The same-sex marriage debate and the

right to religious belief

The central issue in any Australian recognition of same-sex marriage
remains almost invisible whether the states re-definition of civil
marriage will authorise an assault on churches, institutions and
individuals who retain their belief in the traditional view of marriage.
It seems to this point that none of the proposals for same-sex marriage or
related policy prescriptions are satisfactory laws for passage by the
Australian parliament. The real issue is conceptually simple it is whether
same-sex marriage will deny conscience rights to much of the population.
The alternative is a new spirit of tolerance guaranteed by law where samesex marriage sits in parallel with undiminished religious liberty.
The omens are not good. As the years advance there has been virtually no
debate about the real issues surrounding same-sex marriage. The campaign
for change is strong and tactically brilliant based on the ideological slogan
marriage equality, one of the most effective slogans in many decades.
The collapse of the moral authority of the churches, especially the Catholic
Church, driven above all by the child sexual abuse phenomenon across a
range of nations, has seen a depleted and often unchristian response by the
churches as they singularly fail to meet the demand of same-sex marriage
advocates.
Yet the majority media reaction to this situation lets get on with the
change is ignorant and irresponsible. The real debate is probably just
starting. It poses an unprecedented challenge for our law-makers. There has
never been an issue like this, as the US Supreme Court decision made clear.
This week in The Australian and in an interview with Inquirer, Human
Rights Commissioner Tim Wilson, a strong supporter of same-sex marriage,
began to confront the choice our society faces.
Wilson advanced two propositions that shatter the haze of misinformation
and emotion that surrounds this issue. First, that none of the bills on samesex marriage offers anything like the essential protection of religious
freedom and individual conscience. And second, that individual belief and

religious freedom must be seen as equally important as the right to samesex marriage.
These principles have not been accepted in the debate. Indeed, they are
largely denied and fought. This is the reason Wilson has raised them. The
politicians will protest but their protests are worthless. Only one thing counts
the policy and legislative stand the politicians take and, so far, the
protections of religion freedom are only tokenism.
The primary problem is that people think of religious protection just in
terms of a minister of religion solemnising a marriage, Wilson tells
Inquirer. But this is a superficial analysis of the issue. The question of
religious freedom has not been taken seriously. It is treated as an
afterthought. We cannot allow a situation where the law is telling people
they have to act against their conscience and beliefs. We cannot protect the
rights of one group of people by denying the rights of another group.
If the Australian parliament intends to create a legal regime with this
consequence then the law-makers must justify this to the people and explain
how such calculated intolerance leads to a better society. The legalisation of
same-sex marriage means the laws of the state and the laws of the church
will be in conflict over the meaning of the most important institution in
society. This conflict between the civil and religious meaning of marriage
will probably be untenable and marked by litigation, attempts to use antidiscrimination law and entrenched bitterness. But an effort ought to be made
to make it tenable on the basis of mutual tolerance.
The Amici brief to the US Supreme Court of four distinguished legal
scholars* who support same-sex marriage offers the best statement we are
likely to see on the method of reconciliation between these competing rights.
The proper response to the mostly avoidable conflict between gay rights
and religious liberty is to protect the liberty of both sides, the Amici brief
argues. Both sexual minorities and religious minorities make essentially
parallel claims on the larger society.
Both sexual orientation and religious faith, and the conduct that follows
from each, are fundamental to human identity. Both same-sex couples and
religious organisations and believers committed to traditional understandings
of marriage, face hostile regulation that condemns their most cherished
commitments as evil.

Legislative bargaining is critical to protecting religious liberty in the

growing number of states where religious objections to same-sex marriage
have become unpopular.
If same-sex marriage is authorised in Australia, this is the approach that
should prevail. If Coalition MPs who support traditional marriage were
prudent they would begin preparing the legal conditions under which
freedom of conscience can exist with same-sex marriage. If pro-same-sex
marriage MPs were prudent they would do the same, as Wilson advocates,
and if they are serious and convince traditionalists then they may find more
MPs joining their ranks.
There should be no doubt, however, about the bottom line: the Australian
parliament should not legislate the right to same-sex marriage on the altar of
denying institutions and individuals the right to their conscience.
The Amici brief begins with a core proposition: the issue of religious liberty
cannot be used to deny same-sex marriage. But this leads to the next
proposition: the legalisation of same-sex marriage cannot be used to deploy
state power against religious organisation and believers. This spirit can
prevail only if churches respect same-sex couples and if same-sex couples
respect religious discretion. That requires the removal of hate and malice
from the debate. The essence of the moral liberation required is put in these
terms: The gain for human liberty will be greatly undermined if same-sex
couples now force religious dissenters to violate their conscience in the same
way that those dissenters, when they had the power to do so, forced samesex couples to hide in the closet.
This raises the question about the real ideology of the same-sex marriage
campaign. Is it merely to allow gays to marry? Or is its ultimate purpose to
impose marriage equality across the entire society, civil and religious.
Ideologies do not normally stop at the halfway mark. Is marriage equality,
as designed and evolving by its advocates, an ideology that can live with two
different concepts of marriage, civil and religious? The Amici brief makes
clear that limiting religious exemptions to just pastors performing wedding
ceremonies is completely inadequate. There is a wide range of other issues
to be considered. Must religious colleges provide married housing to samesex couples? Must churches and synagogues employ spouses in same-sex
marriages even though this flouts their religious teaching? Must religious
social-service agencies place children for adoption with same-sex couples?

Will religious institutions be penalised by losing government contracts, tax

exemptions and access to public facilities? Will religious institutions and
schools be penalised if they teach their own beliefs about marriage, thereby
contradicting the states view of marriage? Or will the state laws via antidiscrimination legislation be mobilised to force the states view on to
religious institutions?
What of the provision of services? In much of the US a gay publicist can
refuse to provide services for an anti-gay event. That is acceptable under the
law. Can a person decline to provide services for a gay marriage, not because
the person discriminates against gays but because they see the marriage as a
religious event and therefore it defies their religious beliefs? The Amici brief
argues that it is essential to distinguish the two relationships protecting
the right of same-sex couples to civil marriage and protecting religious
actors right to uphold their view of religious marriage.
The US Supreme Court decision in Obergefell v Hodges is flawed for two
reasons. First, as Chief Justice John Roberts said in dissent: The court is not
a legislator. Whether same-sex marriage is a good idea should be of no
concern to us. Under the Constitution, judges have power to say what the
law is, not what it should be.
This decision is an arrogant denial of US democracy and law-making even
though it follows a US tradition of law creation by the Supreme Court. The
Supreme Court pre-empted the process by which state legislature after state
legislature was voting on same-sex marriage.
Justice Antonin Scalia said in dissent: Until the courts put a stop to it,
public debate over same-sex marriage displayed American democracy at its
best.
The second problem, as Australian lawyer and priest Frank Brennan argues,
is that the upshot in the US will be years of litigation about the rights of
religious bodies that is sure to be nasty and hard fought. The reason is
because a court decision will now replace legislative decisions.
The consequence is writ large: where marriage equality is delivered by court
decision, religious liberty is not protected. Where marriage equality in the
US is delivered by the legislature there tends to be a political bargain, with
religious liberty provisions of varying extents.

The applause in this country for the US Supreme Court decision, while
understandable, is a disappointing and bad omen. It suggests the public
grasp of this issue in Australia is far distant from the debate that is needed.
I have accepted the inevitability that civil marriage in Australia will be
redefined to include same-sex couples, Brennan told Inquirer. But Brennan
warned it was another thing to require all persons, regardless of their
religious beliefs, to treat same-sex couples even in the life and activities of
the church as if they were married in the eyes of the church.
He poses a series of questions. Will religious institutions in Australia be able
to follow current policy on shared accommodation on a church site? Will
religious schools be able to limit employment to teachers who follow church
teaching on sexual relations? Will faith- based adoptive agencies be able to
prefer placement with a traditional family unit?
Brennan said these and related issues should now be squarely on the table.
In truth, this is long overdue. Brennan finished, however, on an ominous
note: Some of us support the state recognition of both same-sex marriage
AND (his emphasis) religious freedom exercised in speech, actions and
institutional arrangements. Sadly, many who advocate same-sex marriage
have no time for those of us who espouse religious freedom as well.
Brennans fears are well placed given the debate in Australia in recent times.
The politicians are not serious about this issue and neither is the media. It is
reduced to a footnote of minor import yet rolled out to justify their same-sex
marriage policy.
As Wilson knows, this is not the way to proceed. It only guarantees
institutional division and rancour. The core question remains: what is the
real ideological objective of the same-sex marriage campaign?
*Brief

of Douglas Laycock, Thomas C. Berg, David Blankenhorn, Marie A.

Failinger and Edward McGlynn Gaffney.

Predicted Consequences of Same-Sex

Marriage Are Becoming a Reality
As the nation waits for the U.S. Supreme Courts highly anticipated marriage decision in
Obergefell v. Hodges this month, one thing is clearly true: The proverbial cat has
officially been let out of the bag in terms of what some people have in mind if the high
court does not allow states to affirm the definitions of marriage they have always had.
Supporters of marriage have for years predicted that redefining the institution to
encompass same-sex relationships would permanently alter its child-centered purpose
and imperil religious liberty. Though born of historical knowledge, experience, and logic,
these predictions have been met with derisive mockery by the purveyors of same-sex
marriage. But after the recent oral arguments at the high court, we can finally put to rest
the pretense that their project will have no harmful consequences in the real world.
Chief Justice John Roberts, very early on in the argument, noted that same-sex marriage
advocates are not seeking merely to join an existing institution but rather to change its
core definition. In response, an attorney representing petitioners in the case waxed
eloquent about the 14th Amendment and its enduring guarantees, which are irrelevant
to the question. The only honest answer would have been a simple Yes, that is true. We
are intentionally seeking to transform marriage forever, most notably its purpose and its
effects. And it is our contention that the Constitution requires this.
That such a frank admission was not forthcoming is understandableit would have been
politically unpalatable. But counsels silence on the matter still spoke volumes. Truth may
make for poor press on the grandest litigation stage, but that does not mean that those
with eyes to see and ears to hear cannot discover it.
Take for instance E.J. Graff, senior fellow at the Schuster Institute for Investigative
Journalism at Brandeis University, who said that once same-sex marriage becomes legal,
that venerable institution will stand for sexual choice, for cutting the link between sex
and diapers. Or author and radio host Michelangelo Signorile, who suggested that samesex couples should demand the right to marry not as a way of adhering to societys
moral codes but rather to debunk a myth and radically alter an archaic institution
(Bridal Wave, OUT magazine, Dec.-Jan. 1994, p. 161). Or LGBT activist Masha
Gessen,who admitted that fighting for gay marriage generally involves lying about what
we are going to do with marriage when we get therebecause we lie that the institution
of marriage is not going to change. Or Boston College Professor of Law Kent
Greenfield, who has written that supporters of marriage are right when they argue[] that
[redefining marriage] will lead to marriages among more than two people and between
adults who are related.

Same-sex marriage advocates do mean to change marriagein fact, it is the movements

very reason for being. But perhaps even more ominous than the confirmation of this longobvious fact was the revelation that an invented constitutional right to same-sex marriage
almost certainly would endanger the religious liberty of those who refuse to compromise
their belief that marriage is exclusively the union of one man and one woman.
Justice Samuel Alito asked U.S. Solicitor General Donald Verrilli whether a university or
college that opposed same-sex marriage stood to lose its tax-exempt status as a result, and
the federal governments chief litigation officer quite candidly, perhaps even
unwittingly, admitted that its certainly going to be an issue. The governments
confirmation that those who fail to celebrate same-sex marriage will be punished for their
religious convictions might have been the biggest news of the day.
But to anyone who has been paying attention, this shouldnt have been news at all.
Alliance Defending Freedom, for example, has been predicting for more than a
decade that the government would use tax exemptions as a sword to compel believers to
compromise their faith on the issue of marriage. In fact, ADF argued that this
development was not merely a possibility, but rather a logical necessity of the project to
redefine marriage. And that is because this is a movement that seeks to challenge,
marginalize, and ultimately punish traditional religious belief and its expression in the
public square.
Take for instance Frank Bruni, op-ed columnist for The New York Times, who recently
characterizedChristian beliefs regarding homosexual behavior and marriage as
prejudices that they neednt cling to and can indeed jettison [by] rightly bowing to
the enlightenments of modernity. Apparently, so long as we can shake[] beliefs
ossified over centuries, it appears Bruni is content to grant us a warm welcome back into
polite society. Others, however, do not appear eager to permit even that degree of
rapprochement. Signorile recently declared that the debate is over, called on the media
to stop show[ing] both sides of the gay issue, and encouraged confrontation[] rather
than magnanimity. To the question as to when the fight will be over, he pointedly stated
that Im not sure its ever truly over .
Signoriles admission confirms the suspicion that there really is no logical end to the
same-sex marriage project, which has at its heart an essentially totalitarian impulse
demanding complete obeisance and affirmative celebration. It is a project that has shown
itself to be insatiable and ever-expanding. A look at its historical arc proves this.
Not too long ago, we were told that laws passed to ban discrimination based on sexual
orientation and gender identity were merely designed to ensure equality, inclusion, and
tolerancethey were emphatically not surreptitious attempts to seek official government
sanction for same-sex relationships. We just want to be left alone! was the mantra.
Then we were told that the state must officially recognize same-sex couples in some
manner, but only for the purpose of garnering the same rights and benefits as married
couples. Why would we want marriage? was the query. Then we were surprised to
learn that by withholding the official title of marriage, the state inflicted not only an epic

dignitary harm to same-sex couples, but also an unconstitutional deprivation that

demands an immediate judicial remedy.
Additionally, constitutional amendments that merely reaffirmed an understanding of
marriage that had been universally accepted for millennia, long before sexual orientation
was even a concept, have now been tagged as products of bigotry and animus against
same-sex couples. Excluding gay and lesbian couples from marriage demeans the
dignity of those couples, Verrilli intoned at oral argument.
Throughout this deliberate progression, activists reassuringly promised us that no
Americans would be forced to compromise their faith. Any such concerns were dismissed
as completely unfoundedmere scare tactics floated by recalcitrant religious cranks. But
now the mask has been removed. Now we know the truth. Its certainly going to be an
issue.
Any failure to accept this new vision of marriageany failure to publicly bend the knee
to this new orthodoxywill result in very public and very damaging punishments,
namely the loss of tax-exempt status for non-profit institutions. Can anyone claim with a
straight face that once the government tries to strip schools of this status, attacks on
churches and other religious ministries will not soon follow?
Of course, this is not so much a development as it is the official government
announcement of what we have known for yearsthat the proponents of same-sex
marriage are not really interested in compromise or peaceful co-existence. In fact,
casualties are par for the course.
For example, after courts rewrote the marriage laws in the District of Columbia and
Massachusetts, Catholic Charities, one of the worlds most effective and reliable adoption
and foster-care placement agencies, was forced to stop doing what it does best simply
because its religious precepts prevent it from placing children with same-sex couples.
Driving Catholic Charities from this vital work deprives vulnerable children of a great
resource for finding a permanent home with a mom and a dad. Apparently, same-sex
marriage advocates trot out the for the dignity of the children rationale only when it
suits their purposes.
When 70-year-old floral artist and grandmother Barronelle Stutzman politely declined to
create floral arrangements for a same-sex wedding based on her religious conviction that
marriage is exclusively the union of one man and one woman, the state of Washington
came calling. The state attorney general and the ACLU targeted her business, her home,
and her retirement assets for destruction and repossession. Of course, it made no
difference that she had openly served all customers, regardless of their sexual orientation,
for almost four decades. No amount of good faith is sufficient to justify ones failure to
fully embrace same-sex marriage and all it demands.
Sweet Cakes by Melissa has been in hot water since it refused to make a wedding cake for a
lesbian couple in 2013. (AP Photo)

When Aaron and Melissa Klein, a couple running a successful and popular bake shop,
had the temerity to politely decline a request to bake a same-sex wedding cake based on
their religious convictions about marriage, they too were targeted for their stubborn faith.
For their trouble they suffered boycotts, vandalism, and death threats directed at their
children and themselves, and they eventually lost their business. Now they have been
saddled with a $135,000 fine for refusing to compromise their beliefs.
Perhaps most notable from this affair, however, was the fact that the crowdfunding
account set up to help pay for, or at least defray, this massive penalty was suspended by
GoFundMe, which determined after receiving complaints from LGBT activists that the
Kleins religious decision amounted to a heinous crime in violation of the companys
Terms of Service. GoFundMe suspended an account developed for Barronelle Stutzman
as well. These developments reveal once again that the imperative of same-sex marriage
knows no limit. It is not enough to merely stifle dissenteven the attempt to survive
unjust persecution must also be thwarted.
Before his recent death, Francis Cardinal George predicted the future in a world in which
the state go[es] bad, claiming an absolute power, deciding questions and making laws
beyond its competence. He said, I expect to die in bed, my successor will die in prison,
and his successor will die a martyr in the public square. His successor will pick up the
shards of a ruined society and slowly help rebuild civilization, as the church has done so
often in human history.
Nine judges should not determine the future of marriage in our nation. Nevertheless, it
appears possible that the Supreme Court might attempt to redefine marriage for all of us.
Although such a result would be disappointing, we can at least be thankful for the
illumination that the recent oral arguments brought us.
No one can credibly doubt that the purveyors of same-sex marriage mean to redefine the
institution once and for all. Nor can one doubt that such a change will gravely imperil
religious liberty. Solicitor General Verrilli did us a great favor by telling the truth.
Another important truth is this: those who would redefine marriage seem willing to fight
without end to achieve their vision. Religious believers and others who know marriage to
be the foundation of a stable and healthy culture must now decide if they, like Cardinal
Georges successors, are committed to resisting such a campaign with all the courage
such a battle requires.