Today’s debate on religious freedom has not arisen in a vacuum. Amendments to Dean Smith’s same-sex marriage bill that would guarantee freedom of speech, association, and conscience would be redundant were there no appetite to restrict such freedoms. But there is such an appetite, and its ferocity is revealed more and more by the day.
Despite 38.4 per cent of Australians voting No to same-sex marriage and about 62 per cent of Australians wanting protections for religious freedom, large majorities in the federal parliament, and a substantial number of Liberal MPs, rejected the amendments to the Smith bill that guaranteed religious freedom to individuals, businesses and religious institutions.
The same-sex marriage debate in Australia has exposed a sectarian politics reminiscent of the skirmishes between Protestants and Catholics over freedom of conscience that plagued Australia up to World War II.
People may disagree on the justice or injustice of fining bakers for not baking same-sex wedding cakes, forcing adoption agencies to shut down for catering only to mother-father clients, or forcing people to answer to anti-discrimination and human rights tribunals for non-abusive, non-incendiary speech, but no one can deny that this is happening, as experience in the US, Canada, Britain and Australia shows.
And it is this climate of soft persecution that makes Smith’s bill an incredibly irresponsible piece of legislation. The bill’s and many MPs’ Pollyanna-ish attitude to real-world challenges against freedom of speech and conscience is both a betrayal of the principles of classical liberalism and a betrayal of Australian religious institutions and individuals.
Liberal MP Tim Wilson warned that conservatives demanding religious freedom clauses were in danger of establishing a bill of rights, the very thing they had been fighting against for years. But the bills of rights that conservatives from Edmund Burke onwards have always opposed were bills enshrining abstract rights to “equality” and “fairness” that could easily be manipulated by social engineers to eradicate reasonable liberties.
The comprehensive list of amendments proposed by Liberals James Paterson, Andrew Hastie, Scott Morrison, Alex Hawke, Andrew Broad and Michael Sukkar were very narrow in scope, protecting the integrity of institutions such as churches, schools and freedom of speech and conscience for individuals and parents. Rejection of the religious liberty amendments as a mere licence to discriminate reveals a worrying misunderstanding of some necessary conditions of a free society.
For example, how long will a political party exist without the right to discriminate in favour of potential candidates and staffers who adhere to the principles of that party? The same goes for a trade union, Get Up!, a church, a charity, and a school.
Lobby groups, the media, political parties, businesses, educational institutions, and charities make up civil society — that free, voluntary sphere that seeks to have a positive influence on government and other people’s lives. Without the right to discriminate in employment this sphere disappears and the social needs that it meets are taken up by the state. Liberals should be especially concerned with this.
The point should be clear: some rights to discriminate are valid because they are anchored to the preservation of social goods and ideals that constitute a free society. When business owners exercise conscientious objections to participating in same-sex marriages either through catering or photographing the event, they are not restricting the liberties of anyone else, and no one is being forced to use their services.
Some might say that by so refusing to offer services, the vendor is inflicting a status or dignity harm against the customer because the validity of their very identity has been questioned. This is seriously problematical: Who is to say that the customer’s identity as same-sex attracted is any more important to him than the vendor’s identity as a religionist is to her? And therefore on what grounds can we say that forcing the vendor to facilitate an event deeply at odds with her beliefs is any less an affront to her dignity than allowing her to refuse is an affront to the customer’s?
Also, photographers and bakers are not refusing to serve customers because of their sexual identity. If the same customers simply wanted to buy flowers or cakes for other occasions then the vendors would comply. If straight customers went in and requested a wedding cake for a same-sex wedding, they too would be denied. It is about participating in an activity against which the vendor is conscientiously opposed, not the identity of the customer.
Such freedoms are not religious privilege. All Australians, religious or secular, should be free to decline participation in morally contentious events so long as it is no threat to others’ liberties, safety, or property.
Indigenous Australians should be free not to sell Australia Day flags in their shops or cater for Australia Day events. A gay photographer should be free to decline creating promotional material for an Australian Christian Lobby Conference. A Muslim printer should be free not to print a magazine depicting images of Mohammad.
This isn’t so much liberal identity politics as it is just classical liberalism. It merely requests the negative liberty to abstain from violating one’s own conscience, rather than demanding that everyone else celebrate and honour it with punitive measures against those who resist.
The uncomfortable fact is that society is deeply divided on questions of sexuality, marriage, gender, and now even traditional liberal rights. The same-sex marriage debate revealed a fierce sectarianism in Australia that has emerged out of the moral revolution of the 1960s and has been radicalised by a Marxist obsession with militant victimhood.
In the absence of protections for freedom of speech, conscience, and association, the place of social conservatives and vocal advocates of classical liberal rights in the public service, education, health, and civil society in general is precarious.
An analogy is the marginalisation of Catholics from state institutions up until the 1829 Catholic Emancipation Act.
If freedom leads to plurality of opinions, then freedom is the greatest enemy of any movement that demands uniformity of opinion on questions of sexuality and gender.
The same-sex marriage debate and its aftermath around the English-speaking world showed that such a movement is afoot, even in Australia. A good first step to imposing this uniformity is to have passed Smith’s bill unamended. The next step is to start attacking institutions and individuals who represent traditional views or who defend those who do.
Welcome, then, to the new sectarianism.
Stephen Chavura lectures in politics and history at Macquarie University, Campion College, and the Lachlan Macquarie Institute
This article first appeared in The Australian and has been republished with permission from the author.