Preserve freedoms in marriage debate

Preserve freedoms in marriage debate image

In a recent edition of Southern Cross it was reported that the Archbishop of Sydney, Dr Glenn Davies, backed a plebiscite on the definition of marriage and supported an open debate on the subject.

The debate should recognise that each side has legitimate concerns. For example, those in favour of the change in the definition of marriage feel that the present system discriminates against homosexual couples who believe marriage will fundamentally improve their relationship, while those against the change feel the present system is in the best interests of society and that any change is not in accordance with their religious or other beliefs.

Whatever the result, the debate is only possible because Australia recognises freedom of speech, freedom of conscience and religion, and freedom of thought, belief and expression, including freedom of the press. Many other countries forbid any discussion on the subject. These freedoms should not be a casualty in the debate, in that they should remain as strong as ever whether the change is made or not. In other words, if the plebiscite decides to keep the definition as it is, those who want a change are free to campaign against the decision, and if the plebiscite decides in favour of a change in the definition, those against the change are free to campaign against the decision.

These issues have to be considered before and at the time any change to the definition of marriage is made. I wish to stress that this is separate and distinct from the question of whether the definition should be changed. Rather this article is concerned that in the debate, and any change, we preserve Australia’s fundamental freedoms.

In considering the issue, the experience of Canada is relevant. In 2002 Canada recognised a homosexual marriage. At the time the effect on the fundamental freedoms were not addressed.

Professor Bradley Miller in a 2012 article entitled “Same-Sex Marriage Ten Years On: Lessons from Canada” discusses the experience of Canada since 2002.  He notes that while the results elsewhere may not be the same by reason of cultural and institutional differences, the Canadian experience is the best available evidence of the impact of homosexual marriage in a democratic society.

The formal effect in Canada of the recognition was that government recognised the relationship as marriage. But what transpired was that anyone who opposed the recognition must be acting on the basis of bigotry and animus to homosexuals. Freedom of speech was severely restricted. Those who voiced their dissent were subject to investigation by human rights commissions and proceedings before human rights tribunals. 

Professor Miller writes that:

“Some have been ordered to pay fines, make apologies and undertake never to speak publicly on such matters again. Targets have included individuals writing letters to the editors of local newspapers and ministers of small congregations of Christians. A Catholic bishop faced two complaints – both eventually withdrawn – prompted by comments he made in a pastoral letter about marriage.”

While the Canadian Parliament recently revoked the Canadian Human Rights statutory jurisdiction to pursue “hate speech” the other powers of the Human Rights Commission remain.

For those who are interested, another article on the Canadian experience is “A warning from Canada: Same-Sex Marriage Erodes Fundamental Rights” by Dawn Stefanowicz.

In the light of this experience, we need to ask the following questions if the change to the definition in Australia is to be made:

  • Will religious teachers be free to teach in accordance with their beliefs?
  • Will ministers or priests be compelled to marry a homosexual couple even if it is contrary to their beliefs?
  • Will parents or grandparents be free to teach their own children or grandchildren that they believe that the change to the definition is contrary to their beliefs?
  • Will parents be free to oppose a school program that endorses a homosexual couple getting married?
  • Will all teachers be compelled to endorse a homosexual couple getting married?
  • Will you be free to say what you believe about homosexuals getting married, including that children brought up by homosexual couples are disadvantaged as opposed to those brought up by heterosexual couples?
  • Will you be free to say that you hold a different view?
  • In Australia even before any change is made, those who oppose a change are under attack with abusive criticism on Twitter, the media and other outlets, and even being subject to a complaint to the Human Rights Commission or state tribunal.

As a Toowoomba doctor found out in a serious presentation of the case against a change to the definition, he was the subject of a complaint to the Queensland Tribunal for saying it was an abomination for a child to be artificially conceived by two homosexuals and then brought up without a mother. Archbishop Porteous of Hobart was denounced for distributing a pamphlet entitled “Don’t Mess with Marriage” to Catholic schools and parishes. 

It is hoped that this does not continue and that the debate can be conducted in an open and inclusive manner. It is important that our fundamental freedoms are recognised throughout the debate and at the time of any change, because unless this is done at the same time as the change it is hard to get it done subsequently. There will be no delay as it could be done in the one Act of Parliament.  

This should not be done as an exception or qualification to a change, as that can be read down or even taken away, but as an express recognition of the fundamental freedoms to which the change is made subject.

The plebiscite should only pose the question of the change being made if it expressly preserves our fundamental freedoms. As the Canadian experience has shown, a general guarantee of fundamental freedoms is not enough.

A specific guarantee is required, to which the change is made subject. 

(This article originally appeared as Essay of the Month in the November Southern Cross magazine)

Robin Speed is President of the Rule of Law Institute of Australia


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