Frank Brennan SJ. Free speech and the plebiscite on same sex marriage

Dec 28, 2015

Chris Puplick, a former senator and former president of the NSW Anti-Discrimination Board, is one of a rising chorus expressing strong objections to the Australian Catholic bishops daring to evangelise and speak publicly about their views on same sex marriage.

Writing in The Australian on 5 December 2015, Puplick asserts: ‘When a person or group of people is described in official publications as being seriously depraved, intrinsically disordered, less than whole and messing with kids, they are entitled to take offence, and to the extent they feel they have been vilified and subjected to hate speech they should of course seek to avail themselves of the protection against such calumnies as have been provided for by the various legislatures around Australia.

‘It is simply wrong to say that such proceedings are an attempt to deny the Catholic Church the right to ventilate its views about traditional marriage.’

I too would be very upset if my bishops were saying that homosexuals are ‘seriously depraved, intrinsically disordered, less than whole and messing with kids’. But they’re not. Think only of Pope Francis’ remark during the press conference on the plane on the way back from World Youth Day: ‘If a person is gay and seeks the Lord and has good will, who am I to judge him?’

Gone are the days of rainbow sashes outside cathedrals and threats of communion bans. The fact that Puplick can seriously caricature episcopal utterances in this way shows what a contested and emotive space we are in. All because Tony Abbott convinced his party room that it was a good idea to have a plebiscite on same sex marriage.

Many same sex couples and their supporters claim discrimination because their relationships cannot be recognised as marriage under the Commonwealth Marriage Act.

I have long claimed that our federal politicians should have a conscience vote on same sex marriage. The Labor Party muddied the waters at their national conference in July 2015 by cobbling together a compromise motion allowing a conscience vote only until 2019, with members then being bound to support same sex marriage after the election after next.

Given Labor’s abandonment of a conscience vote until the matter is finally resolved on the floor of the Parliament, the Coalition found itself more free to make its own political calculations about the utility of a conscience vote on its side of the chamber.

Given developments in countries like Ireland, the UK, Canada, New Zealand and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include committed same sex relationships.

Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents.

Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other.

Given the harmful effects of homophobia, the state has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of a church as if they were married in the eyes of their church.

The religious freedom issues involved in the same sex marriage debate are about more than making space for religious celebrants determining who they will or will not marry. Though the issues would not necessarily be covered by amendments to the Commonwealth Marriage Act, the passage of those amendments will be the trigger for revisiting and redefining these issues.

A plebiscite on this issue is a waste of time and risks turning very nasty, especially now that both the prime minister and the leader of the opposition support same sex marriage. The plebiscite advocates were opponents of same sex marriage who thought it would give them more airplay back in the days when the prime minister was a strong opponent of same sex marriage. With Malcolm Turnbull and Bill Shorten on the same page, the opponents will get little airplay.

While the debate rages, it is only appropriate that religious groups like the Catholic bishops be able to evangelise their position, especially their concern that children in future be assured a known biological mother and a known biological father.

To date, the bishops have spoken cautiously and respectfully, with perhaps the occasional lapse into loose language. They know their views are not in fashion.

It is ridiculous to have national debate on a plebiscite stifled by assertions that church teaching on marriage is offensive to some individuals, and likely to cause offence to the so-called ‘reasonable person’. National debate should not be put on hold while an anti-discrimination commissioner, egged on by her predecessor in another jurisdiction, decides whether it is arguable that a reasonable person might be offended. The commissioner and her tribunal are not the thought police. Or at least, they shouldn’t be.

The Commissioner’s processes should not be used to shut down national debate about the desirability of profound social change, silencing one side of the plebiscite debate while the other side is free to be as offensive to religious folk as they will, given that there is no state enforcer of religious niceness — and neither am I campaigning for one.

Commentators like Mr Puplick should admit that the anti-religious sentiments expressed in the present debate far exceed any traces of homophobic utterance by religious leaders.

Many of those who take offence at remarks by the bishops are those who think churches should butt out of all moral debate in the public square. On this one, we should all let a thousand flowers bloom. When the plebiscite vote is carried in favour of same sex marriage, as I am confident it will be, there will still be a need for our Parliament to legislate complex provisions protecting religious freedom and expanding the freedom to marry.

It’s only a parliament, not a plebiscite, which can legislate the complex details of equality and the protection of all rights, including the right to religious freedom.


Frank Brennan SJ is professor of law at Australian Catholic University. This is an excerpt from his Human Rights Day tribute to the Northern Territory’s Tony Fitzgerald.  This article was first published on Eureka Street on 10 December 2015.


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