Same-sex marriage in Australia: implications for religious liberty and freedom of conscience

by Augusto Zimmermann

Passing legislation to approve same-sex marriage is a divisive issue not only here in Australia but also in many countries around the world. About 20 countries have already legislated to approve same-sex marriage, most recently in Ireland through popular referendum and in the United States through the landmark Supreme Court decision in Obergefell (although this decision is an example of a judicially created and enforced right, not the product of legislation).

Now, unfortunately, examples from all over the world reveal that legislation approving same-sex marriage may infringe the fundamental rights and freedoms of the citizens. Some people have been found at the receiving end of quite severe persecution as well as protracted and expensive legal action for holding the traditional and time-honoured opinion that marriage should only be between a man and a woman.

In Australia, same-sex marriage continues to be unrecognised, but the champions of “Gay Marriage” have constantly shown a significant contempt for religious liberty and freedom of conscience. Although the federal government has committed itself to holding a plebiscite so that the people will be allowed to decide the matter, I wonder how this can actually be achieved when advocates of the traditional view are effectively prevented from expressing their opinions by intolerant activists and anti-free-speech legislation.

Many jurisdictions in Australia have enacted legislation that effectively puts an unreasonable burden on freedom of speech and religious liberty. For instance, in Tasmania the state anti-discrimination law bans any conduct that “offends, humiliates, intimidates, insults or ridicules” on the basis of sexual orientation or gender identity. New South Wales, Queensland and the ACT have similar laws prohibiting sexual discrimination based on conduct that incites “hatred”, “serious contempt” or “severe ridicule”. South Australia and Western Australia ban such discrimination on similar grounds in the workplace, education and other spheres.

Some cases provide a good illustration of how behind the veneer of equality and tolerance there lies a movement that accepts no dissention and enforces compliance with heavy and expensive judicial action.

For example, about eight years ago the Cobaw Community Health Service’s “Way out Project” tried to book a camp at a Christian Youth Camps (CYC) facility on Phillip Island to run a suicide prevention workshop for rural gay youth. The camp manager refused the booking on the grounds that part of the group’s syllabus was contrary to traditional Christian values. In 2010, the Victorian Civil and Administrative Tribunal (VCAT) found both the manager and CYC had discriminated on the basis of sexual orientation. In 2014,CYC challenged the decision in the Victorian Court of Appeal, which eventually found there was no legal error in VCAT’s decision and exemptions to preserve religious freedoms did not apply in this case.

In a nutshell, the appeal court held that the refusal of accommodation was not necessary to comply with the genuine religious beliefs or principles of the appellants. In so doing, the court did not overlook the fact that CYC’s own constitution requires that events at the facilities be conducted “in accordance with the fundamental beliefs and doctrines of the Christian Brethren”, and in a way which will “create an atmosphere throughout the facilities that is obviously Christian”. But those requirements do not, in the court’s view, convert a secular purpose into a religious purpose. Arguably, the court might have viewed it differently had CYC existed for the sole purpose of providing for camps and conferences which were avowedly Christian in character.

As such, the appeal court did not take into account the biblical mandate for Christians to proselytise, which means that such organisations need to reach out to non-Christians in a way that does not undermine their own faith and beliefs. For the owners of CYC, the ruling means that they are forced to allow their facilities to be used for the promotion of values and activities that they completely disagree with. The court simply compels a religious organisation to make their own property available to be used for purposes that effectively undermine their own religious values and principles.

Another interesting case involved an attack on the free speech of a medical doctor from Queensland. In October 2011 Toowoomba GP Dr David van Gend was forced to appear before Queensland’s Anti-Discrimination Commission to respond to a complaint about an article that he wrote for The Courier-Mail arguing against any change to marriage laws. The complainant, the gay activist and serial litigator from NSW, Gary Burns, claimed the entire point of that article amounted to vilification simply because he didn’t like the doctor’s point of view: “The lack of a general statement with regards to all families with only a parent of one sex show show vilifying the statement is towards same-sex families and also fails to recognise the structure of modern families and the involvement of the community around those families in raising children”.

In the letter sent to Dr van Gend the Commission stated that its decision to accept the complaint “does not indicate that the complaint has merit”. The complainant, Mr Burns, did not actually have to appear before the commission and would suffer no penalty for his non-appearance. His complaint was ultimately withdrawn, but not before the doctor was forced to appear before the commission and spend a few thousand dollars on legal fees. According to Dr van Gend’s own words, “It costs you time, legal expense and anxiety, and although in my case there was very little of any … other people would not enjoy the experience”. Dr van Gend was left wondering what next for other individuals with an opinion on the subject: I had nothing to ‘conciliate’. I resent being compelled to allocate patient consultation time to converse with this Sydney homosexual activist, as I consider that to be rewarding political harassment . . . at the personal cost of some thousands in legal advice and time off work, and the wearing of a defamatory accusation of being a hate-speaker and vilifier. [What of] the next complaint that any activist cares to lodge with the commission? I have to go through the same disgusting process.

As another example, conservative political activist Bernard Gaynor has been subject of 28 complaints during the past 18 months—all lodged by one man, Gary Burns, the Sydney gay rights activist and serial litigator. So far, none of the complaints has been substantiated but 10 remain before the board and Mr Burns has appealed the decision handed down by the NSW Civil and Administrative Tribunal dismissing his complaints against Mr Gaynor. A hearing has been set for 1 April 2016 and further complaints have been lodged against him. As such, Gaynor must head back into another costly legal fight that is also part of a strategy to allow anti-free speech laws in one state to be used against those living in another. He has spent more than $50,000 in legal fees fending off the complaints and believes the system encourages anti-free-speech activists such as Burns to lodge complaints. As Gaynor points out, I am winning the legal battles at th moment, but the process is the punishment… There is no risk to the person lodging these complaints. The NSW tribunal has the power to impose a penalty of up to $100,000 per complaint and that penalty goes to the person who lodges the complaint. So you have a system that is designed to generate complaints.

There is also the notorious case of Gary Burns v Tess Corbett involving a senior citizen in rural Victoria who stood as a candidate in the 2013 federal election andtold her potential constituents what she thought about what was right and wrong inhuman sexuality. Ms Corbett lives in Victoria and the “derogatory” statements were made in western Victoria; nonetheless a NSW Tribunal (a different state and jurisdiction)sentenced her in absentia, forcing her, first, to apologise to Mr Burns in writing and, second, to publish an apology in a prominent position in the Sydney Morning Herald and at her own expense. The apology was required to inform the readers that the Tribunal had found that Ms Corbett words “vilified homosexual people”, and that such words amounted to “unlawful homosexual vilification”.

As one might expect, Ms Corbett lodged an appeal before the Appeals Panel of the New South Wales Civil and Administrative Tribunal (NSWCAT) but, on 14 August 2014, the NSWCAT dismissed her application on grounds that the original decision had made no legal error so that the re-hearing on the merits was unjustified. When one reads the report of Ms Corbett’s case and the unsuccessful appeal, not only did NSWCAT’s Appeals Panel dismiss her appeal but it found that because she had not appeared at first instance she was not entitled to be heard a tall; and neither the original tribunal nor the Appeals Panel thought there was anything wrong with finding her personally responsible for publications in NSW newspapers over which she had no control and which were not contemplated when she made her political statements in rural Victoria.

There is also the bizarre situation involving the Catholic Archbishop of Tasmania, Julian Porteous, who was brought to a commission because he authorised the distribution of a booklet entitled “Don’t mess with Marriage” to parents of Catholic school students in sealed envelopes and in churches. In this carefully written booklet the church expresses its utmost respect for the dignity of homosexuals while promoting the goodness of a man-woman marriage and why children are affected if they miss out on a mother and father.

Archbishop Porteous’s chief accuser, Martine Delany, the Greens candidate for the federal seat of Franklin, took a complaint to the Tasmanian Anti-Discrimination Commissioner, arguing that the booklet “does immeasurable harm to the wellbeing of same-sex couples and their families across Tasmania”. According to her, the booklet’s content breaches a section of Tasmania’s Anti-Discrimination Act that makes it illegal to insult, offend or humiliate a person or group on the basis of a listed attribute. In lodging this complaint Delaney claims that the language used in the booklet somehow implies that homosexuals engage in criminal activity because the words “messing with kids”, in her own opinion, can be used as “a code for sexual abuse or paedophilia”.

It is deeply disturbing that a Catholic archbishop is being dragged to an anti-discrimination authority for simply expressing a traditional view on the subject that until quite recently was shared by both the major political parties as well as a large segment of the population. This leaves religious organisations open to attack from outsiders and leaves their practices and beliefs unguarded. If religious organisations can be punished for simply expressing their traditional views on marriage, family and a child’s right to a father and mother, then I wonder what else they and their followers might be punished for once same-sex marriage is legalised in Australia.

So here lies another important question: Is the push for legalisation of same-sex marriage really founded in tolerance? Given the cases mentioned above, it appears that the same-sex lobby is truly very intolerant. It believes that church teachings of the subject of marriage constitute an offence against homosexuals and that it should not be tolerated under anti-discrimination laws. As such, it becomes unacceptable for a church to make its case for traditional marriage because that case itself is regarded as being “offensive” and “politically incorrect”.

According to Paul Kelly, editor-at-large for the Australian newspaper, “there can be no doubting that among same-sex marriage activists the political will exists … to force the voice of the churches out from the public square on the grounds of offensiveness”. Kelly reminds us that legalisation of same-sex marriage would imply that the laws of the state and the laws of the churches will be in conflict over the meaning of marriage, thus leading to the important question of whether the push for such a change may be at least partially motivated by an intolerant disregard for religious liberty and freedom of conscience. “For Australia and its alleged open spirit of debate this is an unprecedented situation”, he says. “It reveals an aggressive secularism dressed in the moral cause of anti-discrimination justice but with a long-run agenda that seeks to transform our values and, ultimately, drive religion into the shadows. The vanguard for this drive is the same-sex marriage campaign”.

Before a plebiscite on same-sex marriage can even take place in this country, it is necessary to address the intolerable impact that anti-discrimination laws are having on free speech. This is a worthwhile endeavour and, surely, none of the cases mentioned above should ever have happened. These cases support the concerns among free-speech advocates and religious groups that anti-discrimination laws will be used to silence the “no campaigners” in the lead-up to a promised plebiscite on the matter. As a society we really need to ask ourselves if we should undermine the rights of one group in order to protect or promote the interests of another. A real democracy implies that controversial issues will be resolved democratically by the people only after a truly open and robust debate has taken place.

Dr Augusto Zimmermann is (among other things) Law Reform Commissioner, Law Reform Commission of Western Australia, and Professor of Law (adjunct),The University of Notre Dame Australia – Sydney. 

Reprinted from Life News – copyright © Augusto Zimmermann.