Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.
At the moment the legislation to implement SSM, a Bill introduced in his private capacity by Senator Dean Smith, already recognises a couple of areas where a religious view should be taken into account in implementing this new institution. The Smith Bill clarifies the operation of s 47 of the Marriage Act 1961, which already provides that nothing in that Part of the Act requires a minister of religion to solemnise a marriage. But by way of “avoiding doubt” on the issue, new s 47(3) provides that a minister of religion may refuse to solemnise a marriage if any of the following applies:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the minister’s religious beliefs do not allow the minister to solemnise the marriage.
In addition to this provision, the Bill sets up a new category of celebrant, a “religious marriage celebrant”, and introduces a new s 47A, which allows a religious marriage celebrant to refuse to solemnise a marriage:
(a)… if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage.
As the qualifications for being a “religious marriage celebrant” under new s39DD(1) include that the person must be a “minister of religion”, people who are religious ministers and appointed as “celebrants” under Subdivision C of Division 1 of Part IV of the Act will be protected by both s 47 and s 47A. However, new s 39DD(2) contains a “transitional provision” which allows someone who is currently registered under Subdiv C as a celebrant, but is not a minister of religion, to transfer over to the status of “religious marriage celebrant” within 90 days of commencement of the amendment. They may do so where the choice to change to this register is
(2)(c)… based on the person’s religious beliefs.
Finally, under new s 47B we read:
(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
The point to be taken from these current provisions in the Smith Bill (supported as it is by the ALP and the Greens), is that all parties concerned acknowledge that religious beliefs are worthy of respect, and that some religious beliefs are to the effect that marriage should only be between a man and a woman.
Once these points are acknowledged, then the rhetoric that all recognition of religion in the amending legislation is homophobically inspired hatred must be rejected. The debate is not about whether religious views should be taken into account; the debate concerns whose religious views should be respected, and to what extent.
That laws protecting the rights of same-sex attracted people contain provisions balancing these rights with issues raised by religious freedom should be no surprise to anyone. Discrimination laws at Federal level and in every other jurisdiction contain “balancing clauses” designed to deal with these questions.
Central questions are raised in relation to the wedding ceremony itself, some of which as noted the Smith Bill deals with. But the fact that these protections are seen as justified for ministers of religion, and religious organisations, and some current “civil” celebrants, points to the fact that the interests of other religious participants in the ceremony ought to be considered. As I said in a previous post:
A minister of religion who declines to solemnise a same sex marriage on the basis, for example, of Christian moral teaching, is not doing so because they have a hatred of gay persons. They are doing so because the union of the couple represents a sexual relationship which is not that of a man and a woman in a marriage as understood in the Bible. To bless that relationship would be to oppose God’s purposes for marriage.
But the reasons that it is legitimate to allow the minister to decline to bless a same sex marriage, are the same reasons that justify allowing a religious small business owner whose job it is to make weddings look good, from being required to “celebrate” (in the broad sense) a same sex wedding. Cases that have arisen overseas have often involved business owners, such as Baronelle Stutzman in Washington State, who have happily served gay customers for years. But what they do not want to do is to apply their artistic talents to the celebration of a union which their religious beliefs tell them is contrary to God’s will. This is not the same as denying service to a gay person simply because they are gay.
In the context of weddings the word “celebrate” can be used in two distinct ways. One is the formal legal meaning, the word “celebrate” meaning the action of performing a ceremony which constitutes the new relationship of marriage between the parties. But the other, more common meaning, is simply the “celebration” of a marriage in the sense of proclaiming to the participants to the ceremony, and to the world at large, that this union of these two people is something to rejoice about! While only the formal “celebrant” fulfils the first role, all those others who make the ceremony happen are “celebrating” in the second sense. For some of those who may be asked to provide services for a same sex wedding, their religious beliefs will mean that they cannot join in that celebration.
In the Guardian article quoted above, the author says that:
Laws prohibiting discrimination on the grounds of sexual orientation have been found by courts, in Australia and elsewhere, as a legitimate and proportionate limitation on the right to freedom of religion. For example, courts have rejected the argument that religious freedom justifies discrimination against LGBTQI people in relation to commercial accommodation, relationship counselling as well as the selling of cakes.
But the examples offered here do not tell the full story. The “cakes” case listed here is a reference to the Ashers Bakery case in the UK, where a Christian baker declined (not even in the context of an actual wedding) to provide a cake “celebrating” same sex marriage, and was fined. I have discussed this case most recently here, and it is worth noting that even one prominent same-sex activist in the UK thought that the decision went too far in imposing a burden on religious freedom. Both this decision, and a decision involving a baker from Colorado and an actual same sex wedding, are currently on appeal before the final appellate tribunals in the UK and the US respectively.
Nor is the Australian “commercial accommodation” case linked to here, a straightforward or uncontroversial decision holding that “sexual orientation” rights will always trump religious freedom. It is true that in that decision, Christian Youth Camps Limited v Cobaw Community Health Services Limited  VSCA 75, a majority of the court found that the Christian camping organisation concerned could not decline a booking from a group whose purpose was to teach that homosexuality was a “normal and natural” part of human sexuality. But on the question as to whether the employee of the organisation could be fined for that refusal, by a 2-1 majority the court found that the employee was not liable. Because the decision offered by the judges in the majority differed widely, the case has formally no ratio on that question, and so this issue remains in some doubt. (For my detailed comment on the case when handed down, see a paper linked here.)
And while the decision of the Victorian Court of Appeal gave one reading of the issues around applying church “doctrines” to the question of homosexuality, a different reading was provided by a court of equal appellate authority in Australia, the NSW Court of Appeal in OV & OW v Members of the Board of the Wesley Mission Council  NSWCA 155. In that case, the right to religious freedom of the Wesley Mission allowed them to decline to place a foster child with a same sex couple. Unfortunately the High Court of Australia declined special leave to appeal the Cobaw decision, so the reconciliation of these different approaches to current discrimination laws and religious freedom needs to await a future decision.
This is simply to say that it is not true that there is no previous example of a law attempting the strike the right balance here. Rather than leaving the matter to uncertain judicial interpretation, it would be better and clearer to spell out the views of the Parliament as to how these issues ought to be resolved. A provision protecting the rights of small business owners to decline to apply their artistic talents to the celebration of a same sex wedding, if they have a genuine religious objection to doing so, would seem to be a sensible provision reflecting what has already been accepted in the Smith Bill.
There are also other possible legal battles on these matters which it would be better to resolve up-front. Just to take one of the most obvious (there are a number of others), the question will arise whether the advocacy of the Christian view of marriage as designed only for a man and a woman will in future be attacked as “hate speech”.
Here we don’t need to speculate, as the notorious example of the action against Archbishop Porteous in Tasmania, for distributing to Roman Catholic schools a booklet explaining the Roman Catholic view of marriage, demonstrates. If Parliament enacts same sex marriage into law, then it must act to ensure that the 38% of Australians who were not in favour of the change in the recent survey are protected from this sort of litigation. At the moment it is only Tasmania that has such an over-broad provision as s 17 of its Anti-Discrimination Act 1998, prohibiting the causing of “offence” or “humiliation”. But similar legislation has been mooted in the Northern Territory. The Commonwealth Parliament ought to act to ensure that advocating for the traditional view of marriage alone is not caught by a law forbidding “offensive” or “humiliating” speech.
Australia already has a long tradition of balancing the right not to be discriminated against, with rights of religious freedom. These matters have not been invented as some last-minute rearguard action by opponents of same sex marriage; they were discussed at great length before and during the postal survey. Leaders of both political parties assured us that they cared for, and would protect, religious freedom. It is up to all members of Parliament to give these proposals the careful attention they deserve, and not to accept the simplistic arguments being put forward that such freedom can be ignored in this major social change.
About the Author:
Neil Foster is an evangelical Christian, an Associate Professor in law, a father and a grandfather. He has qualifications in both law and theology and teaches “Law and Religion” as an elective to later year law students. You can read more of Neil’s articles on his blog, Law and Religion Australia and follow his facebook page here.