July 16th 2016

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COVER STORY 2016 election: Malcolm makes allies malcontents

CANBERRA OBSERVED Electorate shock: PM touches reality's live wire

WA BUSHFIRE INQUIRY Ferguson report a beauty, but now the fight begins

AGRICULTURE Sweet success for farmers in Queensland sugar market


ECONOMICS Ignore scaremongers; Britannia rules apply

PUBLIC POLICY WA Meth Strategy 2016 a most welcome first step

EUTHANASIA Measure of success of Dutch tests will be death

HIGHER EDUCATION Trigger warnings: an infantile tyranny

FREE SPEECH From disagreement to discrimination: section 18C, Part 2

AUSTRALIAN HISTORY Middle Kingdom brings eternal Now down under

MUSIC Weighing up sounds and silence in John Tavener

CINEMA Memory, self and family: Finding Dory

BOOK REVIEW Mao Maoing a culture

ERICH VON MANSTEIN: Hitler's Master Strategist

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From disagreement to discrimination: section 18C, Part 2

by Augusto Zimmermann

News Weekly, July 16, 2016

This article is the second part of a slightly edited version of a paper delivered by Dr Augusto Zimmermann, LLB, LLM, PhD at the Tasmanian launch of No Offence Intended: Why Section 18C is Wrong (Connor Court, 2016), by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann. Dr Zimmermann outlines the implications for free speech of legalising same-sex marriage.


The possible legalisation of same-sex marriage presents an immediate challenge to freedom of speech and religious liberty in Australia. Arguably, churches and Christian organisations would be pushed to the margins of social life and disadvantaged in their public influence and participation in public activities.


Related to this situation, in the United States, not so long after that country’s judicial elite imposed the legalisation of same-sex marriage, the Obama administration handed down regulations requiring all entities contracting with the federal government to adhere, without exception, to absolute non-discrimination on the basis of sexual orientation and gender identity.

A plethora of state and local governments are acting in similar ways. They are banning the participation of any organisation that refuses to be publicly committed to absolute non-discrimination concerning sexual orientation, gender and gender identity. In the state of Massachusetts, for example, a venerable and respected charitable organisation was forced to stop its work of placing children and infants through adoption because it refused to violate church teachings by accepting a total non-discrimination policy on sexual orientation.

In his book, We Cannot be Silent, Dr Albert Mohler, President of the Southern Baptist Theological College, convincingly explains that “these cases are only the leading edge of a massive reorientation of American public life and American law”. So it does not come as a surprise that former Human Rights Commissioner Tim Wilson has admitted that businesses and churches in this country may very well face further prosecution under existing anti-discrimination laws if same-sex marriage is legalised. However, Wilson also argues that basic freedoms can still be protected by providing exceptions and exemptions for businesses and churches. Some of his arguments have been criticised on the grounds that exemptions and exceptions might conflict with other laws and that, ultimately, the courts would have to decide how effective these exceptions and exemptions will be.

Narrow idea of religious freedom

Referring to this problem, the Reverend Peter Kurti, a research fellow at the Centre for Independent Studies, writes: “Judges charged with identifying the appropriate balance between exempt and discriminatory behaviour may well move in the direction of developing a narrowing conception of religious liberty as they accord priority to issues of sexual identity over those of religious belief and practice. The campaign to promote same-sex marriage, which actively pursues the diminution of the religious sphere in liberal society, would therefore form part of the same wider social trend that pursues its goal of equality both by attempting to secure the removal of all differences between people, and by reducing the range and scope of exempted conduct.”

While a robust discussion about same-sex marriage takes place in Australian society, there needs to be enough legal protection for individuals and religious organisations to express their views in the public square. Since same-sex marriage is a contentious issue that the government wishes the Australian people to decide in a plebiscite, it is necessary to have a debate in which both sides are allowed to present their case openly without fear of intimidation or unfair accusations.

Accordingly, anti-discrimination laws that consider “offence” to be a valid requirement for taking legal action essentially violate a fundamental right of the citizen to express freely or without any risk of persecution their own personal opinions, no matter how undesirable such personal opinions might be. Such laws should not make hurt feelings, insult and offensiveness legitimate reasons to restrict freedom of speech, because such a very low threshold invariably impairs the ability of the targeted groups to express their own ideas and respond to adverse comments.

As properly noted by Canadian lawyer Edward H. Lipsett: “Much speech criticised as ‘hate speech’ is in response to rebuttal of speech by or in favour of the ‘protected’ groups. Allowing or even encouraging speech by or supportive of ‘protected’ groups while prohibiting certain forms of speech against such groups unfairly favours one side of the debate against the other (or at least appears to do so) and violates the principle of neutrality.

“Again, it allows the proponents of some viewpoints to fight freestyle while requiring others to observe the Marquis of Queensbury Rules. Rather than enhancing the participation or credibility of the ‘protected’ group, this real or perceived unfairness might actually create a backlash against them that could be more harmful to them than the impugned speech.”

Increasingly, the same-sex marriage lobby is using anti-discrimination legislation to prevent dissenting voices from expressing their views in the public square. That being so, former Commissioner Wilson is aware of the potential impacts of same-sex marriage advocacy on religious liberty and freedom of conscience. He is actively seeking to resolve these issues and this should provide some optimism to supporters of traditional marriage who are deeply concerned that once same-sex marriage is legalised the state would equate their traditional view with bigotry so that further legislation could be enacted that would subject them to harsh discriminatory treatment.

Marriage is “pre-political”

This is not an unreasonable assumption since, according to Heritage Foundation’s Ryan T. Anderson, “if marriage is redefined, believing what virtually every human society once believed about marriage – a union of a man and woman ordered to procreation and family life – would be seen increasingly as a malicious prejudice to be driven to the margins of culture.”

There is an undeniable statist nature in this discussion about legalising same-sex marriage. The state is effectively being asked to redefine the traditional meaning of a millenary institution that, according to traditional Christian thinking as well as the founders of classical liberalism such as English philosopher John Locke, is actually antecedent to the formation of civil government. As John Locke pointed out in Two Treatises on Civil Government: “The first society was between man and wife, which gave beginning to that between parents and children.”

In this sense, it is not unreasonable to argue that same-sex marriage advocacy amounts to a form of statism that seeks to redefine a pre-political institution that actually limits the power of the state.

In his insightful piece entitled, “Gay marriage and the growth of state intervention” (Quadrant Online, August 23, 2012), Gerard Calilhanna explains: “Here we have a major example of extreme statism, where a crucial pre-state institution that limits the power of the state is supressed and replaced by an institution that depends on the state for its existence.”

Likewise, political commentator Brendan O’Neill has argued that, broadly speaking, advocacy for same-sex marriage is “driven by a belief that [such a] marriage expands rather diminishes the power of the state over our lives”.

As he puts it: “gay marriage has nothing to do with liberty. The presentation of this as a liberal, or even libertarian, issue is highly disingenuous. For in truth, gay marriage massively expands the authority of the state in our everyday lives, in our most intimate relationships, the ultimate provider of validation to our lifestyle choices, while empowering it to police the cultural attitudes and consciences of those of a more religious or old-fashioned persuasion.”

Here lies another important question. Is the push for legislation of same-sex marriage founded in real tolerance? Given the case of Archbishop Porteous mentioned above and many other cases, it appears that the same-sex lobby is truly very intolerant. It believes that church teachings on the subject of marriage constitute an offence against homosexuals and that it should not be tolerated under anti-discrimination laws. As such, it becomes unacceptable for a church to make its case for traditional marriage because that case itself is regarded as being “offensive” and “politically incorrect”.

According to Paul Kelly, editor-at-large for The Australian newspaper, “there can be no doubting that among same-sex marriage activists the political will exists … to force the voice of the churches out from the public square on the grounds of offensiveness.”

Kelly reminds us that legalisation of same-sex marriage would imply that the laws of the state and the laws of the churches will be in conflict over the meaning of marriage, thus leading to the important question of whether the push for such a change may be at least partially motivated by an intolerant disregard for religious liberty and freedom of conscience.

“For Australia and its alleged open spirit of debate,” he concludes, “this is an unprecedented situation. It reveals an aggressive secularism dressed in the moral cause of anti-discrimination justice but with a long-run agenda that seeks to transform our values and, ultimately, drive religion into the shadows. The vanguard for this drive is the same-sex marriage campaign.”

In a truly egalitarian society every citizen’s right is respected without infringing the rights of another. Nothing excuses undermining these rights in the name of “marriage equality”. The debate about marriage equality should not be accomplished at the cost of the citizen’s right to participate in the democratic process and to share his or her values and beliefs freely.

Accordingly, religious people have as much right as anybody else to express their opinions in the public sphere. Their objections to same-sex marriage are not about an attempt to break any law or to impose discrimination upon homosexual people, but they reflect a simple disagreement on what the nature of marriage is.

They are just trying to remain true to their beliefs as their consciences dictate. They are not looking for trouble and they do not wish to deny homosexuals their fundamental rights. They only ask not to be coerced into violating their own consciences and religious beliefs.

Dr Augusto Zimmermann, LLB, LLM, PhD (Mon.), is Law Reform Commissioner, Law Reform Commission of Western Australia; Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney; Senior Lecturer in Constitutional Law and Legal Theory as well as former Associate Dean (Research) and Director of Postgraduate Research at Murdoch University School of Law; and President of the Western Australian Legal Theory Association (WALTA).

Read the first part of this article here.


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