FRANK BRENNAN. Same sex marriage and freedom of religion

On Wednesday, the ABS will announce the results of the survey on same sex marriage. The return rate on the survey is a very credible 78.5 per cent. In Ireland only 60.5 per cent of eligible voters turned out.  

Sixty-two per cent of those who voted in Ireland supported a change to the Irish Constitution recognising same sex marriage. The Australian vote in support of parliament legislating for same sex marriage is likely to be even higher. If so, it will be a resounding win for the ‘Yes’ campaign. Support among Catholics will be much the same as among the community generally.

Our Parliament will have a clear mandate from the people to legislate for same sex marriage. The present mess of Australian politics will not help as our politicians work out how and when to legislate the change. Already, there are different proponents for different private members’ bills which could be presented first in either House of Parliament.

Those who have campaigned loudest and longest for a ‘No’ vote have emphasised threats to other human rights, most especially the right to freedom of conscience, religion and belief. But they are not the only ones highlighting the need to consider freedom of religion. The issue of religious freedom must be addressed.

The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill noted in its final report published in February 2017: ‘There was common ground between many groups on the need for positive protection for religious freedom. The Human Rights Law Centre and other organisations in support of same sex marriage recognised the need for Australian law to positively protect religious freedom.’

Anna Brown, Director of the Human Rights Law Centre and more recently the Spokeswoman for the Equality Campaign, told the committee: ‘Religious freedom should be protected in law. Indeed, we are on record in a number of inquiries supporting the addition of religious belief to protections under federal anti-discrimination law.’

The UN Human Rights Committee in Geneva has just published its concluding observations on its periodic review of Australia’s human rights performance. This committee, which has a reputation for a high degree of political correctness in human rights discourse, has expressed its concern ‘about the lack of direct protection against discrimination on the basis of religion at the federal level, though it notes that a parliamentary inquiry on the status of the human right to freedom of religion or belief is underway’. That parliamentary inquiry is being conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade which is to report early next year on the status of the human right to freedom of religion or belief.

“Should these provisions be extended to protect the expression of religious beliefs as well as membership of a religion and the holding of political opinion? But if you did that, how would you limit the expression of religious beliefs which might be protected?”

Some ‘No’ advocates have been arguing that all necessary protections for freedom of religion should be inserted in the amended Marriage Act. Five Liberals led by Senator Dean Smith have proposed a bill to the Liberal party room. Any bill similar to theirs would address the freedom of religious personnel not to conduct same sex marriages. It makes good sense to include in the amended Marriage Act any necessary protections of religious freedom in relation to marriage ceremonies. But other issues of religious freedom would be best considered in other pieces of Commonwealth legislation. These other amendments might take time to consider.

The other issues relate to protection for employees, protection for churches as employers and property holders, protection for churches as educators, and protection for parents and guardians wanting to teach their children according to their religious faith or wanting to spare their children teachings inconsistent with their religious faith. During the postal survey campaign, many of the ‘No’ advocates have claimed that there is considerable shortfall in these protections. None of these issues should be included in the amended Marriage Act.

Under the Fair Work Act, an employer cannot take adverse action against an employee because of their religion or political opinion. Neither can the employer terminate the employee’s employment because of the employee’s religion or political opinion. Modern awards cannot include terms which discriminate against an employee because of their religion or political opinion.

Should these provisions be extended to protect the expression of religious beliefs as well as membership of a religion and the holding of political opinion? But if you did that, how would you limit the expression of religious beliefs which might be protected? Some expressions of religious beliefs might be so whacky and so insulting to other employees as to make a civilised workplace impossible.

Under the Fair Work Act and the Sex Discrimination Act, religious employers can already discriminate against employees on the basis of their sexual orientation, marital status, religion or political opinion if the action taken is in good faith and is done to avoid injury to the religious susceptibilities of believers, and is done in accordance with the religious doctrines, tenets, beliefs or teachings.

Under the Sex Discrimination Act, religious property owners can discriminate against persons seeking accommodation on the grounds of sexual orientation or marital status when the accommodation is reserved solely for persons of one or more particular marital or relationship statuses. But they cannot discriminate when providing Commonwealth-funded aged care. Once again there may be a case for tweaking this legislation in the wake of same sex marriage. For example would a church boarding school be required to provide married quarters for a boarding master in a same sex marriage?

Under the Sex Discrimination Act, religious educators can discriminate in good faith against teachers and other staff, or even against prospective students, on the ground of their sexual orientation, gender identity, marital or relationship status ‘in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’. But what if it can be demonstrated that the adherents of the particular religion or creed voted overwhelmingly in support of same sex marriage?

These are all instances of existing legislation which may warrant tweaking in the wake of a strong ‘Yes’ vote for same sex marriage. But then again, our legislators might judge that the protections are already adequate. The major lacuna in the national architecture for freedom of religion is the lack of any legislative provision allowing persons the freedom to demonstrate their religion, belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. A provision of this sort is included in the human rights charters of Victoria and the ACT. The absence of such a provision at the national level helps explain the concern expressed by the UN Human Rights Committee.

“The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation such as the Fair Work Act and the Sex Discrimination Act.”

Australia prides itself on being a faithful signatory of the International Covenant on Civil and Political Rights. Article 18 of that Covenant spells out the right to freedom of conscience, religion and belief including ‘respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’. This has been one of the loudest complaints from the ‘No’ campaign concerned about compulsory school curricula such as the Safe Schools program.

These issues will take time to resolve. The Marriage Act should be amended promptly honouring the strong will of the Australian people for the recognition of same sex marriage. The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation such as the Fair Work Act and the Sex Discrimination Act. Our politicians then need to determine how to replicate the Victorian and ACT protection of religious freedom in national legislation.

These future legislative exercises could be facilitated by the Attorney General directing the Australian Human Rights Commission chaired by Professor Rosalind Croucher to monitor abuses or shortfalls in the protection of religious freedom in the wake of legislation for same sex marriage. The Commission could be assisted in that task by a panel of experts drawn from those who publicly supported the ‘Yes’ and ‘No’ campaigns. This way, the protection of religious freedom could become part of the core business of the Human Rights Commission, as it should in these challenging times of increasing secularisation and religious fundamentalism.

After Wednesday’s announcement, let’s hope we hear from some of our Catholic bishops repeating the sentiments of Archbishop Dermot Martin after the 2015 Irish vote: ‘The Church needs a reality check right across the board, to look at the things we are doing well and look at the areas where we need to say, have we drifted away completely from young people? … We have to stop and have a reality check, not move into denial of the realities. We won’t begin again with a sense of renewal, with a sense of denial. I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution.’ He also said that if the Irish vote was ‘an affirmation of the views of young people then the Church has a huge task in front of it to find the language to get its message across’ to them.

Wednesday will be a day of celebration for those wanting a ‘Yes’ vote. It should also be a day when we Australians recommit ourselves to respect for all citizens, especially those whose beliefs differ significantly from our own. Our politicians led us into this divisive campaign. Now they need to lead us out of it with considered and timely legislation and a commitment to better protection of human rights for all.

Frank Brennan SJ is the CEO of Catholic Social Services Australia.

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12 Responses to FRANK BRENNAN. Same sex marriage and freedom of religion

  1. Bruce Wearne says:

    Under the current, soon, it seems, to be the previous, definition of Marriage in the Marriage Act, all kinds of freedoms have been played out including ensuring the civil rights of all citizens, and with just cause since the decriminalisation of homosexuality. Freedom of speech and freedom of association have been guaranteed even for speech and association that denigrates marriage as it is defined in the Marriage Act. In that context we have seen equity legislated and ensured for all the public entitlements of same-sex couples, who have not been hindered from saying they are a married couple just like a husband and wife, even if, in their view, the law in its formulation is wrong or even unjust. To my knowledge there has been no attempt to challenge Mardi Gras for its denigration of the marriage institution on grounds hate speech; there are all kinds of other matters of popular culture that have flourished even though they can not be said to be in harmony with the view that “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. But these freedoms have occurred in consonance with the current definition in place. And now, on the cusp of this polity (even as we no longer know what a parliamentarian is!) taking “dieser Sprung in die Freiheit” (this leap to freedom) we are confronted, on all sides pro and con, both sides of the specious survey, with questions and disputation about maintaining freedom of religion. Why is this? What is so fragile in our state-crafting hitherto, in our civic and political understanding as we are distracted from these questions by “both sides of politics” which have kept us in the dark about their bi-partisanship in the 2004 amendments, from which they now walk away. Why hasn’t the detail of the Sex Discrimination Act that Frank Brennan quite rightly now refers us to, been front and centre in this bogus survey’s campaign? We now have to indulge prominent and long-serving Parliamentarians who say to those who do not believe that a same-sex union can ever be marriage, “Get out of the way!”? What generates that attempt to flag civic intolerance? Isn’t it because this world-wide movement is predicated on a view that it is self-evident that marriage can only ever be a social construction, and in this climate, it therefore has to be a human invention that we sovereignly make subject to civil rights codes? Thus we are furtively manoeuvred to accept the inevitability of marriage as a civil right. There is a deep and long-standing political problem here that has not and is not being addressed: On what grounds will this new civil right, that our Marriage Act will henceforth call “marriage”, be established? And what will it mean for Australia’s soon to be newly minted nostrum of public justice for all?

  2. brendan says:

    As always, Brennan nails it. The whole same-sex marriage debate could have been respectfully resolved if we had listened to Brennan have a conversation with himself. A genuine inner dialogue. The mark of a mature intellectual.

  3. David Maxwell Gray says:

    I have real concerns about the outcomes if yet more “rights” are defined for “religion” (perhaps read organised established and still somewhat powerful denominations) in our culture. Australia already has relatively small proportions of active practising adherents of religion. The appropriate freedoms might better be culturally endowed, rather than through black-letter law. At the very least, real care must be taken in legislating.

    As noted, Article 18 of the International Covenant on Civil and Political Rights sets out the “right” to freedom of conscience, religion and belief including ‘respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

    If encoded in statute, there may be unintended effects of this “motherhood” set of words, when misinterpreted across logical boundaries (as tends to happen), in that many important scientific concepts and facts may then be deliberately withheld from these children during their education, to their detriment and that of the community in which they then contribute. We have already seen religious Christian groups notably in the USA but also some in Australia practice extreme denial of the extraordinarily well-established science of evolution. This purports to arise on religious and moral grounds, but any connection with Christianity seems to me based on narrow literal interpretations of scriptures.

    The beauty and complexity that science continues to reveal about the natural world and the Universe adds to our understanding about them and also to our awe and wonder about the nature of God, not detracts or deconstructs, in my view.

    Legislating for beliefs can get in the way of facts, and hence, wisdom!

  4. J Knight says:

    A redefinition “…might be so whacky and so insulting to other employees as to make a civilised workplace impossible.” Are we talking about the High Court, Parliament or both?

    ‘The High Court and Parliament needs a reality check right across the board, to look at the things we, the Australian people, are doing well and look at the areas where we need to say, they have we drifted away completely from the law and constitution? …

    We have to stop and have a reality check, not move into denial of the realities. We won’t begin again with a sense of renewal, with a sense of denial of what marriage and the law and the constitution is about.

    I appreciate how gay and lesbian men and women feel on this… they feel this is something that is enriching the way they live. I think it is a social revolution…an affirmation of the views of poorly informed but well meaning young people.. but the Church and society has a huge task in front of it to find a way to stop the abuse of language to get the correct message across to them.

    500 years after what must appear to be a model priest, Frank Brennan, with all the sincerity (and error) of Luther, fails the faithful and seeks to engage the world on its terms.

    Folly!

    As Cardinal Clancy noted many years ago, the separation of the once common language of the sacred and secular – Western Law and Natural Law – is similar to two boxers ‘fighting’ in separate boxing rings…their can be no engagement. Each ‘fighter’ has a different crowd cheering for a different outcome with quite different rules!

    • P. Mansour says:

      I must point out, J. Knight, that you have completely misconstrued what Brennan said about “whacky ” expressions of religious views; it was not a reflection on the High Court or the Parliament, but considering that a blanket protection in law could be used vexatiously by people who have adopted patently irrational beliefs e.g if their religion said that thunder is the voice of God condemning sins, and all people should kiss the ground when they hear it. Now that is whacky, and I would not like legislation to be used to forbid me saying publicly that that is stupid, weird and whacky. One can freely believe in an absolutist conception of nature, and add immutability based on acceptance of infallibility; I infer that to be your position; but that will have to establish itself rationally against the argument that nature is fundamentally developmental, not static. A more powerful argument can be marshalled for the developmental approach, than can be made for the absolutist belief. Declaring “Folly!” was a premature claim to victory!

  5. Philip Bond says:

    Politicians are elected to vote on legislation, sending this to a plebiscite at a cost of $122 is a clean abrogation of their elected position plus, a cynical attempt by some to subvert a clearly simple issue. Shame on our parliament.

  6. Frank Brennan says:

    After all the divisiveness of recent months, today is a day to honour those who with dignity and perseverance have convinced their fellow Australians that the civil law should both recognise their faithful, exclusive commitments and support their families, regardless of their sexual orientation. For them, it is rightly a day of celebration. We need our politicians to lead the nation in healing the hurts caused by the plebiscite campaign. While legislating promptly for same sex marriage, our politicians also need to commit to a transparent, fair dinkum process for determining and rectifying the shortfalls in Australia’s legal architecture for the protection of religious freedom and conscientious beliefs. This must be done with all participants accepting that from now on, civil marriage in Australia will be available to any two persons wanting to commit faithfully and exclusively to each other. Here is the link to a couple of interviews I have done today. I will also participate in a panel discussion on ABC Lateline this evening. Today I join in solidarity both with those who are celebrating and with those who are worried about the future. See https://twitter.com/twitter/statuses/930557818456850432 https://twitter.com/SkyNewsAust/status/930583803017306112/video/1

  7. Peter Lynch says:

    We have known for a long time that same sex attraction is not a personal choice.
    It’s something people have or acquire very early on in life, well before birth, and it can’t
    be changed. Nor is it a rare, non-adaptive aberration. If it was, it should have died out
    long ago but it’s found in a small but significant percentage of all communities. What this
    means is that it’s simply a subset of human sexual behavior. If the experience in countries
    where same sex marriage has been permitted is any guide, its acceptance has not been
    detrimental to social harmony. It may even confer an adaptive benefit on societies at a
    family or community level.

    If you accept this science, you must also accept that discrimination against gays is no
    more acceptable than discrimination against people on account of race, hair color, height
    or any other feature not within a person’s ability to alter.

    Looked at from a religious point of view, if you believe in an omniscient and omnipotent
    god, he or she must be a pretty strange god who creates gay people and then tells them
    they are sinful for being gay. Maybe its the same god who told me as a child that eating
    meat on Friday was a mortal sin punishable by eternal torment in hell. Or perhaps it
    was the god who requires foreskins to be removed or the one who doesn’t permit hair to
    be cut if you hope to achieve eternal salvation.

    Looked at from a secular social justice point of view, we must accept that human rights
    trumps religious beliefs. Just as no amount of holy scripture can make female genital
    mutilation acceptable, so it can never be OK to dismiss an employee who chooses to
    marry a same sex partner, on the basis that it offends some god’s sensibilities. Someone
    should tell Frank Brennan that although, in our secular society, we tolerate people’s
    religious foibles regardless of how strange they are, we do so only so long as they don’t
    interfere with the human rights of others.

  8. Anne says:

    In my experience, I have concerns for students who may want to study in a secular college or university where they may be unhappy with the narrow way that post modernism is being presented without a spiritual or religious perspective, and unfortunately you may be required to read books which have a explicit pornographic content of both a homosexual nature and homosexual activity and where the content may be rated “R”. How will there freedoms be protected? It may end up where there is a division between secular and Catholic universities, but what if you want to study a course which isn’t offered by a Catholic university or is course only offered at a TAFE level, you will surely be limited in what course or career you want to follow. Does the student then become a conscientious objector or under which Legal Act is this covered by? Will they be covered by the anti – discrimination act or will they have to forgo a career in their chosen field?Questions for Fr Frank Brennan.

    • Anne, what you’re really advocating is for course material to be censored. The students wouldn’t have to agree with the required readings
      , but they might be asked to critically assess them. Do you think they are so sensitive that certain texts might corrupt them?
      I know that in schools certain books are already silently censored by not being purchased by libraries, or kept under the counter to be selectively issued to students deemed mature enough to read them. As a writer for young adults who has frequently used same- sex attracted themes I’m only too aware of the way religious freedoms already affect the reading material available to students.

  9. P. Mansour says:

    So, Anne, you want a University course to apply censorship to its content to satisfy any unease that some student might feel. A University course, among its other specific aims, has a general aim of broadening the minds of its students and provide the opportunity for students to engage with their world, religious, spiritual and secular, to debate it, to argue for or against its ethos, to develop the power of problem-solving, and create ideas for the future of their society. It is instructive that you only mention the possible exposure to homosexuality, and not sexuality itself. I taught classics at University in the ’70s, hardly a post-modern period, and the likes of Catullus and Juvenal, just to name a couple, would have to be censored by the standard you propose. Your comment seems to exhibit a faux concern just to make a narrow point.

  10. John Challis says:

    Thanks to Frank Brennan for his intelligent and humane advocacy of a Yes vote in contrast to the embarrassing arguments of most Catholic bishops, except Bishop Long of Parramata.

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