December 5th 2015

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Articles from this issue:

COVER STORY Well designed same-sex marriage law no solution

CANBERRA OBSERVED Kidman hectares to stay in local hands ... for now

EDITORIAL How to respond to Islamic State's latest outrages

OPINION What's left if Malcolm is in the middle?

LIFE ISSUES Feminists, conservatives unite against surrogacy

NATIONAL AFFAIRS Turnbull government is not serious about defence

HISTORY Geography the great shaper of Taiwan

PHILOSOPHY AND POLITICS Green ideology balances illogic with contradiction

SOCIETY Cultural displacement and the new terrorism

PUBLIC POLICY Cannabis for R&D has precedent in poppy trade

FAMILY AND SOCIETY Swedish daycare: paradigm or cautionary tale? Part I

CINEMA Not your average psychopath: James Bond: Spectre

BOOK REVIEW Fantastical Four


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Well designed same-sex marriage law no solution

by Terri M. Kelleher

News Weekly, December 5, 2015

Terri M. Kelleher responds to Human Rights Commissioner Tim Wilson’s letter to News Weekly (see page 14).

Human Rights Commissioner Tim Wilson says that there is a threat to religious freedom from a “badly designed” same-sex marriage law. News Weekly’s view is that a same-sex marriage law will per se be a threat to religious freedom.

The News Weekly article, “Bishops being prosecuted for supporting man+woman marriage: Here is what you can do” (November 7, 2015) incompletely described Mr Wilson’s position on the same-sex marriage issue as that redefining marriage “would do no harm”. Mr Wilson’s view is that religious freedom can be protected in a same-sex marriage bill.

He has said: “[t]here is a risk to religious freedom from a badly designed law recognising marriage for same-sex couples.” And: “Let’s be clear: a badly designed law can absolutely risk religious liberty, whereas a well-designed law will not.” And, further, that by opposing same-sex marriage, “you vacate the space for designing a law that reflects your concerns”.

That is an invitation to believe that a “well-designed” same-sex marriage law is the way to protect religious freedom.

There are a number of problems with this.

First, marriage law does not operate in isolation. The combination with anti-discrimination laws makes it virtually impossible to design a same-sex marriage law which would protect fundamental freedoms.

Mr Wilson admits freedom of religion is already restricted by anti-discrimination laws. It is the inclusion of sexual orientation and gender identity (SOGI) as protected attributes in a wide-open anti-discrimination law such as Section 17 of the Tasmanian Anti-Discrimination Act, under which Hobart Archbishop Julian Porteous and the Australian Catholic bishops are being prosecuted, that is already threatening freedom of speech and freedom of religion, thought, belief and conscience in Australia.

Second, any religious exemptions are likely to be focused on a narrow view of “freedom of religion” and, if the numerous groups calling for no exemptions have their way, would only be temporary.

Mr Wilson’s concern for religious freedom is admirable, but his concept or understanding of religious freedom is worryingly narrow. For example, he seems to see faith-based schools as just a service that churches can provide cheaply, and therefore for such schools to seek to “foster their values” only goes so far.

“It’s good that we have religious institutions providing schools in a more cost-effective way than sometimes the government can do, and if that’s consistent with people’s private faith, and that’s what they wish, then so be it,” Mr Wilson is quoted as saying in The Guardian on November 4, 2015.

Faith-based schools do save the government, or more correctly the taxpayer, by educating children for less than the per-capita amount outlaid for each student in a government school. However, the very reason for the existence of faith-based schools is fundamentally about educating children within the beliefs and ethos of their faith.

Third, the groups supporting marriage as the union of a man and a woman want to engage in a debate about whether the marriage law should be changed or not by pointing out the consequences for freedom of speech, freedom of religion, thought, belief and conscience, free enterprise and freedom of association if same-sex marriage is legislated. The problem is that the media is censoring these groups.

The Marriage Alliance advertisement (“Same-sex marriage – There is more to it than you think”) was refused airing by television channels; the Australian Marriage Forum advertisements were similarly refused. The Australian Catholic Bishops’ Conference has been called before the Tasmanian Human Rights Commission on a complaint of discrimination for circulating its statement on the Church’s teaching on marriage to parents of Catholic school children. These are examples of how difficult it is for these groups to engage publically in the debate.

A popular vote, in which both sides have the freedom and opportunity to present their case, is the fairest way forward. The promised plebiscite should provide that opportunity. Even then, how can a public debate be held on the issue if free speech is being censored by the media and strangulated by anti-discrimination law?

Fourth, Mr Wilson seems to start from the assumption that same-sex marriage is a right and that the right to freedom of religion has to be balanced against that right – that those who want their religious freedom protected must respect the right to same-sex marriage. But where does any “right” to same-sex marriage come from? In July 2014 the European Court of Human Rights decided that European human rights law does not contemplate same-sex marriage and confirmed that the protection of the traditional institution of marriage is a valid state interest. (See, “European court: Gay marriage is not a human right”, July 25, 2014.) There is no international treaty or instrument which recognises a “right” to same-sex marriage. And Australian law defines marriage as the union of one man and one woman.

A same-sex marriage law would fundamentally change society and seriously affect our basic freedoms. Until a full and free public debate over whether marriage should be redefined has taken place in which all views are fully aired we are nowhere near designing such a law.

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