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Same sex marriage and freedom of religion



On Wednesday, the ABS will announce the results of the survey on same sex marriage. The return rate on the survey is a very credible 78.5 per cent. In Ireland only 60.5 per cent of eligible voters turned out.

Same sex weddingSixty-two per cent of those who voted in Ireland supported a change to the Irish Constitution recognising same sex marriage. The Australian vote in support of parliament legislating for same sex marriage is likely to be even higher. If so, it will be a resounding win for the 'Yes' campaign. Support among Catholics will be much the same as among the community generally.

Our Parliament will have a clear mandate from the people to legislate for same sex marriage. The present mess of Australian politics will not help as our politicians work out how and when to legislate the change. Already, there are different proponents for different private members' bills which could be presented first in either House of Parliament.

Those who have campaigned loudest and longest for a 'No' vote have emphasised threats to other human rights, most especially the right to freedom of conscience, religion and belief. But they are not the only ones highlighting the need to consider freedom of religion. The issue of religious freedom must be addressed.

The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill noted in its final report published in February 2017: 'There was common ground between many groups on the need for positive protection for religious freedom. The Human Rights Law Centre and other organisations in support of same sex marriage recognised the need for Australian law to positively protect religious freedom.'

Anna Brown, Director of the Human Rights Law Centre and more recently the Spokeswoman for the Equality Campaign, told the committee: 'Religious freedom should be protected in law. Indeed, we are on record in a number of inquiries supporting the addition of religious belief to protections under federal anti-discrimination law.'

The UN Human Rights Committee in Geneva has just published its concluding observations on its periodic review of Australia's human rights performance. This committee, which has a reputation for a high degree of political correctness in human rights discourse, has expressed its concern 'about the lack of direct protection against discrimination on the basis of religion at the federal level, though it notes that a parliamentary inquiry on the status of the human right to freedom of religion or belief is underway'. That parliamentary inquiry is being conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade which is to report early next year on the status of the human right to freedom of religion or belief.


"Should these provisions be extended to protect the expression of religious beliefs as well as membership of a religion and the holding of political opinion? But if you did that, how would you limit the expression of religious beliefs which might be protected?"


Some 'No' advocates have been arguing that all necessary protections for freedom of religion should be inserted in the amended Marriage Act. Five Liberals led by Senator Dean Smith have proposed a bill to the Liberal party room. Any bill similar to theirs would address the freedom of religious personnel not to conduct same sex marriages. It makes good sense to include in the amended Marriage Act any necessary protections of religious freedom in relation to marriage ceremonies. But other issues of religious freedom would be best considered in other pieces of Commonwealth legislation. These other amendments might take time to consider.

The other issues relate to protection for employees, protection for churches as employers and property holders, protection for churches as educators, and protection for parents and guardians wanting to teach their children according to their religious faith or wanting to spare their children teachings inconsistent with their religious faith. During the postal survey campaign, many of the 'No' advocates have claimed that there is considerable shortfall in these protections. None of these issues should be included in the amended Marriage Act.

Under the Fair Work Act, an employer cannot take adverse action against an employee because of their religion or political opinion. Neither can the employer terminate the employee's employment because of the employee's religion or political opinion. Modern awards cannot include terms which discriminate against an employee because of their religion or political opinion.

Should these provisions be extended to protect the expression of religious beliefs as well as membership of a religion and the holding of political opinion? But if you did that, how would you limit the expression of religious beliefs which might be protected? Some expressions of religious beliefs might be so whacky and so insulting to other employees as to make a civilised workplace impossible.

Under the Fair Work Act and the Sex Discrimination Act, religious employers can already discriminate against employees on the basis of their sexual orientation, marital status, religion or political opinion if the action taken is in good faith and is done to avoid injury to the religious susceptibilities of believers, and is done in accordance with the religious doctrines, tenets, beliefs or teachings.

Under the Sex Discrimination Act, religious property owners can discriminate against persons seeking accommodation on the grounds of sexual orientation or marital status when the accommodation is reserved solely for persons of one or more particular marital or relationship statuses. But they cannot discriminate when providing Commonwealth-funded aged care. Once again there may be a case for tweaking this legislation in the wake of same sex marriage. For example would a church boarding school be required to provide married quarters for a boarding master in a same sex marriage?

Under the Sex Discrimination Act, religious educators can discriminate in good faith against teachers and other staff, or even against prospective students, on the ground of their sexual orientation, gender identity, marital or relationship status 'in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'. But what if it can be demonstrated that the adherents of the particular religion or creed voted overwhelmingly in support of same sex marriage?

These are all instances of existing legislation which may warrant tweaking in the wake of a strong 'Yes' vote for same sex marriage. But then again, our legislators might judge that the protections are already adequate. The major lacuna in the national architecture for freedom of religion is the lack of any legislative provision allowing persons the freedom to demonstrate their religion, belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. A provision of this sort is included in the human rights charters of Victoria and the ACT. The absence of such a provision at the national level helps explain the concern expressed by the UN Human Rights Committee.


"The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation such as the Fair Work Act and the Sex Discrimination Act."


Australia prides itself on being a faithful signatory of the International Covenant on Civil and Political Rights. Article 18 of that Covenant spells out the right to freedom of conscience, religion and belief including 'respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions'. This has been one of the loudest complaints from the 'No' campaign concerned about compulsory school curricula such as the Safe Schools program.

These issues will take time to resolve. The Marriage Act should be amended promptly honouring the strong will of the Australian people for the recognition of same sex marriage. The Marriage Act amendments need to include adequate protection for freedom of religion in the conduct of marriage ceremonies. Other issues of religious freedom should be dealt with by the tweaking of existing legislation such as the Fair Work Act and the Sex Discrimination Act. Our politicians then need to determine how to replicate the Victorian and ACT protection of religious freedom in national legislation.

These future legislative exercises could be facilitated by the Attorney General directing the Australian Human Rights Commission chaired by Professor Rosalind Croucher to monitor abuses or shortfalls in the protection of religious freedom in the wake of legislation for same sex marriage. The Commission could be assisted in that task by a panel of experts drawn from those who publicly supported the 'Yes' and 'No' campaigns. This way, the protection of religious freedom could become part of the core business of the Human Rights Commission, as it should in these challenging times of increasing secularisation and religious fundamentalism.

After Wednesday's announcement, let's hope we hear from some of our Catholic bishops repeating the sentiments of Archbishop Dermot Martin after the 2015 Irish vote: 'The Church needs a reality check right across the board, to look at the things we are doing well and look at the areas where we need to say, have we drifted away completely from young people? ... We have to stop and have a reality check, not move into denial of the realities. We won't begin again with a sense of renewal, with a sense of denial. I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution.' He also said that if the Irish vote was 'an affirmation of the views of young people then the Church has a huge task in front of it to find the language to get its message across' to them.

Wednesday will be a day of celebration for those wanting a 'Yes' vote. It should also be a day when we Australians recommit ourselves to respect for all citizens, especially those whose beliefs differ significantly from our own. Our politicians led us into this divisive campaign. Now they need to lead us out of it with considered and timely legislation and a commitment to better protection of human rights for all.



Frank BrennanFrank Brennan SJ is the CEO of Catholic Social Services Australia.

Topic tags: Frank Brennan, marriage equality, religious freedom



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Existing comments

Fr Frank Brennan SJ AO, please use as much passion and as many words you have had on this topic-to help and defend the rights of the Manus island refugees. Thank you.

Game Theory | 10 November 2017  

I have every confidence that our anointed experts in human rights will, after much lofty rhetoric, give the same amount of legal protection to those who persist in defending traditional marriage against the ssm assault as they have given to the unborn.

HH | 11 November 2017  

Archbishop Dermot Martin's words ring true. Do believers want the church to be about 'us' or about 'us and them'? Until fairly recently, homosexuality was illegal and subject to strong discrimination. Now, it does seem that a respectable majority of Australians are in favour of same-sex marriage, and this number would include Christians. As Frank says "Now our politicians need to lead us out of this divisive campaign with considered and timely legislation and a commitment to better protection of human rights for all." Indeed.

Pam | 11 November 2017  

The question Australians were asked in the SSM postal survey was quite simple - yes or no! Nothing about allowing religious people to discriminate against LGBTI people. Why weren't we given the opportunity to have an opinion on this issue in the survey. It's too late now to sneak in extra clauses just to please homophobes.

Aurelius | 13 November 2017  

For another view on the new-found push for 'religious freedom' to discriminate see David Marr's article in The Guardian < www.theguardian.com/australia-news/2017/nov/13/hanging-on-for-dear-life-hardliners-change-tack-on-same-sex-marriage? > The voice of sweet reasonableness as promulgated by the major churches, in contrast to the cries of the coalition's alt-right component, may be little more than a cloak to cover the next assault on freedom from religious discrimination. It's ironic that the bad old days when many positions vacant ads in the newspapers carried the line 'Catholics need not apply' are in danger of being revisited with on-line employment ads carrying the line 'homosexuals, single mothers, divorced persons, and other undesirables' need not apply.

Ginger Meggs | 13 November 2017  

Frank, when the rulings of a body such as the European Court of Human Rights, which does not recognise same-sex marriage as a right, has little political impact, where are the grounds for confidence in effective legal protection of religious freedoms?

John | 14 November 2017  

John, the ECHR and UNHRC recognise the right for a marriage to be dissolved, which the Catholic Church foribids - so the fact that civil/international and religious laws may differ is something the church has already been dealing with since no=fault divorce laws were passed in Australia - so why the sudden need for special religious protections in the case of SSM? In any case, Australia intends to grant the right to SSM, and international human rights law doesn't say SSM rights should not be granted.

Aurelius | 14 November 2017  

Thank you Frank for your trademark inclusiveness and incisiveness. I too expect the YES vote to be overwhelming whatever that means Our politicians will have a clear mandate from the electorate to get on with all necessary amendments. The tweeking of related legisklation can wait but not for too long. Those reasonably concerned about the impact on religious freedom need to be recognised in civilised fashion and their views accomodated. Noone who wishes to be involved should be left out of this very significant initiative. The alternative will alienate and further antagonise those who might otherwise accept this very significant change .

Pete Hoban | 14 November 2017  

Splendid Frank, Great Thanks for this deep and worthy reading of the complex terrain and, it has to be said, the sea of emotions, that lie ahead! Kudos too to Eureka Street for anticipating the historic changes that the People of God must address if they are to be the leaven in the stubborn and sometimes unyielding dough of our humanity. Let your collective hearts not be broken on the rack of some of the irascible and nay-saying comments on show here.

Michael Furtado | 14 November 2017  

Thank you, Frank, for your clear exposition of the relevant issues and guidance regarding solutions. We hope our politicians rise to the challenges now on the table.

Kevin Liston | 14 November 2017  

When I answer an Opinion Poll survey I do not vote. Why then have we had this loose talk about the SSM Survey as if it had the same status as the Irish Referendum. The result in Ireland was binding on the Irish government. I give credit to the Australian Bureau of Statistics for avoiding the word vote. We were encouraged to have our say. ABS was objective to the point of impotence. It could not nuance people's attitude to SSM. The question "Should the Act be changed to allow SSM couples to marry?" permitted only two answers Yes or No. There was no other choice offered: "Don't know", "Don't Care". "Need more information.". There was a third choice - don't participate. We will never know why nearly 20% of eligible participants didn't express their opinion. My opinion was YES because I was not persuaded by the NO case. I have my misgivings that the current parliament will be able to change the Marriage Act without creating unforeseen consequences. I doubt very much if any MP has given any consideration regarding Human Rights to the extent that Fr Brennan has. Debate during the Survey period strengthened my doubts.

Uncle Pat | 14 November 2017  


Michael Furtado | 15 November 2017  

This morning the results of the SSM survey have been published including all the figures. For purposes of simplicity, when the figures are taken to the nearest decimal point we now know that 12.7 million of 15.8 million eligible voters took part. The yes vote was 7.8 million which represents 49.5 percent of the eligible 15.8 million voters. It represents 61.4 percent of those who voted. What does this mean ???? Have we spent $122 million on an outcome that resolves nothing? We cannot assume that the 3 million voters who chose not to vote would have voted in the same percentages for "yes" and "no" . Clearly they didn't feel committed to support either. A massive waste of time which will now be taken as the electorate's approval based on an incomplete representation of the electorate.

homespun mathematician | 15 November 2017  

After all the divisiveness of recent months, today is a day to honour those who with dignity and perseverance have convinced their fellow Australians that the civil law should both recognise their faithful, exclusive commitments and support their families, regardless of their sexual orientation. For them, it is rightly a day of celebration. We need our politicians to lead the nation in healing the hurts caused by the plebiscite campaign. While legislating promptly for same sex marriage, our politicians also need to commit to a transparent, fair dinkum process for determining and rectifying the shortfalls in Australia’s legal architecture for the protection of religious freedom and conscientious beliefs. This must be done with all participants accepting that from now on, civil marriage in Australia will be available to any two persons wanting to commit faithfully and exclusively to each other. Here is the link to a couple of interviews I have done today. I will also participate in a panel discussion on ABC Lateline this evening. Today I join in solidarity both with those who are celebrating and with those who are worried about the future. See https://twitter.com/twitter/statuses/930557818456850432 https://twitter.com/SkyNewsAust/status/930583803017306112/video/1

Frank Brennan SJ | 15 November 2017  

In reply to homespun mathematician, as you say, we cannot make any assumptions about the eligible voters who had the opportunity but chose not to take part in the survey. I was almost one of them because Michael Kirby’s call for a boycott had its attractions. I never doubted the outcome but I thought the process was a wedge to create divisions and subject LBGTQI people to abuse and worse. In the end I took part because supporting the rights of other Australians was the right thing to do. Some terrible things did happen but fortunately my worst fears overall were not realised. The outcome of the survey and the 61.6 percent yes vote is as complete a representation of the electorate’s approval as you could get under the circumstances. It is a clear call of community opinion. Now we have done Parliament’s work for them there should be no more excuses or delays.

Brett | 15 November 2017  

According to political theory, a member of parliament can choose to vote as a representative or a delegate of the electorate. A representative makes up his or her own mind, a delegate votes according to the mind of the electors as established by some method. Jason Clare (ALP, Blaxland) says he has his views and his SSM-negative electorate in western Sydney “understand” that. Well, they may know he has a different view from them but is he entitled to vote against the substantial majority of responders to the poll in his seat who registered a clear vote for ‘No’? Does this mean, that Tony Abbott should vote the way he wants? If Jason Clare doesn’t feel obliged to convey the clear feeling of his electorate on this matter, neither should any other MHR. While each senator is elected by state, crossbenchers, especially, should know where the lower house electorate-based polling booths are that are most favourable to them and, by extension, which are the lower house seats which generate their greatest support. In brutally practical terms, a crossbench senator represents a whole state or territory but it is not the whole state or territory who delivers her to office.

Roy Chen Yee | 15 November 2017  

Today we saw the human faces of the LGBTIQ community. We saw Senator Penny Wong crying. We saw Magda Subranksi dancing with delight. We heard two elderly gay men say: "Now we can get married after thirty seven years of living together. It's not about the sex. We love one another and we want that love to be recognised." In their euphoria many praised and thanked the Australian people. Commenter Homespun Mathematician could have cooled their enthusiasm. 4.9 million expressed the opinion that the law should not be changed so that SSA couples could marry. 3.1 million Australians eligible to participate in the Survey did not exercise that right. That means that only 49.5% of those eligible said Yes. There are still many Australians who do not want their fellow Australians who are LGBTQI to enjoy married life. But the PM spoiled the party for me by claiming the Australian people had voted for love. No objective remarks about the Survey figures merely confirming what Opinion Polls over the past couple of years have shown. 50% of Australians think SSA couples should have the same human rights as other Australians; 30% think they should not; and about 20% were indifferent..

Uncle Pat | 15 November 2017  

This evening I addressed the Canberra Interfaith Forum and Canberra Multicultural Community Forum event for the International Day of Tolerance. Watch at: https://www.facebook.com/253806931322559/videos/1568385996531306/ Then I participated in a panel discussion on same sex marriage and religious freedom on ABC Lateline. Watch at http://www.abc.net.au/lateline/panel:-same-sex-marriage-and-religious-freedom/9155222

Frank Brennan SJ | 15 November 2017  

I can help you out Roy on your representative/delegate confusion. Jason Clare sits in the House of Representatives. He is the representative of his electorate, not a delegate. Various factors influence how MPs vote in Parliament. Primary among them for most MPs is supporting their party, which won’t necessarily reflect the will of each electorate. Crossing the floor does not happen all that often. The postal survey created an unusual situation where the overall opinion of voters in each electorate is known. MPs would be prudent to keep this in mind but it does not follow that they have to reflect that opinion in Parliament. It is just one factor influencing their voting decision and sometimes supporting a position on rights may override local opinion. All MPs Roy, not just Jason Clare, will vote the way they want and their constituents will have their opportunity to respond at the next election. That’s a political fact.

Brett | 16 November 2017  

"Today I join in solidarity both with those who are celebrating and with those who are worried about the future." Not sure if that's possible, Fr Frank – any more than joining in solidarity with both Henry VIII and Alice More.

HH | 16 November 2017  

Roy, I should have added that in unusual situations like this where the collective opinion of the nation has been surveyed, MPs may want to take a broader view than they get from their electorates. In the pursuit of rights, the national interest may well outweigh parochial local interests.

Brett | 16 November 2017  

HH. As a homespun mathematician to whom 1 + 1 = 2 and never = 3, I would suggest that "joining in solidarity" with diametrically opposed positions in any debate is a contrived form of sitting on the fence - the perfect recipe for always winning without criticism or loss of face. Doesn't take a lot of courage either!

homespun mathematician | 17 November 2017  

Roy Chen Yee, I'd like to add that an MP “owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion”. Your 'delegatory model' of parliamentary representation was contested by Edmund Burke, the conservative Irish philosopher. An MP is also there to provide leadership, to exercise his or her judgement, to explore the wider context, to form alliances that can deliver change and to be a forceful advocate. If Twitter and Facebook had existed in the 1930s MPs under threat of deselection might not have ended appeasement and fought the Nazis. And it sobers that all public opinion polls still show that a majority favour a return of the death penalty. The liberal philosopher, John Stuart Mill, also championed this model, stating that while all individuals have a right to be represented, not all political opinions are of equal value and that politicians are Members of Parliament, rather than, as in Jason Clare's dashing and forthright instance, just the member for Blaxland. Every MP's vote is in some sense a vote of conscience, despite the Whips. If they just become ciphers for referendums, debate narrows and ungovernability triumphs.

Michael Furtado | 18 November 2017  

The debate and media coverage of the 'Same Sex Marriage' in Australia has been farcical and disrespectful to homosexual and LGBT people. The recent postal survey was meaningless, non-binding and a waste of taxpayer's money and was forced on the government by conservative Catholics such as Tony Abbott and Kevin Andrews, who did not want a result similar to what happened in Catholic countries such as Spain, Portugal, Argentina and Ireland . The survey results were predictable for the whole country, including the Catholic community, and I am reminded of a comment made by either Paul Collins or Stephen Crittenden a few years back that surveys of the Catholic community had found that the majority of Catholics were in favour of accepting homosexual people as part of the Catholic community. In my opinion, there is no theological reason for discriminating against homosexual people.

Mark Doyle | 19 November 2017  

This was the PM’s announcement today: The Cabinet has agreed to appoint the Hon Philip Ruddock to examine whether Australian law adequately protects the human right to religious freedom. The impending legalisation of same-sex marriage has seen a variety of proposals for legislative reform to protect freedom of religion. Many of these proposals go beyond the immediate issue of marriage. Any reforms to protect religious freedom at large should be undertaken carefully. There is a high risk of unintended consequences when Parliament attempts to legislate protections for basic rights and freedoms, such as freedom of religion. The Government is particularly concerned to prevent uncertainties caused by generally worded Bill of Rights-style declarations. This will be a timely expert stocktake to inform consideration of any necessary legislative reforms. The Hon Philip Ruddock is the right person to conduct this review. Mr Ruddock has most recently served as Australia’s Special Envoy for Human Rights. In his many years in public life he has maintained a steadfast commitment to cultural and religious diversity in this country. Mr Ruddock will be assisted by an expert panel consisting of the recently appointed President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher AM, the Hon Annabelle Bennett AO SC and Fr Frank Brennan SJ AO. I have asked Mr Ruddock to report his findings by 31 March 2018.

Frank Brennan SJ | 22 November 2017  

I was interviewed this evening by Patricia Karvelas on ABC RN in relation to the Review to investigate religious freedoms. Listen at http://radio.abc.net.au/programitem/pgWGzeQMj7?play=true

Frank Brennan SJ | 22 November 2017  

Why not a reference to the Australian Law Reform Commission? The ALRC is the statutory body set up for precisely this sort of task. It has a formal process of consultation and reporting and its final report must be tabled in Parliament? What's so special about this matter that requires a hand-picked group of people - two of whom could hardly be said to have open minds on the subject - with no particular terms of reference or procedural requirements? Sounds like a politico-religious fix to me rather than a serious review.

Ginger Meggs | 23 November 2017  

So now we have a third person who can hardly be said to have an open mind on thee matters appointed to this ad-hoc review. The terms of reference? '[To] examine whether Australian law adequately protects the human right to freedom of religion' by 'consider[ing] the intersections between the enjoyment of the freedom of religion and other human rights', 'hav[ing] regard to any previous or ongoing reviews or inquiries that it considers relevant, [and] 'consult[ing] as widely as it considers necessary'. Submissions close on 31 January, between now and when most of the nation will be on holidays. One could be forgiven for thinking that this was all a stitch-up to provide 'validation' for the views already held by the marriage-equality nay-sayers in the Coalition.

Ginger Meggs | 15 December 2017  

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