, biased search algorithms have long substituted for knowledge. Superficial “knowiness” has well and truly won, as evidenced by the millenial belief that “Google knows everything”. (Yes, I’ve heard my own children say that, often).

          I’m suggesting that the Disenlightenment started about 1955, about a decade after the WW2 mop-up, and was a fait accompli by 2015, when greeniness and anti-islamophobia were firmly established as the controlling fantasies. That required reason as a modus operandi to be recast as Dracula and staked to death, preferably on a daily basis. This sequence gets replay with every issue that the MSM chooses as “news”.

    • Warty

      I take my hat off to your eldest son, Jody, in his stance against this ridiculous recent ‘Welcome to Country’ innovation. I become strangely irrational when some part white fella go through that performance before an international rugby match. I wish I had the talent of a Bill Leak, so that I could place a series of thought bubbles above the various players (Australian or international) demonstrating what the silent majority really think. One could have a lot of fun with that.
      I don’t know, I may be imagining things, but you seem to be becoming increasingly more conservative by the month: you’ll be embracing Tony Abbott soon.

  • Stephen Due

    Many consequences may be expected to flow from SSM that will be offensive to freedom of speech, freedom of association, freedom of conscience, the rights of children and the rights of parents.
    The worst part of this prospect is the damage that will be done to children. It is already known that LBGT children have a rate of psychiatric morbidity several times that of the wider community. Teaching LBGT ideology in schools will further multiply this damage.
    Children in State schools will be taught that homosexual ‘marriage’ is normal, natural and desirable; that homosexual lifestyles are healthy and make for happiness; that people are born homosexual and this sexual orientation must never be interfered with or discouraged. All these things are false.
    More importantly they all conflict with traditional Christian teaching. So the State schools, which profess to be secular but in reality teach atheism by implication and innuendo, will be directly opposing Christian doctrine on this issue.
    Under these circumstance Christians must oppose State controlled education. They must seek to extend the scope of private Christian education, including home schooling.
    The State will respond by attempting to shut down Christian (Jewish, Islamic) schools and forbid home schooling. It will then become more obvious that we now are living in a fool’s paradise. We are the hapless citizens of an incipiently Marxist, totalitarian state.

    • Patrick McCauley

      I fear you are correct … it has already happened (while we were asleep) … the re-education/ grooming of an entire generation. That somehow we must re-discover the Christian dream in the midst of these gender wars.. and the pederasty. So often the painters have painted such a feminine compassionate Christ that we have not celebrated the problem solving maleness of his father Joseph the Chippie – who built houses – homes. Marriage works best with a patriarchy … the matriarchy cannot find its borders and cannot cope.The Marxist totalitarian state is a feminine thing and inherently unstable and reactionary.

    • Jim Kapetangiannis

      Stephen

      Did I read somewhere that universities have offered 7000 places to student who scored under 50 ATAR and that the majority of these places were in teaching degrees?

      That ancient saying re: the blind leading the blind and both falling into a pit….says it all really.

  • Warty

    A wonderfully cogent argument, but (leaving aside the Kim Davis case) I perhaps naively wonder whether you have in fact inadvertently argued that the protections are already in place. Two thirds of the way through your article you state:
    ‘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’. Though the fact that you qualify this with ‘can be regarded’ makes it seem like an opinion as opposed to a legal certainty.
    You also state: ‘As with religious liberty, the right to equality can also be limited when necessary to protect other rights. The harm that 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.’ And this was clearly the outcome for the Kentucky county clerk who did time for her religiously based objection.
    As with the QUT racial discrimination case, the process can be unreasonably stressful for all involved, which leads me to conclude that we should get rid of the human rights commission (just as Tony Abbott argues).

  • Keith Kennelly

    Warty

    You think?

    Jody is neither left nor right. She’s from the managerial class and her attitude of ‘just playing the game’ of not standing on principle to avoid bullying says she’s in the appeasement bin with Neville Chamberlin.

    That Warty is as far from conservative values as you can get.

    • Warty

      I’ve been following Jody’s threads for quite some time now, and yours: I know there’s a niggle there, which is your business, but she is not quite the black and white empty shell you seem to think she is. As with many of us there’s more complexity to her politics than you give her credit for. I don’t for a moment doubt your own conservatism, but I’ve never considered her as an equivocating appeaser.
      I’d hate Jody to think I entirely support her views, because I don’t. With Tony Abbott, for instance, I’m beginning to think his assassination was the best thing that could have happened to him, as he has reverted to the street fighter he was when in opposition. What Jody appears not to have taken into consideration are the forces (within his own party room) who were determined to do him in. One cannot judge him by what he did or not achieve as PM, because one cannot consider his achievements (or lack of) in isolation of the party room. This is a mistake made by many commentators.
      All considered, there is more to Jody than meets the eye, and I’ve never met her in person. As for me . . . you wouldn’t want to: meet me that is.

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