COMMENTARY | Mark Fowler
From Eternity # 64, November 2015
The coming plebiscite on same-sex marriage will cause us to consider the boundaries of religious freedom within Australian law. In the August edition of Eternity, I directed attention to the potential impact of same-sex marriage on the charitable endorsement of religious institutions in Australia.
I did so having regard to the dissenting opinion of Chief Justice Roberts in Obergefell v Hodges, the June 2015 US Supreme Court decision that found a constitutional right to same-sex marriage.
The salience of the issue is demonstrated by the fact that the Australian Charities and Not-for-Profits Commission (ACNC) has recently clarified on its website that where a religious charity “routinely” breaches anti-discrimination law, it is likely to be pursuing an unlawful purpose, and will not be entitled to charitable status.
In his address last month to the Centre for Independent Studies, Catholic Archbishop of Sydney Anthony Fisher, citing the case of bakers who were fined for declining to supply a cake to a same-sex couple for their wedding in Oregon, argued that, “democracy degenerates into despotism when it licenses such vilification of people’s conscientious beliefs.”
The right to religious freedom under Article 18 of the International Covenant on Civil and Political Rights, which Australia has ratified, applies to all, not just religious institutions and their employees.
However, as Associate Professor Neil Foster writes, “the only major provision in [Australian] anti-discrimination legislation designed to provide protection for religious freedom for general citizens (as opposed to religious organisations or ‘professionals’) is contained in the law of Victoria.”
Furthermore, last year the Victorian Court of Appeal held that the right to religious freedom did not extend to religious institutions when they undertake commercial operations. Such is inconsistent with the extension of religious freedom rights to all within a community, as recognised under international law.
Freedom to act in accordance with one’s conscience (including as informed, or burdened, by religious conviction) is at the root of the post-Enlightenment vision of the modern liberal state. The concern with anti-discrimination law is its potential to breach this fundamental citizen/state compact. The state risks abdicating its hard-won post-Enlightenment role as the champion of the individual conscience by proposing that the deeply held convictions of religious people may be compromised in the interests of preventing offence or in maintaining convenience of service supply.
And while the religious freedom rights of citizens in Australia are not recognised, even the limited recognitions that are offered to religious institutions are under challenge. Various submissions to the current Australian Law Reform Commission Freedoms Inquiry argue for the limiting or removal of exemptions granted to religious institutions in anti-discrimination law.
The 800th anniversary of the Magna Carta recently garnered the attention of the nation, with the document being celebrated as a founding stone for our modern constitutional protections and freedoms. In the associated media coverage, it struck me that there was a near-total silence on the first clause of the 1215 Magna Carta: “quod Anglicana ecclesia libera sit” (“the English Church shall be free”). In its historical context, this clause was directed at preserving the church’s right to determine appointments to bishoprics, and hence the right to independently determine doctrine.
In 2012 the analogy to modern- day anti-discrimination law was not lost on the US Supreme Court when, citing the Magna Carta, it unanimously upheld the right of a religious school to determine appointments to its staff as a fundamental expression of the right to religious freedom.
The ability of a religious community to determine and proclaim truth is central to the survival of truth in the conscience of its members and for the acquittal of its role in offering eternal hope to the wider community. Any removal of that ability would be a restriction on these historically hard-won liberties, which arguably are a cornerstone of the development of freedom within the Western legal tradition.
Mark Fowler is a director of Nevman and Turner, lawyer.