As a gay men who had unfortunately experienced several episodes of discrimination and homophobia during my younger years over being gay, I have serious concerns about the potential legal and social ramifications of the growing religious conservative demands for ‘religious protections’ if marriage equality is legislated in Australia.
When it comes to religious protections, exemptions for ministers of religion, and even religious celebrants, are a given and uncontroversial.
Such protections are the global standard in the 24 liberal, secular democracies where marriage equality has been legislated already, with 1.2 billion people happily coexisting in such places. Every marriage equality bill introduced into Australia’s Parliament to date included equivalent protections.
Consequently, calls for additional ‘religious protections’ are highly suspect. Short of state-sponsored, systematic discrimination against LGBTI citizens, what else could be demanded?
Marriage equality is not some sort of ‘dire social experiment’ Australia is asked to risk, as some appear to imply.
Today, around the world close to 1.2 billion people live in 24 countries where marriage equality is legal; the Netherlands dating back to 2001.
Can someone explain how and why Australia is so different from every other liberal democracy that religions here would need extra ‘protections’, over and above the usual world-standard exemptions for ministers of religion and religious celebrants?
I also wonder how could we intellectually defend calls for allowing people to discriminate against the LGBTI community in 2017?
One of the biggest practical issues in even considering permitting discrimination on the basis of ‘deeply held religious beliefs’, or similar, is that doing so would conceivably permit adherents of one religion to refuse service to adherents of other religions (and atheists), and vice versa.
Thus, the demand for such exemptions made in the name of religious freedom could arguably make a mockery of religious freedom itself.
Unless of course the suggestion is that we draw the line strictly at the LGBTI community – a 21st century ‘gay apartheid’ if you will?!
But if we are to permit religious people to discriminate against LGBTI people, why should LGBTI people be expected to serve the people who are determined to discriminate against them purely on the basis of their ‘religious beliefs’?
In Australia we do not exempt private businesses that serve the public from anti-discrimination laws, and that system protects everyone, both the religious and the non-religious.
Professor Corvino, of Wayne State University, recorded a couple of excellent general summaries of how anti-discrimination laws work, and their importance to everyone in a liberal, secular democracy.
The fact is that marriage equality will not change the operation of existing anti-discrimination laws.
Australia has well-developed Federal and State anti-discrimination laws, which have played a strong role in creating an egalitarian, cohesive, peaceful, and respectful Australian society.
Those laws will continue to operate as they always have, and what would have been unlawful discrimination prior to marriage equality being enacted, will still be unlawful discrimination after marriage equality is enacted.
The Marriage Act has nothing to do with freedom of religion, freedom of speech, or freedoms of any kind either, other than the civil right to declare a lifelong commitment to someone you love.
Our implied freedom of political communications has nothing to do with marriage equality – this much had become clear during the marriage equality campaign to date, with opponents receiving plenty of airtime and news coverage of their opinions, four times the coverage devoted to the proponents of the ‘Yes’ campaign, despite all their complaints about being ‘silenced’.
We have seen neo-Nazi posters on the streets of Melbourne, including one calling out to ‘Stop the fags,’ a caller to ABC Radio praising Hitler for exterminating LGBTI people, online commentary equating LGBTI people with paedophiles, and the Australian Christian Lobby unashamedly comparing the equality of LGBTI people under the civil law to the rise of Nazism.
There is plenty of free speech going around, and we shouldn’t confuse the robust criticism and analysis of such arguably malicious and at a minimum outlandish claims with a threat to free speech.
After all, free speech has never been free of consequences – just ask Yassmin Abdel-Magied …
What is effectively being proposed by some in light of the current marriage equality ‘debate,’ such as enabling private businesses to legally be able to refuse service to LGBTI people, is unrealistic, unworkable, and simply incompatible with the fundamental principles of an egalitarian, liberal, secular democracy.
Ironically, the concept of ‘religious freedom’ was born out of the need to protect adherents of various religions, and sometimes even the same religion, from persecution by each other due to their differing concepts of God, or differing interpretations of the same holy text.
This was essential to achieve public cohesion and stability, and a fundamental condition for a functioning and prosperous society.
However, while arguments remain about the scope of religious freedom in modern liberal societies, it certainly can’t be allowed to be used as a weapon, to deny others their basic civil rights to equality in an egalitarian, secular society.
It would be particularly concerning to enshrine in the law the historical privileges of religion to spread uninformed and scientifically discredited ‘opinions’ with impunity.
After all, in the absence of evidence to support it, an ‘opinion’ is usually just prejudice manifest, and as such no one is simply ‘entitled’ to an opinion. There is only ‘entitlement’ to what can be rationally argued, and factually supported.
People still have the freedom to say whatever they wish of course, however, when it comes to informed debates on issues, opinions that are rooted in bigotry, hatred, ignorance, and/or prejudice, and are unable to be supported by a factually correct and intellectually coherent argument, by their nature lack the ‘informed’ component, and arguably have no useful contribution to make.
To subject the civil rights of a minority to such opinions, opinions that opponents can’t even clearly elucidate, let alone logically and reasonably support, well, that leaves a permanent and shameful stain on our egalitarian, liberal, secular democracy and history itself.
When it comes to religious objections in the current marriage equality debate, we must remind ourselves that the question we are being asked is whether our civil marriage law, the Marriage Act 1961 (Cth), should permit two unrelated, consenting adults who love each other to make a lifelong commitment to each other, and enjoy all the rights and responsibilities bestowed upon them by that status under the law.
Civil marriage under the Marriage Act, performed by marriage celebrants appointed by the Commonwealth, has nothing to do with the Churches or religion in Australia.
Of course among 1.2 billion people living in nations with marriage equality, you will always find a few cantankerous individuals who had always opposed equality to LGBTI people, or even their very existence, and will continue to cause trouble.
Although, if one looks closer at the alleged examples of so-called ‘issues’ arising from marriage equality overseas, the facts do not support those assertions.
The overseas examples used by opponents have nothing to do with marriage equality, and are caused by people attempting to disobey various other legislation, often passed long before marriage equality was legalised in that country, or which is completely unrelated.
For example, the Vishnitz Girls School in the UK failed to comply with the Equality Act 2010, passed three years before marriage equality was legalised in the UK. The Office for Standards in Education, Children’s Services and Skills (Ofsted) applied the same rules to them that apply to every other UK school, without issues elsewhere.
In the Canadian example often used, Justice Reid of the Ontario Superior Court did hold that, gasp, inclusion and equity come before individual religious accommodation in public schools, as he dismissed an application by a Greek Orthodox father to remove his children from school classes that allegedly went against his religious values.
Ontario’s Equity and Inclusive Education Strategy, first introduced in 2009, brought in new policies in schools to remove biases and ensure all students feel welcomed and accepted regardless of their beliefs, gasp again, even LGBTI youths!
This raises a very poignant question: shouldn’t public education in a progressive, liberal, secular society teach children the accepted and consensus science about … anything, including human sexuality?
In a mature, secular, democratic society, should religious and personal beliefs override scientific consensus, or what children are taught at school?
As Lawrence Krauss, the eminent American theoretical physicist and cosmologist, eloquently put it in the context of teaching creationism to children in some places in the US, ‘preventing the understanding of reality by children is a form of child abuse.’
A favourite example of opponents from closer to home, Tasmania, is also replete with misinformation and diversion.
The Catholic Archbishop of Hobart, Julian Porteous, wasn’t dragged before an anti-discrimination tribunal for ‘defending Christian teaching’.
A complaint was made because the Catholic booklet titled ‘Don’t mess with marriage,’ they distributed to the public went arguably too far by describing same-sex attracted people as not ‘whole’, and made a reference to children of same-sex couples as not ‘healthy’, and said that such children will be ‘hurt’ and ‘messed with’.
Meanwhile, the consensus by learned experts and credible studies to date is that such statements are … well, not true.
All the complainant wanted was an acknowledgment that such statements were wrong, and when the conciliation had failed, she withdrew her complaint because she never wished to drag the Archbishop through the courts, just to face up to their misleading and harmful statements.
The Marriage Act has nothing to do with educational programs in schools, whether Safe Schools or otherwise.
Yes, the LGBTI community supports Safe Schools.
Of course we do!
And no matter what you may have heard from opponents, Safe Schools is a voluntary program designed to offer tools to teachers to help them create safe and accepting school environments for LGBTI youths. The reason for the program is that LGBTI youths are still one of the most bullied and marginalised groups in Australia, with one of the highest rates of suicide as a direct consequence.
But the Australian Marriage Law Postal Survey, and the subsequent changes to the Marriage Act that may occur as a consequence of that survey, have nothing to do with Safe Schools.
Even though the fears being expressed by some over the ‘rights of children’ in the marriage equality debate have been thoroughly debunked by learned professionals, I would still be prepared to accept that those unfounded fears are at least ‘genuine,’ but for the same people and organisations now feigning concern having spent the better part of the last half century turning a blind eye to the actual sexual and physical abuse of children by their institutions, and defending those same institutions since the true horrors of their heinous crimes have been revealed.
To entertain the type of additional ‘religious protections’ now demanded by some to our anti-discrimination laws, using these half-truths and outright lies as the explanation, would be intellectual cowardice at its most dangerous.
Enshrining such exemptions in law would mean capitulation to religious intolerance and extremism itself, and to the ‘morals’ and ‘values’ of a primitive humanity from millenniums ago, captured in ancient texts even believers are forced to interpret selectively now, because many of those ‘values’ are considered morally repugnant, or even illegal, in modern, liberal, secular societies.
Professor Paul Russell of the University of British Columbia in Canada, and professor of philosophy and director of the Gothenburg Responsibility Project at the University of Gothenburg in Sweden, eloquently explains why belief-based religious world views, which are ideological or value-laden identities, simply can’t expect the same kinds of tolerance as racial, gender, or sexual identities which are unchosen, and not based on any ideological or value-laden set of commitments of a political or ethical nature.
Tragically, the Bible and God have been used by humanity as an excuse for some terrible historical wrongs.
Women accused of being witches were burnt at the stake, drowned in rivers, and hanged.
The keeping slaves, and the fight for slavery were also excused for Biblical reasons.
[Slavery] was established by decree of Almighty God … it is sanctioned in the Bible, in both Testaments, from Genesis to Revelation … it has existed in all ages, has been found among the people of the highest civilization, and in nations of the highest proficiency in the arts.
Jefferson Davis, President of the Confederate States of America
It’s time to right, or at least not to make worse, another historical religious wrong … against LGBTI people.
It is important to recognise that even learned religious scholars recognise that one man, one woman isn’t the Bible’s only marriage view. For example, despite popular belief, it does not say anywhere that marriage is exclusively the union of one man and one woman.
Times change, and as society evolves from ‘the regimen of [our] barbarous ancestors,’ our ‘laws and institutions must go hand in hand with the progress of the human mind’.
Given our current scientific understanding of the creation of the universe, it can be stated with a confidently high level of certainty that there is no such thing as ‘God’s law’, and never has been.
There was only ever the ‘laws of man’. Laws established and modified in accordance with the parameters of evolving and prevailing cultural and social norms, and the intellectual development of societies.
A secular society does not imply religious persecution, and most people of faith accept and agree that our government, political system and public service are best separated from the churches, and organised religion.
A secular society doesn’t mean that politicians and public servants, or shop keepers, can’t be people of faith – but it does mean that while they are acting as representatives of the people and agents of the secular state, or serve the public, their faith must come second to respecting the constitution, laws, and social norms of our secular democratic state, especially when their religious beliefs conflict with those laws, or social norms.
The right to observe religious beliefs is important. Religion provides comfort, and gives strength, to millions around the world. However, religion can be misused, and people’s faith cynically manipulated.
Most religious people are good, and have honourable intentions. Millions of them in fact support marriage equality because of their faith. Overwhelmingly Catholic nations such as Ireland, Malta, Brazil, Spain, and France already have marriage equality.
However in a liberal, secular democracy religious freedom is not an absolute right, and can’t be unfettered, for example:
- religious beliefs cannot be equated with, or override, proven observable facts, and consensus social and scientific theories; and
- freedom of religion must give way when it comes into conflict with the dignity of human beings.
Religious institutions must observe the separation of Church and state, and abstain from interfering in politics and public policy. Only public policy:
- guided by common decency, human dignity, and fairness; and
- informed by proven observable facts, and consensus social and scientific theories,
will be good public policy.
Such policies will arguably also always satisfy the fundamental principles of religious faith, without importing the prejudices developed and retained by their institutions over the centuries.
The historical privileges the churches enjoyed for centuries enabled them to create their own alternative reality, largely unchallenged – this will be no doubt a hard habit to kick …
In the context of the Australian Marriage Law Survey, it must also be highlighted that Australia’s Marriage Act didn’t even mention that marriage was a union of a man and a woman until 2004.
In 2004 the conservative Howard government amended the Marriage Act, without a survey or a plebiscite, and included those words, because they recognised the inevitable spread of marriage equality around the world, and were desperate to prevent it from happening in Australia.
Their biggest fear was that the original, ‘gender neutral’, wording of the Marriage Act would cause the High Court of Australia to find that it permitted marriages between two persons of the same sex.
In fact, in 2013, when the conservative Abbott government took the Australian Capital Territory to the High Court of Australia over the Territory’s new legislation permitting same-sex marriages, while the court invalidated that legislation because laws in respect of marriage are within the powers of the Commonwealth, the court made two significant points in The Commonwealth v Australian Capital Territory  HCA 55.
First, ‘s51(xxi) [of the Australian Constitution] gives the federal Parliament power to pass a law providing for same sex marriage’.
Second, ‘[w]hen used in s 51(xxi) [of the Australian Constitution], “marriage” is a term which includes a marriage between persons of the same sex’.
The second limb is why the government can’t hold a referendum on the issue – the court already effectively held that marriage equality is permitted by the Constitution.
The first limb is why we don’t need a survey or a plebiscite – the court made it clear that our Federal Parliament has the constitutional power to legislate marriage equality.
Equality before the law in a modern, secular, liberal democracy is an anti-discrimination, civil rights, equality, and social justice issue.
Such matters should never be the subject of the vagaries of public opinion, but rather of informed, impartial and thoughtful public policy, unaffected by intolerance, uninformed fears, and religious prejudices.
A liberal democracy is ‘liberal’ because it does not subject the protection of basic civil rights to a collective deliberation process; rather such rights are recognised constant, inherent, universal and unalienable and are not up for debate or a popularity contest.
Add secularity to the mix, and the religious opposition becomes flagrantly untenable, wrong, and downright contrary, in fact hostile to, and utterly incompatible with, the underlying fundamental principles of a liberal, secular democracy.
And remember, when some paint marriage equality as ‘political correctness run amok,’ and rail against ‘social justice warriors,’ what they are really taking exception to are acceptance, consideration, compassion, equality, love, and respect. Especially towards those they see as ‘lesser,’ such as the gays, the poor, the sick, the disadvantaged, asylum seekers, refugees, immigrants, and other races, women, artists, people with disabilities, and so on.
But would a world with a little more acceptance, consideration, compassion, equality, love, and respect be really such a bad place?!
My same-sex partner and I have been together for almost 19 years now. We will celebrate our 19th anniversary on 13 December.
In 2008 we couldn’t wait for equality to be legalised any longer, and we celebrated our 10th anniversary with a beautiful commitment ceremony, with our families, friends, work colleagues, and even neighbours in attendance.
Next year is our 20th anniversary. We would love to mark that special occasion by getting legally married, so we could enjoy all the legal, cultural, and social benefits, protections, and advantages that come with the institution of marriage.
We would like to do so here at home, with our families and friends helping us to celebrate two decades together, and the future that’s still ahead of us.
But time is fast running out for marriage equality to be legislated in time.
If you are yet to complete and return your ‘Australian Marriage Law Postal Survey’ form, I would ask that you consider voting ‘Yes,’ and return your form this weekend.
I can’t emphasise enough just how fundamentally critical, and life altering, the outcome of this survey will be to people like us – legally, culturally, and socially.
On a practical level, we are very keen to put behind us all the potential legal complications and uncertainties that arise from the ‘de facto’ relationship currently forced upon us.
Sadly, neither of us is getting any younger and while we are doing everything that’s currently legally possible to protect each other’s position and create some peace of mind (Power of Attorney, Enduring Power of Attorney, Will, Advanced Health Care Directive, binding superannuation nomination, etc.), a legal marriage would resolve countless uncertainties by bestowing upon us the legal, cultural, and social benefits, protections, and advantages of the institution of marriage.
We are not a threat to your children, or your way of life. We are not a threat to your freedom of speech, or your religious freedom.
We are just two people in love, seeking the protection and benefits offered by a secular law of our egalitarian, liberal, secular nation. Equality and civil rights are not a pie – you won’t be left with less because you share them with us.
So, please participate, and vote equality, vote love, vote ‘Yes’!