March 10th 2018

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Articles from this issue:

COVER STORY Family home in cities soaring further out of reach

EDITORIAL Australia: sleepwalking towards the precipice

CANBERRA OBSERVED Population debate needs development debate

NATIONAL AFFAIRS We need a development bank and a higher population

FOREIGN AFFAIRS Russians were spoilers: U.S. election rap sheet

NATIONAL AFFAIRS Bob Santamaria and free trade agreements

LAW AND FREEDOM Exemptions are far cry from protection of religious freedom

INTERNATIONAL AFFAIRS China v Professor Brady: intimidation or coincidence?

POLITICS AND SOCIETY Defending biological man and woman from transgenderism

SOUTH AUSTRALIA Swing to minor parties expected in SA poll

ASIA Burma: ignored and misunderstood

HISTORY The improbability of progress

MUSIC Playing the pitch: being in tune is a sometime thing

CINEMA Wonder: Our deeds are our monuments

BOOK REVIEW Exploring our own recent archives

BOOK REVIEW Rising in a society fractured at heart

BOOK REVIEW A dubious thesis but deserves a read

NEWS Pat Byrne elected new NCC president

NATIONAL AFFAIRS Liberals return for second term in Hobart

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Exemptions are far cry from protection of religious freedom

by Augusto Zimmermann

News Weekly, March 10, 2018

The Turnbull Government went to the July 2016 election promising to put the issue of marriage to a popular vote in the form of a plebiscite. Despite narrowly winning the election, the bill the Government introduced to establish the plebiscite failed to pass in the Senate. So the Government decided to conduct a voluntary postal survey of all Australians on the electoral roll.

On November 15, 2017, the Australian Bureau of Statistics (ABS) announced the results of the voluntary Australian Marriage Law Survey. The ABS informed us that, of the 79.5 per cent of Australians who expressed their view on the question, “Should the law be changed to allow same-sex couples to marry?” the majority (61.6 per cent) indicated that the law should be changed to allow same-sex couples to marry.

On the same day that the ABS announced the results of the survey, West Australian Liberal Senator Dean Smith introduced on behalf of eight cross-party co-sponsors a bill to amend the Marriage Act 1961 (Commonwealth) so as to redefine marriage as “a union of two people” instead of between a man and a woman. The bill passed through Parliament on 7 December 7, 2017. It received royal assent on the following day and came into effect on December 9, 2017.

Sturdy design and construction.

Consoles while it protects.

In a nutshell, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is an act of the Commonwealth Parliament that legalises the marriage of “two people” in Australia. It achieves that objective by amending the Marriage Act 1961 (Commonwealth) to allow marriage between two persons of marri­ageable age, regardless of their gender or sexual orientation.

Now that marriage has been so redefined, there needs to be enough legal protection for individuals and religious organisations to express their views in the public square. In a truly egalitarian society every citizen’s right should be respected without infringing the rights of another.

Unfortunately, however, Associate Professor Neil Foster of Newcastle Law School has argued that the religious protections afforded by the bill that has just been passed in Parliament are “far too few and far too narrow”, and it does not provide adequate protection for religious freedom. He explains that the bill actually fails to protect the religious freedom of individuals such as public servants and small business owners, who are not part of a wider religious organisation.

It comes as no surprise that former human rights commissioner Tim Wilson has admitted that businesses and churches may face prosecution under existing anti-discrimination laws if marriage is redefined. Wilson thinks, however, that religious freedoms and freedom of conscience can be protected through exceptions and exemptions for businesses and churches.

This argument has been criticised on the grounds that exemptions and exceptions may conflict with other laws and that, ultimately, the courts will have to decide how effective these exceptions and exemptions will be.

Referring to this problem, the Reverend Peter Kurti, a research fellow at the Sydney-based Centre for Independent Studies, reminds us:

“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 the redefinition of 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.”

Under the amendment to the Marriage Act that redefined marriage, religious organisations would qualify as exceptions and so be exempt from having to celebrate same-sex and fluid gender marriage ceremonies. However, this is a qualified exception because the amendment states that the exception applies only if the discrimination consists of conduct engaged in good faith that conforms to the doctrines, tenets or beliefs of that religion.

Furthermore, all these exceptions and exemptions are likely to be temporary for the following reasons, among others:

The 2012 ALP dissenting Senate report on a bill to redefine marriage warned that such assurances are hollow and tactical in nature rather than a matter of substance.

The Greens have called for an end to the exemption of religious bodies from the operation of anti-discrimination laws.

Thirty LGBTQI human rights and legal lobby groups say that they want no exemptions or temporary exemptions even for faith-based organisations, let alone for businesses and other groups.

Some tensions between religious beliefs and anti-discrimination laws are currently dealt with by providing exemptions to otherwise generally applicable laws. This is the main way in which Australia at present complies with its international obligations in the area of religious freedom. And yet, once these exemptions are provided, it is not so difficult to amend an act so that “exceptions” no longer exist, or they can’t be extended to such things as schools and other services.

Furthermore, it is important to remember that the Smith bill does not affirm the right of religious institutions to establish and maintain faith-based charities in accordance with their convictions. In New Zealand, a faith-based group has recently lost its charitable status by reason only of its traditional religious view on marriage. Arguably, such a problem might be remedied by inserting a provision in the Charities Act 2013 (Commonwealth) clarifying the issue.

An article by Princeton University’s Professor of Jurisprudence Robert George highlights the fundamental error that it is to imagine that, once the legal redefinition of marriage is accepted, ministers of religion will have their right to act on their consciences without penalty, discrimination, or civil disabilities of any type. To the contrary, according to Professor George:

“[t]he fundamental error made by some supporters of conjugal marriage was and is … to imagine that a grand bargain could be struck with their opponents. ‘We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination or civil disabilities of any type. Same-sex partners will get marriage licences, but no one will be forced for any reason to recognise those marriages or suffer discrimination or disabilities for declining to recognize them.’ There was never any hope of such a bargain being accepted.

“Perhaps parts of such a bargain would be accepted by liberal forces temporarily for strategic or tactical reasons, as part of the political project of getting marriage redefined; but guarantees of religious liberty and non-discrimination for people who cannot in conscience accept same-sex marriage could then be eroded and eventually removed. After all, ‘full equality’ requires no quarter be given to the ‘bigots’ who want to engage in ‘discrimination’ (people with a ‘separate but equal’ mindset) in the name of their retrograde religious beliefs. ‘Dignitarian’ harm must be opposed as resolutely as more palpable forms of harm.” [emphasis added]

Although the freedom to select is an existential issue for religious communities of any kind, there is now a persistent campaign to remove exemptions in anti-discrimination law. These exemptions have come under sustained attack by those who erroneously characterise them as a mere licence to discriminate. And yet, as Professor Patrick Parkinson of Sydney Law School correctly observes:

“[t]he most important issue for Christians is not the freedom to discriminate, but the freedom to select on the basis of religious belief and practice, and freedom to take adverse action against an employee if necessary, where issues of personal conduct are incompatible with the values of the employing organisation.”

As can be seen, protecting human rights through exemptions may be an unsatisfactory way of implementing Australia’s international human rights obligations as regards religious freedom. For instance, the present exception for ministerial celebrants affords no protection at all in the long run. With marriage redefined, even the liberty of religious celebrants will be threatened – including that of a priest who disagrees with fluid gender marriage and denies service – because, although they may not be prosecuted for the denial of service, they may be prosecuted on the grounds of sexual orientation discrimination.

In addition, the amendment to the Marriage Act does not make it legal for religious bodies to discriminate in regard to employing workers or to whom they are prepared to provide a service. Indeed, it is clear that freedoms of religious practice – and of faith-based groups to employ people of their own religious beliefs – are not granted by exemptions in the current law.

Without clear protection for religious liberty and freedom of conscience, anti-discrimination laws will be used in a way that will require many Christians in business to decide between compromising their conviction or effectively going out of business. For example, businesspeople who refuse to participate in fluid gender weddings (such as photographers, bakers, or florists) may face legal penalties.

To conclude, exceptions to the current law do not afford substantive or genuine protection of religious freedom in the long term. The challenges Christians now face in Australia are substantial. The areas of possible conflict between religious liberty and anti-discrimination policy are already numerous and multiplying. The LGBTQI movement has at its disposal legal mechanisms for coercing religious people and organisations that can result in costly lawsuits, fines and even imprisonment.

Dr Augusto Zimmermann is Professor at Sheridan College in Perth, Western Australia. He is also Adjunct Professor of Law at the University of Notre Dame Australia, Sydney campus. He is a former Commissioner with the Law Reform Commission of Western Australia (2012–17) and a former Associate Dean (Research) at Murdoch University’s School of Law (2010–13), the founder and President of the Western Australian Legal Theory Association, a former Vice-President of the Australian Society of Legal Philosophy, a Fellow at the International Academy for the Study of the Jurisprudence of the Family, and Editor-in-Chief of the Western Australian Jurist.

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