Same-Sex Marriage legislation and religious freedom in Australia
Associate Professor Neil Foster[1]
Now that Australia has, in response to the vote in a postal survey, redefined the law of marriage to allow same-sex couples to be married, what are the implications for the religious freedom of those who believe this is contrary to God’s will? This paper will simply outline some issues, all of which will need careful further thought.[2]
One preliminary point worth noting is that many of these matters are issues which would have come up even if the Australian public had not voted to change the definition of marriage to include same sex couples. Biblical Christians have been ‘out of step’ with the broader Western culture’s views on sex and marriage for some time.[3] But there are some specific issues that arise with the change in the nature of marriage, especially around the law on solemnising marriage. And there seems little doubt that the ‘moral imperative’ to approve homosexual behaviour given by the statutory recognition of same sex marriage (SSM) will encourage further opposition to Christian views on this matter.
The law of Australia on this topic was officially changed on the commencement of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) on 9 December 2017. The title of the amending legislation seemed to promise that careful attention would be paid the topic of ‘religious freedoms’; but as it turns out, the protections formally provided were fairly minimal.
Marriage Ceremony Issues
One immediate question is whether ministers of religion, who have long been authorised to celebrate marriages under Australian law, will be obliged to celebrate same sex marriages. This is one of the areas where the legislation is fairly clear; the answer is, No. Amended s 47(3) of the Marriage Act 1961 (MA) provides that ‘despite anything in this Part’ a minister of religion may decline to solemnise a same sex marriage on the basis of the ‘doctrines, tenets or beliefs’ of their religion, or if doing so would cause ‘injury to the religious susceptibilities of adherents of’ that religion, or indeed if their own private religious beliefs would prevent them from doing so.
Challenge to the refusal of a minister of religion to solemnise a same-sex marriage might be brought under discrimination law (as arguably, though this is still somewhat debatable, the decision would be based on the ‘sexual orientation’ of the parties). The Commonwealth Sex Discrimination Act 1984, which prohibits sexual orientation discrimination, has also been amended, so that s 40(2A) of that Act now means that no discrimination action can be brought against ministers of religion under that Act in relation to a decision of this sort. There is in theory the possibility of an action being brought under State and Territory discrimination laws, but in my view s 109 of the Constitution gives priority to the Commonwealth law here, and such actions would probably not be successful.[4]
What about the right of other, civil, celebrants to decline to celebrate a same sex marriage, including not only ‘private’ celebrants but also Government registry officers? The amendments have set up a complex set of rules, the gist of which is as follows:
- Purely ‘civil’ celebrants (those who are not ministers of religion) who were registered as ‘marriage celebrants’ prior to 9 Dec 2017, can opt within 90 days (i.e. prior to 9 March 2018) to be recorded on the Register of Marriage Celebrants as ‘religious marriage celebrants’ where, because of their religious beliefs, they wish to be so identified (i.e. they wish to be able to legally decline to solemnise same sex weddings, which religious marriage celebrants may do under new s 47A of the Act.)
- However, where that request has not been made in time, or where someone applies to become a marriage celebrant after 9 Dec 2017, they will not receive the protection of the legislation, and may be sued under discrimination laws if they decline to solemnise a same-sex wedding on the grounds of the sexual orientation of the parties.
- Nor will State and Territory registry officers who may have a conscientious religious objection to same sex marriage be able to decline to solemnise such weddings.
In my view, the lack of religious freedom protection for civil celebrants and for registry officials is a serious flaw in the legislation. Religious freedom, the right to act in accordance with one’s deepest commitments about life and its meaning, is a significant matter that is recognised as such in all major human rights charters. It applies not only to ‘clergy’ but also to individual believers. Public servants do not leave their religious freedom rights at home when entering the service. Requiring some believers to choose between their faith and their jobs, especially when the services being provided will be easily available from someone else, undermines the human rights of those believers.
Can religious organisations who offer their premises for weddings decline to offer them for such ceremonies? This is the final area where some religious freedom protection is provided by the new law. Under s 47B ‘bodies established for religious purposes’ may refuse to ‘make a facility available, or to provide goods or services’ for a same sex wedding, if the refusal is based on their religious beliefs.
However, there is no such protection provided for individual businesses involved in the ‘wedding industry’ who may want to decline to offer their artistic support for services for same sex ceremonies. Those opposed to such protection argue that provisions allowing such a refusal would be a ‘license to discriminate’. They are wrong. What is being objected to, is support for the message of the ceremony, and the demand that artistic talents be devoted to such celebration. These are matters that are currently being litigated at the highest judicial level in the United States and in the UK. In Craig v. Masterpiece Cakeshop, Inc., 2016 WL 1645027 (Colo Apr 25, 2016) a cake-maker in Colorado was found to have breached discrimination laws by declining to provide a wedding cake for a same-sex wedding; an appeal to the US Supreme Court was heard on Dec 7, 2017 and the decision on the appeal is pending. In Lee v McArthur & Ors [2016] NICA 39 (the Ashers Bakery case) a Northern Ireland court upheld a penalty imposed on Christian bakers for declining to provide, not a wedding cake, but a cake bearing a slogan supporting same-sex marriage. An appeal to the UK Supreme Court will be heard in April/May 2018.
Other issues arising from Same Sex marriage
There are a number of other issues which arise, not flowing directly from the ceremony as such, but from the fundamental change to the acceptance of homosexual activity evidenced by this new law. While of course, as a matter of social norms, homosexual activity has long been regarded as acceptable in Western society, formal legal equation of such activity with heterosexual marriage seems to mark a new stage in societal approval. As a result, we may expect increased challenge to views held by religious groups that such activity is contrary to God’s purposes for humanity.
One issue will be whether religious schools will be able to continue to teach their pupils the views of their religious traditions about marriage. Under the current law, religious schools are generally able to teach the views of their religion without much restriction, with the unfortunate exception of Tasmania (noted below).
One relevant legal challenge may come from laws that prohibit ‘vilification’ on the basis of sexuality. In NSW, for example, there is a prohibition on ‘homosexual vilification’ in s 49ZT of the Anti-Discrimination Act 1977 (ADA), which could in theory provide a ground for complaint about a religious school teaching the Bible’s view that homosexual practice is a sin. Of course, to breach the provision one would have to ‘incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons’, which a sensible presentation of biblical views would not do.
But if it were interpreted as such, the NSW law itself already contains ‘balancing clauses’ designed to protect religious freedom. There is a defence under ADA s 49ZT(2)(c) for material ‘done reasonably and in good faith for …religious instruction’. There is also a defence under s 56(d) of the ADA which covers actions done by religious organisations on the basis of their religious beliefs. Most other jurisdictions where this sort of ‘vilification’ is unlawful have similar balancing clauses.
However, in Tasmania there is a controversial provision making it unlawful to merely ‘offend’ someone on the basis of their sexual orientation, in s 17 of the Anti-Discrimination Act 1998 (Tas). The most general defence provision under that Act, s 55, does not apply to ‘religious purposes’. Under this law the Roman Catholic Archbishop Julian Porteous was sued for distributing a leaflet outlining the Roman Catholic view of marriage to pupils in Roman Catholic schools! While the action did not ultimately proceed, there is little in the Tasmanian law that would prevent such an action being brought again.
Despite attempts by some to deal with this matter in the Parliament during the passage of the marriage amendments, the final legislation contained no protection in this area. In theory, the Tasmanian legislation could even be invoked against someone in another State or Territory who was seen to be in breach—for example, the Tasmanian tribunal in the Porteous litigation authorised service of documents on Roman Catholic bishops around the country! A recent decision of the NSW Court of Appeal has cast serious doubt on the jurisdiction of tribunals to order penalties against those resident in other jurisdictions,[5] and an appeal in this matter is currently being considered by the High Court. Even if the legislation is confined in operation to Tasmania, however, it is an undue restriction on religious freedom of speech. Indeed, it is arguable that it may even be invalid as infringing the implied freedom of political communication under the Constitution.[6]
There is a broader question whether there will be further pressure on those who think that same sex marriage is a bad idea to not be able to put forward their views in public under these ‘vilification’ or similar laws. Will Christians be able to present the Bible’s teaching that homosexual practice is wrong in a public forum? Or even in their own church services?
The current defences under such laws in most States allow teaching in church, but there would be more uncertainty if views were presented at a public forum outside a church meeting. Still (outside Tasmania) there do seem to be general protections which will be adequate in this area at the moment. However, there may be pressure for ‘law reform’ in this area.
Another important question is whether financial support currently offered to religious organisations who provide important services to the community will be conditional on support for same sex marriage. This has become a significant issue overseas, where some Christian groups have had their funding revoked or been forced to close after not accepting the legitimacy of same-sex relationships.[7] Again, this is not dealt with under the amending legislation and may be the subject of future litigation.
Finally, in this brief overview, since the change in the marriage law there seems to be increased pressure to remove ‘balancing clauses’ in discrimination legislation which allow Christian groups not to employ someone whose views are opposed to biblical teaching on this issue. Recent comments refer to the supposed incongruity of someone being ‘married to their same sex partner on Sunday, and sacked on Monday’.[8] Of course, there is nothing inherently incongruous about this at all. No-one would imagine that ‘joined the Liberal Party on Sunday, sacked from the Labour Party on Monday’ was in any way odd. Where an organisation exists to live out particular fundamental commitments, someone who chooses to act contrary to those fundamental commitments should not expect to keep working for them. Balancing clauses of this sort have been present in Australian law ever since discrimination laws have been in operation, and are designed to strike a balance between the rights of religious freedom (an essential part of which is the right of a religious group to operate in accordance with its faith commitments), and rights not to be the subject of discrimination on irrelevant grounds.[9]
What should churches and religious organisations do?
In light of the fact that there are at least some protections available where organisations have fundamental beliefs on matters of sex and marriage, it may be wise for churches and religious organisations to be very clear that their ‘doctrines, tenets or beliefs’ extend to the Bible’s views on these issues, as well as to the more formal theological creeds that are followed.
The reason for this is that churches will want to be sure that these matters fall within the relevant protected area, especially in light of the fact that the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Services Limited [2014] VSCA 75 held that beliefs on sexual morality may not fall within the meaning of the word ‘doctrine’.[10]
One option would be for the governing body to issue a document headed ‘Doctrines, tenets and beliefs’. This document might say that, in addition to the formal theological doctrinal statement of the church (contained in existing sources), the doctrines and tenets of the church include a commitment to a biblical view on marriage and sexual morality, including that (for example)
- Sexual relationships are only legitimate when between a man and a woman who are married to each other;
- Marriage is a union between one man and one woman to the exclusion of all others, voluntarily entered into with the intention of that lasting for the joint lives of the parties;
- A person’s gender is determined by their biological sex at birth, except in the rare case of ‘intersex’ individuals with a disorder of sex development where there is a clear physiological ambiguity;
- Homosexuality is not part of God’s good purposes for humanity.[11]
The document could also spell out, if appropriate, that the organisation expects that all those who exercise pastoral leadership or responsibility will adhere to biblical standards of sexual morality, and that deviation from those standards may be a ground for biblically based church discipline.
Conclusion
Religious freedom, for a person committed to a biblical world-view, is not an ultimate good. The Bible tells us that there is one God whom all should worship. But in the context of the current world, it seems that the best way to further the cause of proclamation of the gospel is for the law of the land to support the freedom of all people to preach and practice, within reasonable limits, their religious beliefs. Paul seems to have something similar in mind when in 1 Timothy 2:1-4 he urges that:
supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. This is good, and it is pleasing in the sight of God our Saviour, who desires all people to be saved and to come to the knowledge of the truth.
Christian people who want to live godly lives will not submit to a law that requires them to affirm sexual behaviour that is condemned by God’s word, or to deny the truth of the Bible in this area in the way that they live or the values they teach their children. Preserving religious freedom in this area, for Christians, will preserve the freedom to proclaim both the gospel and the implications of the gospel. In an age where sex is becoming more and more an idol which people pursue, it is vital to speak the truth of the word of God where it attacks this idol.[12]
Paul’s own example in Acts shows that he was able to use the legal framework of the freedoms conferred on its citizens by the Roman Empire to take the message of the risen Jesus around the Mediterranean. Christians should continue to pray for, and work for, a legal system that allows everyone in the community to hear the message of the gospel and to respond in repentance and faith.
The changes to the law of marriage bring into sharp focus the contrast between the Christian world-view and that of majority Western culture. In my view, while Christians have an opportunity to glorify God by presenting his vision for marriage to the world, in solemnising and helping to celebrate marriages consistent with God’s creation purposes for mankind, we should continue to do so. Christian organisations should continue to present biblical marriage as the God-given norm for humanity—the way that men and women are meant to be joined together as an image of the fruitful and life-giving connection between Christ and his church (Eph 5:32). To do so, some of us will need to be part of a policy debate about religious freedom. This is one important way of supporting open and continued proclamation of the life-giving gospel of Jesus.
[1] Associate Professor of Law, Newcastle Law School, University of Newcastle. These comments are of course my views and not those of my institution. They should not be taken as formal legal advice on the issues involved. See https://lawandreligionaustralia.blog for more material on related issues.
[2] For a more detailed analysis, though written before the precise form of the changes was known, see my paper ‘Legal implications of same sex marriage for Christian life and ministry’, available at http://forbetterorforworse.org.au/resources/neil_fosters_paper.pdf (Oct 2016).
[3] Of course, to be ‘out of step’ with a popular modern trend does not automatically mean to be wrong! C S Lewis captured this brilliantly in The Voyage of the Dawn Treader where Prince Caspian responds to a local governor objecting to his abolition of the slave trade: ‘But that would be putting the clock back,’ gasped the Governor. ‘Have you no idea of progress, of development?’ ‘I have seen them both in an egg,’ said Caspian. ‘We call it Going Bad in Narnia…’ (chapter 4)
[4] For more detailed justification for this view, see my paper ‘Protecting Religious Freedom in Australia Through Legislative Balancing Clauses’ available at: http://works.bepress.com/neil_foster/111/ , esp pp23-26.
[5] See Burns v Corbett; Gaynor v Burns [2017] NSWCA 3.
[6] See the recent decision in Brown v Tasmania [2017] HCA 43 (18 October 2017), where this implied freedom was held to invalidate other Tasmanian legislation prohibiting political protests near workplaces.
[7] For example, in the US, Roman Catholic adoption agencies in Boston, San Francisco, Washington DC, and Illinois have been forced to close on the basis that they will not place children with same sex couples (see http://www.usccb.org/issues-and-action/religious-liberty/discrimination-against-catholic-adoption-services.cfm ). In New Zealand, the Christian lobby group ‘Family First’ has been subject to two attempts by the Charities Board to have its charitable status removed, on the basis that its policies (including opposition to same sex marriage) ‘cannot be determined to be for the public benefit’; the second decision is now under review by the courts, after a court ruling that the earlier attempt was invalid (see https://www.familyfirst.org.nz/2017/09/family-first-blocks-deregistration-by-charities-board/ ).
[8] See this video from Prof Paula Gerber from Monash University: https://youtu.be/elJxgcginHs .
[9] For further comments on this area, see my blog post ‘Religious groups and employment of staff’ (Dec 20, 2017) at https://lawandreligionaustralia.blog/2017/12/20/religious-groups-and-employment-of-staff/ .
[10] See paras [276]-[277], adopting the views of a lower Tribunal.
[11] Support for these views, and options for better wording if desired, might be found in the Nashville Statement – see https://cbmw.org/nashville-statement , and in the Sydney Anglican Diocese statement on these matters A Theology of Gender and Gender Identity https://www.sds.asn.au/sites/default/files/ATheologyOfGenderAndGenderIdentity(SydDoctrineCommission).Aug2017.pdf?doc_id=NTQ3NjY= .
[12] See Peter Jensen’s cogent comments in ‘How important is Sex?’ (10 Jan 2018) at https://www.gafcon.org/blog/how-important-is-sex .
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