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Is this the ‘Wait-a-minute!’ moment in Australia’s marriage debate?

Is this the ‘Wait-a-minute!’ moment in Australia’s marriage debate?

Dilemma Question

13 July 2015 – ACL Media Release

Today’s editorial in The Australian and a commentary piece in the Weekend Australian by Editor-at-Large Paul Kelly represent welcome if not belated discussion about the consequences of legislating a new definition of marriage.

Australian Christian Lobby Managing Director Lyle Shelton welcomed the raising of freedom of conscience and freedom of religion issues by the mainstream media.

“We have been concerned for many years about the intolerance of same-sex marriage lobbyists and some politicians who say there is no place in Australia for people who do not agree with a proposed new definition of marriage,” Mr Shelton said.

Mr Shelton said Kelly was right to say there was a “haze of misinformation and emotion” surrounding the debate.

“It is admirable that supporters of same-sex marriage such as The Australian newspaper and human rights commissioner Tim Wilson acknowledge that current proposals to change marriage do not protect people who will never accept the state’s new definition.

“However, what is becoming clear is that same-sex marriage ideology is incompatible with freedom.

“All of the debate of the past five years has been about forcing people of conscience to bow to the new definition of marriage,” Mr Shelton said.

“In America and Europe individuals who exercise their conscience and publicly manifest their belief in the timeless definition of marriage are routinely being hauled before courts and tribunals. Australians would not support same-sex marriage if they knew that this was a consequence.”

Mr Shelton said Kelly was right to observe that all of the current proposals to change the definition of marriage contained no protections for individuals’ freedom of conscience and inadequate protections for religious freedom.

“Mr Kelly is right to observe that lack of protections for non-religious individuals and of religions amounted to ‘calculated intolerance’ by same-sex marriage lobbyists and their political supporters.”

Mr Shelton renewed ACL’s calls for Australian Marriage Equality head Rodney Croome to stop reporting the Catholic Church to the Human Rights Commission for distributing material promoting the benefits of gender diverse marriage.

“I note that Mr Croome last week rejected the idea of protections against legal action against individuals who did not agree with same-sex marriage.

“Also, the New South Wales independent MP and former head of AME, Alex Greenwich, should cease his attacks on the protections for religious freedom in State anti-discrimination law,” Mr Shelton said.

“There is a long way to go before thinking people could have confidence that the same-sex marriage political agenda does not reach far beyond the slogans of ‘equal love’ for two adults,” Mr Shelton said.

About Mode of Life


    Sunday May 3, 2015

    Australian Christian Lobby managing director Lyle Shelton said it was disappointing Labor Leader Bill Shorten’s tolerance of different views on marriage in Labor was today undermined by his spokesperson for families Jenny Macklin.

    “It is sad that yet another senior Labor figure wants to expel her colleagues from the party rather than persuade them as to why the definition of marriage should be changed in law,” Mr Shelton said.

    Ms Macklin’s elevation of “sexual preference” to the equivalent of racial and gender discrimination was also a disturbing development for the millions of Australians who will always wish to publicly uphold marriage as between one man and one woman, Mr Shelton said.

    “The same-sex marriage political agenda is becoming more and more intolerant. Labor’s reputation as a party of tolerance is being diminished.”

    Ms Macklin’s comments on ABC1’s Insiders program this morning prompted host Chris Uhlmann to make the obvious follow-up point:

    Uhlmann – “You are arguing that a person who disagrees with you on this is the same as a racist, that they are a bigot.”

    Macklin – “I am not calling anybody names.”

    Uhlmann – “But that is the natural extension of what you are saying.”

    Macklin – “I am not about to call anybody names. These are matters of principle. I understand that people have a different point of view.”

    Earlier Uhlmann asked Ms Macklin whether or not she supported forcing Labor MP’s and Senators to vote to redefine marriage when the issue of a conscience vote comes up at Labor’s national conference in July.

    “I don’t think Australians believe in inequality on the basis of race or gender and I don’t think we should do so on the basis of sexual preference,” Ms Macklin said.

    “So that’s the principle and that’s why I think it should be a binding issue (on Labor Parliamentarians).”

    Mr Shelton said that he was sure Ms Macklin was genuine in not wanting to be calling people names.

    “I am sure Ms Macklin is genuine in her desire not to slur the millions of Australians who will always support marriage between one man and one woman.

    “However, there is no escaping the cold hard logic of what she is saying. If ‘sexual preference’ is on the same level as race and gender then millions of Australians are no better than racists or bigots and should have no place in Australian society.

    “Where do her comments leave Christian and Islamic schools who will always wish to teach children the truth about gender in marriage?

    “Will those schools be teaching children the moral equivalent of racism?”

    Mr Shelton said anti-discrimination law rightly contained no exemptions for racial discrimination but if ‘sexual preference’ was on the same level then churches and mosques would have to be forced to marry same-sex couples.

    Churches were already being forced to marry same-sex couples in Denmark and legal pressure was mounting on churches in the UK and wedding chapels in the US.

    Just as florists, photographers, cake makers and wedding chapel owners overseas were now being legally forced to violate their consciences and serve same-sex weddings, Ms Macklin’s comments mean Australian laws would also have to be changed to force compliance here.

    Mr Shelton said Shadow Treasurer Chris Bowen’s reversal of his support for man-woman marriage today would disappoint many in his electorate.

    “I wonder if Mr Bowen has thought about the consequences of legislating a family structure which requires children to miss out on their mother or father?

    “Both Ms Macklin’s and Mr Bowen’s comments demonstrate why Australia needs a more mature debate on redefining marriage.

    “The threshold question is not equality for adults, it is whether or not it is right to intentionally deny a child their mother or father.

    “The assumption is that so-called ‘marriage equality’ has no impact on children or the wider community who might have a different view,” Mr Shelton said.

    “Legislating based on assumptions always has negative unintended consequences,” Mr Shelton said.


    The Australian Newspaper – July 11, 2015
    Paul Kelly – Editor at large, Sydney

    The central issue in any Australian recognition of same-sex marriage remains almost invisible — whether the state’s re-definition of civil marriage will authorise an assault on churches, institutions and individuals who retain their belief in the traditional view of marriage.

    It seems to this point that none of the proposals for same-sex marriage or related policy prescriptions are satisfactory laws for passage by the Australian parliament. The real issue is conceptually simple — it is whether same-sex marriage will deny conscience rights to much of the population. The alternative is a new spirit of tolerance guaranteed by law where same-sex marriage sits in parallel with undiminished ­religious liberty.

    The omens are not good. As the years advance there has been ­virtually no debate about the real issues surrounding same-sex ­marriage. The campaign for change is strong and tactically brilliant based on the ideological slogan “marriage equality”, one of the most effective slogans in many decades.

    The collapse of the moral authority of the churches, especially the Catholic Church, driven above all by the child sexual abuse phenomenon across a range of nations, has seen a depleted and often unchristian response by the churches as they singularly fail to meet the demand of same-sex marriage advocates.

    Yet the majority media reaction to this situation — “let’s get on with the change” — is ignorant and irresponsible. The real debate is probably just starting. It poses an unprecedented challenge for our law-makers. There has never been an issue like this, as the US ­Supreme Court decision made clear.

    This week in The Australian and in an interview with Inquirer, Human Rights Commissioner Tim Wilson, a strong supporter of same-sex marriage, began to confront the choice our society faces.

    Wilson advanced two propositions that shatter the haze of misinformation and emotion that surrounds this issue. First, that none of the bills on same-sex ­marriage offers anything like the essential protection of religious freedom and individual conscience. And second, that individual belief and religious freedom must be seen as “equally important” as the right to same-sex ­marriage.

    These principles have not been accepted in the debate. Indeed, they are largely denied and fought. This is the reason Wilson has raised them. The politicians will protest but their protests are worthless. Only one thing counts — the policy and legislative stand the politicians take and, so far, the protections of religion freedom are only tokenism.

    “The primary problem is that people think of religious protection just in terms of a minister of religion solemnising a marriage,” Wilson tells Inquirer. “But this is a superficial analysis of the issue. The question of religious freedom has not been taken seriously. It is treated as an afterthought. We cannot allow a situation where the law is telling people they have to act against their conscience and beliefs. We cannot protect the rights of one group of people by denying the rights of another group.”

    If the Australian parliament intends to create a legal regime with this consequence then the law-makers must justify this to the ­people and explain how such ­calculated intolerance leads to a better society. The legalisation of same-sex marriage means the laws of the state and the laws of the church will be in conflict over the meaning of the most important institution in society. This conflict between the civil and religious meaning of marriage will probably be untenable and marked by litigation, attempts to use anti-discrimination law and entrenched bitterness. But an effort ought to be made to make it tenable on the basis of mutual tolerance.

    The Amici brief to the US ­Supreme Court of four distinguished legal scholars* who support same-sex marriage offers the best statement we are likely to see on the method of reconciliation between these competing rights. “The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides,” the Amici brief argues. “Both sexual minorities and religious minorities make essentially parallel claims on the larger society.

    “Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples and religious organisations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.

    “Legislative bargaining is critical to protecting religious liberty in the growing number of states where religious objections to same-sex marriage have become unpopular.”

    If same-sex marriage is authorised in Australia, this is the approach that should prevail. If Coalition MPs who support traditional marriage were prudent they would begin preparing the legal conditions under which freedom of conscience can exist with same-sex marriage. If pro-same-sex marriage MPs were prudent they would do the same, as Wilson advocates, and if they are serious and convince traditionalists then they may find more MPs joining their ranks.

    There should be no doubt, however, about the bottom line: the Australian parliament should not legislate the right to same-sex marriage on the altar of denying institutions and individuals the right to their conscience.

    The Amici brief begins with a core proposition: the issue of religious liberty cannot be used to deny same-sex marriage. But this leads to the next proposition: the legalisation of same-sex marriage cannot be used to deploy state power against religious organisation and believers. This spirit can prevail only if churches respect same-sex couples and if same-sex couples respect religious discretion. That requires the removal of hate and malice from the ­debate. The ­essence of the moral liberation required is put in these terms: “The gain for human liberty will be greatly undermined if same-sex couples now force religious dissenters to violate their conscience in the same way that those dissenters, when they had the power to do so, forced same-sex couples to hide in the closet.”

    This raises the question about the real ideology of the same-sex marriage campaign. Is it merely to allow gays to marry? Or is its ultimate purpose to impose “marriage equality” across the entire society, civil and religious. Ideologies do not normally stop at the halfway mark. Is “marriage equality”, as designed and evolving by its advocates, an ideology that can live with two different concepts of marriage, civil and religious? The Amici brief makes clear that limiting religious exemptions to just pastors performing wedding ceremonies is completely inadequate. There is a wide range of other issues to be considered. Must religious colleges provide married housing to same-sex couples? Must churches and synagogues employ spouses in same-sex marriages even though this flouts their religious teaching? Must religious social-service agencies place children for adoption with same-sex couples?

    Will religious institutions be penalised by losing government contracts, tax exemptions and access to public facilities? Will religious institutions and schools be penalised if they teach their own beliefs about marriage, thereby contradicting the state’s view of marriage? Or will the state laws via anti-discrimination legislation be mobilised to force the state’s view on to religious institutions?

    What of the provision of ser­vices? In much of the US a gay publicist can refuse to provide services for an anti-gay event. That is acceptable under the law. Can a person decline to provide services for a gay marriage, not because the person discriminates against gays but because they see the marriage as a religious event and therefore it defies their religious beliefs? The Amici brief argues that it is essential to distinguish the two relationships — protecting the right of same-sex couples to civil marriage and protecting religious actors’ right to uphold their view of religious marriage.

    The US Supreme Court decision in Obergefell v Hodges is flawed for two reasons. First, as Chief Justice John Roberts said in dissent: “The court is not a legislator. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

    This decision is an arrogant denial of US democracy and law-making even though it follows a US tradition of law creation by the Supreme Court. The Supreme Court pre-empted the process by which state legislature after state legislature was voting on same-sex marriage.

    Justice Antonin Scalia said in dissent: “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.”

    The second problem, as Australian lawyer and priest Frank Brennan argues, is that the upshot in the US will be “years of litigation” about the rights of religious bodies that is sure to be “nasty and hard fought”. The reason is because a court decision will now replace legislative decisions.

    The consequence is writ large: where marriage equality is delivered by court decision, religious liberty is not protected. Where marriage equality in the US is delivered by the legislature there tends to be a political bargain, with religious liberty provisions of varying extents.

    The applause in this country for the US Supreme Court decision, while understandable, is a disappointing and bad omen. It suggests the public grasp of this issue in Australia is far distant from the debate that is needed.

    “I have accepted the inevitability that civil marriage in Australia will be redefined to include same-sex couples,” Brennan told Inquirer. But Brennan warned it was “another thing” to require “all persons, regardless of their religious beliefs, to treat same-sex couples even in the life and activities of the church as if they were married in the eyes of the church”.

    He poses a series of questions. Will religious institutions in Australia be able to follow current policy on shared accommodation on a church site? Will religious schools be able to limit employment to teachers who follow church teaching on sexual relations? Will faith- based adoptive agencies be able to prefer placement with a traditional family unit?

    Brennan said these and related issues “should now be squarely on the table”. In truth, this is long overdue. Brennan finished, however, on an ominous note: “Some of us support the state recognition of both same-sex marriage AND (his emphasis) religious freedom exercised in speech, actions and institutional arrangements. Sadly, many who advocate same-sex marriage have no time for those of us who espouse religious freedom as well.”

    Brennan’s fears are well placed given the debate in Australia in recent times. The politicians are not serious about this issue and neither is the media. It is reduced to a footnote of minor import yet rolled out to justify their same-sex marriage policy.

    As Wilson knows, this is not the way to proceed. It only guarantees institutional division and rancour. The core question remains: what is the real ideological objective of the same-sex marriage campaign?

    * Brief of Douglas Laycock, Thomas C. Berg, David Blankenhorn, Marie A. Failinger and Edward McGlynn Gaffney.

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