One of the fears of many religious people have around marriage equality is that it will erode their freedom to practice their religion. How valid is this concern? My thesis is this: marriage equality will throw up questions about religious freedom, but they will not be new questions. As a society we have become more pluralist and are now working through how we protect how we protect the various freedoms of each other in a pluralist context. This has been going on for quite some time. It is a critically important discussion to have, but it is not created by nor will it be particularly exacerbated by the recognition of marriage equality.
Freedom of religion has never meant that there are no constraints placed upon the practice of religion in the public sphere. I’m not allowed to use freedom of religion as an excuse for engaging in abusive behaviour towards other people. A violent parent may well argue that severe corporal punishment towards his children is part of his religious belief system, and quite sincerely justify it by quoting the bible “Do not withhold discipline from your children; if you beat them with a rod, they will not die. If you beat them with the rod, you will save their lives from Sheol.” (Proverbs 23). This will not however prevent the state from removing children from that parent, for freedom of religion can never be equated with freedom to harm.
Similarly, while I’m free to have my own views on the morality of different relationship arrangements, I’m not free to vilify or verbally abuse people whose relationships I don’t approve. I received a group email this week that was offensive to the extreme in the way it spoke about people who are gay and lesbian. It did not simply argue that same-sex partnerships were not within the will of God, but it suggested that homosexual people were the most thoroughly corrupt and degraded members of our society and hellbent on destroying all that is good in our communities. I have toned the language down dramatically, but suffice it to say this went beyond stating a religious conviction and was nothing less that hate speech designed to humiliate and degrade homosexual people and to encourage others to treat them with disdain and disregard. This type of speech is quite rightly outlawed and it has been for a long time. Marriage equality will not stop conservative Christians arguing that homosexual partnerships lie outside God’s will for humankind. Freedom of religion and freedom of speech have always guaranteed that you can hold positions that are highly offensive to others. But what you cannot do is humiliate, degrade and incite violence against people on the basis of your religion.
In response to this claim some people throw up examples of allegations of hate speech brought against Christians when they were simply saying that they thought homosexual partnerships were wrong. For example, this week I read a document surveying the outcomes in Canada 10 years after same-sex marriage was legalised. The paper cited three or four instances of Christians having to answer allegations that their language about homosexuality overstepped the bounds of decency and legality. What they didn’t tell you in the paper was in every instance the cases were either dropped before it making it to court or thrown out by the courts. So the upshot was over the course of 10 years there were less than a handful of cases in which allegations were made that Christians had unfairly discriminated against gay people, and were found not to have done so. This is hardly evidence of an attack upon freedom of religion. I would have thought it’s the precise opposite – the courts defending freedom of religion and freedom of speech.
The situation becomes more complicated when it comes to churches providing services on behalf of the State. Difficulties arise when the values of the church conflict with the values of the state on whose behalf the church is delivering services. For example, when I conduct a wedding ceremony I’m acting as a representative not only of my church but of the State. At present, provision is made for ministers of religion to refuse to provide marriage services when it conflicts with their religious values. For example, some ministers refuse to marry couples who are living together. The way we have made space for freedom of religion in this instance is to ensure that there are enough civil celebrants available that anybody who wishes to be married and meets the legal requirements can do so, while at the same time granting celebrants with religious convictions freedom to discriminate. It would not however be unreasonable for the State to argue that if I want to conduct wedding ceremonies on it’s behalf I must offer them to all people who qualify for marriage under the laws of the state. If that was the case, and I felt I had to hand back my marriage license because of objections to marrying couples who were living together or to marrying couples of the same sex, it would not constitute an attack upon my freedom of religion. I’m not being told I cannot practice my faith. There is nothing preventing me conducting ceremonies of blessing upon a marriage. What I’ve been told is I cannot act a representative of the state and refuse to provide the services the state offers.
At times the state refuses to allow groups acting on its behalf to live out their religious values in the way they would prefer. For a number of years my children attended a quite conservative Christian school that held creationist views of the origins of the universe and life. I am sure that if the leadership of the school had their way, they would have opted not to teach evolution. Yet given evolution is the dominant scientific narrative of origins, the school was quite correctly obliged to teach evolution as part of the science curriculum. In this instance the religious convictions of the school community were not allowed to override the educational responsibilities of the state.
As our society becomes more pluralist more of these types of dilemmas will present themselves. And at times will be difficult to balance freedom of religion with other freedoms. This will require us as a community to exercise the wisdom of Solomon, to discern the best way to structure our communities so that the freedoms of all citizens, including religious freedoms, are maximised. But we should be clear that when I can no longer provide services of the state because it conflicts with my religious values, I’m not losing freedom of religion – nothing prevents me from holding to those values personally and living them out in my life – what I’m losing is the ability to represent the state.
What then of circumstances where I’m a private citizen running a private business? If I am a baker who believes that same-sex marriages are against the will of God, should I be free to refuse to make a cake for a gay wedding? Again these are questions that I think will be challenging for us to work through, but they are not new. They won’t suddenly descend upon us because of marriage equality legislation. The conservative Christian baker presumably asks the same question when she is invited to bake a cake celebrating a couple moving in together without being married, or celebrating the birth of a child out of wedlock, or a congratulations cake for the person celebrating a move into a $50 million mansion.
I think it would be entirely reasonable for the State to say that all citizens should expect to be treated equally in commercial transactions and that religious freedom would only apply if the baker is forced to act contrary to the tenets of her faith, which hardly seems the case here. I don’t think any reasonable person would assume that by fulfilling an order to make a cake for a gay wedding the baker is any more expressing her endorsement of same-sex marriage than they would assume the baker was endorsing a particular football team by fulfilling an order for a cake in the team colours. Even if they are asked to write “congratulations on your wedding” on the cake, it’s a commercial transaction in which it is clearly understood that the writing is not the endorsed view of the baker, but that of the person ordering the cake.
The Christian baker might feel uncomfortable about baking that cake, but that’s what happens when you live in communities that are diverse. Functioning communities require us to act with generosity, kindness and grace towards each other.
So the upshot of it all is this. As our society has become more pluralist we find that there are increasing instances where the values of some people’s religious faith bang up against those of people who don’t share their faith. This is nothing new and it is not a situation created by the possibility of marriage equality. We have debated these questions ferociously for a number of years around exemption from antidiscrimination provisions for religious bodies, schools, welfare services, and the like. Recognition of same-sex relationships as marriage will likely throw up some new scenarios in which we have to work through these questions, but the questions will not be new, just the application.
So let us have the discussions about religious freedom and how it is exercised in a religiously and politically plural society. Religious freedom is one of the core freedoms of humankind and I suspect it will be a good decade or two, or even more, before we strike the right balance as a community. But please, let’s not fall for the fear mongering that suggests recognition of marriage equality is somehow going to steal away your rights as a religious person.
POST SCRIPT ADDED 15/08/2017
The paper referred to in my post was published by the Witherspoon Institute in 2012 and titled “same-sex marriage 10 years on: lessons from Canada“. The paper cites a number of cases to show that “much speech that was permitted before same-sex marriage now carries risk”. It cites the following cases:
Smith’s v Knights of Columbus in which a male Catholic organisation, the Knights of Columbus, refused to rent their hall to a lesbian couple for their wedding. The case was decided by the BC human rights Tribunal on November 29, 2005 and it found in favour of the Knights of Columbus.
Lund v Boissoin, in which Dr Darren Lund, a professor at the University of Calgary complained that a letter to the editor of the Red Deer Advocate by the Rev Stephen Boissoin was exposing homosexuals to contempt or hatred. In the letter Rev Boissoin said “where homosexuality flourishes, all manner of wickedness abounds.” and that “homosexual rights activists and those that defend them, are just as immoral as are paedophiles, drug dealers and pimps that plague our communities”. A 2008 human rights panel found against Boissoin. Boissoin appealed to the Court of Queen’s bench and won. The case was then taken to the Court of Appeal of Alberta in 2012, which upheld the Queen’s bench decision.
Saskatchewan Human Rights Commission v Whatcott, in which a Christian anti-homosexual activist Bill Whatcott was brought before the Saskatchewan Human Rights Commission for distributing flyers entitled, “Keep Homosexuality Out of Saskatoon’s Public Schools!” and “Sodomites in Our Public Schools”. It was alleged that what Whatcott violated the section of the human rights code that prohibited “publication or display of any representation that exposes or tends to expose hatred, ridicules, belittles or otherwise of affronts the dignity of any person or class of persons on the basis of a prohibited ground”. The Saskatchewan human rights tribunal found that the contents of the files did contravene the law. The decision was reviewed in 2007 by the court of Queen’s bench and upheld, and then was taken to the Saskatchewan Court of Appeal where in a unanimous decision it was overturned and found that the files were not a prohibited hate publication.
Fred Henry, Catholic Bishop of Calgary who faced two separate complaints to the human rights commission for comments in a pastoral letter on marriage sent to churches. Both complaints were eventually dropped.
Kempling v British Columbia College of Teachers, 2005, in which a Canadian schoolteacher was suspended for anti-gay comments in letters to the editor of the Quesness Caribou observer. These letters outlined his disagreement with the way homosexuality was presented in the school curriculum and his refusal to cooperate with it. While his suspension was under review he was instructed not to express his views publicly, but did so in a radio interview, in which he also advertised his counselling service that offered therapy for gay men to become straight. Kempling challenged the suspension in the British Columbia Court of Appeal and lost and filed a complaint with the British Columbia Human Rights Tribunal which he also lost.
