Heard this on The Drum: "Same-sex marriage opens the door to a whole host of civil and other liabilities for religious associations and individuals." Bollocks. Let me speak some truth to bullshit here. We know that the strategy of the No camp for the marriage equality survey has two central planks: employ classic knockabout Aussie bloke Tony Abbott to lead the debating team; and confuse everyone so hopelessly that they'll vote no by fear or accident. Personally I think it was a big mistake for the No campaign to make this all about religion. I suspect Tony thinks so too, which is why his incoherent ramblings raise bigger concepts like freedom of speech and political correctness. However, when you dip below the surface of Tony's "vote no if you don't like self-addressed envelopes" argument, it's just one thing: marriage shouldn't change because my religion says it's always been this way and if you say differently then you're attacking my religion. Of course, that makes no real sense, because, as I've said, freedom of religion does not include the right to dictate other people's access to equal legal rights, which is why the government is so cruelly wrong to be asking everyone whether LGBTI people should have the same rights as
So, the slide rule shifts from "the Bible doesn't say Adam and Steve" to "dangerous consequences". The obvious case to be made is that all gay people are paedophiles, gay sex is icky and what's next, polygamous incest with inanimate objects? But that'd be bigotry, and no this isn't about that; it's about freedom.
Which leaves the question of religious sensibility and the threat thereto. Cue a minister of religion asking plaintively how it can be that he'll be forced by law to marry homosexuals, in direct conflict with his devoutly held beliefs?
[On what legal basis did the High Court approve a statistically meaningless opinion poll?]
The answer is that he won't. That's always been the answer in Australian law to every question about the right of religious organisations to openly discriminate against people on the basis of their sexuality. It's nothing new, it isn't going to change, and in fact we can be sure that an even higher order set of rights to discriminate will be entrenched in favour of religious bodies when the final form of the Marriage Act amendments come before Parliament.
We've had a Sex Discrimination Act federally since 1984. It outlaws discrimination generally on the basis of sex, sexual orientation, gender identity, intersex status, marital or relationship status or pregnancy (actual or potential). Things it says you can't do include discriminatory employment practices, refusing service to customers or denying your Airbnb room to someone on the basis of any of those things.
There are various exemptions, one of which is pretty much a blanket exception for religious bodies. It's designed to take churches and affiliated bodies out of the legislation altogether.
A "body established for religious purposes" is allowed to openly discriminate against a person on the basis of their gender, LGBTI status, relationship status or pregnancy, in relation to the training or appointment of ministers and any other roles within the religious observances of the body. The right to discriminate also extends to any "act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion".
That's a pretty bloody wide exemption. There is no definition of what constitutes a body established for religious purposes, and of course only the body itself can define its own doctrines, tenets and beliefs. Not to mention how easy it might be to injure religious susceptibilities.
The exemption comfortably encompasses marriage. It plentifully allows any organisation that calls itself religious to refuse to marry LGBTI people (or pregnant women, or women generally, for that matter) or allow them to use the church hall for the reception.
Why, the editor asked me, is it OK for a church to close its doors to people on openly discriminatory grounds, but it's illegal for an orthodox Jewish bakery to refuse service to women or a Christian law firm to sack a female employee who gets pregnant out of wedlock?
Good question, I said. The answer lies, unsatisfactorily, in the special compact between organised religion and the state, which has always subsisted in our democracy and the threat to which Tony Abbott and the churches fear.
[Freedom of religion is not the right to dictate others' lives]
There is no good reason in legal or social policy for a religious body to get a free pass on discrimination, when the religiously devout individual or group is left subject to the law like the secular rest of society. Religious belief is, undeniably, of infinite variability and ultimately a question of personal choice. There's no basis in principle for giving higher regard to collective faith than to individual faith. The fact of a person's belief, assuming its sincerity (which we must assume), should be all that's required to attract whatever special protections the law elects to give.
Once we start pulling on this thread of thought, we very quickly get to questions like why religious organisations get 100% exemption from tax. Remember, the constitution doesn't protect churches or religious bodies -- it doesn't mention them. It protects freedom of religion, full stop. So why the sweetheart deals for anyone who puts a gang together and calls it a religion?
The anxiety for homophobic cake bakers is a furphy. Under the current law, they can't refuse to supply a gay non-sanctioned-by-law wedding reception without committing illegal discrimination. The only difference, once marriage equality comes in, will be the nature of the function for which they're baking the cake.
Meanwhile, churches already enjoy a full right to discriminate against LGBTI people, as they do against women (and men), unmarried people (and married ones) and pregnant women (and men). That, also, will not change with marriage equality.
The real concern for the religious institutions is that, each time focus is brought to bear on just how extra-specially they are treated by the law, so far beyond any other group or institution in society, the anomalies and double standards in this arrangement are exposed.
As organised religion's hold on society loosens and personal conviction (faith-based or otherwise) becomes a more powerful force, much bigger questions are going to be asked than why a church can lawfully close its doors to LGBTI couples.
For Tony and the No campaign, society is organised religion. Its entitlement to stand largely outside the law is God-given. They probably can't see it through their difference-fearing blinkers, but I think they'd have been better off letting marriage equality quietly through and not framing it as part of the last crusade.