Threats to liberty of conscience

This authoritative essay appeared on the website WHY VOTE NO?

A LEGAL OPINION ON THREATS TO LIBERTY OF CONSCIENCE IF MARRIAGE IS REDEFINED 

The following is a paper by Augusto Zimmermann LLB (Hon.), LLM, PhD (Mon.) that outlines how amending the Marriage Act would potentially harm liberty of conscience and freedom of religion in Australia.

Dr Zimmermann quotes the case of Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria),[29] in which Mason ACJ and Brennan stated:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.[30]

Dr Augusto Zimmermann LLB, LLM, PhD (Mon.) is President of the Western Australian Legal Theory Association (WALTA). He is also Professor of Law (Adjunct) at the University of Notre Dame Australia (Sydney campus); Former Commissioner, Law Reform Commission of Western Australia (2012-2017)); Former Associate Dean for Research (2010-2013) and Director of Post Graduate Research, Murdoch University School of Law. 


FIRST CONSIDERATIONS

[1] Passing legislation approving same-sex marriage is a divisive issue, not only here in Australia but also in many countries around the world.  About 25 countries have already legislated to change the meaning of marriage, most recently in Ireland through popular referendum and in the United States through the landmark Supreme Court decision in Ogbergefell v Hodges – although this decision is an example of a judicially created and enforced right, not the product of legislation.[1][2] Now, unfortunately, examples from all over the world reveal that legalisation of same-sex marriage potentially infringes the fundamental rights and freedoms of citizens. Some people have been found at the receiving end of quite severe persecution as well as protracted and expensive legal action for merely holding the traditional and time-honoured opinion that marriage should only be between a man and a woman.[2][3] This legal opinion provides an account of the potential implications of same-sex marriage for religious freedom. Although one must acknowledge the many instances whereby the legalisation of same-sex marriage can lead to a considerable erosion of fundamental rights and freedoms (including parental rights and the right to association), this legal opinion is focused primarily on the implications of changing the meaning of marriage for the free exercise of religion or conscience in Australia.

FREEDOM OF RELIGION IN AUSTRALIA

[4] Because liberty of conscience demands, and ultimately justifies, a certain delimitation of governmental power, religious freedom is a right that must to be enjoyed by every individual citizen. It is a basic right recognising that everyone ought to pursue transcendent ends freely and without political coercion; something the drafters of our own Commonwealth Constitution considered when writing section 116. Religious freedom, above all, ‘is the bedrock for every human right and it provides a sturdy foundation for limited government’. [3] Under our western legal tradition, Jennifer A. Marshall explains:

[T]his right is granted not by government but by the Creator. By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Conversely, limited government requires individual responsibility. Freedom engages the moral responsibility of each and every person. In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.[4]

[5] A foundational issue for religious communities concerns the intrusion into their activities by government bodies on grounds of fostering a more ‘socially inclusive’ environment. This assumption may well proceed from good intentions. And yet, government intervention into the religious domain often produces diametrically opposite effects to those alleged intentions. This lesson is learnt from a study of twentieth century history, which reveals that government regulation of religion often results in severe oppression of religious groups, particularly religious minorities. According to Oxford University’s Professor Alister McGrath, ‘the 20th century gave rise to one of the greatest and most distressing paradoxes of human history: that the greatest intolerance and violence of that century were practiced by those who believed that religion caused intolerance and violence’.[5] As U.S. theologian Timothy Keller points out:

Soviet Russia, Communist China, the Khmer Rouge and (in a different way) Nazi Germany were all determined to tightly control religious practice in an effort to stop it from dividing society or eroding the power of the state. The result however, was not more peace and harmony, but more oppression.[6]

[6] Dean Hernandez of Regent Law School reminds us that religious freedom ‘serves the common good and facilitates the proclamation of the Gospel’.[7] From the point of view of advancing religious truths, ‘preserving religious liberty protects the rights of conscience of all, including people of no faith, while allowing the Gospel to be preached so that the world may truly, intimately, fully and freely know Jesus Christ and the blessings of the kingdom of God’.[8] This is one of the most traditional approaches to religious freedom in the United States, Professor Hernandez says.[9] The Christian aspiration to order the American society under God became the revivalist’s attempt at converting society by voluntary means. The assumption here is that ‘the personal religious convictions of individuals, freely gathered in churches and acting in voluntary associations, will permeate society by persuasion and example’. [10][7] On the other hand, religious freedom is not an absolute right, even in the United States. Religious freedom is necessarily subject to several limitations. As noted by Wilber G. Katz, ‘legislation may validly forbid some types of conduct which a particular religion deems obligatory, or may prescribe action forbidden by religious law. Some such limitations are obviously necessary to protect the interests of citizens who do not share the particular faith’.[11] This justification covers measures requiring a certain level of urgency: blood transfusion caused by life-threatening issues; compulsory vaccination of children; and isolation of victims of contagious disease.[12]However, such limitations on the free exercise of religion are not be lightly imposed; they can be justified only by the occurrence of ‘grave and immediate danger to interests which the state may lawfully protect’.[13][8] Recognising the potential for exploitation of the federal government by individual religious bodies, s116 of the Commonwealth Constitution guards against a situation in which members of one religious group might dominate Federal Parliament and thereby pass legislation to establish their own body as the National Church, or introduce religious tests favouring admission of individuals from their own body to the Commonwealth bureaucracy, etc.[9] Far from seeking to banish religion in general and Christianity in particular, from Australian society, the Framers intended a laissez-faire environment that ensured that no particular religious body would enjoy unfair advantage on account of federal government endorsement.Section 116 therefore establishes a limitation on the powers of the Commonwealth Parliament to legislate with respect to religion. In Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth this objective was expressed very clearly, when Latham CJ stated that ‘[t]he prohibition in s 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance’.[14]

[10] This is quite distinct, however, from prohibiting the promotion of religious values by Parliament. Curiously, Christian prayers are still conducted prior to opening proceedings at both state and federal Parliaments. Standing Orders for the House and Senate determine that the Speaker must read a prayer for Parliament,[15] which is followed by the Lord’s Prayer before calling for the first item of business.[16] And, of course, religion is still taught in our public schools and the Bible is still present in every court of the land.[11] As can be seen, Christian practices deeply permeate Australia’s legal-institutional traditions. Section 116 in no way implies the exclusion of Christian values from Australian law. Above all, s116 cannot be validly used to prohibit federal laws to assist the practice of religion, or to provide financial support to religious schools. To fall foul of s116 the federal government would have to go so far as to effectively establish an official Christian denomination, or to value one Christian denomination over the others.[12] Section 116 has helped this nation to foster a healthy religious environment in which many religious bodies thrive within local churches and parishes, all within an umbrella that protects the general populace against dominance by a single denominational outlook. Throughout the 20th century, divergent religious bodies co-existed under this Australian system with a degree of harmony that has few parallels internationally. There is no need to disrupt this harmony by introducing innovations such as expanding the reach of controversial Section 18C of the federal Anti-Discrimination Act to religious grounds, as Labor is presently contemplating to do if it gets elected.[17][13] On the other hand, the High Court of Australia has consistently recognised that the right to religious freedom is not absolute. That being so, not every interference with religion is a breach of Section 116 of the Commonwealth Constitution, only those that are considered an ‘undue infringement of religious freedom’.[18] As former Chief Justice Anthony Mason and Justice Gerard Brennan pointed out, ‘general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them’.[19][14] Religious freedom is therefore a properly qualified freedom, such is the perception that in 1898 led many of the Australian framers to resist any idea of absolute freedom of religion as posing unacceptable risks to the community.[20] During the convention debates that ultimately led to the draft of the Commonwealth Constitution, there was a suggestion that the federal Parliament should have power to prohibit religious ‘practices which have been regarded by large numbers of people as essentially evil and wicked’.[21] Conventional delegate Edward Braddon, though eventually supporting Henry Higgins’s proposal that ultimately led to the final wording in section 116, initially sought to amend it by adding the words: ‘But shall prevent the performance of any such religious rites as are of a cruel and demoralizing character or contrary to the law of the Commonwealth’.[22] Similarly, Edmund Barton, who hesitated over Higgins’s proposal but finally voted against it, was visibly troubled by the difficulty of drafting a satisfactory formula in order to ensure that the constitutional protection would be limited to practices that are not inhuman or barbaric. As Burton pointed out:

The trouble arises when you try to insert a proviso modifying this prohibition. For instance, if it were desired to prevent the application of the clause to any fiendish or demoralizing rite, that might be done by inserting the words ‘so long as these observances are inconsistent with the criminal laws of the state’, [but even] if there were no criminal law in existence at the time with which these observances are inconsistent, it would be possible for the state to pass such a law, and so, to use a common expression, euchre the whole business. [23]

[15] Against the background of qualified affirmation of religious freedom, Justice Latham, in the Jehovah Witness’s case, turned to a catalogue of the evils and horrors sometimes practised in the name of religion that should not be tolerated at all. Latham fell back on a variation of the classical liberal formula which permits limitations on freedom only in the interests of freedom itself. The particular version of this formula quoted in Latham’s judgement was taken directly from John Stuart Mill’s essay On Liberty: ‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any or their number, is self-protection’.[24] This statement in Mill’s book was taken in the sense of society’s self-preservation. But in fact, as law professor Tony Blackshield explains, ‘what [Latham] seemed rather to have in mind was the Kantian version, according to which freedom may be restricted only so far as is necessary to ensure an equal freedom for others, or to ensure the underlying preconditions of freedom for all’.[25] Blackshield’s opinion is consistent with Latham’s argument:

[T]hat the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community.[26]

[16] The freedom of religion guaranteed by section 116 is freedom within a democratic society based on the enjoyment of fundamental rights and freedoms. Consistently with that philosophy – indeed, in order to secure their continued enjoyment – every democratic society is perfectly entitled to defend itself not only against subversive religious activity certainly in wartime and, in my strongest opinion, also in time of peace. Accordingly, any steps to be taken to outlaw extremist teaching that incites religious violence and disregard of the rule of law are entirely compatible with the freedom exercise of religion under section 116. Indeed, the whole High Court has agreed with these conclusions in the past, and have rested them on a broadly similar conception of religious freedom that must remain ‘subject to powers and restrictions of government essential to the reservation of the community’ (Justice Rich) or ‘subject to [such] limitations … as are reasonably necessary for the protection of the community and in the interests of the social order’ (Justice Starke).[27]

WHETHER RELIGIOUS BODIES MAY EXCLUDE THOSE WHO DO NOT FOLLOW THAT RELIGION’S BELIEFS

[17] Implications from the Commonwealth Constitution must arise directly from its text and structure. [28] The High Court has held that the implied freedom of political communication arises from (at least) sections 7, 24, 64 and 128 of the Commonwealth Constitution. What direct implications arise from the text of s 116 concerning the implied freedom of political communication?[18] Freedom of religion has  constitutional relevance in Australia. The exercise of religion includes teaching that other religions, or certain ideas, attitudes and acts, are not only wrong but sometimes even abhorrent. Such teachings can have political ramifications. It is therefore arguable that laws affecting the exercise of religion which having a political dimension impose an impermissible burden on the implied freedom of political communication. In Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria),[29] Mason ACJ and Brennan stated the following concerning the free exercise of religion that s 116 protected:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.[30]

[19] The spread of religion is an indispensable incident to the exercise of a religion. In the Jehovah Witness’s case,[31] McTiernan J observed that religion ‘extends to faith and worship, to the teaching and propagation of religion, and to the practices and observances of religion’.[32] Accordingly, the ‘exercise’ of religion cannot be confined to merely gathering to worship. Such ‘exercise’ must also involve the spreading a religion and individuals living by particular religion’s principles. This also involves people associating in order to organize worship and the teaching of others in that religion. Therefore, freedom of association constitutes an indispensable incident to the exercise of a religion. What does it mean? In the Jehovah Witness’s case, Latham CJ observed that:

[Section 116] refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.[33]

[20] It is possible to argue that section 116 directly implies, along with popular sovereignty and the plenary powers of Parliaments, a very wide range of expression. The exercise of religion may include teaching that other religions, or certain ideas, attitudes and acts, are not only wrong but perhaps even abhorrent. Such religious teachings are also politically influential. It is therefore reasonable to assume that laws affecting the exercise of religion and having a political dimension will impose a greater burden on the implied freedom of political communication.[21] Freedom of speech is not only a corollary to the implied freedom of political communication but also a common law freedom. Australia inherited its common law legal traditicaseon from England. A critical aspect of this legal tradition is that, under a common law system, freedom of speech is recognised as having an important constitutional significance. In Minister for Immigration & Citizenship v Haneef,[34] the Full Federal Court stated the following:

Freedom is not merely what is left over when the law is exhausted. As TRS Allan put it in 1996: ‘Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal’.[35]

[22] Anti-discrimination laws prohibit refusing goods or services on the basis of such things as sex, sexuality, race, colour, ethnicity, or nationality. In most instances, the operation of these laws does not present a problem. Ordinarily, no one should be refused goods or services on the basis of any given genetic or biological attribute.  However, once a same-sex marriage is legalised the state may compel by law that churches celebrate same-sex weddings and engage in activities that members of a religion would find deeply objectionable. For example, law may compel religious schools to employ staff who are engaged in homosexual relationship. The rationale for such compliance is that the state law should serve a secular purpose. So anti-discrimination law should serve the secular purpose of promoting equality before the law.[23] The indispensable incidents to the free exercise of a religion include freedom of association. This freedom includes the freedom to disassociate from spiritual practices not in keeping with one’s religious beliefs. We note here that s 116 disallows laws for imposing any religious observance. That is, laws cannot compel people to participate in a spiritual activity. And yet, there may well be moral and spiritual dimensions to any law enacted in Australia. In these situations, religious organisations might consider that, in providing goods and services, they are in effectively participating in spiritual activity.[24] Undoubtedly one of the most significant examples of a practice for which there are secular laws but which has a clear spiritual dimension is marriage. Even couples who are not formally religious often describe their marriage in spiritual terms like ‘‘a union of souls’’. Once same-sex marriage is legalised, religious people may be asked to participate in a practice with which they may not want to be associated. In the United States, vendors of flowers and wedding cakes have breached anti-discrimination laws by refusing service for weddings of homosexual couples.  In Australia, this would breach section 116 not only by infringing the free exercise of religion (that is, the freedom to disassociate from a spiritual practice), but also by compelling a religious observance.[25] The purpose of anti-discrimination legislation is to protect individuals against unreasonable discrimination. The operation of these laws affects the free exercise of religion. The situation arises where someone is forced to knowingly and materially contribute to activity that has a clear spiritual dimension. One such situation is providing goods or services to a same-sex marriage or commitment ceremony. In Australia it suffices to focus on its largest religion, Christianity. In the Gospels, Christ often spoke in parable. His use of allegory and metaphor made complex concepts very clear.  However, there are some instances where Christ spoke directly. One such direct statement concerned marriage. In response to a question from a Pharisee concerning whether it was permissible to divorce, Christ responded:

Have you not read that the one who made them at the beginning ‘made them male and female’, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two but one flesh. Therefore what God has joined together, let no one separate.[36]

[26] Here, Christ could not have made it much clearer that marriage was a union of a man and a woman. Christ also taught to ‘give… to the emperor the things that are the emperor’s, and to God that the things that are God’s’.[37] However, for many Christians, the ‘‘emperor’s’’ demand to knowingly and materially contribute to a homosexual marriage or commitment ceremony is squarely at odds with God’s instruction that marriage is a union of a man and a woman. In these circumstances, a suitable compromise would be for anti-discrimination laws to allow conscientious objection where someone may be forced to knowingly and materially contribute to an activity having a clear spiritual dimension. If they do not do this then, for the reasons stated above, section 116 may provide some form of defence for conscientious objection along these lines.[38]

ATTACKS ON RELIGIOUS FREEDOM BY SAME-SEX MARRIAGE ACTIVISTS

[27] There are cases in Australia where people are already being punished for supporting the traditional definition of marriage as the union between a man and a woman to the exclusion of all others. Some of these cases are mentioned below. They provide an illustration of how behind the veneer of equality and tolerance there lays a radical movement that accepts no dissent and that enforces compliance with heavy and expensive judicial action.[28] 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 Philip 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.[29] 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’.[39] But those requirements do not, in the court’s view, convert a secular purpose into a religious purpose.[40] 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.[41][30] In this sense, the appeal court did not take into account the scriptural mandate for Christians to proselytise, meaning that such organizations need to reach out to non-Christians in a way that does not undermine their own faith and beliefs. It is difficult to avoid the conclusion that the final outcome of this case undermines freedom of conscience. 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 may completely disagree with. The court simply compels a religious organisation to make their own property available for purposes that effectively undermine their own religious values and principles. Ben O’Neill comments on the implications of this important aspect of the ruling saying:

The very essence of freedom of conscience is that people must be allowed to make their own assessment of what is true and untrue, and that the government must not subjugate this judgement to views of its officials. However, according to the Judge in this case, ‘To object to a forum which presents a message of acceptance of same-sex attraction is to deny the right to equality of treatment based on sexual orientation, or to be free from discrimination on that basis.[42]

[31] Another interesting case involves 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 shows how 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’.[43][32] 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 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.[44]

[33] As another example, conservative political activist Bernard Gaynor has been subject of 28 complaints during a period of just 24 months—all lodged by one man, the same Gary Burns. So far, none of the complaints have been substantiated but Gaynor must head back into costly legal fights. These fights are undoubtedly part of a strategy to allow anti-free speech laws in one state to be used against those living in another – as seen below. 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 the 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.[45]

[34] There is also the decision in Gary Burns v Tess Corbett, involving a senior citizen in rural Victoria who stood as a candidate in the 2013 federal election and told her potential constituents what she thought about what was right and wrong in human sexuality. Although Ms Corbett lives in Victoria and the ‘‘derogatory’’ statements were made in Western Victoria, nonetheless a NSW Tribunal 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’’.   She 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. [46][35] There is a troubling precedent set in Ms Corbett’s (and indeed others’) case. 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 at all; 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.  As such, the six members of NSWCAT (including two judicial members) agreed with a gay rights activist who has made a habit of taking people who say things he does not like about homosexuality to court. According to the NSWCAT, the anti-vilification provisions of NSW’s 1977 Anti-Discrimination Act trump the freedom of political communication that the High Court has said is essential to the operation of the system of representative government to which Australia has committed since it was federated in 1901.[36] Marriage in the Catholic Church is a sacrament that, where possible, should produce children. Nevertheless, the Archbishop of Tasmania, Julian Porteous, 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.[47] In this carefully written booklet the church simply expresses its utmost respect for the dignity of homosexuals while promoting the goodness of a traditional marriage and why children are adversely affected if they miss out on a mother and father. Chris Berg from the Institute of Public Affairs correctly stated:

It’s hard to overstate how moderate this booklet is. It offers no fire or brimstone. It’s gentle and Christian, of the suburban pastoral variety. There’s much expression of sympathy for same-sex attracted people who also want to follow religious teachings that preclude their sexuality. It is a calm explanation of a major position on a prominent political policy issue.[48]

[37] Tasmania has one of the most draconian laws when it comes to the suppression of free speech and freedom of religion.[49] Archbishop Porteous’s chief accuser, Martine Delany, the transgender Greens candidate for the federal seat of Franklin, took a complaint to the Tasmanian Anti-Discrimination Commissioner. She argued that the booklet ‘does immeasurable harm to the wellbeing of same-sex couples and their families across Tasmania’, all 606 of them. [50] According to her, the booklet’s content breaches a section of Tasmania’s Anti-Discrimination Act which makes it illegal to insult, offend or humiliate a person or group on the basis of a listed attribute.[51] In lodging this complaint Delaney claimed that the language used in the booklet somehow implies that homosexuals could engage in criminal activity because the words ‘‘messing with kids’’, in her opinion, can be used as ‘a code for sexual abuse or paedophilia’.[52][38] Although Ms Delaney withdrew her complaint apparently for tactical reasons (‘[m]y primary reason is the tribunal process is a very long and drawn out process and during that time the message of this booklet is going to continue to be spread,’ she told AAP), it is deeply disturbing that a religious leader was dragged to an anti-discrimination authority for merely 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.[39] So here lies a fundamental question: Is the push for legalisation of same-sex marriage really founded in authentic tolerance? Surely the same-sex lobby has revealed itself to be remarkably intolerant. It certainly gives the impression that it believes that church teachings about marriage should not be tolerated under anti-discrimination laws. 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 one wonders what else they and their followers might be punished for once same-sex marriage is legalised in Australia. Apparently, they will have no right to respectfully disagree or even refuse to celebrate same-sex marriage. Do Australians really wish to live in a country where a disagreement of opinion can result in dragging someone before an anti-discrimination board? Writing for the Australian newspaper, columnist Angela Shanahan correctly states:

If people … are forced to appear before an Anti-Discrimination Commission … then this is a threat to one of Australia’s greatest freedoms, the right to free speech. This is a major disincentive to people making a contribution to debate across Australia. Anti-discrimination bodies should not be used as star chambers by those who simply don’t like what someone else says. [53]

[40] There should be a fair and reasonable debate about whether Australia should legalise homosexual ‘marriage’. However, it appears that almost everyone who supports the traditional definition marriage is being called a ‘bigot’ and a ‘homophobe’. Labor leader Bill Shorten called them ‘haters’. This is despite the fact that the current law says that marriage is only between a man and a woman. Ironically, calls for draconian anti-discrimination laws to not apply during the public debate if a plebiscite on same-sex marriage is held were met with further offence and vilification by the same-sex marriage lobby.[41] Supporters of same-sex marriage often claim a debate on the topic would unleash the haters. Despite the fuming of ‘homophobia’, writes Angela Shanahan, ‘the No vote has managed to keep the tone rational, civilised and polite in general’.[54] By contrast, there have been a number of reports about violence and intimidation by same-sex marriage activists against Christian bodies and supporters of traditional marriage. For instance, the headquarters of the Australian Christian Lobby (ACL) in Canberra have been firebombed, staff have been threatened and white powder was recently stuffed in an envelope addressed to the organisation.[55][42] The threats by gay lobby activists have even forced Christians to cancel meetings. On September 17, 2016, for example, a meeting by four major Christian groups (Sydney Anglicans, the Sydney Catholics, Marriage Alliance and the Australian Christian Lobby) at the Mercure Hotel at Sydney Airport had to be cancelled ‘after a social media storm trigged phone calls that ‘‘rattled’’ employers and left the [hotel] concerned about the safety of staff and guests’.[56][43] These groups simply wished to discuss the campaign to oppose any change to the Marriage Act.  This was the mildest of meetings, not a public rally. But same-sex marriage activists appear to believe that anyone who does not entirely support their cause is to be hated, humiliated and intimidated. They phoned the Mercure Hotel and intimidated staff, including making physical threats. The hotel administration confirmed the threats were real and shut down its Facebook page after more than 160 people left ‘1 star reviews’.[57] Ironically, the ACCOR Group, which runs the Mercure Hotel, is a corporate supporter of a main homosexual group lobbying for change in the definition of marriage.[58][44] One who has heard of all of these instances must surely think ‘so much for tolerance. What further events will they close down? What advertisements will they stop?’ As Shanahan points out, ‘The Yes vote is backed with big money and corporations such as Qantas telling us that we won’t be able to fly, bank or do business if we don’t agree with this. They have even picked on old ladies like the rather formidable Margaret Court.’[59] Likewise, commercial TV channels have refused to air advertisements supporting traditional marriage and/or opposing same-sex marriage. Also, a leading advertising agency­ has been calling on its industry peers to refuse to work for companies campaigning against the cause of same-sex marriage.[60] Christian commentator Bill Muehlenberg points out the irony: ‘The group that shouts the most about tolerance is the least tolerant… The group that shouts the most about bigotry is the most bigoted… The group that shouts the most about hate is the most hateful.’[61][45] Since same-sex marriage is a contentious issue that the government wishes the Australian people to decide in a plebiscite, it is necessary to have a civilised debate in which both sides are allowed to present their case openly. However, anti-discrimination laws which consider ‘‘offense’’ to be a valid requirement for taking legal action seriously impairs the targeted group’s ability to express their own ideas and respond to adverse comments. As noted by Canadian lawyer Edward H. Lipsett:

[M]uch speech criticized as ‘hate speech’ is in response to rebuttal of speech by or in favour of the ‘protected’ groups. Allowing or even encouraging speech by or supportive of ‘protected’ groups while prohibiting certain forms of speech against such groups unfairly favours one side of the debate against the other (or at least appears to do so) and violates the principle of neutrality. Again, it allows the proponents of some viewpoints to ‘fight freestyle’ while requiring others to observe ‘The Marquis of Queensbury Rules’. Rather than enhancing the participation or credibility of the ‘protected’ group, this real or perceived unfairness might actually create a ‘backlash’ against them that could be more harmful to them than the impugned speech. [62]

 

LEGALISING SAME-SEX MARRIAGE: POSSIBLE IMPLICATIONS FOR LIBERTY OF CONSCIENCE

[46] With same-sex marriage activists (including the federal Attorney General and five Liberal MPs working on a same-sex marriage bill that supposedly protects religious freedoms) saying that there are no consequences to changing the definition of marriage, it is worth considering whether this might be really true. Let’s taken then this argument in light of what is currently happening in other countries that legalised same-sex marriage, even when it was thought that religious freedom would receive full protection by the law.[47] Contrary to what these Liberal politicians argue, the possible legalisation of same-sex marriage actually presents an immediate challenge to freedom speech and religious liberty in Australia. Arguably, churches and religious organisations would be pushed to the margins of social life and disadvantaged in their public influence and participation in public activities.  It makes sense to especially consider the Canadian experience since there are, of course, important cultural and institutional similarities between Australia and Canada.[48] The effects of redefining marriage in Canada – restrictions on free speech, parental rights in education and autonomy rights of religious institutions – is the best evidence of the short-term impact of same-sex marriage in a society very much like Australia’s. Ever since the Canadian Parliament legalised it, in 2006, same-sex marriage must be treated identically to traditional marriage in law and public life.[63] Civil celebrants were the first to feel the remarkable consequences of such legal change. Several provinces refused to allow civil celebrants a right of conscience to refuse to preside over same-sex weddings.[64] At the same time religious organisations were fined for simply refusing to rent their facilities for post-wedding celebrations.[65] Finally, ‘Queer theory’ is now part of the compulsory school curriculum, and business owners do not have freedom to deny any service to gays and lesbians for religious reasons.[49] Related to this situation, in the United States, soon after that country’s judicial elite arbitrarily imposed the legalisation of same-sex marriage, the Obama administration handed down regulations requiring all entities contracting with the federal government to adhere, without exception, to absolute non-discrimination on the basis of sexual orientation and gender identity. In addition, a number of state and local governments have banned the participation of any organization that refuses to be publicly committed to non-discrimination concerning sexual orientation, gender and gender identity. In the State of Massachusetts, a venerable charitable organization was forced to stop its activity of placing children through adoption because it refused to violate church teachings by accepting a total anti-discrimination policy on grounds of gender identity and sexual orientation.[66] Finally, ever since marriage was re-defined to enable two people of the same sex to marry in that country, businesses owners have been fined and put out of business when they have declined to provide services for same-sex weddings. Consider the following examples:

  • Christian bakers in Oregon were found guilty of discrimination for declining to provide a wedding cake for a lesbian couple.[67]
  • A Colorado baker who declined to provide a cake for a same-sex wedding was ordered by the State’s Civil Rights Commission either to serve gay couples or face fines despite it being against his beliefs as a Christian.[68]
  • New Mexico’s Supreme Court ruled that Christian photographers who declined to photograph a same-sex union violated the state’s Human Rights Act.[69]
  • A Christian florist in Washington was prosecuted for refusing to provide flowers for a same-sex couple’s wedding.[70]
  • In New York owners of a farm were found to have violated the civil rights of a lesbian couple when they declined to host the couple’s same-sex ‘marriage’ ceremony and fined $13,000.[71]

[50] These cases are the leading edge of a massive reorientation of public life and law.[72] Here in Australia even Tim Wilson (former Human Rights Commissioner and homosexual MP) admits that businesses and churches might face prosecution under anti-discrimination laws once same-sex marriage is legalised.  Wilson believes that basic freedoms still might be protected by providing exemptions for businesses and religious organisations.[73] This can be criticised on grounds that such exemptions could conflict with other laws, so that the courts would be able to decide how effective these exceptions might be.[74] Referring to this problem, Peter Kurti reminds that:

Judges charged with identifying the appropriate balance between exempt and discriminatory behaviour may well move in the direction of developing a narrowing conception of religious liberty as they accord priority to issues of sexual identity over those of religious belief and practice. The campaign to promote same-sex marriage, which actively pursues the diminution of the religious sphere in liberal society, would therefore form part of the same wider social trend that pursues its goal of equality both by attempting to secure the removal of all differences between people, and by reducing the range and scope of exempted conduct.[75]

[51] Supporters of same-sex marriage in Australia, including Attorney General George Brandis, dismiss the impact of the legal change on the exercise of religious freedom. Senator Brandis has told in Parliament that he will not be tricked by those who are trying to turn a debate about one issue (i.e.; whether same-sex couples should be allowed to marry) into a broader debate about religion freedom, ‘because that’s not what this is about’.[76] In sum, Senator Brandis claims that the same-sex marriage plebiscite has nothing to do with freedom of speech and religion.[52] This is an astonishing statement. The Attorney General claims that religious people have nothing to worry about because their freedoms will have ‘very thorough’ protections if same-sex marriage is made legal in Australia. Responding to concerns raised by church leaders about ‘inadequate’ protections for religious freedoms, Senator Brandis said constitutional protections would be in place through exemptions in anti-discrimination laws.[77] However, these exceptions to religious organisations are likely to be temporary for the following reasons (notwithstanding the examples above):

  1. The 2012 ALP dissenting Senate report on a Same-Sex Marriage bill warned that such assurances are hollow and tactical in nature rather than a matter of substance. They pointed out how Denmark has passed legislation to compel churches to officiate at Same-Sex Ceremonies. [78]
  2. The Greens have called for an end to the exemption of religious bodies from the operation of anti-discrimination laws.[79]
  3. Thirty LGBTI, human rights and legal lobby groups to the 2012 inquiry into the Consolidation of Commonwealth Anti-Discrimination Laws argued that they wanted no exemptions or narrow or temporary exemptions only for faith-based organisations, let alone for businesses and other groups.[80]
  4. At least one prominent Australian lawyer, David Glasgow, has publicly repudiated any idea of exceptions and exemptions from anti-discrimination law or a same-sex marriage bill saying that it is not reasonable for business with religious objections to opt out of participating in Same-Sex Marriage.[81]

[53] As can be seen, the arguments provided by the Attorney General are patently false. As the country’s Attorney General, Senator Brandis should know that we only need to have a look at what happened in countries that have legalised same-sex marriage.[54] Consider Ireland for example. Following the 22 May 2015 landslide defeat for opponents of same sex-marriage – the referendum was lost by 62 per cent in favour of gay marriage to 38 per cent against – the Irish Parliament stripped away all laws which protected the rights of people to freedom of religion when in conflict with ‘gay rights’. This Parliament voted unanimously to repeal Section 37 of the state’s Employment Equality Act. Section 37 granted specific exemptions for ‘religious, educational or medical institutions’ which allows them ‘to maintain the religious ethos of the institution’. Removing the section means that LGBT teachers will be free to talk to school pupils about their personal relationships, even in faith schools.[82][55] One could also take the example of Sweden. Same-sex marriage has been legal in Sweden since 2009, although priests can decline to celebrate weddings under the country’s Marriage Code.[83] However, just 8 years on from re-defining marriage, the Swedish government has recently indicated that it is currently working to ensure all priests must consecrate everyone, including same-sex couples. In an interview with a church magazine, the country’s Prime Minister, Stefan Lofven, has advocated the repeal of exemptions protecting religious freedom and conscience on the grounds that ‘the church must stand up for human equality’.[84][56] In Canada, anyone who rejects the idea of same-sex marriage can be legally charged of anti-homosexual bigotry.[85] In late October 2016, Canadian Senate passed Bill C-16 by 67-11 vote, which adds prohibitions against discrimination on the basis of gender identity and gender orientation to the Canadian Human Rights Act. The legislation amended the Criminal Code to extend protection against hate speech and allows judges to take into account when sentencing whether a crime was motivated by hatred of the victim’s gender identity or expression. In Canada, Dawn Stefanowicz explains:

Freedom to assemble and speak freely about man-woman marriage, family and sexuality are restricted. Activists often sit in on religious assemblies, listening for anything discriminatory towards GLBT, so a complaint can be made to the Human Rights Commission. Most faith communities have become politically correct to avoid fines and loss of charitable status.[86]

[57] Increasingly, the Australian homosexual lobby is using anti-discrimination laws to prevent dissenting voices from expressing their views in the public square. Once same-sex marriage is legalised in this country, there is a great possibility that the law will equate the traditional view of marriage with the notion of ‘homophobic’ bigotry. As a result, anyone who dares to criticise the homosexual agenda would be subject to very harsh legal treatment. For many supporters of same-sex marriage, such infringements of religious freedom are not morally wrong; quite to the contrary. Georgetown University law professor Chai Feldblum, a member of the U.S. Equal Opportunity Commission, argues that ‘marriage equality’ trumps religious liberty:

[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried … couples and all gay couples, this is a point where I believe the ‘zero-sum’ nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.[87]

[58] As seen above, there are numerous precedents overseas rejecting the assumption by our Attorney General as well as many of our politicians in this country that when same-sex marriage is introduced, religious freedom will be fully protected. Instead of addressing these issues, most of our political class think they can ignore them, calling them alarmist and irrelevant. However, the redefinition of marriage will have broadly cultural consequences and wider social implications. This is why the outcome of the marriage plebiscite will be so important for the future of our rights and freedoms this country, in particular freedom of conscience and freedom of religion.

THE STATIST NATURE OF REDEFINING MARRIAGE

[59] There is an undeniable statist nature in legalising same-sex marriage. The state is effectively being asked to redefine the meaning of a millenary institution that, according to traditional Christian teachings is actually antecedent to the formation of civil government. As John Locke pointed out in Two Treatises on Civil Government (1690), ‘the first society was between man and wife, which gave beginning to that between parents and children’.[88][60] By contrast, the proponents of same-sex marriage seek to redefine a pre-political institution that limits the power of the state. As noted by Gerard Calilhanna, ‘here we have a major example of extreme statism, where a crucial pre-state institution that limits the power of the state is supressed and replaced by an institution that depends on the state for its existence’.[89] Indeed, so-called gay marriage ‘has nothing to do with liberty’ since such an artificial creation by the state actually ‘expands rather diminishes the power of the state over our lives’.[90]  Therefore, as Brendan O’Neill points out:

The presentation of this as a liberal, or even libertarian, issue is highly disingenuous. For in truth, gay marriage massively expands the authority of the state in our everyday lives, in our most intimate relationships, the ultimate provider of validation to our lifestyle choices, while empowering it to police the cultural attitudes and consciences of those of a more religious or old-fashioned persuasions.[91]

[61] This is what lies behind the same-sex agenda, consciously or not. Many homosexuals do not even want to get married and they would much prefer not to subject themselves to any such legal constraints that reduce their ability to pursue freedom from enduring relationships. But behind the entire agenda is an effort to weaken the family, ‘because so long as the family becomes the primary source of loyalty to the individual, then the government, the powers-that-be, the cultural elite, or the media elite do not have ultimate control over how we live our lives’.[92]  This is not an unreasonable assumption since, as Heritage Foundation’s Ryan T. Anderson points out, ‘[i]f marriage is redefined, believing what virtually every human society once believed about marriage … would be seen increasingly as a malicious prejudice to be driven to the margins of culture’.[93][62] Accordingly, legalising same-sex marriage would imply that the laws of the state and the laws of the churches would be in conflict over the new meaning of marriage. In the United States, for example, ministers of religion may be punished for not accepting to celebrate same-sex weddings. Donald and Evelyn Knapp, both ordered ministers in an evangelical church in Coeur D’Alene, Idaho, declined to marry a same-sex couple in October 2014. On grounds of an anti-discrimination legislation that includes sexual orientation and gender identity, they were informed that they had to celebrate same-sex weddings in their Chapel. The Christian couple now face a 180-day jail and a $1,000 fine for each they decline to celebrate the same-sex wedding.[94][63] This leads to the important question of whether the push for such a change may be at least partially motivated by a disregard for religious liberty and freedom of conscience. 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’. For Australia and its alleged spirit of tolerance and open debate, this is an unprecedented situation. ‘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’, Kelly says.[95]

FINAL CONSIDERATIONS

[64] In a truly egalitarian society everyone’s right is respected without infringing the rights of another. Nothing excuses undermining these rights in the name of ‘marriage equality’. Religious people have the right as anybody else to express their opinions freely. Their objections to same-sex marriage are not about an attempt to break any law or to impose discrimination upon gay people, but they reflect a mere disagreement on what the nature of marriage ought to be. They are just trying to remain true to their beliefs as their consciences dictate. They are not looking for trouble and they do not wish to deny homosexuals their fundamental rights. They only ask not to be coerced into violating their own consciences and religious beliefs.[65] Only a minority of the LGBT community, which constitutes only around 2% of the overall population, will make use of the legalisation of same-sex marriage. However, we can certainly expect to see the growing marginalisation of traditional views on marriage and the erosion of religious liberty. Arguably, believing what virtually every human society once believed about marriage could be deemed an unlawful discrimination. The law would seek to eradicate such views through civil action and even criminal sanction.[96] This is about a new statism that seeks to dramatically alter the meaning of marriage. The consequences for religious freedom and freedom of conscience will be absolutely devastating.[66] With marriage being redefined, religious freedom will be threatened. The cases above mentioned demonstrate that same-sex marriage is not just about equal rights to a minority of same-sex couples. The cases initiated by gay activists such as Mr Gary Burns clearly indicate that, as it presently stands, there is already a precedent which shows one can take someone to court for discrimination over any disagreement. Once the legal concept of marriage is redefined, anyone (including a priest) who disagrees with same-sex marriage and denies service may not be prosecuted for the denial of service, but MAY be prosecuted on the grounds of discrimination.


[1] Augusto Zimmermann, ‘Judicial Activism and Arbitrary Control: A Critical Analysis of Obergefell v Hodges 556 US (2015) – The US Supreme Court Same-Sex Marriage Case’ (2015) 17 University of Notre Dame Australia Law Review 77-85.

[2] For critical analysis of the situation, see: Ryan T. Anderson, Truth Overruled: The Future of Marriage and Religious Freedom (Washington/DC: Regnery, 2015)

[3] Jennifer A. Marshall, ‘Why Does Religious Freedom Matter?’, Washington/DC: The Heritage Foundation, p.8.

[4] Ibid.

[5] Alister E McGrath, The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern World (Oxford University Press, 2004), p.230.

[6] Timothy Keller, The Reason for God: Belief in an Age of Scepticism (London/UK: Hodder & Stoughton, 2008), p.5.

[7] Michael V Hernandez, ‘Theistic Legal Realism and Normative Principles of Law’, (2007-8) 2 Liberty University Law Review 703, 709.

[8] Ibid.

[9] William Lee Miller, ‘Religion and Political Attitudes’, in James Ward Smith and A. Leland Jamison (eds), Religious Perspectives in American Culture(Princeton/NJ: Princeton University Press, 1961), p 91.

[10] Ibid.

[11] Wilber G. Katz, ‘Religion and Law in America’, in James Ward Smith and A. Leland Jamison (eds.), Religious Perspectives in American Culture(Princeton/NJ: Princeton University Press, 1961), p 67.

[12] Ibid.

[13] West Virginia Board of Education v Bernadette, 319 U.S. 524, 639 (1943).

[14] Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116 at 123.

[15] ‘Almighty God, we humbly beseech Thee to vouchsafe Thy blessing upon this Parliament. Direct and prosper our deliberations to the advancement of Thy glory, and the true welfare of the people of Australia.’

[16] Senate Standing Order 50, House Standing Order 38.

[17] Augusto Zimmermann, ‘Labor Move for Extending 18C Could Impose Islamic Blasphemy Law’, The Spectator Australia, April 3, 2017, at https://www.spectator.com.au/2017/04/labor-move-for-extending-18c-could-impose-islamic-blasphemy-law/

[18] Adelaide Company of Jehovah’s Witnesses Inc. v Commonwealth of Australia, p 131 (Latham CJ).

[19] Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120, 136. (per Mason CJ and Brennan J); see also Kruger v Commonwealth of Australia, (1997) 190 CLR 1, 160 (Gummow J).

[20] Tony Blackshield, ‘Religion and Australian Constitutional Law’, in Peter Radan, Denise Meyerson and Rosalind F Croucher (eds.), Law and Religion: God, the State and the Common Law (London: Routledge, 2005), p 88.

[21] Ibid, 91.

[22] Greg Craven (ed.), ‘Official Record of the Debates of the Australasian Federal Convention’, Vol.5, Melbourne, 8 February 1898, p 660. (Sydney/NSW: Legal Books, 1986)

[23] Ibid, p 662.

[24] John Stuart Mill, On Liberty (London: Longmans, 1871), Ch1, p 6.

[25] Blackshield, above n.20, p. 92

[26] Ibid.

[27] Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, at 149 (Rich J), 155 Starke J).

[28] Lange [1997] HCA 25; (1997) 189 CLR 520, 566-7. See also McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 168 (Brennan CJ), 182-3 (Dawson J), 231 (McHugh J), 284-5 (Gummow J).

[29] [1983] HCA 40; (1983) 154 CLR 120 (‘New Faith’).

[30] Ibid 130 (Mason ACJ, Brennan J).

[31] [1943] HCA 12; (1943) 67 CLR 116.

[32] Ibid 156 (McTiernan J). See also New Faith [1983] HCA 40; (1983) 154 CLR 120, 135 (Mason ACJ, Brennan J).

[33] Ibid 124 (Latham CJ) (emphasis in original).

[34] [2007] FCAFC 203; (2007) 243 ALR 606 (‘Haneef’).

[35] [2007] FCAFC 203; (2007) 243 ALR 606 [113] (Black CJ, French and Weinberg JJ). See also Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576, 594 [72] (French, Branson and Stone JJ); Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92, 128 [60] (French CJ).

[36] Matthew 19:4-6 Holy Bible (New Revised Standard Version) (Hendrickson Publishers, 2005).

[37] Matthew 22:21 Holy Bible (New Revised Standard Version) (Hendrickson Publishers, 2005).

[38] Ultimately, it would be for the High Court to fashion such a defence, much like it did with ‘Lange qualified privilege’ in that case: Lange [1997] HCA 25; (1997) 189 CLR 520, 571-4.

[39] Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 [248].

[40] Ibid.

[41] Ibid [249].

[42] Ben O’Neill, ‘Anti-Discrimination Law and the Attack on Freedom of Conscience’, Policy, Vol. 27, Issue 2, Winter 2011, at 5.

[43] Angela Shanahan, ‘Discrimination police indulging in gay abandon’, The Australian, October 15, 2011, at http://www.theaustralian.com.au/opinion/discrimination-police-indulging-in-gay-abandon/news-story/c1457f01388bc4f3b1fe0a1a974f82fd

[44] Ibid.

[45] Nicola Berkovic, ‘Tongue-tied By The Thought Police’, The Weekend Australian, November 28-29, 2015, at 19.

[46] Corbett v Burns [2014] NSWCATAP 42 (14 August 2014), [64].

[47] Author Unknown, ‘Anti-discrimination complaint ‘an attempt to silence’ the Church over same-sex marriage, Hobart Archbishop says’ (28 September 2015) Australian Broadcasting Corporation <http://www.abc.net.au/news/2015-09-28/anti-discrimination-complaint-an-attempt-to-silence-the-church/6810276>.

[48] Chris Berg, ‘Same-Sex Marriage: When Did Dissent Become Discrimination’, The Sydney Morning Herald, November 22, 2015 at http://www.smh.com.au/comment/samesex-marriage-when-did-dissent-become-discrimination-20151119-gl31g3.html

[49] See: Joshua Forrester, Augusto Zimmermann and Lorraine Finlay, ‘An Opportunity Missed? A Constitutional Analysis of Proposed Reforms to Tasmania’s ‘Hate Speech’ Laws’ (2016) 7 The Western Australian Jurist 275-376.

[50] Australian Bureau of Statistics, ‘Counts of Same Sex Couples in the 2011 Census’, 2011 , at <http://www.abs.gov.au/websitedbs/censushome.nsf/home/factsheetsssc>.

[51] Ibid.

[52] ‘Anti-discrimination complaint’, above n.47.

[53] Shanahan, above n.43.

[54] Angela Shanahan, ‘Yes Side in Marriage Debate Ignores the Implications for Freedoms’, The Australian, September 3, 2017, at http://www.theaustralian.com.au/news/inquirer/yes-side-in-marriage-debate-ignores-the-implications-for-freedoms/news-story/b119dbc7f7cad9f773f7f8ac7eef926d

[55] James Massola, ‘Australia Post Scare After Discovery of White Powder Addressed to Australian Christian Lobby’, The Sydney Morning Herald, August 25, 2017 at http://www.smh.com.au/federal-politics/political-news/australia-post-scare-after-discovery-of-white-powder-addressed-to-australian-christian-lobby-20170825-gy3xop.html. See also: Megan Gorrey, ‘Canberra Man to Stand Trial Over Australian Christian Lobby Car Explosion’, The Canberra Times, August 16, 2017, at http://www.canberratimes.com.au/act-news/canberra-man-to-stand-trial-over-australian-christian-lobby-car-explosion-20170816-gxx75t.html

[56] David Crowe, ‘Marriage Event Off: Threats to Hotel Staff’, The Weekend Australian, 17-18 September, p.1.

[57] ‘Hotel Confirms Physical Threats Over ACL Conference, Crickey, September 20, 2016, at

christian-lobby-event/” https://www.crikey.com.au/2016/09/20/mercure-confirms-threats-over-australian-christian-lobby-event/

[59] Shanahan, above n.54.

[60] Rebecca Urban, ‘Ad Firm Accused of Trying to Shut Down the Debate with Say No to No Campaign’, The Australian,  August 12, 2017, at http://www.theaustralian.com.au/national-affairs/ad-firm-accused-of-trying-to-shut-down-debate-with-say-no-to-no-campaign/news-story/cb155db8ad6b31851d2109cc9bfe9f33

[61] Bill Muehlenberg, ‘This is How Homosexual Activists ‘Debate’ – And This is How Democracy Dies, CultureWatch, September 17, 2016, at https://billmuehlenberg.com/2016/09/17/homosexual-activists-debate-democracy-dies/ . See also: Bill Muehlenberg, ‘Let Me Explain Hate to You’, CultureWatch, January 29, 2016, at https://billmuehlenberg.com/2015/01/29/let-me-explain-hate-to-you/

[62] Edward H. Lipsett, ‘Case Comment Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11’ Manitoba Law Journal, 2013, at http://robsonhall.ca/mlj/sites/default/files/articles/Whatcott%20-%20Blog%20Post%20Version_0.pdf.

[63] ‘Same-sex couples in Canada gained most of the legal benefits of marriage in 1999 when federal and provincial governments extended common law marriages to gay and lesbian couples. Through a series of court cases beginning in 2003, same-sex marriage gradually became legal in nine of the country’s 13 provinces and territories. In 2005, the Canadian Parliament passed legislation making same-sex marriage legal nationwide. In 2006, lawmakers defeated an effort by the ruling Conservative Party of Canada to reconsider the issue leaving the law unchanged’. – ‘Gay Marriage Around the World, Pew Research Centre, August 8, 2017,  at  http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/

[64] Saskatchewan: Marriage Commissioners Appointed Under the Marriage Act (Re), (2011) SKCA 3.

[65] Smith and Chymyshyn v Knights of Columbus et al (2005) BCHRT 544.

[66] R. Albert Mohler, Jr, We Cannot be Silent: Speaking Truth to a Culture Redefining Sex, Marriage & the Very Meaning of Right & Wrong (Nashville/TN: Thomas Nelson, 2015), 122

[67] ‘Bakery Risks Lare Fina for Anti-Gay Discrimination’, USAToday, February 3, 2015, at http://www.usatoday.com/story/news/2015/02/02/bakery-same-sex-oregon-fined-wedding-cake/22771685/

[68] ‘Colorado Baker Must Make Cakes for Gay Weddings, Panel Rules’, May 30, 2014, at http://www.nydailynews.com/life-style/colorado-baker-cakes-gay-weddings-panel-rules-article-1.1811676

[69] ‘Female Photographer sued for refusing to take pictures at lesbian couples’ commitment ceremony’, Daily Mail, November 23, 2013, at http://www.dailymail.co.uk/news/article-2511580/Female-photographer-sued-refusing-pictures-lesbian-couples-wedding.html

[70] ‘Judge finds Washington Florist over Same-Sex Wedding Flowers’, ABC, March 28, 2015, at  http://www.abcfoxmontana.com/story/28635727/judge-fines-washington-florist-over-same-sex-wedding-flowers

[71] Kirsten Andersen, ‘Catholic Couple Fined $13,000 for Refusing to Host Same-Sex Wedding at their Farm’, LIfeSiteNews, August 20, 2014, at  https://www.lifesitenews.com/news/catholic-couple-fined-13000-for-refusing-to-host-same-sex-wedding-at-their

[72] Ibid.

[73] ‘Who will be persecuted?’ The Australian Family Association, 2015.

[74] Ibid.

[75] Peter Kurti, ‘The Forgotten Freedom: Threats to Religious Liberty in Australia’, CIS Policy Monograph No.139, 2014, 15.

[76] Paul Karp, ‘Abbot Insists Marriage Equality a Threat to Religious Freedom After Brandis Calls it a Trick’, The Guardian, August 21, 2017, at https://www.theguardian.com/australia-news/2017/aug/21/abbott-insists-marriage-equality-threat-to-religious-freedom-after-brandis-calls-it-a-trick

[77] Sarah Martin, ‘Religious Freedom will be Protected in Any Same-Sex Marriage Legislation, says Attorney-General Goerge Brandis’, The West Australian, August 21, 2017, at https://thewest.com.au/news/wa/brandis-promises-faith-protections-ng-b88573440z

[78] Who will be Persecuted?, above n.44.

[79] Greg Sherindan, ‘Churches are Drifting too Far From the Marketplace of Ideas’, The Australian, June 4-5, 2016, p.26.

[80] Who will be Persecuted?’, above n.44.

[81] Ibid.

[82] Donna Rachel Edmunds, ‘Ireland Revokes Protection For Religious Freedom in Wake of Gay Marriage Vote’, Breitbart, December 4, 2015, at http://www.breitbart.com/london/2015/12/04/ireland-overturns-protections-religious-freedom-wake-gay-marriage-vote/

[83] ‘In April 2009, the Swedish parliament voted by an overwhelming majority to legalize same-sex marriage. Gay couples in Sweden had been allowed to register for civil unions since 1995. The 2009 law allows gays and lesbians to marry in both religious and civil ceremonies, but it goes not require clergy to officiate at such ceremonies. The Lutheran-affiliated Church of Sweden to which roughly three-quarters of all Swedes belong, has offered blessings for same-sex partnerships since January 2007. In October 2009, the church’s governing board voted to allow its clergy to officiate at same-sex marriage ceremonies’. – ‘Gay Marriage Around the World, Pew Research Centre, August 8, 2017,  at  http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/

[84] Enrique Castro-Mandivil, ‘Swedish PM Tells Priests to Carry Out Same-Sex Marriages ‘Or Do Something Else’’, RT, June 24, 2017, at https:// www.rt.com/viral/393867-sweden-gay-marriage-priests/

[85] Bradley Miller, ‘Same-Sex Marriage Ten Years On: Lessons from Canada’, The Republic Discourse, November 5th, 2017, at http://therepublicdiscourse.com/2012/11/6758/

[86] Diana Robertson, ‘3 Ways Gay Marriage Has Changed Canada’, United Families International, April 15, 2015, at https://unitedfamiliesinternational.wordpress.com/2015/04/15/3-ways-gay-marriage-has-changed-canada/

[87] Chai R. Feldblum, ‘Moral Conflict and Liberty: Gay Rights and Religion’ (2006)72(1) Brooklyn Law Review 119.

[88] John Locke, Second Treatise of Civil Government [1690], Chapter VII.

[89] Gerard Calilhanna, ‘Gay Marriage and the Growth of State Intervention’, Quadrant, September 2012, p. 62.

[90] Brendan O’Neill, ‘Here’s My Beef With Gay Marriage’, Catallaxy Files, August 24, 2015.

[91] Brendan O’Neill, ‘The Trouble With Gay Marriage’, Spiked, May 27, 2015.

[92] Charles Colson, My Final Word: Holding Tight to the Issues that Matter Most (Grand Rapids/MI: Zondervan, 2015), 50

[93] Ryan T. Anderson, ‘Marriage: What It Is, Why It Matters, and the Consequences of Redefining It’, The Heritage Foundation, No.2775, March 11, 2013, 10.

[94] Knapp v City of Coeur d’Alene 172 F. Suppl. 3d 1118 (2016) Alliance Defending Freedom, February 11, 2017, at http://www.adfmedia.org/News/PRDetail/9366

[95] Paul Kelly, Threat to Religious Freedom from Same-Sex Debate, The Weekend Australian, November 28-29, 2015, 15.

[96] Ryan T. Anderson, Truth Overruled: The Future of Marriage and Religious Freedom (Washington/DC:  Regnery Publishing, 2015), at 54