Religious Freedom and Same Sex Marriage Laws: Constitutional and Other Issues

Neil Foster is an Associate Professor at Newcastle Law School (Australia). His blog,  Law and Religion Australia,  treats Law and Religion issues not only in Australia and other Commonwealth nations, but in the United States and elsewhere.

Recognition of “same-sex marriage” has been proceeding apace in Western societies for the last few decades. Adoption of same-sex marriage, however, raises religious freedom issues. It does so because the move effectively amounts to a change in a nation’s public morality and takes a stance on the issue as to what kind of sexual activity is legitimate, which is in sharp opposition to the views taken by mainstream religions for many years. Representatives of those religions have long been involved in solemnizing marriages; questions now arise as to whether they will be required to solemnize same-sex unions. Similar issues arise for believers involved as small businesses in related “wedding industries.” At a broader level, the change means that many religious groups are now opposed to the wider societal consensus on the question of sexual morality, and questions are raised as to whether they will still be able to play a role in the public life of the community.

Many of these matters are issues that would have arisen in these societies even if the legal definition of marriage had not been changed to include same-sex couples. Religious groups have been out of step with the broader Western culture’s views on sex and marriage for some decades. But the formal step of parliamentary (or judicial) approval of sexual activity which is officially disapproved of by most mainstream religious teachings brings these issues into sharp focus.

My chapter, “Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues,” deals with these issues in the Australian context, but similar themes have arisen all over the Western world.

One issue which arises generally is whether religious freedom generally receives adequate protection under domestic laws. In some countries,  broad protection is spelled out in a constitutional document (such as the First Amendment to the US Constitution, or the Canadian Charter of Rights and Freedoms). In other countries, the protection is not “embedded” in a foundational document but is provided by legislation enacted by the local Parliament intended to have, so far as is possible, binding force over other laws (such as the New Zealand Bill of Rights Act 1990, and the UK Human Rights Act 1998). But in other jurisdictions, protection of religious freedom is more limited. 

In Australia, there is a protection of sorts in s. 116 of the Commonwealth Constitution, but this provision only operates as a limit on the legislative powers of the Commonwealth Parliament and does not prevent State Parliaments interfering with the “free exercise” of religion. Protection of religious freedom in Australia has to be found in some individual State and Territory “charters,” in “balancing clauses” inserted into discrimination laws, and to some extent in principles of the common law such as the “principle of legality” (by which courts will not interpret legislation as interfering with “fundamental rights” unless it does so explicitly.)

Another issue that has arisen is whether there is authority to alter the long-standing meaning of the institution of marriage. Of course, in a jurisdiction with complete Diceyean Parliamentary supremacy, the legislator can declare black to be white with impunity. But in a jurisdiction where legislative power is constrained and  limited to certain defined topics, the question will always arise of whether  a law allowing same-sex couples to be married is within the power to legislate on “marriage.”.

Australia is one of the latter jurisdictions, a federation where the Constitution spells out certain specific topics which are allocated to the Federal Parliament (one of which is “marriage”), others being left to State Parliaments. In the chapter, I suggest that it is not at all clear that the word “marriage,” as a topic of legislative power, encompasses same-sex relationships on a plausible understanding of the word as used when the Constitution was framed in 1900. Even given that Constitutional heads of power are intended to be broadly interpreted, the question remains whether the word is being stretched too far. It is accepted that any head of power will have a “core” meaning, which is unchanging, and a “penumbral” area at the outer limits where elements of the definition of the concept may change over time. But how is the line to be drawn which separates “center” from “circumference?” At what point does an attempt to alter a “central” feature of the legal topic mean that the law is no longer on that topic?

In the Australian context, the High Court of Australia offered comments on this matter in its decision in The Commonwealth v. Australian Capital Territory (the ACT Same-Sex Marriage case) [2013] HCA 55; 88 ALJR 118; 304 ALR 204, holding that the “marriage” power would support a federal law allowing same-sex marriage. In the chapter, I note that it was not necessary for such views to be offered by the court in that case (the case involved the different question as to whether a Territory could enact its own law recognizing same sex marriage, when the Commonwealth had not done so.). I also offer reasons why one might think that the ruling on this issue was not correct, and suggest that (since in the unusual circumstances of that case, there was no serious “contradictor” putting other views) the High Court ought to be willing to reconsider the question. But no challenge of this sort has so far been made.

Given that the change to the law was then made, the impacts of that change on religious freedom in Australia were partly addressed by the legislation, although there are still unresolved questions. One immediate question was whether ministers of religion, who have long been authorized to celebrate marriages under Australian law, would be obliged to celebrate same-sex marriages. 

This is one of the areas where the legislation is fairly clear: the answer is no. Amended s. 47(3) of the Marriage Act 1961 provides that “despite anything in this Part,” a minister of religion may decline to solemnize a same-sex marriage  based on the “doctrines, tenets or beliefs” of their religion, or if doing so would cause “injury to the religious susceptibilities of adherents of” that religion, or indeed if their own private religious beliefs would prevent them from doing so.

There was also some recognition that “marriage celebrants” who were not ministers of religion may have religious reasons for not conducting same-sex weddings, and so those who were already registered had the opportunity to become “religious marriage celebrants” and to decline to solemnize such marriages without being accused of committing unlawful discrimination on the grounds of sexual orientation. But once these transitional arrangements had passed, civil celebrants (whether in business on their own or engaged as “registrars” by governments) lost the opportunity to lawfully decline to conduct such weddings.

The lack of religious freedom protection for civil celebrants and registry officials is, in my view, a serious flaw in the legislation. Religious freedom, the right to act in accordance with one’s deepest commitments about life and its meaning, is a significant matter that is recognized as such in all major human rights charters. It applies not only to “clergy” but also to individual believers. Public servants do not leave their religious freedom rights at home when entering the service of their community. Requiring some believers to choose between their faith and their jobs, especially when the services being provided will be easily available from someone else, undermines the human rights of those believers. (In most Western countries it would be very rare for the only feasible same-sex marriage celebrants to be believers with conscientious objections. But if this theoretical possibility was of concern, legislation could limit any accommodation to circumstances where other options are not reasonably available.)

Nor is there protection provided for individual businesses involved in the “wedding industry” who may want to decline to offer their artistic support for services for same-sex ceremonies. Those opposed to such protection argue that provisions allowing such a refusal would be a “license to discriminate.” They are (with respect) wrong. What is being objected to is support for the message of the ceremony (that is, the “celebration” of a same-sex relationship), and the demand that artistic talents be devoted to such celebration. These are matters that continue to be litigated at the highest judicial level in the United States and the United Kingdom, and may yet arise in other jurisdictions.

There are other issues that arise, flowing not directly from the ceremony as such, but from the fundamental message concerning the acceptance of homosexual activity evidenced by this new law. While, of course, as a matter of social norms, homosexual activity has been generally regarded as acceptable in Western society for the last few decades, formal legal equation of such activity with heterosexual marriage seems to mark a new stage in societal approval. As a result, we may expect increased challenge to the view held by religious groups that such activity is contrary to God’s purposes for humanity, and an increased sense that this is such a  unacceptable stance that the holders of the position ought to be penalized.

These questions will continue to arise in terms of what may be taught by faith-based schools; what may be said in the public square (or even in church services) without being penalized for “vilification;” whether those who differ from the majority orthodoxy will face being dismissed from public, or private, employment unless they conceal their religiously-formed views. Countries will need to debate how to protect religious freedom without causing unacceptable harm to other members of the community who find expression, or indeed in some cases simply the holding, of such views, unduly offensive.

While there has been a shift in the public morality of Western societies on the topic of marriage, there is no need to pretend that everyone agrees with that shift, or to seek to impose an artificial uniformity of belief on the topic on those whose religion tells them that this is not good. The benefits of same-sex marriage can be enjoyed by those in support of it while recognizing that there are differences of opinion which remain. A mature and tolerant society will, it is to be hoped, allow space for respectful disagreement on this issue and for believers to live by their fundamental convictions.

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