Marriage & Same-Sex Attraction (8)
RELIGIOUS FREEDO
2. How will the change to the legal definition of Marriage have any effect on Religious Freedom?
4. What’s the real threat to religious freedom posed by same-sex marriage?
5. Have any of these threats to religious freedom come to pass?
<< Prev: Marriage – What’s in a Name? >>
<< Next: Catholic Church Teaching on Homosexuality >>
<< Key References | Abbreviations >>
1. WHAT IS RELIGIOUS FREEDOM?
Religious freedom is the right to live in the truth of one’s faith and in conformity with one’s transcendent dignity as a person.
Article 18 of the United Nations Declaration of Human Rights states that “Everyone has the right to freedom of thought, conscience and religion; this right includes … freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Article 19 goes on to express that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference.”
Catholic teaching also states: “Nobody may be forced to act against his convictions, nor is anyone to be restrained from acting in accordance with his conscience in religious matters in private or in public, alone or in association with others, within due limits”.[1]
Religious freedom is so important that John Paul II called it the “source and synthesis” of rights considered basic to every human person.
[1] CCC, 2106.
2. HOW COULD CHANGING THE LEGAL DEFINITION OF MARRIAGE HAVE ANY EFFECT ON RELIGIOUS FREEDOM?
Changing the legal term “marriage” is not one change in the law, but rather amounts to thousands of changes at once. The term “marriage” can be found in family law, employment law, trusts and estates, healthcare law, tax law, property law, anti-discrimination law and many others. These laws affect and pervasively regulate religious institutions, such as churches, religiously-affiliated schools, hospitals, and families. At a time when the Church and State agreed on what the legal term “marriage” means (the union of one man and one woman), there was harmony between the law and religious institutions. Now that the Church and State disagree on what the term “marriage” means, there is conflict between the law and religious institutions and families, as the State – encouraged by activists – can apply various sanctions against the Church for its refusal to comply with the State’s definition. Religious freedom is then threatened, not only for the religious institutions, but also for individual citizens who wish to live and operate their businesses according to their religious beliefs.
3. Doesn’t the law provide exemptions so that ministers will not be forced to officiate at the wedding of a same-sex couple?
This question is a red herring. In other words, it is a false caricature of the real concerns about religious freedom, and is actually used to distract from the real concerns. The current law does not force ministers of religion and churches to officiate same-sex marriage ceremonies, but this is where the protection stops. Ministers of religion are not protected when it comes to preaching a religious view of marriage[2], or from producing documents that explain the Church’s position on marriage. Indeed, the Australian Catholic Bishops were all subject to an anti-discrimination complaint in Tasmania for distributing a pastoral letter on marriage.[3] There are greater concerns, though, about the lack of protection for those people of faith who are not ministers of religion, but who still want to live out their beliefs about marriage.
[2] www.theaustralian.com.au/national-affairs/state-politics/case-dropped-but-clerics-fight-on-for-free-speech/news-story/d752270abdd83e45901569e5254d68e6
[3] www.theaustralian.com.au/national-affairs/state-politics/catholic-bishops-called-to-answer-in-antidiscrimination-test-case/news-story/b98439693f2f4aa17aca9b46c7bda776
4. What’s the real threat to religious freedom posed by same-sex marriage?E”?
The legal redefinition of marriage can threaten the religious freedom of religious institutions and individuals in potentially numerous ways, involving various forms of government sanction, ranging from court orders compelling action against conscience, to awards of money damages and other financial penalties, to marginalisation in public life:
- Compelled Association: the government forces religious institutions to retain as leaders, employees, or members those who obtain legalised same-sex marriage; or obligates wedding-related businesses (cake decorators, photographers etc.) to provide services for same-sex couples.
- Compelled Provision of Services: the government forces religious institutions to extend any services they afford to genuine marriage (e.g., use of church halls or buildings, adoption and foster services) to same-sex marriage as well.
- Punishment for Speech: preaching, teaching, political action, or conversation reflecting moral opposition to same-sex marriage represents actionable “harassment” or “discrimination,” or forbidden “hate speech”.
- Exclusion from Accreditation and Licensure: those who adhere to the Church’s definition of marriage are excluded from participation in highly regulated professions and quasi-governmental functions, as licences are revoked and religious institutions lose accredited status.
- Exclusion from Government Funding, Religious Accommodations, and Other Benefits: those who adhere to the Church’s definition of marriage are excluded from receiving government grants and contracts to provide secular social services, and from various tax exemptions.
5. Have any of these threats to religious freedom come to pass?
There are numerous such examples from Europe and the United States, which are a warning for Australia. Examples include, but are not limited to, the following:
- Court in the Canadian province of Saskatchewan ruled that a marriage commissioner had no right to refuse to perform a same-sex marriage on grounds of conscience, and fined him for “violating” the human rights of the couple.[4]
- The USA New Mexico Court of Appeals upheld a New Mexico Human Rights Commission verdict which found a photographer guilty of unlawful discrimination and fined her $6000 because she declined to photograph a “commitment ceremony” for two women.[5]
- On March 10, 2006, Catholic Charities of Boston, one of the nation’s oldest adoption agencies, announced that it would no longer function as an adoption agency because Massachusetts Department of Social Services required them to place children into same-sex households.[6]
- In the United Kingdom, Vishnitz Girls School, a primary school for orthodox Jewish girls aged between 3 and 11 years, was ruled to have failed to comply with requirements of the Equality Act 2010 for not teaching the girls explicitly about homosexuality and gender reassignment. When this was highlighted by Australian media during the marriage debate, the regulator – Ofsted – did not change its ruling but retrospectively removed references to homosexuality and gender reassignment from its report.
- From September 2019, sex and relationships education – including LGBT issues – will be compulsory in all primary and secondary schools in the UK[7].
- Canadian father Steve Tourloukis lost a court battle to be notified about, and have his children excused from, classes that presented a sexual morality in conflict with his Greek Orthodox faith, on the grounds that it was not in accordance with the value of “inclusiveness.”
- The charitable status of Catholic adoption and foster agencies in the UK was removed because they did not place children with same-sex couples. Notably, the agencies were not able to rely on an exemption to the law that allowed LGBT charities to service only LGBT clients[8].
- Family First New Zealand lost its charitable status because the Charities Registration Board ruled that its views about marriage and the traditional family “cannot be determined to be for the public benefit in a way previously accepted as charitable.”[9]
- A private members’ bill, aimed at removing ‘advancing religion’ from the definition of charitable purpose has been proposed in Victoria[10].
- A Methodist church organisation lost its charitable status for declining to make its facilities available for same-sex civil unions[11].The European Court of Human Rights ruled against a Christian counsellor who had been dismissed by his employer for failing to give an unequivocal commitment that he was prepared to give psycho-sexual therapeutic counselling to same-sex couples[12].
- Swedish Prime Minister Stefan Lofven has indicated his intention to require all ministers of religion to officiate at same-sex weddings or find another job. A letter along these lines was sent to all religious ministers.
- The openly gay mayor of Houston, Texas subpoenaed the sermons of Christian pastors to determine what was being said to congregants about gay and transgender rights[13].
- The Law Society of Upper Canada has refused to admit law graduates from Trinity Western University to practise law because, upon entering the college, they sign a community covenant agreeing to live by Biblical principles, including reserving sexual activity for heterosexual marriage.
- Separately, the Law Society of Upper Canada requires all lawyers to adopt and abide by a statement of principles that includes a commitment to “equality, diversity and inclusion.”
- Sheffield University social work student was dismissed from his social work course at the university for expressing a faith-based view on Facebook about same-sex marriage. His dismissal was upheld by the UK High Court.
- University of Iowa student group, Business Leaders in Christ, was deregistered because it wouldn’t appoint a same-sex attracted student who told them they would not comply with the group’s commitment to Biblical sexual values to its leadership.
- In the UK, a Christian couple was denied the ability to adopt two children for whom they had been foster parents because of their belief that children need a mother and father[14].
- A Methodist ministry association was sued for discrimination for declining to hire out a pavilion for a gay civil union ceremony[15].
- Washington florist Baronelle Stutzman was sued by the Washington State Attorney-General for declining to provide flowers for a same-sex wedding.
- Cake shop owners Aaron and Melissa Klein were ordered to pay US$135,000 for declining to bake a cake for a same-sex wedding.
- Jack Phillips was required to provide comprehensive staff training, alter company policies and file quarterly compliance records after declining to bake a cake for a same-sex wedding.
- US fire chief Kelvin Cochran was fired after self-publishing a book on Christian masculinity that included passages about same-sex marriage.
- Eric Walsh’s offer of employment as the Georgia district’s health director was retracted following a review of sermons he had given as a Seventh Day Adventist preacher.
- Two Roman Catholic New York firefighters lost their bid to decline to drive a fire truck in a gay pride parade[16].
These threats, new examples of which are surfacing over time, have been manifest in other countries as well, often to an even more persistent and invasive extent. They all relate to the situation where the State’s definition of marriage is in conflict with the view of the Church.
[4] http://www.cbc.ca/news/canada/saskatchewan/marriage-officials-can-t-refuse-gays-sask-court-1.1011669
[5] Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)
[6] http://archive.boston.com/news/local/massachusetts/articles/2006/03/10/catholic_charities_pulls_out_of_adoption_business/
[7] https://www.telegraph.co.uk/news/2017/12/19/children-taught-transgender-issues-sex-education-lessons/
[8] Catholic Care (Diocese of Leeds) v The Charity Commission for England and Wales 2009 UKFTT 376 (GRC)
[9] Family First. Family First Stripped of Charity Status. 21 August 2017. Available at: https://www.familyfirst.org.nz/2017/08/family-first-stripped-of-charity-status/
[10] Victorian Charities Amendment Bill 2017
[11] https://www.nytimes.com/2007/09/18/nyregion/18grove.html
[12] McFarlane v Relate Avon Ltd on appeal to the European Court of Human Rights in Eweida and Ors v United Kingdom [2013] ECHR 37
[13] http://time.com/3514166/houston-pastors-sermons-subpoenaed/
[14] https://www.standard.co.uk/news/uk/christian-couple-blocked-from-adopting-foster-children-amid-gay-parents-row-a3388456.html
[15] Bernstein v. Ocean Grove Camp Meeting Ass’n
[16] http://www.bostonglobe.com/metro/2014/12/30/court-throws-out-rhode-island-firefighters-gay-pride-lawsuits/y4jnFylyjXxh1WtU5qYtOO/story.html
6. Australia is different. Surely there is no likelihood that such threats to religious freedom could occur in Australia?
The examples of impositions on religious freedom are occurring in countries with cultures and legal systems similar to our own: the United Kingdom, Canada, New Zealand and the United States, to name just a few. It would be naive to believe that the same could not happen here, and there are already signs that it will.
Groups that advocated for the legalisation of same-sex marriage in Australia have since lobbied the Expert Panel on Religious Freedom for the repeal of protections of religious freedom in state and federal anti-discrimination law. For example, each of the submissions from the Equality Campaign[17], the Public Interest Advocacy Centre[18] and Amnesty International argued for the repeal of existing protections in relation to employment of staff in faith-based schools.[19] These organisations are not just advocating for change to the law, but have specifically encouraged their supporters to make complaints against faith-based organisations. The anti-discrimination complaint made against Archbishop Julian Porteous and all of the Australian Catholic Bishops occurred after Australian Marriage Equality issued a media release asking its supporters to make complaints.[20]
Cases seeking to limit religious freedom are beginning to emerge in Australia as well:
- The Northern Territory Government released a discussion paper[21] proposing that changes be made to its anti-discrimination laws to prevent faith-based schools from selecting staff on the basis of their religious beliefs or whether they shared the ethos of the school. The WA Government has also indicated that it was taking legal advice on removing similar protections in its laws.[22]
- ACT Education Minister Yvette Berry issued a warning to faith-based schools after Brindabella Christian College sent a letter to parents urging them to vote ‘no’ in the postal survey.[23]
- The government-funded national Gender and Emergency Management Guidelines cautioned that outsourcing response and recovery arrangements to third-party faith-based welfare organisations could have consequences for LGBTI persons because of exemptions provided for faith-based institutions under anti-discrimination law.[24]
- Victorian organisation Christian Youth Camps was successfully sued for discrimination for declining a booking from an LGBT youth organisation.[25]
- In 2017, Pastor Campbell Markham was brought before the Tasmanian Anti-Discrimination Commission for comments he had made in a 2011 blog about same-sex marriage.[26]
- A Commonwealth public servant was given an official warning after expressing concern about pressure being placed on staff to march in a ‘pride’ parade and asking to be removed from internal ‘pride’ emails[27].
- ACT teenager Madeline had her employment terminated after changing her social media profile picture to read, “It’s OK to say ‘no’.” The Fair Work Ombudsman did not take any action against the employer.[28]
- Townsville City Council worker, Willem Englebrecht, was subject to disciplinary action after inadvertently leaving a book about the consequences of same-sex marriage in the lunch room.[29]
- Professor Kuruvilla George, former President of the Victorian Equal Opportunity and Human Rights Commission and Deputy Chief Psychiatrist of the State of Victoria was pressured to resign both roles after making a joint submission with 150 doctors to a 2012 Senate inquiry into same-sex marriage, opposing the redefinition of marriage.[30]
- The Sydney University Catholic Society was threatened with a loss of funding and formal status if it did not remove the requirement that its elected leaders be of the Catholic faith.
- A Christian couple from Western Australia were refused the ability to foster children on the basis that their Christian beliefs on sexual morality made it “unsafe” for children to be placed in their care[31].
- A doctor received an official warning from the Medical Board after declining on conscientious ground to refer a lesbian couple for IVF treatment[32].
[17] http://www.equalitycampaign.org.au/reviewsubmission
[18] https://www.piac.asn.au/wp-content/uploads/2018/02/18.02.14-PIAC-Submission-re-Religious-Freedom-Review-FINAL.pdf
[19] https://www.amnesty.org.au/wp-content/uploads/2018/02/Religious-Freedom-Review-Submission.pdf
[20] Australian Marriage Equality. AME Media Release: Gay students at risk from denigration. Educators who allow distribution violate duty of care. 24 June 2015. Available at: https://www.australianmarriageequality.org/2015/06/24/ media-release-church-school-marriage-booklet-likely-violates-anti-bias-law/
[21] https://justice.nt.gov.au/__data/assets/pdf_file/0006/445281/anti-discrimination-act-discussion-paper-september-2017.pdf
[22] https://thewest.com.au/news/wa/wa-government-seeks-legal-advice-on-religious-schools-right-to-discriminate-against-lgbti-teachers-and-students-ng-b88654566z
[23] http://www.canberratimes.com.au/act-news/act-education-minister-yvette-berry-cautions-schools-on-samesex-marriage-20170920-gyl17m.html
[24] http://www.genderanddisaster.com.au/wp-content/uploads/2016/08/Gender-and-Emergency-Guidelines.pdf
[25] Christian Youth Camps Limited & Ors v Cobaw Community Health Service Limited & Ors [2014] VSCA 75
[26] http://www.themercury.com.au/news/tasmania/antidiscrimination-commission-to-hear-complaint-over-hobart-preacher-campbell-markhams-blogs/news-story/faf220e76fb3281419182fd1892df5a1
[27] Human Rights Law Alliance submission to the Expert Panel. Further detail is not available for reasons of confidentiality.
[28] http://www.abc.net.au/news/2018-04-19/ssm-woman-who-sacked-no-voting-contractor-cleared/9676180
[29] https://www.townsvillebulletin.com.au/news/extownsville-city-council-worker-in-controversial-samesex-marriage-debate/news-story/87d9b4f8719d388e74e05264618ca187
[30] http://www.thestirrer.com.au/deputy-chief-psychiatrist-goes/
[31] Human Rights Law Alliance submission to the Expert Panel. Further detail is not available for reasons of confidentiality.
[32] Human Rights Law Alliance submission to the Expert Panel. Further detail is not available for reasons of confidentiality.
List of Abbreviations
CA – Pope John Paul II, Encyclical Centesimus Annus (1991)
CCC – Catechism of the Catholic Church, 2nd ed. (2000)
CDF 1986 – Congregation for the Doctrine of the Faith, Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual persons (1986)
CDF 1992 – Congregation for the Doctrine of the Faith, Some Considerations Concerning the Response to Legislative Proposals on the Non-Discrimination of Homosexual Persons (1992)
CV – Pope Benedict XVI, Encyclical Caritas in Veritate (2009)
CSDC – Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church (2004)
DH – Second Vatican Council, Declaration Dignitatis Humanae (1965)
FC – Pope John Paul II, Apostolic Exhortation Familiaris Consortio (1982)
GS – Second Vatican Council, Pastoral Constitution Gaudium et Spes (1965)
LF – Pope John Paul II, Letter to Families (1994)
LL – USCCB, Pastoral Letter Marriage: Love and Life in the Divine Plan (2009)
PP – Pope Paul VI, Encyclical Populorum Progressio (1967)
RN – Pope Leo XIII, Encyclical Rerum Novarum (1891)
TOB – Pope John Paul II, Man and Woman He Created Them: A Theology of the Body, trans. Michael Waldstein (Boston: Pauline Books & Media, 2006). Other English versions are available online at EWTN’s website and at the Vatican website.
Key References
The official (Magisterial) teaching of the Catholic Church on Homosexuality and Marriage is found in the Catechism of the Catholic Church (1993) , and in three documents of the Vatican’s Congregation for the Doctrine of the Faith:
Catechism of the Catholic Church: The Sacrament of Matrimony
Download from link: CCC – The Sacrament of Matrimony
Catechism of the Catholic Church: The Sixth Commandment (Especially Paragraphs 2357-2359)
Download from link: CCC – The Sixth Commandment
Declaration on Certain Questions of Sexual Ethics: (CDF, 1975)
Download from link: Declaration on Sexual Ethics
Letter to the Bishops of the Catholic Church on the Pastoral Care of the Homosexual Person (CDF, 1986):
Download from link: Pastoral Care of Homosexual persons
Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons (CDF, 2003)
Download from link: Legal Recognition of Homosexual Unions
In May 2015, the Catholic Bishops of Australia issued a Pastoral Letter “to all Australians” on the ‘Same-sex Marriage’ Debate, entitled “Don’t mess with Marriage”. This summarises why the Catholic Church opposes moves to broaden the legal definition of marriage to include ‘same-sex’ relationships.
A Pastoral Letter from the Catholic Bishops of Australia to all Australians on the ‘Same-sex Marriage’ Debate
Download from link: ‘Same-sex’ Marriage Pastoral Letter
The following submissions by the Catholic Church in Australia to the Senate Legal and Constitutional Affairs Committee’s Inquiry into the Marriage Equality Amendment Bill 2010 also elaborate on Catholic Church teaching on marriage and same-sex attraction.
Submission 113: His Eminence Cardinal George Pell AC, Archbishop of Sydney
Download from link: (PDF 4791KB)
Submission 5: Opening Statement tabled by the Australian Catholic Bishops Conference at public hearing on Thursday 3 May 2012
Download from link: (PDF 1073KB)
Submission 234: Australian Catholic Bishops Conference
>Download from link: (PDF 113KB)
Catholic Teaching on Marriage is summarised in the following “Frequently Asked Questions” Booklet.
Marriage in the Catholic Church: Frequently Asked Questions Bishops Commission for Pastoral Life, 2006.
Download from link: Marriage in the Catholic Church
Other Non Catholic Church References
Regnerus, Mark: How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study. Social Science Research 41 (2012) 752–770.
