Greg Walsh, University of Notre Dame Australia
Many politicians have confidently claimed that the introduction of same-sex marriage does not have the potential to violate religious liberty or the rights of conscientious objectors.
This is clearly false considering the situation overseas and in Australia. If Australia is to redefine marriage, substantial protections should be provided for conscientious objectors.
Why do we need protections?
In countries where same-sex marriage is legal, people who have opposed it have been fired or forced to resign from their jobs.
Business owners such as florists, bakers and photographers have been forced to compromise their beliefs and provide their services or face legal sanctions. In one US case, this resulted in a $135,000 fine.
Religious organisations that have refused to allow their facilities to be used for same-sex marriages have been denied government benefits such as tax exemptions. Universities with more traditional positions on marriage and sexuality have been denied accreditation. Advocacy groups promoting the view that marriage is only between a man and a woman have lost their charitable status.
In rare situations, those who have refused to facilitate same-sex marriages have been imprisoned.
In Australia, where same-sex marriage has not been introduced, there are already many examples of individuals suffering from discrimination, intimidation, boycotts and legal action.
Hobart’s Catholic Archbishop Julian Porteous was required to appear before Tasmania’s anti-discrimination commissioner after distributing a letter defending traditional marriage. This followed a complaint that it violated anti-vilification laws. The complaint was withdrawn, but only after a substantial amount of time and money had been expended on the proceedings.
Opponents of the redefinition of marriage have also been forced to cancel hotel bookings for conferences and been refused printing services for books promoting traditional marriage.
People and businesses have also experienced intimidation, boycotts and even death threats. This has included university academics, corporate employees, businesses, concerned mothers, and lobby groups.
Governments have also been willing to donate to proponents of same-sex marriage and provide other benefits (such as flying rainbow flags) while denying any such support for opponents of change. This is despite 40% of the population supporting traditional marriage.
Importantly, supporters of change do not want to introduce same-sex marriage, but two-person marriage. This new definition will raise additional challenges for conscientious objectors.
Some of the issues relating to gender identity that have already arisen overseas include parents prevented from removing their children from programs encouraging students to consider their gender identity, religious schools threatened with closure if they do not address issues of sexuality and gender identity in a government-approved manner, and the possibility of parents losing custody of their children if they refuse to affirm their child’s chosen gender identity.
These are just a few examples that could be used to demonstrate the problems that may arise when marriage is redefined – especially when it has been redefined without providing substantial protections for conscientious objectors.
How to provide substantial protections
The importance of providing conscience protections is affirmed not just by opponents of change but also by advocates for same-sex marriage such as US law professor Douglas Laycock and Liberal MP Tim Wilson.
Their support indicates that conscience protections should not be seen as excusing bigotry. Rather, they are a legitimate means of best promoting everyone’s welfare.
These protections are particularly appropriate considering that a failure to adequately protect conscientious objectors violates the right to equality. This is the very right that advocates of change assert to be of such importance to the issue of marriage equality (despite international human rights law declaring that the right is not violated by a country deciding against introducing same-sex marriage).
The right to equality under international human rights law clearly protects attributes such as religion and political opinion. Examples include Articles 2 and 26 of the International Covenant on Civil and Political Rights.
A failure to protect conscientious objectors can be regarded as a violation of their right to equality. This is because it subjects them to discrimination based on their religion or political opinion.
The merits of providing such protections can also be supported on many other grounds. These include conscience rights, religious liberty, parental rights, privacy, freedom of association, the rights of children, and freedom of speech.
To provide effective protection to conscientious objectors, legislation redefining marriage should:
permit individuals, companies and religious bodies to decline to facilitate a same-sex marriage or related celebration;
protect the freedom of individuals to express their views about marriage;
ensure government action does not inappropriately undermine parental duties; and
prohibit discrimination by government bodies, companies and individuals against conscientious objectors.
Despite the importance of providing such protections, the failure of so many politicians to recognise that redefining marriage will cause Australians to suffer discrimination does not inspire confidence that these protections will be provided. If politicians won’t even recognise the potential for harm despite overwhelming evidence it is very unlikely that they will strongly advocate for comprehensive protections for conscientious objectors.
The probability of this outcome is indicated by the bills proposed this year and previously. These provided very limited protections for religious ministers, civil celebrants and religious organisations.
The failure of federal politicians to take seriously the legitimate concerns that people have about the consequences of changing our marriage laws may be one of the reasons why so many will be voting “no” at the upcoming postal ballot.
Greg Walsh, Senior Lecturer, School of Law, University of Notre Dame Australia
This article was originally published on The Conversation. Read the original article.