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Freedom of conscience and same-sex marriage



Last year's debate over whether to legalise same-sex marriage revolved around the means for resolving that question. Should Parliament have a free vote, or should public opinion first be tested through a plebiscite?

Rainbow coloured rosesBut same-sex marriage raises fundamental questions of law and religious freedom. The submissions to the current Senate Select Committee on the Marriage Amendment (Same-Sex Marriage) Bill grapple with these issues: if same-sex marriage becomes law, how do we enable gay and lesbian Australians to enjoy their new-found equality? To what extent should we protect people with religious objections to same-sex marriage?

Two issues can be dealt with shortly. First, ministers of religion must be free to solemnise marriages in accordance with their beliefs. Any other position would impose a religious observance, or prohibit the free exercise of religion, contrary to section 116 of the Commonwealth Constitution.

Second, there is no basis for extending a similar concession to marriage celebrants. Celebrants are civil servants. They voluntarily undertake a secular, public function: to solemnise marriages in accordance with the Marriage Act 1961 (Cth).

The case of commercial service providers is more complex. Anti-discrimination law generally bars people from refusing to provide goods and services on the grounds of sex or sexual orientation. But many argue that caterers, florists, reception centre owners and so on should be free to refuse to participate in same-sex weddings, on the basis of their religious beliefs ('the commercial exemption').

The case for the commercial exemption is unconvincing.

First, this particular exemption lacks a principled basis. In a liberal democracy, freedom of thought is absolute. But freedom to act in accordance with one's conscience is constrained by laws of general application. As Justice Scalia noted in Employment Division v Smith, the alternative would be 'a system in which each conscience is a law unto itself'.

The commercial exemption privileges one form of conscience: religious conscience. It provides no protection for a person with a deeply held but secular hostility to same-sex couples. It also only excuses discrimination on certain grounds, namely sex and sexual orientation.


"Advocates of the commercial exemption often labour under the misconception that a same-sex couple denied services is simply able to go elsewhere. This ignores the fundamental, dignitary harm caused by discrimination."


 Religion has been used historically to justify practices like slavery and segregation. But we now accept that religious beliefs cannot justify discrimination on the grounds of race, age or disability. Is there a principled basis for exempting discrimination against gay and lesbian Australians (as opposed to people with other attributes), motivated by religious beliefs (as opposed to secular convictions)?

Second, it is unclear how a person breaches a religious prohibition on homosexual sex by providing a same-sex couple with goods or services. Take, for example, a Christian hotelier who accommodates a same-sex couple. In a recent case, after hearing extensive theological evidence, the Victorian Civil and Administrative Tribunal found that Christianity's core doctrines and creeds relate to 'the nature of God, the nature of Jesus, and his interaction with the world', rather than opposition to homosexuality.

But in any case, the hotelier is not engaging in homosexual sex. Nor has he facilitated the couple's conduct in a manner that is blameworthy. Christian new natural law theory provides a sophisticated framework for resolving questions of complicity in another's wrongdoing. The hotelier's act is morally permissible in itself. He is not intending that the couple have sex, or causing it as a necessary means to his own end. His act will not lead to scandal, in the sense that others would infer that he endorses homosexual sex. Irrespective of the hotelier's decision, the couple will continue their relationship. The hotelier's connection to the couple's conduct is too tenuous and contingent to ground a charge of moral culpability.

It might be argued that what matters is merely the hotelier's subjective sense of his religious obligations. But divorced from any basis in religious doctrine and ethics, the commercial exemption begins to collapse into a broad freedom to act in accordance with one's conscience.

Finally, advocates of the commercial exemption often labour under several misconceptions. The first is that a same-sex couple denied services is simply able to go elsewhere. This ignores the fundamental, dignitary harm caused by discrimination. Patricia Williams, an African American academic, vividly describes her experience of being refused entry into a New York store:

'There was almost nothing I could do, short of physically intruding upon him, that would humiliate him the way he humiliated me. No words, no gestures, no prejudices of my own would make a bit of difference to him. His refusal to let me into the store was an outward manifestation of his never having let someone like me into the realm of his reality. He had no connection, no compassion, no remorse, no reference to me, and no desire to acknowledge me even at the estranged level of arm's length transactor.'

The second misconception is that anti-discrimination law is a modern incursion on an otherwise unbounded freedom to contract, and to exercise property rights, in accordance with one's conscience. In its submission to the Senate Select Committee, FamilyVoice states that freedom of religion 'should not be defined by the crumbs left over by newly invented pseudo-rights'. Without a broad commercial exemption, the government will be 'sanctioning a type of servitude or forced labour'.

But the common law has long circumscribed freedom of contract and property rights in order to protect people from arbitrary discrimination. For centuries, courts have required businesses that hold themselves out as open to the public to serve all comers without discrimination. As Joseph Singer convincingly argues, businesses 'constitute a form of property use that injects the property into market relations — a sphere of social life to which everyone should have access'. This tradition carries on through modern anti-discrimination law.

The debate over same-sex marriage will reignite, in this term of government or the next. We will then need to confront and resolve these important tensions between equality and religious freedom. We should strictly scrutinise claims for exemption, lest they undermine the promise of marriage equality.


Jack MaxwellJack Maxwell has degrees in law and philosophy from the University of Melbourne. He blogs occasionally at Four Sciences. All views are his own.

Topic tags: Jack Maxwell, same sex marriage



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Existing comments

Precisely ! And it's high time that we separated religious matrimony from civil marriage, as is the case in France.

Ginger Meggs | 23 January 2017  

Jack Maxwell, I would appreciate your views on the following scenario. A gay couple run a restaurant. A local Church group wants to book the restaurant for a Church function. The Church group views homosexuality as contrary to the laws of God. Does the gay couple have the right to refuse the Church group their services? If yes, what is the justification for allowing gays to withhold their services from groups they deem offensive whilst, according to your article, a Christian restraunter would have to accept a gay wedding reception?

Gerald Lanigan | 24 January 2017  

Discrimination is nothing new. We have discriminated against Australian Aboriginals not allowing them into hairdressers, hotels, picture theatres, and even churches. What happens if a business says they are simply not available that day - they may be busy, that is their scheduled day-off, the service requested is beyond their scope - are they still at risk of discrimination?

David Freeman | 24 January 2017  

Spot on Jack, great work. It also strikes me that, on a practical level, it is highly unlikely that a commercial operator who objects to same-sex marriage from a religious or secular standpoint would regularly be asked to provide services from gay couples anyway, who would no-doubt prefer to patronise supportive gay-friendly businesses. And if a commercial operator is asked to provide certain services and could not legally refuse on the basis some discriminatory belief, they would probably be able to (a) frame their refusal in some form of legally permissible reason (i.e. "i'm too busy"); (b) provide the service begrudgingly and in an unfriendly manner. Whilst (a) might seem sneaky, in practice it is notoriously difficult to prove discrimination of this kind. It is similar to many indigenous people reporting to me they have difficulty obtaining rental places. It is difficult to establish whether the landlord or real estate agent has been discriminating for permissible or non-permissible reasons. Unlike judges, commercial operators do not need to disclose the reasons for their refusal to provide services, and there is no positive obligation for a private citizen to provide them in the first place.

Matt McGirr | 24 January 2017  

I’m not Jack Maxwell but in reply to Gerald Lanigan’s hypothetical about a church group wanting to book a restaurant run by an openly gay couple and going only on the skeleton of his example, I suggest the restaurateurs should take the church group booking and provide the highest quality service they can to make the event a happy occasion, as they would do for any other customers. They are running a business, not making moral judgements on their customers and anything less than their best would be unprofessional. Unless the church group is trying to provoke a problem (and why ever would it want to do that?) the event should be a happy occasion for all concerned. Hopefully the good time at the function and the quality of the service would encourage the church patrons to make repeat bookings.

Brett | 24 January 2017  

David Freeman, It depends on whether the reason tendered is authentic or a fabrication. In the latter case, evidence must be made available to demonstrate the spuriousness of the claim. I know of an instance in which a Sudanese refugee was declined a rental agreement for reasons that the vacancy had been filled. This turned out not to be true upon prompt further investigation. The agent was reminded of his responsibilities under the law and the flat subsequently rented to the aggrieved party.

Michael Furtado | 24 January 2017  

To truly separate religious matrimony from civil marriage requires the use of a different word Ginger Meggs because linguistically speaking you can't say we are matrimonised. Creating a separate word would allow businesses to state whether they cater for one type of union or both. For example, if Coupliage (coopliazhe) denoted the civil same sex union it can be varied to couplimony, coupled, coupling and of course uncoupling already exists. The ceremony solemnising a coupliage could be a Chivalron (from chilvary meaning honouring). I would rather create a word to express the uniqueness of a new kind of union than try and bend an existing to word to mean something different to itself and besides it supports freedom on both sides. It would eliminate confusion with some stating we're coupled, while others, we're married.

Gordana Martinovich | 24 January 2017  

A sound sensible article. The idea of inventing another name for same-sex marriages is just another way of stigmatising gay people. Ginger Meggs is talkng about two different kinds of marriage. The difference has existed since 1975 at the latest in Australia. Nobody is confused by the coexistence of civil marriage (terminable at will) and sacramental marriage (life-long and indissoluble) The latter was once called "holy deadlock". Maybe that's another idea if you want to start renaming things.

OldG | 24 January 2017  

When I worked in the Cath Ed office we bought our lunch from two gay guys over the road. They always served us. Almost every caterer, chef, pastry cook, dressmaker etc I know is trying to make a living. They might refuse to cater for a Nazi function for example. For most other things they just try to provide good service.

Graham English | 24 January 2017  

An interesting scenario with this Christian group and the openly gay restaurateurs. Only one question. If the group is apposed to homosexuality, and the restaurateurs are openly gay, what on earth are they doing booking their celebration into such a place (as it would be in their opinion)?

Ian Carmichael | 24 January 2017  

Old G when someone says they are married is that civilly or sacramentally? Rather than stigmatising it sets new ground as if they are different kinds of union (you use marriage) which you suggest by stating one is easily gotten out of and the other not, then they should have a different word - that stands to reason. Holy deadlocked is more suitable to a Halloween satire than reality while I am actually interested reality that distinguishes yet upholds the uniqueness. Imagine Chivalron caterers!

Gordana Martinovich | 24 January 2017  

Generally agree but please use more inclusive language. Not "if same-sex marriage becomes law" but if Australia gets Marriage Equality (like New Zealand), "how do we enable all adult Australians, whether they are gay or lesbian or bisexual, or transgender or intersex, to act on their new equality?" Currently intersex people can't marry unless they identify as male or female, which they may not do. Transgender people who are already married and who legally transition won't have to get a divorce as they do now. Any adult nonfamilial consenting couple will be able to marry. Some churches will be happy to perform weddings for LGBTIQ people, some won't. No church celebrant should be required to officiate but civil servants should do their job in an neutral manner. Ne Zealand managed this without problems, why can't Australia?

Kay | 24 January 2017  

Spot on, OldG. There is nothing intrinsically Christian, or even religious, about marriage. It existed before Christianity and it existed (and exists) outside Christendom. The Church may wish to view Christian marriage as a symbol of the union twixt Christ and his Church, but that doesn't change the nature of civil marriage. It has always been about civil rights and responsibilities, even in theocracies and even when the clerics exercised jurisdiction. The Church has no monopoly on the use of the word. Its etymology goes back BCE. We don't need another name for civil marriage whatever form it might take. And we don't need laws that allow commercial service providers to discriminate on the basis of the nature of a lawful civil marriage.

Ginger Meggs | 24 January 2017  

Thanks Ginger Meggs. I agree Marriage pre dates Christianity and goes back to the dawn of time else you and I wouldn't be here hence its true nature is revealed so something new deserves a new word. Civil marriage is not about civil rights but distinguishing itself from the basic idea. It is not about the church having a monopoly as there are many traditions which have the time immemorial concept but about justice to all parties. And I have to wonder what word is next on the agenda - the power to alter words so was in 1984 explicated and shared meaning gets lost. Also, just think though how many wedding only caterers would lose business...given all the support out there...how many would even be that - is presuming an awful lot.

Gordana Martinovich | 25 January 2017  

To Mr Lanigan: Firstly, I've never heard of any Christian church opposed to homosexuality. That would be unChristian and against the values of the majority of mainstream church teachings. If they would like to discriminate on the basis that these gay restauanteurs are "sexually active" , I guess they would have to make ask them - and in the interests of consistency with church teachings, also inquire into the sexual activities of heterosexual restauranters and make surer they aren't engaging sexual activities outside of marriage. But from my personal perspective, I welcome laws to protect freedom of conscience/belief/faith - because I would not want a homophobe taking photos at my gay wedding.

AURELIUS | 25 January 2017  

Jack Maxwell I agree that "... marriage celebrants... are civil servants [who] voluntarily undertake a secular, public function: to solemnise marriages in accordance with the Marriage Act 1961".But should existing celebrants , who trained and now operate under the current definition of marriage, be forced to give up their careers if they cannot in conscience support a changed definition? That would seem to me unjust.

margaret | 25 January 2017  

To clarify Jack, it is not currently correct to say that same sex marriage is a “human right” recognised by the international community according to the International Covenant on Civil and Political Rights (ICCPR) and UNHRC so why do people claim it as a 'civil' right? Also if since 2008 same sex couples have all the protections in law they need how are they unequal before the law? Isn't equality before the law based on the purpose of the law, why it exists? On the current call for equality anyone could claim equal rights to marry if its purpose is negated- children, siblings...altering what it is and making the term nebulous even pointless. I find the lack of precision concerning given we live in a scientific age which defines, distinguishes, clarifies and utilises nomenclature: arachnid - spider, scorpion etc and it seems we are abandoning science. I think of the word iron and sure it has several meanings but it is usually clear from the usage in a sentence which iron is being used. Then there is an iron and a press which both remove crinkles from clothes but not exactly the same hence the word difference.

Gordana Martinovich | 26 January 2017  

Gordana whilst stopping short of declaring same sex marriage a human right the European Court of Human Rights has declared full legal recognition of same sex relationships a human right.Contrary to what is repeatedly claimed the recognition currently accorded in Australia does not meet this standard.

margaret | 26 January 2017  

“Religion has been used historically to justify practices like slavery and segregation. But we now accept that religious beliefs cannot justify discrimination on the grounds of race, age or disability.” Cute wording. Implying that secular thinking has converted religion from its previous support for slavery and segregation? But it was Christianity itself (through, for example, Wilberforce) that rose up against slavery. By the time of Jim Crow and apartheid, Christians who believed in the moral merits of those were outliers within their own universal faith. “Second, it is unclear how a person breaches a religious prohibition on homosexual sex by providing a same-sex couple with goods or services. Take, for example, a Christian hotelier who accommodates a same-sex couple.” It’s not the sex per se but spillover consequences. Is institutionalising same-sex marriage safe for children (who will be denied the tutelage of one of their biological parents)? It’s the effect on another human being outside the relationship which, in the absence of data, justifies commercial providers to be wary of seeming to support celebrating an institution which might be a social hazard. Incidentally, should an ATSI baker be penalised for not baking a cake celebrating the First Fleet?

Roy Chen Yee | 26 January 2017  

In all situations in life I believe a Christian should seek to honestly discern God's will. What is God's will in this situation? What would Jesus say and do?

Mary | 27 January 2017  

Christians were in the vanguard of those wanting to abolish slavery, just as they were among the supporters of slavery. Wilberforce gets much recognition but there were many, Christians and others, who opposed slavery. I wonder where conservative Christians of today would have stood on slavery 200 years ago. There are Christians and non-Christians who strongly oppose mandatory and open-ended offshore detention for refugees, just as many who support locking people away like this also call themselves Christian. Christianity covers a broad range of opinion and it must be comforting that one faith can find expression in so many diverse viewpoints. Take the Christian hotelier who wants to discriminate against a gay couple. What if his expression of Christianity also had a racial basis and he refused to accommodate a mixed-race heterosexual married couple on religious grounds? Looking at it another way, would a homophobic atheist hotelier be on weaker ground for refusing service to a gay couple? These nitpicking questions show the weakness of the argument but the point surely comes back to respect for other people who do not have the same sexuality as us. It isn’t even asking for Christian love, just respect.

Brett | 27 January 2017  

Roy, if you think Christian business people refusing services to same sex couples are justifying their decision because of possible changes in parenting/adoption/surrogacy laws down the track, I suspect you might be being a bit naive. You've bridged too many thought processes on their behalf, as I'm sure the ethical issue of biological parenthood has already been dealt with by the law through civil partnership laws as well as other laws covering adoptions/surrogacy for heterosexual couples. So in the absence of any real justification, we're led back to good old fashioned homophobia as their motivation - which is why I'm quite happy for them to receive exemptions from discrimination laws to protect ME from THEM.

AURELIUS | 27 January 2017  

And to Brett - yes, I totally agree with your point that this is all nitpicking. When we look at the ethical/Christian arguments for discriminating against same sex couples in a business service context, there are so many other examples that are blatantly ignored - why not refuse service to de facto couples on the basis that accepting "de facto" as legitimate is eroding the institution of marriage and denying children the right to a secure parenting arrangement? And the list goes on - but once again I really think people should be allowed to discriminate because I would not like to be associated with their businesses. To me, however the argument is dressed up - it's still plan and simply homophobia.

AURELIUS | 27 January 2017  

Aurelius and Brett, it is not "nitpicking" to distinguish realities that differ. Fudging real differences(same-sex,opposite sex relationships) only encourages division.

John | 04 March 2017  

John, no-one's denying there are differences within marriage - this is merely a matter of what's legal. You're obviously getting into the Corey Bernardi mode of thinking that SSM is an abandonment of all morals and would lead to other "different" ie abominablel partnerships . I'm sure you could even mount an argument that interracial and interfaith partnerships are different so shouldn't be legal.

AURELIUS | 29 April 2017  

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