Australian voters are deciding which box to tick when asked, 'Should the law be changed to allow same-sex couples to marry?' Unlike some bishops, I argue that a committed Catholic could vote 'yes' or 'no'.
For many Catholic voters, this has been a difficult issue because for the first time in their lives they have found themselves in the same position which our politicians find themselves every time they have to vote on contested moral and political questions in parliament. They don't find themselves getting all that much help from official church declarations. This is no criticism of our bishops. They are the custodians of a tradition which has been somewhat skewed on this issue for a long time.
In 1975, the Vatican's Congregation for the Doctrine of the Faith (CDF) declared that 'homosexual acts are intrinsically disordered and can in no case be approved of'. Then in 1986, under the leadership of Cardinal Ratzinger (as he then was), the CDF declared that 'special concern and pastoral attention should be directed toward those who have this condition, lest they be led to believe that the living out of this orientation in homosexual activity is a morally acceptable option. It is not.'
In 1992, the CDF identified 'some principles and distinctions of a general nature which should be taken into consideration by the conscientious legislator, voter, or Church authority who is confronted with such issues'. The CDF claimed that there was 'a danger that legislation which would make homosexuality a basis for entitlements could actually encourage a person with a homosexual orientation to declare his homosexuality or even to seek a partner in order to exploit the provisions of the law'.
Many Catholics nowadays find such declarations unhelpful and insensitive, perhaps even downright wrong. Even those Catholics who find such teaching helpful in determining their own moral stance might question the application of such teaching when deciding whether to tick the box 'yes' or 'no'. For most contemporary Catholics, Pope Francis has been a breath of fresh air with his observation, 'Who am I to judge?'
Some voters are voting 'yes' boldly and assuredly, hoping that our politicians will just get on with it and legislate for same sex marriage as quickly as possible. Some are voting 'no' just as boldly and assuredly, hoping that the matter will then be put off the legislative agenda for another generation, much like the outcome of the republic referendum in 1999.
I am one of those voters who believes that same sex marriage will be legislated either by this present parliament or by the next parliament. It would be in everyone's interests if it could be done right, and done now during the life of this parliament. Further delay will simply occasion ongoing hurt and angst in the Australian community.

For it to be done right, our politicians will need to ensure that they have accorded due protection to religious freedom. Some have been pointing to New Zealand which legislated same sex marriage four years ago. Fran Kelly, a strong advocate for the 'yes' vote, told ABC Insiders on Sunday: 'Some reassurance really for those who are worried about religious protections, religious freedoms, if the 'yes' vote gets up. We had a look at New Zealand — a country, society very like ours. Four years ago, they passed legalised same sex marriage. Basically, no incidents. No concerns of religious freedoms being contested or challenged. The Churches seem to have no issue.'
"There's no way the Turnbull government would legislate a human rights act. Perhaps they might consider a religious freedom act. But even that I doubt."
Earlier in the week, Kelly had interviewed New Zealand Prime Minister Bill English on ABC RN Breakfast. When asked about same sex marriage, he stressed that freedom of religion is important. She observed: 'You voted 'No' in 2013 but you've said if the vote was held now, you would vote 'yes'. Does that mean that the New Zealand experience of marriage equality has been a positive one for your country?' English replied: 'It's been implemented. There are a number of people taking advantage of it. We haven't had quite the same challenges around free speech and religious freedom as here but I think it's really important that that's maintained. But it's a pretty pragmatic approach really. It's in law. I accept that that is the case: we have same sex marriage in New Zealand and we're not setting out planning to change it.'
When elected prime minister, English described himself as 'an active Catholic and proud of it'. His predecessor Jim Bolger, who had been prime minister in the 1990s, told David Speers on Skynews during the week that there have been no problems with the protection of religious freedom, 'and I say that as a conservative Catholic'. He has found much of the Australian debate 'unnecessarily provocative and wrong'. Pointing to Catholic Ireland, he suggested that we should be able to 'put that to history'. He said that New Zealand had been a positive experience and that there were no grounds for victimising people.
I think English and Bolger are right. And I have no reason to question their Catholicity. They are experienced politicians well used to weighing the prudential considerations which come to play when contemplating legislation in a pluralistic democratic society.
But there is one point of distinction between Australia and New Zealand which has not been considered by Bolger and English and those Australians invoking them to assure us that all will be well. There is a clear legal reason why New Zealand has not had the same controversy around free speech and religious freedom. That's because they already had in place the legal architecture recognising and protecting these rights. For example, the New Zealand Bill of Rights Act 1990 provides: 'Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.' We have no such provision in our Commonwealth laws. And that's the thorny issue. That's the issue being aired so constantly now by John Howard and Tony Abbott. In the past, they have been strong opponents of any statutory bill of rights.
"I've voted 'yes' and I hope the 'yes' vote gets up. But there's plenty of work then to be done to protect religious freedom, just as it is protected in New Zealand. Like Bolger and English, I won't be expecting much guidance from the CDF on how best to legislate in this domain."
There's no way the Turnbull government would legislate a human rights act. Perhaps they might consider a religious freedom act. But even that I doubt. Last November, Foreign Minister Julie Bishop asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to conduct an inquiry on freedom of religion. Human Rights Sub-Committee Chair, Kevin Andrews, said the public hearings of the committee would focus on the legal framework of religious freedom in Australia. Prior to the public hearings in June 2017, he said, 'Australia has certain obligations under the International Covenant on Civil and Political Rights and other international human rights instruments. We have an opportunity to examine how effectively Australia is meeting its obligations, with highly qualified legal scholars and religious freedom advocates offering a diverse range of legal opinions. The effectiveness, or otherwise, of these protections, and whether Australia needs a more comprehensive legislative framework, will be discussed in detail.'
One of those qualified legal scholars is Professor George Williams who has told the committee: 'Without stronger protection, freedom of religion, along with other basic rights, are vulnerable to abrogation by Parliament. In addition, public debates and policy discussions are not informed by legal structures and standards that ensure freedom of religion and belief is given the status in Australian society that it deserves.'
The findings of the Joint Standing Committee will hopefully assist our parliamentarians to design the right legislative framework for the protection of religious freedom when considering how best to legislate for same sex marriage should the ABS survey result in a 'yes' vote. I've voted 'yes' and I hope the 'yes' vote gets up. But there's plenty of work then to be done to protect religious freedom, just as it is protected in New Zealand. Like Bolger and English, I won't be expecting much guidance from the CDF on how best to legislate in this domain.
Frank Brennan SJ is the CEO of Catholic Social Services Australia.