20:17, November 21 81 0 theguardian.com

2017-11-21 20:17:03
After the yes vote, let's not remove one inequality and replace it with another

Ever since the yes vote, conservative members of parliament have been scrambling to amend the same-sex marriage bill. With the government’s announcement that parliament will sit in December for as long as it takes to enact the bill, the pressure is on for some kind of “deal”. New proposals appear on a daily basis, drawing on elements of Liberal senator James Paterson’s alternative marriage equality bill, which had been hastily prepared but now withdrawn.

On Wednesday the prime minister announced a panel to be headed by former federal government minister, Philip Ruddock, to report on the protection of religious freedom in Australia by March next year. This is despite the fact that a parliamentary committee chaired by conservative senator David Fawcett has been looking at this issue for the past 12 months and is due to report soon. While this looks like an attempt to placate the conservative right, the treasurer, Scott Morrison, immediately made it clear that it is no substitute for “relevant amendments” to the same-sex marriage bill.

On Saturday, the attorney general, senator George Brandis, stated that a small part of the international right to freedom of religion should be included in the bill. The precise details of the proposal remain sketchy. On the ABC program Q&A he suggested that this could be done as a “declaratory statement”. The legal and constitutional status of such a statement is unclear. The intent is not. Conservative members of parliament, as is made clear in senator Paterson’s bill, want to give people who believe in “traditional marriage” the right to discriminate and to give parents a right to take children out of class when “objectionable” material is discussed.

Two arguments have been made in support of the Brandis’ proposal. Firstly, that it is in line with past recommendations of the Australian Human Rights Commission and secondly, that the United Nations Human Rights Committee requires it. Both arguments are misleading.

The Australian Human Rights Commission recommended the enactment of religious freedom into law in its 1998 report at a time when religious freedom was used as a shield to protect minority religions such as Jehovah Witnesses or Sikhs from discrimination. Today, Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill.

In its recent concluding observations on Australia’s 6th periodic report, the UN Human Rights Committee expressed concern about the “lack of direct protection against discrimination on the basis of religion at the federal level.” However, the UN is not arguing that Australia should legislate for a right that would allow discrimination against LGBTQI people. Rather, the UN wants the federal government to include its anti-discrimination legislation protections to ensure that no one is discriminated against on the basis of their religion. Similar provisions already exist under some state anti-discrimination laws.

According to senator Brandis, enacting the first sentence of article 18(1) of the International Covenant on Civil and Political Rights (“everyone shall have the right to freedom of thought, conscience and religion”) is harmless. It is true that this sentence merely provides for the freedom to believe whatever you wish. However, the attorney general’s comment is misleading because his proposal leaves out those parts of article 18 which limit the right to act on those beliefs. The right to act on one’s beliefs is confined to “worship, observe, practice and teach.” And the right to do these four things must be balanced against the fundamental rights and freedoms of others, including their right to be free from discrimination.

Laws prohibiting discrimination on the grounds of sexual orientation have been found by courts, in Australia and elsewhere, as a legitimate and proportionate limitation on the right to freedom of religion. For example, courts have rejected the argument that religious freedom justifies discrimination against LGBTQI people in relation to commercial accommodation, relationship counselling as well as the selling of cakes. A Canadian court also held that for parents to opt out of the content of state education would be inconsistent with human rights values that favour “inclusivity, equality and multiculturalism.”

The conservative right has a tendency to blur the distinction between the absolute right to belief and the limited right to act on those beliefs. So including in the marriage equality bill the absolute right to believe whatever one wishes – without the other parts of article 18 – is unbalanced and likely to lead to endless litigation. Moreover, legislating only the first sentence of article 18 may be unconstitutional because the external affairs power requires that an international obligation is implemented in a proportionate way.

According to senator Fawcett, the parliamentary religious freedom inquiry has concluded that religious freedom has to be positively protected. This comment is surprising given the inquiry has not yet issued its report. On Saturday senator Fawcett suggested that all of article 18 be enshrined into law. While this could overcome the danger mentioned above, it is still problematic. A “one-right” bill of rights is inconsistent with the principle that all human rights are interdependent and indivisible. To cherrypick article 18 and elevate it above other rights would also undermine the principle that human rights must be carefully balanced against other rights and freedoms. It would be impossible to implement human rights in a balanced way, if only one right is enshrined in Australian law.

Conservative Christian pro bono law groups in the US and Europe pursue aggressive litigation strategies to justify discrimination against the LGBTQI community. While most courts have so far resisted this, incorporating article 18 into Australian law would make it justiciable and fuel legal conflicts. Last year, the Australian Christian Lobby established the Australian Human Rights Alliance (AHLA) precisely for this purpose. The AHLA is already running a number of cases on behalf of conservative Christians, including challenges to anti-discrimination law on the basis of the implied freedom of political communication and the religious freedom provision in the Tasmanian constitution.

Religious freedom is vital in a pluralistic society. However, the joy of most Australians at the outcome of the marriage equality survey should not be tarnished by rushed legislation that removes one inequality and replaces it with another.

  • Anja Hilkemeijer is a lecturer in law at the University of Tasmania