A committed Catholic gay man, whose integrity I admire and whose hurt from ongoing homophobia I feel, recently asked me to sign a letter to Prime Minister Tony Abbott urging that Coalition members be granted a conscience vote and that the Commonwealth Marriage Act be amended promptly to include same sex marriage. He assured me that any change to the law would accommodate religious celebrants who would not celebrate gay weddings, and for religious reasons.
I declined his request, assuring him my prayers and a commitment to ongoing dialogue.
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 last month 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 is now 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 and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include same sex couples. But advocates for change need to concede the point made by church leaders in their own letter to Abbott on 5 June 2015:
Far from being unusual in the international community for not supporting ‘same-sex marriage’, Australia’s definition of marriage as a union of a man and a woman is consistent with that of the vast majority of world nations, who represent over 91 per cent of the global population.
To date, only 21 of the 193 member states of the United Nations have changed their legal definition of marriage to incorporate same-sex unions.
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, it 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.
At the moment, some religious institutions restrict facilities such as shared accommodation on a church site to married couples. Would the maintenance of that restriction to couples in a traditional marriage be judged discriminatory and unlawful? Some religious schools limit employment to teachers who follow the church teaching on sexual relations. Would the exclusion of a homosexual teacher be prohibited once the teacher had entered into a state recognised same sex marriage?
Faith based adoption agencies tend to have a preference for placing a child who is not related to any prospective adoptive parent with a family unit including an adult male and an adult female thinking that is in the best interests of the child. Would that now be judged discriminatory?
In the future, some religious groups will assert that reproductive technology should be limited so that any child will be assured a known biological mother and a known biological father regardless of whether the child is to be raised by a heterosexual couple, a homosexual couple or a single parent. Will that be judged bigoted discrimination, especially if homosexual couples are the ones most likely to want to use such developing technology to create their own children?
These questions require answers, and without claims of homophobia and simple reassurances that there is ‘nothing to fear from equality’.
The unfortunate effect of the US Supreme Court decision was that all these issues were put off to another day without discussion and with the imputation that they are the concerns only of bigots or old fashioned religious zealots. Many citizens, myself included, support the state recognition of both same sex marriage AND religious freedom exercised in speech, actions and institutional arrangements.
I readily accept that the Commonwealth Parliament will legislate for same sex marriage in the foreseeable future. When Parliament does, I will be fully accepting of that decision. I won’t lose any sleep over it, and I will be happy for people like the man who asked me to sign a letter to Abbott, hoping that it helps put an end to homophobia, especially in religious communities.
If asked by politicians how they should exercise their conscience vote, there is no way that I would say that they should not support civil recognition of same sex marriage. But neither would I say that they must support it NOW. If I were a member of parliament, I would want four assurances before I voted for same sex marriage:
1. The assurance that religious groups could continue to order their religious and church affairs consistent with their teaching on marriage.
2. The assurance that adoption authorities could always make decisions in the best interests of the child.
3. The assurance that state authorised/funded assisted reproduction services would not be expanded to allow the creation of a child without just one known biological mother and just one known biological father.
4. The assurance that those who had religious objections to same sex marriage would not be required by law to violate their own consciences in the performance of professional or artistic services (as distinct from the simple sale of goods or provision of other services) when that performance is usually enhanced by the person believing in the relationship that is being celebrated or sustained.
If those four assurances were given and if I were a member of parliament, I would vote in favour of a bill granting civil recognition to same sex marriage. It is important to emphasise that these assurances would not be contained in the amended Commonwealth Marriage Act. For example, adoption is more a matter for the states than the Commonwealth. But now is the time for the Australian community to work out the broad contours of these assurances.
Once the Marriage Act is amended, should a church school be able to decline to offer married quarters to a teacher in a same sex marriage? I would answer ‘yes’, though I would hope a church school would be open to the employment of a gay teacher living in a committed relationship. Equally I would continue to allow a church school to make a free choice as to who best to employ as a teacher.
Given the lamentable history of homophobia, I would think a good church school would be pleased to employ an openly gay teacher who respects and espouses the school’s ethos. Free choice is often better than legal prescription when trying to educate in the ways of truth and love.
Should a church aged care facility be able to decline to offer married quarters to a couple who had contracted a same sex marriage? I would answer ‘yes’, though I would hope a church facility would be open to providing such accommodation in Christian charity if it could be done in a way not to cause upset to other residents. After all, same sex marriage is a very modern phenomenon and I would favour ongoing tolerance of the residents in aged care facilities wanting to live out their last days with individuals and couples in relationships such as they have long known them.
However, even in Catholic aged care facilities, we need to admit that not all couples are living in a church recognised marriage, and it is no business of other residents to know if they are. We need to allow everyone time to adapt with good grace, provided only that we can be certain that appropriate services are available elsewhere if a church feels unable to oblige on religious grounds.
The four assurances I have listed as preconditions for signing up to civil recognition of same sex marriage will not be given by advocates at this time. If they are given, they will result from horse trading in the political process, and for that reason I don’t think it appropriate that I now simply urge the passage of a law recognising same sex marriage.
I know the delay will upset and hurt some good people who have waited too long to be rid of the curse of homophobia, but the delay could be avoided at this time if the assurances were given, or at least if the validity of the concerns was acknowledged. Some advocates will continue to fight hard claiming that no such assurances need be given, and they may well win. That’s politics.
While we wait for our politicians to decide, let’s all recommit ourselves to respectful conversation acknowledging the yearning of those who crave benign acceptance of their most loving commitments and of those who cherish religious freedom so that all citizens might live according to good conscience.
Frank Brennan SJ is professor of law at Australian Catholic University.
This article was first published in Eureka Street on 12 August 2015.