Protecting the right to discriminate. What should the marriage equality legislation do?

Protecting the right to discriminate. What should the marriage equality legislation do?

The nation has voted for the recognition of same-sex marriage, and the challenge in the coming days is to legislate it. Many Christians are calling for a raft of provisions that protect their right to discriminate.

The principle that it is unlawful to discriminate against somebody on the grounds of their sexuality is already part of Australian law. The Sex Discrimination Act was modified in 2013 to include sexual orientation, gender identity, and intersex status as grounds upon which  discrimination is not permitted. It applied to employment; education; provision of goods and services; providing accommodation, housing or land; membership and activities of licenced clubs; the administration of Commonwealth laws and programs.

There are a number of exemptions to the Act. Religious bodies and educational institutions are exempted if the discrimination is necessary to the doctrines, tenets or beliefs of that religion, or necessary to avoid injury to the religious susceptibilities of adherents of that religion.

It’s important to point this out, because it seems that some Christians are under the impression that they currently have the right to say and do whatever they like with regards to gay, lesbian, intersex, bisexual, transsexual people and that somehow the recognition of same-sex marriage is going to strip them of these rights.

If you run a small business, it has been illegal since 2013 to refuse to employ somebody on the grounds that they are gay or to refuse to provide a business service to a person on the basis that they are lesbian. Marriage equality hasn’t changed this. If a gay couple walk into a shop today and order a naming day cake to celebrate the adoption of a child, it is already illegal for the  shopkeeper to refuse to bake the cake on the grounds that s/he doesn’t approve of gay people adopting children.

When members of Parliament sit down to thrash out the legislation on same-sex marriage, they have no mandate to either tighten or loosen the antidiscrimination laws nor the exceptions to the anti-discrimination laws. If there is some tweaking that needs to be done in order to maintain the law, it should be so. But there should be no fundamental rewriting of the antidiscrimination legislation. Religious bodies and educational institutions should continue to be free from provisions of the anti-discrimination legislation if the discrimination is necessary to the doctrines, tenets or beliefs of that religion, or necessary to avoid injury to the religious susceptibilities of adherents of that religion. Churches and schools should remain free to discriminate in employment where the staff position is necessary to maintaining their religion. The marriage equality legislation should not be used as a mechanism to remove these exemptions.

Neither should the marriage legislation be used as a mechanism to extend exemptions to places they don’t currently exist. For example, the suggestion by Christians that business operators should not have to bake cakes for gay weddings, or wedding reception businesses run by Christians should be free to refuse venue hire to gay couples would represent a repudiation of the current antidiscrimination legislation. When Christians argue for this to be part of the legislation, they are asking our parliamentarians to do something they have no mandate to do.

 

What my straight Christian friends need to know about my gay Christian friends.

What my straight Christian friends need to know about my gay Christian friends.

I want to tell you about my Christian LGBT friends.

Almost all of them have had an agonising journey as they have sought to reconcile their sexuality with their faith. They have cried themselves to sleep each night begging God to change them; they have been to counselling; some have sought conversion therapies; they have hated themselves; hated God for hating them; some have teetered on the verge of suicide; many have experienced years of depression; and they have eventually come to a point where they have reconciled who they are with whom God is.

Almost every one of my LGBT Christian friends has spent years pouring over the Scriptures that speak about sexuality. They have read the arguments for, the arguments against, and everything in between. When I ask my straight Christian friends how many books they have read on the theology of sexuality I’m usually met with a blank stare. Most have read none. My LGBT Christian friends have read dozens, listen to a multitude of talks, and discussed them for hours with pastors and scholars.

Almost every one of my LGBT Christian friends has experienced vile hatred in the church. They have been spat upon, yelled at, condemned to hell, asked to leave, been told God hates them, and been told that they are an abomination.

Every one of my LGBT Christian friends displays an extraordinary grace. I have never witnessed a greater willingness to forgive, a greater generosity of spirit, a greater willingness to love those who hate them, than I have seen amongst my LGBT Christian friends.

To my straight Christian friends I plead:

My LGBT Christian friends don’t need you to call them to repentance – they have agonised over what it means for them to live before God in a way few of us straight Christians have. Perhaps you could listen to them and discover from their experience what it means to seek to live faithfully before God.

My LGBT Christian friends don’t need you to tell them what the Bible teaches. When it comes to the issue of sexuality they know far more about the Bible than you do. Perhaps you could ask them to teach you what they have learned.

My LGBT Christian friends do need you to love them. How many times do you think a person can endure hatred, rejection, and have their fellow believer look condescendingly down upon them before their spirit wilts and they walk away?

Don’t fall for the fear-mongering.

Don’t fall for the fear-mongering.

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.

The Meaning of Marriage

The Meaning of Marriage

What does marriage mean? The debate over marriage equality has forced us to ask this question. It is a good question to ask. In a 2011 article for the Sydney Anglicans website, which was later abbreviated to appear on the Drum website, Anglican Rector Michael Jensen argued that to recognise same-sex relationships as marriage would fundamentally change the meaning of marriage. Marriage, he argued, has long been understood by diverse cultures as the union of a man and a woman whose biological complementarity signifies the “distinctive orientation of marriage towards the bearing and nurture of children” and replaces it with a relationship which places “sexual choice and emotional commitment at the centre”. Is he correct?

Certainly, through the long history of the church, the commonly held position was that procreation is central to marriage. In his treatise On the Good of Marriage, Augustine, perhaps the greatest theologian of the early church, argued that marriage has three goods: the begetting of children; the companionship of the partners and prevention of fornication. Yet while he understood procreation as essential to the purpose of marriage in general, Augustine also recognised that it was not necessarily essential to every marriage, arguing that

“here is good ground to inquire for what reason it be a good. And this seems not to me to be merely on account of the begetting of children, but also on account of the natural society itself in a difference of sex. Otherwise it would not any longer be called marriage in the case of old persons, especially if either they had lost sons, or had given birth to none.”

The importance of procreation to marriage continued into the early 20th century. A resolution passed by the 1920s Lambeth conference (a gathering of the Anglican church in England) stated

The Conference, while declining to lay down rules which will meet the needs of every abnormal case, regards with grave concern the spread in modern society of theories and practices hostile to the family. We utter an emphatic warning against the use of unnatural means for the avoidance of conception, together with the grave dangers physical, moral, and religious thereby incurred, and against the evils with which the extension of such use threatens the race. In opposition to the teaching which, under the name of science and religion, encourages married people in the deliberate cultivation of sexual union as an end in itself, we steadfastly uphold what must always be regarded as the governing considerations of Christian marriage. One is the primary purpose for which marriage exists, namely the continuation of the race through the gift and heritage of children; the other is the paramount importance in married life of deliberate and thoughtful self-control. We desire solemnly to commend what we have said to Christian people and to all who will hear.

Does this not suggest Michael Jensen’s argument is correct? I don’t think so, for the simple reason that the meaning of marriage has already shifted. More than 1/3 of children born today are born out of wedlock; couples divorce and remarry even though they have children living at home; and couples without children, which includes many couples who choose not to have children, is one of the fastest growing demographics in the Australian population. These things suggest that Australians do not see an essential link between marriage and childbirth/child rearing.

The reason for this is that there was a fundamental shift in the meaning of marriage that began in the late 18th century and came to fruition in the mid-20th century. In her book, Marriage. A History Stephanie Coontz argues that for most of history marriage was not about satisfying the individual needs and desires of a man and a woman and their children, but a means of political and economic advancement. Today however marriage is precisely a “love match” in which the focus is upon satisfaction of the individual needs and desires of the married couple.

It is not same-sex marriage that will yield a shift away from the “distinctive orientation of marriage towards the bearing and nurture of children” and replace it with a relationship which places “sexual choice and emotional commitment at the centre”. That has already occurred and is deeply embedded in our culture.

Should this change concern us? I don’t think so. I belong to the Christian faith is, and while a couple of thousand years of Christian theology, grounded in screwy notions of female subordination and the inherent sinfulness of sexual intercourse, may have insisted on procreation as necessary to the meaning of marriage, the Bible does not. The only passage in the Bible that seeks to explain the reason for marriage is Genesis 2:18-25 and it does not link marriage to childbearing. God creates a man, places the man in the garden with the commission to till and keep it, then declares that “it is not good for the man to be alone. I will make a helper suitable for him”. The only task the man had been given was   to till and keep the garden, so presumably it is this with which he needs help.

God originally brought the animals to the man to see if they would be a suitable helper, but thankfully none was found to be so. Yet when the man comes across the woman he rejoices, not because he’s found someone who is other to him but because he has found someone who, unlike the animals, is just like him. Literally flesh of his flesh and bone of his bone. This, the narrator comments, is why a man leaves his father and mother and is united to his wife and they become a new kinship unit.

The emphasis in the Genesis 2 story is not upon the “distinctive orientation of marriage towards the bearing and nurture of children” nor upon the biological duality (or any other duality) of men and women. Rather, the reason for marriage is that we find another who is just like us (ie human) with whom we can share life and its tasks.

Marriage throughout the Bible is built around this kernel. It goes all sorts of places we today reject – polygamy, levir marriage, taking wives as the bounty of war, the subordination of women to men – but it also provides us with this glimpse of possibility, that marriage can be that relationship in which we find delight and bonds of unity. I’m glad to be free of those past accretions, which means it’s sole force is its relational functions. That makes marriage at one and the same time more prone to breakdown than ever, yet capable of reaching greater depth than ever. That is what I think we need to be protecting.

Why Parliament & Not a Plebiscite Should Resolve the Question of Same-Sex Marriage

Why Parliament & Not a Plebiscite Should Resolve the Question of Same-Sex Marriage

The modern world has been distinguished by what David Bentley Hart calls a “tilt to freedom.” Beginning with the demand that kings be subject to the law, there has been a steady process of enlarging people’s freedoms and a consequent diminishing of the coercive power of the State and of one human over another.

The fundamental principle underlying this is the equality of human beings, by which is meant that a person’s value and a range of fundamental rights comes from belonging to category of human. (In the past value and freedoms were linked to other categories such as anscestry, gender, culture, skin colour or religion). This does not suggest that all human beings are the same – we have diverse genetic endowments and diverse socialising – but that we choose to treat all human beings as if they have a common value and a common set of rights.

On this basis we assume that all people should have equal access to the privileges and benefits of our society. No-one should experience discrimination on the grounds of something incidental to their being human – eg race, religion, gender, sexuality – unless distinctiveness in a particular area is requisite for the type of grouping envisaged. For example being a woman is reasonably seen as a pre-requisite for belonging to a women’s group and sharing the faith of a particular religion pre-requisite for a leadership role in that religion.

This means that the social institution of marriage should be accessible to members of the LGBTIQ community on the same grounds as those who are heterosexual, unless it can be demonstrated that there is something about marriage in of itself that would preclude same-sex couples. Those who oppose marriage equality do so on the grounds that there is in fact something about marriage itself that makes it suitable only for opposite-sex couples. I find their arguments unconvincing and cannot see any grounds upon which it is reasonable for the state to continue discriminating against LGBT people on marriage.

But my point here is this. The question of whether there is something about marriage that makes it inherently applicable only to opposite sex couples cannot be decided by popular vote, which is what the plebiscite will effectively turn out to be if it is held. The only question is, is there something inherent to the institution of marriage as understood and practised within Australian society that excludes it from applying to couples of the same sex? If there is, the Parliament should refrain from legalising same-sex marriage even if the majority of the population are in favour of it. And likewise if they find there is not, the parliament should legalise same-sex marriage.

Memo to Australian Christians.

No Margaret you’re not being bullied

This week former tennis great Margaret Court became the focus of media attention when she published an open letter in the West Australian newspaper declaring she would be boycotting Qantas because of statements by the company CEO in favour of gay marriage. The backlash was swift, from tweets by other tennis greats, to Tennis Australia distancing itself from Margaret Court’s position, to calls for the Margaret Court Arena to be renamed.

I watched an interview on The Project in which Margaret Court claimed that Christians were being persecuted for their views on same-sex marriage and that calls for a change of the name of the Margaret Court Arena amounted to bullying. I think it is certainly true that increasing numbers of Australians are losing patience with the delay in the legalisation of same-sex marriage and have little respect for the arguments against same-sex marriage. The tone of the interviewers on the Project was smug, condescending and at times bordered on mockery.

But the suggestion that Christians face persecution, that they no longer have freedom of speech, and that they are being bullied is ridiculous. Margaret Court published an open letter in one of Australia’s major newspapers invoking her status as a tennis great (“as you will know, I’ve represented Australia many times and have the proud record of never having lost a tennis match while playing for my country”) declaring her intention to boycott Qantas. It is disingenuous to claim she is being bullied when people respond in exactly the same fashion by calling for a boycott of her name on the arena and offering public commentary on her open letter. This is not persecution. No one is suggesting she be thrown in prison. This is not a silencing. For goodness sake she was published in a major Australian newspaper! This is simply a public of which the majority favour same-sex marriage making its views felt as forcefully as Margaret made hers.

A couple of weeks ago the Anglican church in Sydney distributed thousands of copies of a booklet opposing same-sex marriage to every one of its churches; the ACL regularly publishes arguments against same-sex marriage on its website and is part of an alliance that has legal recognition and its own website advocating for traditional view of marriage; Lyle Shelton is regularly interviewed in popular media; senior political figures such as the treasurer of our country articulate the case against same-sex marriage. No one is being silenced. No one’s freedom of speech is under attack. And before people rush to cite the complaint that was brought against the Tasmanian Catholic Archbishop distributing a booklet opposing same-sex marriage, let’s remember that the argument was not that the Church had no right to oppose same-sex marriage, but that the booklet suggested that homosexual people were paedophiles.

Are people discourteous on this issue? Yes, I think they are. I think it happens on both sides of the argument and I think it’s not helpful. Do people perpetuate stereotypes? Yes they do, from my Christian friends who speak with venom about the “gay lobby” and its conspiracy to subvert society, to my gay-rights friends who like to paint every person who opposes same-sex marriage as homophobic. Again such stereotyping is unhelpful.We shouldn’t however be surprised. This is an issue on which people feel strongly and at times people will overstep the mark of civility.

But please let us stop with this nonsense of persecution and loss of freedom of speech. Christians who hold to the traditional view of marriage need to get used to the fact that they hold a view that is considered repugnant by large sections of our society. And when you go into the public arena with a view that is repugnant you should expect to get strong opposition. But you’re not persecuted and you’re not being silenced. Tragically there is horrendous persecution of Christians in parts of the world today, but it’s not happening in Australia. We live in a liberal democratic state that guarantees its citizens the freedom to speak and when Christians speak out on marriage they are taking full advantage of that freedom. Yes it is difficult to take a public stance that is unpopular. But that doesn’t make you persecuted. It just makes you unpopular.

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