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Same sex marriage and freedom of religion

Monday, 20 November 2017  | Frank Brennan


On Wednesday, the ABS will announce the results of the survey on same sex marriage. The return rate on the survey is a very credible 78.5 per cent. In Ireland only 60.5 per cent of eligible voters turned out.

Sixty-two per cent of those who voted in Ireland supported a change to the Irish Constitution recognising same sex marriage. The Australian vote in support of parliament legislating for same sex marriage is likely to be even higher. If so, it will be a resounding win for the 'Yes' campaign. Support among Catholics will be much the same as among the community generally.

Our Parliament will have a clear mandate from the people to legislate for same sex marriage. The present mess of Australian politics will not help as our politicians work out how and when to legislate the change. Already, there are different proponents for different private members' bills which could be presented first in either House of Parliament.

Those who have campaigned loudest and longest for a 'No' vote have emphasised threats to other human rights, most especially the right to freedom of conscience, religion and belief. But they are not the only ones highlighting the need to consider freedom of religion. The issue of religious freedom must be addressed.

The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill noted in its final report published in February 2017: 'There was common ground between many groups on the need for positive protection for religious freedom. The Human Rights Law Centre and other organisations in support of same sex marriage recognised the need for Australian law to positively protect religious freedom’.

Anna Brown, Director of the Human Rights Law Centre and more recently the Spokeswoman for the Equality Campaign, told the committee: 'Religious freedom should be protected in law. Indeed, we are on record in a number of inquiries supporting the addition of religious belief to protections under federal anti-discrimination law’.

The UN Human Rights Committee in Geneva has just published its concluding observations on its periodic review of Australia's human rights performance. This committee, which has a reputation for a high degree of political correctness in human rights discourse, has expressed its concern 'about the lack of direct protection against discrimination on the basis of religion at the federal level, though it notes that a parliamentary inquiry on the status of the human right to freedom of religion or belief is underway'. That parliamentary inquiry is being conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade which is to report early next year on the status of the human right to freedom of religion or belief. 

Some 'No' advocates have been arguing that all necessary protections for freedom of religion should be inserted in the amended Marriage Act. Five Liberals led by Senator Dean Smith have proposed a bill to the Liberal party room. Any bill similar to theirs would address the freedom of religious personnel not to conduct same sex marriages. It makes good sense to include in the amended Marriage Act any necessary protections of religious freedom in relation to marriage ceremonies. But other issues of religious freedom would be best considered in other pieces of Commonwealth legislation. These other amendments might take time to consider.

The other issues relate to protection for employees, protection for churches as employers and property holders, protection for churches as educators, and protection for parents and guardians wanting to teach their children according to their religious faith or wanting to spare their children teachings inconsistent with their religious faith. During the postal survey campaign, many of the 'No' advocates have claimed that there is considerable shortfall in these protections. None of these issues should be included in the amended Marriage Act.

Under the Fair Work Act, an employer cannot take adverse action against an employee because of their religion or political opinion. Neither can the employer terminate the employee's employment because of the employee's religion or political opinion. Modern awards cannot include terms which discriminate against an employee because of their religion or political opinion.

Should these provisions be extended to protect the expression of religious beliefs as well as membership of a religion and the holding of political opinion? But if you did that, how would you limit the expression of religious beliefs which might be protected? Some expressions of religious beliefs might be so whacky and so insulting to other employees as to make a civilised workplace impossible.

Under the Fair Work Act and the Sex Discrimination Act, religious employers can already discriminate against employees on the basis of their sexual orientation, marital status, religion or political opinion if the action taken is in good faith and is done to avoid injury to the religious susceptibilities of believers, and is done in accordance with the religious doctrines, tenets, beliefs or teachings.

Under the Sex Discrimination Act, religious property owners can discriminate against persons seeking accommodation on the grounds of sexual orientation or marital status when the accommodation is reserved solely for persons of one or more particular marital or relationship statuses. But they cannot discriminate when providing Commonwealth-funded aged care. Once again there may be a case for tweaking this legislation in the wake of same sex marriage. For example would a church boarding school be required to provide married quarters for a boarding master in a same sex marriage?

Under the Sex Discrimination Act, religious educators can discriminate in good faith against teachers and other staff, or even against prospective students, on the ground of their sexual orientation, gender identity, marital or relationship status 'in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'. But what if it can be demonstrated that the adherents of the particular religion or creed voted overwhelmingly in support of same sex marriage?

These are all instances of existing legislation which may warrant tweaking in the wake of a strong 'Yes' vote for same sex marriage. But then again, our legislators might judge that the protections are already adequate. The major lacuna in the national architecture for freedom of religion is the lack of any legislative provision allowing persons the freedom to demonstrate their religion, belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. A provision of this sort is included in the human rights charters of Victoria and the ACT. The absence of such a provision at the national level helps explain the concern expressed by the UN Human Rights Committee.

Australia prides itself on being a faithful signatory of the International Covenant on Civil and Political Rights. Article 18 of that Covenant spells out the right to freedom of conscience, religion and belief including 'respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions'. This has been one of the loudest complaints from the 'No' campaign concerned about compulsory school curricula such as the Safe Schools program.

These issues will take time to resolve. The Marriage Act should be amended promptly honouring the strong will of the Australian people for the recognition of same sex marriage. The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation such as the Fair Work Act and the Sex Discrimination Act. Our politicians then need to determine how to replicate the Victorian and ACT protection of religious freedom in national legislation.

These future legislative exercises could be facilitated by the Attorney General directing the Australian Human Rights Commission chaired by Professor Rosalind Croucher to monitor abuses or shortfalls in the protection of religious freedom in the wake of legislation for same sex marriage. The Commission could be assisted in that task by a panel of experts drawn from those who publicly supported the 'Yes' and 'No' campaigns. This way, the protection of religious freedom could become part of the core business of the Human Rights Commission, as it should in these challenging times of increasing secularisation and religious fundamentalism.

After Wednesday's announcement, let's hope we hear from some of our Catholic bishops repeating the sentiments of Archbishop Dermot Martin after the 2015 Irish vote:

The Church needs a reality check right across the board, to look at the things we are doing well and look at the areas where we need to say, have we drifted away completely from young people? ... We have to stop and have a reality check, not move into denial of the realities. We won't begin again with a sense of renewal, with a sense of denial. I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution.

He also said that if the Irish vote was 'an affirmation of the views of young people then the Church has a huge task in front of it to find the language to get its message across' to them.

Wednesday will be a day of celebration for those wanting a 'Yes' vote. It should also be a day when we Australians recommit ourselves to respect for all citizens, especially those whose beliefs differ significantly from our own. Our politicians led us into this divisive campaign. Now they need to lead us out of it with considered and timely legislation and a commitment to better protection of human rights for all.

Frank Brennan SJ is the CEO of Catholic Social Services Australia.


This article first appeared on 9th November 2017 at https://www.eurekastreet.com.au/article.aspx?aeid=54315. Reproduced with permission.


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