Countries such as the US, the UK, New Zealand and Canada already recognise same-sex marriages. They also have bills of rights which accord some recognition to the right to freedom of thought, conscience and religion. Australia does not yet recognise same-sex marriages – not even those marriages recognised in their countries of origin. Neither does Australia have a bill of rights with the result that the federal protection of rights such as freedom of religion is more piecemeal than in other countries. In Australia, the tendency has been to treat the freedom of religion on contested questions as an exemption to sex discrimination laws. This results in freedom of religion being treated as a second order right. But in international law, it is a first order “non-derogable” right.



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The Australian parliament will legislate this term or next term, or perhaps the term after that, to recognise same-sex marriages. No one can predict certainly which party will be in government when the legislation is passed. No one can predict certainly which preliminary steps will have been conducted prior to the introduction of the legislation. There may be a voluntary postal survey conducted by the ABS. But then again, the high court might find a problem with it, and we’ll be back to plan c with the Turnbull government or plan a with a future Shorten government.

One thing is certain. The issues surrounding religious freedom in a society which recognises same-sex marriage will not be fully resolved any time soon. Some argue that these issues should be resolved before the public votes in a compulsory plebiscite or voluntary postal survey. I can see that opponents of same-sex marriage might want to insist on this, and that supporters of same-sex marriage might regard this as a time delaying tactic. I could vote “yes” in a survey while hoping and demanding that the parliament do the hard work on religious freedoms when considering amendments to the Marriage Act. It is important to appreciate that the legal and policy changes needed to protect religious freedom would not appear in the Marriage Act but in other statutes such as the Sex Discrimination Act.

I will highlight just a handful of the practical religious freedom questions which will arise. 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 run by a church, 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.

In 2009 when chairing the national human rights consultation for the Rudd government, I was surprised to hear Bob Carr’s boast about how best to preserve religious freedom. He had joined forces with the Australian Christian Lobby and religious leaders like Peter Jensen, the Anglican Archbishop of Sydney, and George Pell, the Catholic Archbishop, opposing a federal Human Rights Act. Carr was fond of telling audiences that debates about the scope of religious freedom and the intersection between freedom of religion and non-discrimination were best and most easily resolved by the state premier receiving personal representations from the religious leaders. He and they thought that religious freedom might suffer some diminution if the right to freedom of thought, conscience and religion were included in a statutory bill of rights. Eight years on, I daresay the political influence of church leaders meeting behind closed doors with political leaders has subsided.

Two years after the national human rights consultation, the Sydney Archbishops accompanied the Australian Christian Lobby to a meeting with prime minister Julia Gillard. After the meeting, Cardinal Pell reported that the religious leaders had told the prime minister: “We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called ‘exemptions and exceptions’ in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists’ table. What is needed is legislation that embodies and recognises these basic religious freedoms as a human right.”

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In 2015, the Australian Law Reform Commission concluded a detailed assessment of traditional rights and freedoms— encroachments by commonwealth laws. Though the commission found “no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia”, it did recommend that “further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions”. In February this year, the parliament’s select committee on the exposure draft of the marriage amendment (same-sex marriage) bill unanimously reported: “Overall the evidence supports the need for current protections for religious freedom to be enhanced. This would most appropriately be achieved through the inclusion of ‘religious belief’ in federal anti-discrimination law.” Dean Smith who has drafted his own marriage amendment (definition and religious freedomsbill 2017 was a member of that committee. His bill does not deal with many of the contested religious freedom issues.

Not all of us who want these issues addressed are opponents of same-sex marriage. Not all of us who want these issues addressed are opponents of any form of plebiscite or postal survey. I am one of those Australians who will be pleased when same-sex marriages are recognised by Australian law but with adequate protection for religious freedoms. That will require painstaking respectful dialogue given the lack of a statutory bill of rights. It’s no longer good enough to treat the non-derogable right to freedom of thought, conscience and religion simply as an exemption to non-discrimination laws.