Given the probable success of the Yes-vote in the Australian postal survey on SSM, many are asking for a quick settlement of the issue through the Parliament. While the legislation for same-sex marriage will be relatively straightforward, the provision of anti-detriment measures for religious minorities will remain contested. What is more, it is haggling over anti-detriment provisions that will most likely hold up the pass of legislation to change the marriage act. What I want to do below is explain why we need fair and comprehensive anti-detriment protections and thus urge support for Sen. James Paterson’s bill over Sen. Dean Smith’s bill.
Some will argue for a minimalist anti-detriment measure where the only protection is that clergy cannot be forced into performing SSM ceremonies. There are two problems here.
First, not every religion has “clergy.” Many Christian denominations do not, in fact, practice ordination to clerical orders, refusing to create to a clergy/laity distinction, instead employing persons to fulfill a particular role within an assembly but with no status formally ascribed to them (very common in Brethren churches and Independent Baptists). The same problem applies to other religions since Islam and Judaism do not have a sacerdotal clergy, but their leaders have more of an academic or community-forming role. Many religions in Australia lack a formal body to train, ordain, and supervise religious workers. The idea of clergy as a kind of “first estate” is a relic of European history that faded away in the nineteenth century, the concept does not map onto a religious pluralistic country like Australia, and is a weak basis for any safeguards to religious freedom.
Second, a further problem is that most ministries and services provided by houses of worship, faith-based charities, and religious schools are not carried out by clergy, but by employees of the various religious communities. In which case, a Muslim youth worker for a Mosque, the CEO of a Jewish charity, and a Christian school principal will have no protection under the law if their religious beliefs come into conflict with persons in a same-sex marriage. It will be inevitable that non-clergy working in faith-based charities and religious schools will face litigation and other punitive measures if they maintain their traditional stance on marriage.
It is my assessment that restricting anti-detriment protections to clergy will facilitate maximal legal conflict and litigation over same-sex marriage.
Others will argue for a maximal anti-detriment measure even protecting businesses and individuals who have a conscientious objection to same-sex marriage. There are good grounds for this.
First, no business known to me – whether bakers, florists, or t-shirt printers – have declined to serve customers because they are gay. In fact, most of the businesses brought to litigation over the matter have a loyal clientele of gay customers and some even have gay employees. The proprietor’s objection was only to servicing a gay wedding ceremony because of the sacramental and thus religious connotations of a marriage ceremony, not to serving gay customers as is commonly but inaccurately reported.
Second, the issue here is not religious freedom, but freedom of conscience. While one might decry the conscience of a baker that refuses to service and celebrate a same-sex wedding, nonetheless, if one person can be compelled to do something against their conscience, so can another person. Would a gay baker be expected to bake a cake with the words of Leviticus 18:22 on it if a customer so asked? Can a Palestinian florist be compelled to provide flowers celebrating the anniversary of the establishment of the state of Israel in 1948? Can a Muslim baker be forced to make pork sausage rolls when so requested for a function? Can a former refugee and now sign-writer refuse to make signs for One Nation? Generally speaking, freedom of conscience is permitted so long as a person’s conscience does not unduly burden the welfare of another person. A doctor refusing to treat a person who is gay, black, Jewish, or a white supremacist would be a good example since their denial of service unduly burdens the freedoms or endangers the welfare of another person. However, one would have to make a good case that a baker refusing to service a same-sex wedding is an unnecessary burden if other bakers willing to bake the cake can to be found.
That said, the conscientious objection can be a slippery slope into justifying things like racism and discrimination against an entire class of persons. Freedom of conscience should be paramount, but admittedly it is not absolute. Paterson is right to propose a “limited right of conscientious objection.”
I suspect that both the minimalist and maximalist positions fail to do justice to the cultural diversity and legal minefield that we are about to enter into. Australia is a pluralistic country, made up of diverse religions and diverse sexualities, and we are facing the challenge of how to balance LGBTI+ protections from discrimination and simultaneously maintain religious freedoms. It is going to be messy because both of these elements are necessary for a free, fair, and pluralistic democracy. A lack of protection for LGBTI+ people endangers basic civil rights, while a lack of protection for religious freedom endangers one of the most foundational liberties of a democracy.
Let me clear, the need for anti-detriment protections for faith-based communities is not a last ditch and callous strike against LGBTI+ relationships. Neither is it a condescending concession from the LGBTI+ community to the Catholic Church. Rather, such protections are a necessary part of the settlement that needs to be reached in order to affirm same-sex marriage as well as guarantee religious freedom and delineate the limitations of that freedom. We need legislation that can answer the following questions:
- Can a Christian school expel a student if his or her parents are in a same-sex relationship?
- Can a Jewish employee be fired for expressing support for traditional marriage on his or her facebook page?
- Does an Islamic secondary school have to hire a gay atheist to teach English to students from a Muslim family?
- Can a potential-lawyer be denied admittance to the bar if he or she trained at a law-school that mandates that its students must adhere to a Christian standard of conduct in sexual practices for the duration of their study?
- Should a Catholic bishop be brought before a Human Rights tribunal for composing a pamphlet explaining the church’s position on same-sex marriage?
- Can a Christian wedding photographer refuse to service all same-sex weddings?
Let me stress, these are not hypotheticals, some of these are real and documented legal cases that have arisen. While LGBTI+ rights and religious freedoms are both good and valid in and of themselves, we need to know what to do when these two rights come into conflict with one another. Some may wish to apply the principle of “rock beats scissors,” so LGBTI+ rights always trumps religious liberty or religious liberty always trumps LGBTI+ rights. But it will never be so black and white. Refusing to service someone because they are gay is a clear violation of basic civil rights. Sacking someone because they support traditional marriage is also a clear violation of basic civil rights too. And we could go on!
If you think I’m some far-right apologist for homophobia and protecting antiquarian religious privileges, pleasure consider this. The American alt-right, like Milo Yanoupolous, have consistently used gay rights as a platform for Islamophobia. See his headline: The Left Chose Islam over Gays: Now 100 People are Dead or Maimed in Orlando. Or else, consider how Marine Le Penn in France claimed that she alone would protect the French LGBT people from the Muslim menace. There are those who are surreptitiously trying to use LGBTI rights as a means of prosecuting an Islamophobic agenda. Well-articulated anti-detriment laws can prevent this from happening.
It helps if we remember that the purpose of anti-detriment laws and the many exemptions that religious communities enjoy are not about deliberate discrimination, they are about creating space for Muslims to be Muslims, Jews to be Jews, and Christians to be Christian. LGBTI+ persons should not be burdened by another person’s religion, but neither should religious communities be forced into a kind of progressive orthodoxy about what they can believe and express in relation to marriage as it affects their worship, charitable work, and institutions of education.
Ultimately, this all comes down to how we do pluralism in Australia. We stand on the cusp of legislating for same-sex marriage, something that for the LGBTI+ community is the end of a long, painful, and hard-fought battle for acceptance. Nonetheless, we must do this precisely and properly, less the anti-detriment measures prove inadequate and the result will be injurious to Australia’s many and diverse religious communities.
Malcolm Turnbull has said: ““I just want to reassure Australians that as strongly as I believe in the right of same-sex couples to marry, even more strongly, if you like, do I believe in religious freedom”.
I submit that James Paterson’s rather than Dean Smith’s bill on SSM is the way to do this.