Logically Indefensible; why freedom of religion requires acceptance of same-sex marriage

In 2008 a CNN iReport entitled Why Defence of Marriage is Indefensible was written. In 15 points of dispassionate, clinical logic, the piece dissected opposition to marriage equality, and found it to be completely indefensible. Sadly the original is no longer available, and I neglected to make an archival copy before it vanished.

This post is based on that iReport, and has been in the drafts folder for many months now; in it, I apply that argument to the Australian context, although I take 19 points. The post has been updated to reflect the current situation.

First, a note; civil unions as a valid alternative to marriage have been rejected as a failed experiment (Australian Marriage Equality 2009) – as the Americans would say, “separate is not equal,” (Sorenson 2012) not is it acceptable; this stance is supported by clinical evidence (Wilkinson and Kitzinger 2005).

And now, let us begin.


Discussion

  1. As per the Constitution, Freedom of Religion is guaranteed and protected in Australia:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required for any office or public trust under the Commonwealth” (Constitution of Commonwealth of Australia 1901, sec. 116).

This section establishes Freedom of Religion as a core value of Australia; indeed, it has been termed the most significant human rights guarantee in the country (Galligan and Morton 2004). Although the extent of the effect of the provision is contentious (Eburn 2003) (particularly in light of the “DOGS case” (Barwick et al. 1981)) as far as prohibiting government aid to religious organisations is concerned, there are the following supplementary points to consider;

  • Freedom of Religion is reinforced in Australia by our ratification (Australian Human Rights Commission 2012b) in 1980 of the International Covenant on Civil and Political Rights (Note that Article 18 guarantees a comprehensive right of freedom of religion – and Article 4 prohibits any derogation of that right (‘International Covenant on Civil and Political Rights’ 1966));
  • Freedom of Religion is considered a fundamental human right by our own government authorities (Australian Human Rights Commission 2012a);
  • Indeed, we advise both citizens that Australian “law does not enforce any religious doctrine” and that this is a fundamental freedom of the nation (Department of Social Services, Australian Government 2016);
  • Further, the Government provides formal advice to potential citizens that states “People in Australia are free to follow any religion they choose, as long as its practices do not break Australian laws” (Galligan and Roberts 2014);
  • Any imposition of any religious observance, and any infringement of the free exercise, of religion by any law of the Commonwealth is prohibited by s.116; and
  • The whole purpose of this section’s inclusion was to reflect the pre-Federation policy of secularism, at a national level (Irving 2004).
  1. Under the principle of Freedom of Religion, every person is entitled to their own religious beliefs, and to practice such, so long as he or she does not break any laws or violate any other person’s rights.
  2. It is not possible for a person to practice his or her religion, or not practice religion at all, if another person’s religion is imposed upon him or her.
  3. Therefore, for every person to have the freedom to practice his or her religion, it is important that one group’s religious beliefs not be imposed upon another, regardless of whether that group is in the majority or the minority, and regardless of the respective popularity of their viewpoints.
  4. Therefore any law that imposes one group’s religious views upon another, without other justification, violates Freedom of Religion.
  5. People of the same sex marrying violates no laws, other than any laws against same-sex marriage.
  6. It is logically meaningless to argue that same-sex marriage should not be legal because same-sex marriage is illegal (the fallacy of “begging the question”(Richardson, Smith, and Meaden 2016)).
  7. Therefore, according to points #6 and #7 above, same-sex marriage violates no laws.
  8. People of the same sex marrying does not infringe on anyone else’s rights. Heterosexual people are free to marry or not marry as they wish; same-sex marriage does not affect this. All legislative proposals to legalise same-sex marriage that went before the last Parliament in Australia specifically exempt religious bodies or persons from acting contrary to their religious beliefs in respect of this matter or allow the current protections in the Marriage Act 1961 to this effect to stand (Hanson-Young 2013; Hanson-Young 2014; Entsch et al. 2015; Shorten 2015; Plibersek 2016); the same applies to the ones before this Parliament (Hanson-Young 2013; Hanson-Young 2014; Shorten 2016; Bandt, McGowan, and Wilkie 2016). As organisations and persons whose religious beliefs do not accommodate persons of the same sex marrying will not have those beliefs infringed upon, and will not be compelled to act in a manner contrary to their beliefs, the protection of Freedom of Religion in respect of this matter is complete.
  9. There are no other inherent rights to which the issue of same-sex marriage is relevant (specifically excluding any rights relating to children; see below at #11).
  10. The institution of marriage is not dependent upon ability to produce children. If it were, we would not grant marriage to infertile couples, or to couples who choose to remain childless (The Attorney-General for the Commonwealth & ‘Kevin and Jennifer’ & Human Rights and Equal Opportunity Commission 2003). In addition, matters of adoption, custody, and so on, are dealt with by state and territory legislation, not the Marriage Act 1961.
  11. It is logically fallacious and invalid to argue that same-sex marriage should not be legal now because same-sex marriage has not been legal in the past (the so-called “traditional marriage” (Nash 2012c) argument is the fallacy of “Appeal to Tradition” (The Nizkor Project 2012a) – note that by this line of fallacious reasoning, slavery would be legal, we’d all still be using the horse and cart, and women would be property).
  12. There is no difference, material or otherwise, between the obligations, privileges, rights, and duties conferred by same-sex marriage and the obligations, privileges, rights, and duties conferred by opposite-sex marriage (Nash 2012b); no new special class is created by the legal recognition of same-sex marriage which is privileged above other groups; no other group is disadvantaged in any way by the legalisation of same-sex marriage.
  13. It is factually incorrect (Nash 2012a), logically meaningless (the fallacy of the Slippery Slope (The Nizkor Project 2012b)), and irrelevant to the discussion to contend that legalisation of same-sex marriage will result in the legalisation of any other form of union; nevertheless, as at the time of publication, no jurisdiction which has legalised same-sex marriage (‘File:World Marriage-Equality Laws.svg’ 2016) has legalised any other form of union. With one exception, all nations which allow for legal recognition of other forms of union (‘File:Legality of Polygamy.png’ 2016) (i.e., polygamy) prohibit or legally sanction homosexuality and prohibit same-sex marriage (‘File:World Laws Pertaining to Homosexual Relationships and Expression.svg’ 2016); with one exception, the Republic of South Africa, which recognises some forms of polygamy – however, as this recognition predates the legalisation of same-sex marriage in that country (BBC 2006; BBC 2010), the two cannot be said to be causally linked in any way, shape, or form, in any instance.
  14. Under points #8 to #14, as no laws are violated by, and no rights are infringed by, people of the same sex marrying, as the ability to reproduce is not a condition for marriage, as the preservation of practices purely for the sake of tradition is completely invalid, as no-one is harmed or disadvantaged by people of the same sex marrying, and as the contentions around legalisation of same-sex marriage resulting in the legalisation of other forms of union are incorrect, invalid, and irrelevant to the discussion, the only remaining justifications for opposition to same-sex marriage are religious in nature.
  15. By #15, the definition of marriage in Australia as being restricted to opposite-sex couples, being based on particular religious doctrines, is requiring all Australians to adhere to and observe a religious practice with regards to marriage – it is a law imposing a religious observance upon all Australians no matter their beliefs, and, furthermore, prevents the free exercise of any religion that recognises, accepts, and validates same-sex marriage, and, furthermore, interferes in the non-observance of religion by non-religious Australians; such measure directly infringes upon the Freedom of Religion of at least one-fifth of the country (Australian Bureau of Statistics 2012).
  16. By #5 and #16, opposition to same-sex marriage violates the Constitutional principle of, and the plain-text reading of the provision for, Freedom of Religion.
  17. By #9, heterosexual marriage is not “under attack” and does not need to be defended; the same applies with respect to Freedom of Religion in relation to people of the same sex marrying due to the exemption clauses provided for religious persons and bodies under all proposed amendments to the Marriage Act 1961 as at the time of writing.
  18. By #17 and #18 the provisions of the Marriage Act 1961 that prohibit same-sex marriage are indefensible, and legislatively denying same-sex marriage is completely unjustifiable in Australia.

 


Conclusion

First, a caveat; note that this is not a legal argument. It is a logical one; at the risk of offending the sensibilities of the legal profession, there are times where the law makes no logical sense whatsoever. Only the High Court could determine if the provisions in the Marriage Act 1961 are unconstitutional in addition to being illogical, but with no case on this basis before them, the legal question is purely academic.

That said, the take-away here is that opposition to same-sex marriage is logically incompatible with the principle of freedom of religion, a principle this nation purports to hold dear, and is indefensible. If you believe in freedom of religion, you must also be on board with allowing same-sex marriage in Australia; otherwise you’re only for freedom for your religion, and wish to impose it on others who do not share your beliefs.

 


Sources and References

Australian Bureau of Statistics. 2012. ‘Cultural Diversity in Australia – Reflecting a Nation: Stories from the 2011 Census, 2012–2013’. June 21. http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features902012-2013.

Australian Human Rights Commission. 2012a. ‘Freedom of Religion and Belief’. December 14. http://humanrights.gov.au/our-work/rights-and-freedoms/projects/freedom-religion-and-belief.

———. 2012b. ‘Human Rights Brief No. 3’. December 14. http://humanrights.gov.au/publications/human-rights-brief-no-3.

Australian Marriage Equality. 2009. ‘A Failed Experiment: Why Civil Unions Are No Substitute for Marriage Equality’. http://www.australianmarriageequality.org/wp-content/uploads/2010/12/A-failed-experiment.pdf.

Bandt, Adam, Cathy McGowan, and Andrew Wilkie. 2016. Marriage Legislation Amendment Bill 2016. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5711.

Barwick, Gibbs, Stephen, Mason, Murphy, Aickin, and Wilson. 1981. Attorney-General (Vic); Ex Rel Black v Commonwealth (‘DOGS case’). HCA. http://www.austlii.edu.au/au/cases/cth/HCA/1981/2.html

BBC. 2006. ‘SA Same-Sex Marriage Law Signed’. BBC, November 30, sec. Africa. http://news.bbc.co.uk/2/hi/africa/6159991.stm.

———. 2010. ‘How Do Zulus Explain Polygamy?’ BBC, March 4, sec. Magazine. http://news.bbc.co.uk/2/hi/uk_news/magazine/8549429.stm.

Constitution of Commonwealth of Australia. 1901. http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html.

Department of Social Services, Australian Government. 2016. ‘Five Fundamental Freedoms’. Accessed March 28. https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/taking-the-initiative/resources/five-fundamental-freedoms.

Eburn, Michael. 2003. ‘Religion and the Constitution’. Australian Religion Studies Review 8 (2): 77–85. https://law.anu.edu.au/sites/all/files/users/u4810180/religion.pdf

Entsch, Warren, Teresa Gambaro, Terri Butler, Laurie Ferguson, Adam Bandt, Cathy McGowan, and Andrew Wilkie. 2015. Marriage Legislation Amendment Bill 2015. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5512.

‘File:Legality of Polygamy.png’. 2016. Wikipedia, the Free Encyclopedia. Accessed March 28. https://en.wikipedia.org/wiki/File:Legality_of_polygamy.png.

‘File:World Laws Pertaining to Homosexual Relationships and Expression.svg’. 2016. Wikipedia, the Free Encyclopedia. Accessed March 28. https://en.wikipedia.org/wiki/File:World_homosexuality_laws.svg.

‘File:World Marriage-Equality Laws.svg’. 2016. Wikipedia, the Free Encyclopedia. Accessed March 28. https://en.wikipedia.org/wiki/File:World_marriage-equality_laws.svg.

Galligan, Brian, and Fred Morton. 2004. ‘Australian Rights Protection’. Refereed Paper presented at the Australasian Political Studies Association Conference 2004, Australia. http://www.adelaide.edu.au/apsa/docs_papers/Aust%20Pol/Galligan&Morton.pdf.

Galligan, Brian, and Winsome Roberts. 2014. Australian Citizenship; Our Common Bond. Department of Immigration and Border Protection. https://www.border.gov.au/Citizenship/Documents/our-common-bond-2014.pdf

Hanson-Young, Sarah. 2013. Marriage Equality Amendment Bill 2013. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s938.

———. 2014. Recognition of Foreign Marriages Bill 2014. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s963.

‘International Covenant on Civil and Political Rights’. 1966. Office of the United Nations High Commissioner for Human Rights. Opened for signature 16 December 1966, entered into force 23 March 1976. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

Irving, Helen D. 2004. Five Things to Know About the Australian Constitution. United States of America: Cambridge University Press.

Nash, M. 2012a. ‘Captain Logic and the Polygamy Argument’. Tyrannosaurus Writes. January 21. https://tyrannosauruswrites.com/2012/01/21/captain-logic-and-the-polygamy-argument/.

———. 2012b. ‘Nothing New about It’. Tyrannosaurus Writes. June 7. https://tyrannosauruswrites.com/2012/06/08/nothing-new-about-it/.

———. 2012c. ‘The PM, Marriage, Tradition, and Logic’. Tyrannosaurus Writes. June 19. https://tyrannosauruswrites.com/2012/06/19/pm-marriage-tradition-logic/.

Plibersek, Tanya. 2016. Marriage Amendment (Marriage Equality) Bill 2016. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5660.

Richardson, Jesse, Andy Smith, and Som Meaden. 2016. ‘Your Logical Fallacy Is Begging the Question’. Thou Shalt Not Commit Logical Fallacies. https://yourlogicalfallacyis.com/begging-the-question.

Shorten, Bill. 2015. Marriage Amendment (Marriage Equality) Bill 2015. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5470.

———. 2016. Marriage Legislation Amendment Bill 2016. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5708.

Sorenson, Tom. 2012. ‘Liberating Christianity: Separate Is Not Equal’. Liberating Christianity. February 7. http://liberatingchristianity.blogspot.com.au/2012/02/separate-is-not-equal.html.

The Attorney-General for the Commonwealth & ‘Kevin and Jennifer’ & Human Rights and Equal Opportunity Commission. 2003. Family Court of Australia. http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html

The Nizkor Project. 2012a. ‘Fallacy: Appeal to Tradition’. http://www.nizkor.org/features/fallacies/appeal-to-tradition.html.

———. 2012b. ‘Fallacy: Slippery Slope’. http://www.nizkor.org/features/fallacies/slippery-slope.html.

Wilkinson, Sue, and Celia Kitzinger. 2005. ‘Same-Sex Marriage and Equality’. The Psychologist 18 (5): 290–293. doi:10.1007/s10677-010-9261-8.

Advertisements