Discrimination

Religious Schools and LGBTI Rights: a Delicate Balance

Note: a slightly different version of this article recently appeared in Engage.mailthe monthly online newsletter administered by the Evangelical Alliance’s Ethos think-tank. 

Introduction

The rancorous debate concerning religious freedom and the rights of the LGBTI community has produced several troubling side-effects, not least of which has been a tug-of-war over language. Take the word “discrimination”, which is now contested linguistic and conceptual territory. While all sides acknowledge that invidious discrimination can occur in the public sphere, many LGBTI activists are convinced that to make distinctions on the basis of sexual expression or gender identity – even those grounded in a wider system of religious beliefs – constitutes action that is, by its very nature, unfair.

I have been reminded of this repeatedly over the past year or so, as a series of disputes concerning LGBTI students and teachers in religious schools continues to smoulder. On one side stand religious liberty advocates, who argue that a faith-based school should be permitted to hire or dismiss staff according to its guiding system of values. On the other side are LGBTI activists and their allies, all of whom are equally convinced that such practices are intrinsically unjust and stall the liberationist enterprise. I don’t doubt the sincerity of many of those fighting for what they view as the fundamental rights of gays, lesbians, transgender people and so forth. Moreover, on the question of LGBTI students in faith-based schools, I’d suggest we’re largely in agreement. Even in the case of teachers, the issue is not, for example, sexual orientation per se, but competing lifestyles and value systems. But having said all that, it’s difficult to avoid the conclusion that there exist many activists who cynically weaponise the language of discrimination to subjugate their ideological opponents.

Demands that anti-discrimination laws be broadly applied to religious schools – institutions that have traditionally enjoyed exemptions from this legal architecture – have grown more strident. Brandishing placards and shouting their slogans, advocates decry religious schools choosing not to employ LGBTI teachers as an illegitimate expression of religious freedom. For them, all further discussion is foreclosed. Advocates passionately insist that, if a teacher’s primary role is to educate students according her specialty, then other attributes (e.g., homosexuality and any resultant conduct) should be seen as immaterial to the inherent requirements of the position. Any attempt to deny employment on such grounds is a manifest example of invidious discrimination and religious bigotry. This fervent activism is buttressed by the more sober reflections of advocates for reform in the legal profession, who attempt to argue upon jurisprudential grounds that faith-based schools should enjoy only the narrowest of exemptions in this domain.

The marriage of white-hot ardour and cool rationality forms a potent mix. And to be fair, the debate is not helped by current legal uses of the word ‘discrimination’ and its scope. Mischievous though some activists may be, their position is inadvertently reinforced by the way religious exemptions to such laws are currently articulated. As at least one commentator has observed, saying that religious institutions ought to sit outside the bounds of relevant anti-discrimination legislation invites the idea that the religious have been grudgingly given a reprieve from what is otherwise deemed to be objectionable conduct. This likely gives succour to some people calling for such exemptions to be repealed. But even if one concedes that the framing of current legislation is inadequate, it’s still true that, in prosecuting their case, many LGBTI advocates – whether sincere or cynical – who denounce religious schools appear to elide the distinction between legitimate and illegitimate instances of discrimination.

The purpose of faith-based schools

The real question, then, is not whether religious freedom entails freedom of discrimination per se, but what kinds of discrimination are appropriate or fair. Should a faith-based school be permitted to distinguish between staff on the basis of particular types of sexual conduct (or the promotion thereof)? Or does such permission implicitly endorse decisions that are manifestly cruel and bigoted?

It is here that an account of what religious schools are, and what they seek to achieve, is germane. For a religious school to hire teachers according to their adherence to the school’s guiding ethos is, I would argue, neither unfair nor invidious. Rather, it represents the natural sequel to the foundational principles supplying the institution with its raison d’etre in the first place. Such practices are critical if a religious educational institution is to maintain its specific identity. It is difficult to see how one could disagree with the proposition, considered generically, that a faith-based school should be given some autonomy to employ staff that will, in both confession and conduct, uphold the institution’s governing philosophy.

On this view, pedagogy is about far more than the transmission of discretely-packaged information to students. Religious educational institutions exist in part to convey such information within the context of a religiously-grounded worldview, and to engage students in a process of moral formation according to the tenets of the traditions they represent. Obviously, such a project will not always succeed: many students leave such schools unchanged, or may even repudiate the institution’s teachings entirely. But this oft-repeated reality has nothing to do with the principle at issue. For those schools that have been self-consciously established to communicate the ethos of a particular religion (apart from the task of instructing students in the various subjects common to all schools), it would seem self-defeating not to try and employ educators who can successfully embody them.

In the case of, say, conservative Christian institutions, this will likely mean upholding certain standards concerning sexuality and sexual identity. Faith-based schools seeking to imbue the life of their community with the values of their grounding tradition will normally do so through the conduits of teachers’ lives (among other means). Thus, if their goal is to uphold the particulars of their religious worldview, and doing so is partly achieved through the modelling behaviour of staff, then whether or not a person’s life reflects those values is deeply relevant. None of this is unique to faith-based schools, either. A moment’s thought will reveal that institutions of all types make certain demands on prospective members and stakeholders as way of maintaining their identity. Take political parties, for example. Would it be illegitimate for, say, the Liberal Party to continue formal association with a member who suddenly began espousing Marxist ideology? Similarly, would the Greens be wrong to expel someone – or refuse to hire them in the first place – if that individual were a so-called climate ‘denier’ and an enthusiast for fossil fuels? If these are legitimate forms of discrimination (owing to the character of certain beliefs and behavioural traits), what makes religious institutions any different?

Just how important is the issue of sexuality, really?

So far, so good. However, while some LGBTI advocates accept certain forms of differentiation, they are likely to maintain that one’s sexuality should be largely immune to discriminatory action. The Human Rights Law Commission offered an example of this distinction, seen in their submission to the relevant senate inquiry last year. Lying behind the claim seems to be the notion that sexual orientation and gender identity aren’t relevant to education at a faith-based school in the way, say, that creedal differences are, for they allegedly lack the defining importance of belief in Christ’s divinity or Muhammed’s supreme prophethood. But this assumes precisely what is at issue. To contend or imply that a person’s sexual mores are immaterial to their job as an educator in a religious context presumes without warrant that such conduct lies outside a given religion’s central doctrines – a minor piece of adiaphora, as it were.

I can’t speak for Jews, Muslims and other religionists who may bristle at the thought of faith-based schools being compelled to hire people whose lives fail to embody their traditions. But orthodox Christianity would regard such a view as deeply unsatisfactory. Even if the expression of one’s sexuality does not sit at the heart of the Christian faith – a privileged locale reserved for such distinguishing claims as God’s triune nature, or the atoning sacrifice of the God-man, Jesus Christ – it is far from trivial. After all, the book of Genesis has God create man and woman, who are called to bind themselves to each other in a union of sexual complements (Genesis 1:26-28). That this passage lies at the very head of the biblical narrative, prior to the catastrophic irruption of sin within creation, implies that it is a special part of the Creator’s originating vision for those bearing his likeness. Indeed, the creative endowments of human beings – seen most uniquely in the intrinsic capacity to generate new life – crucially reflect God’s far superior creativity. A glance at the New Testament reinforces the significance of this design. Its pages reveal both a renewed endorsement of that vision, as proclaimed by Jesus himself (Matthew 19:4-6), and a denunciation of same-sex erotic relationships as a particularly clear manifestation of humanity’s disordered nature and conduct (Romans 1:26-27).

Obviously, these points would need to be fleshed out in greater detail, and I don’t expect everyone to agree with their underlying assumptions. However, on a Christian analysis, sexuality and sexual expression are indelibly tied to our status as God’s image-bearers and the divinely sanctioned order we are meant to inhabit. For those reasons, questions of sex take on heightened significance, concerning as they do the degree to which one’s life reflects that order. Indeed, an orthodox Christian view of sex recognises it as a key manifestation of a particular anthropology (i.e., what humans are) and a particular cosmology (i.e., the created framework within which humans must conduct their lives). Gendered complementarity in human sexual relationships is, in other words, something that has been woven into the fabric of creation by God. As the Eastern Orthodox writer and cultural commentator, Rod Dreher, notes in his book, The Benedict Option, to live contrary to the divine will in this regard doesn’t simply break a set of ancient taboos. Rather, it constitutes one’s failure ‘to live in accord with the structure of [created] reality itself’.

All this is to say that, in the context of a Christian educational institution, the sexual relationships of its teachers cannot be dismissed as of little importance. Nor can it be condemned as a rationalisation of the basest kind of bigotry. We do well to return to my earlier, general comments concerning the goals of such schools. Efforts to permeate their corporate lives with the religious principles on which they were founded must logically include the ethical and behavioural demands that flow from them; anything else simply drives an artificial wedge between the cognitive and practical dimensions of the faith. And given that one of the key means of transmitting this ethos to students is via their embodiment in staff, adherence to the standards of orthodox Christianity is hardly irrelevant. Quite the opposite, in fact: conformity to a Christian ethic is inseparable from maintenance of a religious school’s peculiar identity, such that the inherent requirements of teaching roles extend beyond mere pedagogy and discipline-specific knowledge, and into the domain of Christian praxis.

The imposition of state-sanctioned beliefs: an intolerable outcome

To be sure, we have lately witnessed the splintering of the Western church on the issue of sexuality. Consensus on this question is rapidly eroding. But even if there exists internal dispute over the importance of sexual conduct to Christian faith, there is no compelling reason why the state should arrogate to itself the task of determining the proper contours of a particular religion. Writing his dissenting opinion in Christian Youth Camps v Cobaw Community Health Service some years ago, Redlich JA trenchantly noted that the Victorian Supreme Court was not properly trained to assess whether opposition to homosexuality was a key doctrine of the faith-based group concerned (p.13):

Neither human rights law nor the terms of the exemption required a secular tribunal to attempt to assess theological propriety. The tribunal was neither equipped nor required to evaluate the applicants’ moral calculus.

Secular state officials are manifestly ill-equipped to judge theological and doctrinal matters. Moreover, they lack the requisite ‘insider’ knowledge to be able to weigh the relative importance of creedal claims. But heeding calls to end exemptions to anti-discrimination legislation would lead to precisely this kind of judicial oversight. Anyone who values the institutional separation of church and state (where ‘church’ is defined somewhat more broadly) should be alarmed by this proposal. Such advocacy, if successful, means inhibiting a religious entity from articulating and embodying its governing ethos. In other words, it entails the encroachment of government institutions upon sacred territory traditionally regarded as verboten, that is, fundamentally impermissible. I don’t know how else to describe this but as an assault on religious liberty and a subversion of our modern pluralistic culture. If, as a society, we’re willing to permit religious educational institutions to make employment decisions based on their grounding principles, then this surely includes some latitude in regard to which principles are to be used as a framework to guide those decisions. The alternative simply invites interference by external authorities in what ought to be the free expression of a religious worldview.

Tackling another illegitimate distinction

The argument I have tried to delineate also has a deflationary effect on another distinction some advocates attempt to make – namely, between positions in a religious school that are connected with ritual observance or doctrinal teaching, and those that aren’t. This could be called a form of meta-discrimination, with only one type of role being susceptible to a process of discriminatory action. Again, the HRLC provides a ready example of this cast of mind (p.18): it recommends rescinding exemptions to the Sex Discrimination Act in most instances, whilst permitting ongoing differentiation/discrimination when it comes to conventional ‘religious’ roles. Behind these respective suggestions lies the apparent assumption that there exists a fundamental difference between positions involving pastoral care, religious observance and the like, and those that don’t (pp.16-17).

Unfortunately, the suggestion introduces an artificial disjunction into the understanding of religion generally, and faith-based schools specifically. For serious adherents of any religion, manifestations of spirituality are not confined to particular acts of ritual or devotion. Such activity, while central, is only one component in the complex web of faith. For Christians, say, one’s allegiance to Christ is not simply a case of verbal confession or cognitive belief. Nor is it exhausted by overt expressions of religious observance. Rather, it is meant to be worked out in the mosaic of everyday life, shaping the believer’s approach to everything from work and friendships to time and political participation. And, as I have already indicated, a religious school seeks to inculcate just this comprehensive understanding of faith – a task that is, once again, partly achieved through the embodiment of that faith in school staff. Their comprehensive approach to education means that positions within such institutions cannot be distinguished so simplistically.

It’s true, of course, that some roles might be more directly identified with the architecture of the school’s governing religion. Chaplaincy comes to mind as one obvious example. But it does not follow from this that other staff members may not be called upon to exhibit the virtues of the faith, provide (informal) pastoral care to students, offer general vocational advice within the context of Christian faithfulness, answer a student’s awkward questions, or attempt to situate various domains of knowledge within a Christian worldview. What I have argued concerning faith-based schools and their constitutive goals indicates that any attempt to starkly divide ‘religious’ and ‘non-religious’ roles is forced to rely on a false dichotomy – one recognised by most serious adherents as unfaithful to a holistic, integrated expression of religion.

Conclusion

Earlier, I noted that the language of discrimination is often used in cynical fashion by some LGBTI activists. Notwithstanding the presence of genuine, good-faith differences between advocates on either side of the issue, brandishing the word “discrimination” has the (often intended) effect of de-legitimising the views of religious liberty advocates before they have been properly aired. But this isn’t the only unwelcome consequence. LGBTI activists also succeed in corrupting portions of our language by using words like “discrimination” so cavelierly. History has repetedly shown that when words become the handmaidens of nakedly political projects, the prospects for open, rational discourse — discourse committed to the pursuit of truth — rapidly recede. That is something no one should want, even those who are prepared to conscript language for their own ends.

Where do we go from here? The victory of the Coalition during Australia’s recent Federal election seems to have had a retarding effect on the activist tide. Indeed, several analyses have already appeared, partly attributing the Australian Labor Party’s loss to the party’s alienation of large swathes of religious people. This may force the party to re-assess its attitude to matters of religious liberty and to adopt a more nuanced understanding of the issues involved – rejecting barely-concealed disdain (see 7:11-7:50 in this Q & A segment) for people of conservative faith, and recognising the electoral value in taking them seriously. I hope this is the case, and that such concerns will now receive bi-partisan support. If Australia is to maintain its status as an authentically pluralist society – in which mutually irreconcilable views and practices nonetheless exist in relative harmony – then I think a robust re-commitment to such freedoms is the most sensible path forward.

One Same-Sex Marriage, a Conscientious Objector, and Three Failed Arguments (Part One)

Introduction

They say that history is written by the victors. In the case of same-sex marriage legislation in Australia, it seems that the victors seek to write the future as well. Not content with the passage of SSM into law, advocates on both sides of the political aisle voted down a number of amendments that sought to protect the rights of dissenters from the new orthodoxy. For many of them, mere change of the marriage act was insufficient; complete public conformity now has to be enforced, underwritten by the imprimatur of the state. To be sure, some politicians who voted for Senator Dean Smith’s marriage bill unchanged claimed several substantive arguments in their defence. However, I cannot escape the feeling that for many parliamentary supporters of SSM, a desire for total victory was the primary driving force. That, and a sense of urgency induced by the approaching festive season, ensured that most of the proposed amendments received little more than cursory consideration.

As a consequence, only the most narrow of exemptions — touching directly on ministers of religion or religious institutions — remain in the bill. As for those who do not benefit from the protected sanctions of a recognized denomination, they may well find it difficult — perhaps exceedingly so — to preserve the integrity of their convictions in the face of demands to acquiesce. Photographers who decline to capture a same-sex wedding on film; a civil celebrant who does not wish to preside over a wedding ceremony centred around a same-sex couple; or a parent who does not want to expose her child to sex education that promotes a conception of marriage that contradicts her beliefs: in each case (and unless future amendments are accepted), the conscientious objector in question will have little recourse if they wish to retain the purity of their convictions. Since most opponents of SSM — or, to put it more positively, supporters of traditional marriage — are likely to oppose the change on religious grounds, any confrontation between the new regime and lingering dissent will raise burning questions concerning the legitimate scope of religious liberty in a secular society. If recent flashpoints in other countries are anything to go by, they’re likely to be rancorous affairs — deepening further the fissures that already exist between religious and secular, conservative and progressive.

Of course, for many advocates of SSM, both here and overseas, stringent limitations on a person’s ability to publicly express his or her (religious) convictions in this area is only just: true equality does not exist if even a few, lonely holdouts are permitted to maintain so-called “bigoted” attitudes beyond the citadels of their minds. This is certainly the case where commercial wedding vendors — specifically, those that directly contribute to the celebratory nature of a same-sex wedding — are concerned. Whether some Australian wedding operators may decline to provide services to same-sex nuptials remains to be seen; SSM was only legislated a month ago, and the first such ceremonies won’t be taking place until some time next month. However, the issue has been playing out in various locales across the United States, pitting religious conservatives against same-sex couples and their allies in state bureaucracies. As in so many things, US developments in this area could well be a harbinger of things to come here.

At any rate, whilst there may be a diversity of views on other questions, most SSM advocates (and even some opponents) are convinced that refusal to lend one’s creative talents to a same-sex wedding is manifestly unfair. For many of them, the alleged obviousness of their position means that it needs no discursive or articulated foundation. Still, some supportive politicians and commentators have tried to buttress it by proffering a series arguments that purport to demonstrate the illegitimacy of public opposition to SSM within the commercial space — particularly where it is inspired or driven by religious belief.

Three such approaches have recently caught my eye. All of them bear directly upon the issue of conflicting beliefs within the context of commercial transactions, and could be said to have implications for religious expression, conscience and intellectual liberty. Given the limits of space (which I have no doubt already pressed), I shall concentrate on only the first of the three arguments I have in mind. I’ve had reason to touch on these issues before, but recent events in the United States — where a dispute between Jack Phillips, a religious cake-shop owner, and a same-sex couple has made its way to the Supreme Court — mean that they still possess sharp currency. Despite claims that unwilling wedding vendors are likely to be a minor matter (and therefore of little significance), I incline to the view that if a political right is legitimate, it hardly matters how many people might be robbed of it by an overweening state. Furthermore, I think it important to answer advocates who would seek to ensure universal submission to the reality  of SSM, and to expose the shallowness of their arguments. A Sisyphean task, perhaps, but necessary nonetheless.

Race and Same-Sex Marriage: a False Analogy

Here, I want to examine a depressingly common justification for refusing to allow a dissenting wedding vendor to refrain from contributing materially and artistically to a same-sex wedding ceremony. I say “depressingly”, because the argument’s ubiquity is matched only by adherents’ rather thoughtless devotion to it. Some proponents of SSM have asserted that a wedding vendor who declines to provide his or her services to a same-sex ceremony is akin to commercial operators of a previous era placing signs in their front windows signalling their refusal to serve people of a certain “race”. If this sounds like an exaggeration — a caricature of an opponent’s point of view — then here is the ALP’s Penny Wong, staking out her position in response to the tabling of Liberal Senator James Paterson’s rival SSM bill:

“I thought we had gone past the point in this country where we had signs that said ‘We don’t serve Jews, we don’t serve blacks'”.

Senator Wong is hardly alone in thinking this way. During parliamentary debate on SSM and related amendments, Wong’s colleague, Linda Burney, asserted an equivalence between wedding vendors who decline to service a same-sex wedding, and racist business operators. And what about The Australian’s Peter Van Onselen, who lazily conflates the two actions? Their views simply reflect a great swathe of public opinion.

Unfortunately, the argument itself is deeply — indeed, corrosively — fallacious. To be sure, there are some superficial similarities between the examples cited by those above: in both activities, a kind of discrimination is taking place. But it should also be noted that not all such forms should automatically be construed as unfair or illegitimate. Discrimination takes place all the time in a myriad of settings, and it is even seen as virtuous in certain contexts. For example,  we do not fault an employer when he “discriminates” between the relative abilities of two candidates vying for a position at his firm. Quite the opposite: he is doing what is required of someone looking to enhance the profit-making capacity of his business. As such, there are times when a discriminatory outlook is not only warranted, but encouraged.

Wong, Burney, Van Onselen and their ilk are operating with a deeply confused understanding of what counts as unjust discrimination, illegitimately eliding real, invidious instances of discrimination with those that are only apparent. Refusing to serve someone based on their “race”, and declining to lend one’s creative talents to a same-sex wedding, are dis-analogous in a number of crucial respects.  At base, it is the difference between prejudicial treatment grounded in a person’s innate features or characteristics, and distinctions made based on a desire to avoid complicity in an event, ceremony or process with which one disagrees. As Senator Paterson — who is himself a supporter of SSM — has pithily said, “It’s not about the person, it’s about the event”.

It’s worth exploring these differences in a little more depth. On the one hand, commercial discrimination against someone based on race or ethnicity is rightly viewed as unfair, because it is grounded in (a) innate characteristics of an individual (as opposed to an event distinguishable from said individual); and (b) consequent considerations that are irrelevant to the transaction in question. The provision of housing cannot be withheld from, say, Indigenous folk, because no rational relationship obtains between (in this case) Aboriginality and accommodation, and no rational distinction exists between an Indigenous man and a white person. Such actions attack the person qua person, and serve simply to undermine their position as an equal member of society. Some academics have theorised that this is part of a wider system of racial domination, by which the dominant group seeks to reinforce the inferior status of the subordinate group. As a manifestation of that system, refusal to accommodate certain individuals on the basis of race targets certain intrinsic features which — once more — have no material connection to the goods and services they wish to access. That is why they are (justly) seen as bigoted or prejudicial.

On the other hand, there is a rational relationship between a wedding ceremony (in this case, a same-sex wedding ceremony) and the provision of wedding-related services. To provide such services just is to make a contribution to a same-sex couple’s nuptials. Here, the question of the shape and nature of the marriage in question becomes supremely relevant, at least for those who hold to a traditionalist view of marriage. This does not centre on a person’s sexual orientation (in the way that a bigoted hotelier’s refusal to serve African-Americans is intrinsically about one’s racial identity). Rather, and as Senator Paterson noted, the source of the vendor’s objection is the possible contribution to, and participation in, a particular event. Those wedding vendors who object to lending their services to a same-sex wedding do so, not because they refuse to serve LGBT people, nor because they wish to communicate a message of dominance to a supposedly subordinate group, but because they do not wish to participate in a ceremony that contravenes their conception of marriage.

Religiously conservative business owners who have  declined to render their services to a same-sex wedding have made this very point when hauled before state judiciaries. The separate experiences Baronelle Stuztman, a florist, and Jack Phillips (noted above) are instructive. Having been subject to legal sanction for their dissenting behaviour, both Ms Stutzman and Mr Phillips have stated clearly their willingness to serve gay couples for a variety of occasions. In fact, Ms Stutzman was sued by a gay couple she had willingly and cheerfully served for approximately a decade before running afoul of Washington State’s anti-discrimination statutes. However, she and Mr Phillips draw the line at making a material, artistic contribution to a same-sex wedding. In doing so, they are holding precisely to the distinction between persons and events that I have outlined. I’ve already written about Ms Stutzman, but it’s worth recalling the following words, since they can be applied to the issue more broadly (the brief excerpt within the quote comes from Ryan T. Anderson’s Public Discourse piece on this topic):

“In the case of Ms. Stutzman, her decision ‘did not spring from any convictions about people who identify as LGBT’, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage”.

What proponents of the countervailing argument fail to realize is that there is actually a logical distinction between the sexual orientation of a person, and one’s definition of the institution of marriage. One may, for example, hold to a neutral — even positive — position on same-sex erotic relationships, even as they remain convinced that marriage is fundamentally a dyadic union of sexual complements. A quick thought experiment might help to make this distinction clearer. Imagine, if you will, a same-sex marriage composed of, say, two heterosexual women. Unlikely? Yes, but it is entirely conceivable.* Conversely, one may also imagine an opposite-sex marriage, composed of a gay man and a lesbian woman. It is therefore possible to separate the shape and nature of the event from the sexual identities of the participants involved. Assuming a religiously conservative cake-maker (for example) is consistent in his or her convictions, he or she will oppose the first union, but happily participate in the second. What these hypothetical examples do is dramatize the crucial difference between orientation (a feature of the person) and the structure of a marital relationship (an institution external to that person). That is why Ms Stutzman and Mr Phillips could, without a whit of inconsistency, serve LGBT people in a variety of contexts, and yet refuse to lend their artistic talents to a same-sex wedding.

By contrast, there is simply no parallel in the case of a business operator refusing to serve a customer because of the colour of their skin. Unlike the person-event distinction that obtains in the case of a same-sex couple wanting to marry, it is impossible to imagine a black person without reference to his or her ethnicity. Discrimination concerning race is inescapably grounded in certain, innate features of an individual; racially supremacist behaviour cannot be divorced from the prejudicial beliefs which underpin it, and is reducible those attitudes in a way that opposition to SSM (at least in some forms) isn’t. A distinction between neutral or positive regard and differential treatment — similar to the possibility that exists between one’s attitude towards homosexual relationships and a wedding vendor’s refusal to contribute to a same-sex wedding — is impossible where race is involved. A local publican’s turning away, say, an Indigenous man from his pub is simply the product of racial animus. The one is an expression of the other, such that in the absence of a personal attitude or belief concerning racial differences, a public display of racially-tinged discrimination would not — perhaps could not — exist.

Concluding Thoughts

The distinctions I have tried to highlight here are subtle, to be sure. But they are no less significant for all that. Sometimes, a fine-grained analysis is necessary, if only to expose the hollowness of an argument masquerading as self-evident truth. I remain convinced that this must be prosecuted, in order to make the case that it’s still possible for reasonable people to disagree. Of course, I fear that however strong my position is (and some may think it very weak indeed), it is likely to fall on a multitude of deaf ears — ears which belong to people who are already convinced that a Baronelle Stutzman and a proud segregationist dwell on the same moral plane. Indeed, the ease with which some progressives conflate the two leaves me doubtful about the prospects of détente or rapprochement on this issue.

As commentators like Rod Dreher and Ross Douthat have observed, if the analogy examined here continues to gain acceptance, then dissenting photographers, bakers, etc. will likely suffer the same kind of ostracism that Jim Crow advocates (quite rightly) experience in the US. It will mean that those who dare to object to the new orthodoxy will likely see their views de-legitimised before they have been given a fair hearing. After all, would we be willing to sympathetically enter into the emotional and intellectual world of a person who thinks that African-Americans are inferior to whites, and that their economic and social subjection is simply part of the natural order of things? Would we be willing to sincerely consider their point of view with any degree of openness?

This phenomenon goes well beyond commercial wedding vendors. As Douthat notes, positions on SSM that were taken by left-leaning politicians just a few years ago are now condemned as the “purest atavism”. The experiences of unwilling wedding operators may therefore prove to be a barometer of things to come, both here and overseas: the alleged parallels I’ve examined are now frequently deployed at a more general level to tar all opponents of SSM, regardless of whether they are in a position to refuse participation in a same-sex wedding.** If the analogy between race and SSM does hold (socially, if not logically), then there’s no real reason to restrict its application to those operating in the commercial wedding sector. Needless to say, none of this bodes well for the future of religious and intellectual liberty.

* Legally speaking, I mean. This is not to say that a same-sex marriage is metaphysically possible.

** As an aside, I remember speaking with a colleague just after Ireland voted to legalize SSM in 2015. I distinctly recall him saying that in time, opposition to SSM (broadly conceived) will be viewed in the same way we now see racist beliefs. He himself is a supporter of SSM, and he didn’t sound overly concerned by such a possibility. In fact, he seemed to think that it represented the natural extension of our culture’s current journey of progress. I doubt very much that the opinion was either original or unique to him.

The Liberal Party, Same-Sex Marriage and Freedom of Conscience: A Case of False Promises?

In recent months, certain proponents of same-sex marriage (hereafter, SSM) within the Liberal party have argued that people who support so-called “traditional marriage” ought to vote “Yes”, for the simple reason that freedom of conscience and religion will be better protected if the relevant changes are implemented under the auspices of a Coalition government. The argument is composed of three main prongs, or assumptions: first, SSM is inevitable in Australia, regardless of the outcome of the current postal plebiscite; second, as the party of small government and individual freedom, the Coalition is best-placed to secure the rights of conscientious objectors under the new regime; and third, if the present push for SSM fails, the country runs the risk of giving the ALP – which is less sympathetic to intellectual (including religious) liberty – the task of presiding over future alterations to the marriage act.

One might call this the “Argument from Inevitable Change” or the “Argument from Salvaging Individual Rights”. Whatever label one wishes to use, I don’t accept it on its face – largely because it means evacuating one’s position of all principle. I’m inclined to agree with the view of Quadrant editor, Keith Windschuttle, who has said the argument is a “political tactic”, intended to “deflate” opponents of SSM rather than engage them in debate. However, even if I thought there was some tactical merit in voting for change – based on the belief that doing so now would guarantee some measure of religious and intellectual protection – there are pressing questions over the validity of the argument’s basic components. Its first and third limbs are relatively sound: SSM has the air of inevitability about it (though, of course, it’s not a fait accompli); and the ALP cannot be trusted when it comes to securing the rights of conscientious dissenters. But it’s the claim’s second limb – namely, that the Coalition will protect the liberties of individuals and groups opposed to SSM – with which I take issue.

This brings me to reports regarding Liberal Senator Dean Smith’s private member’s bill to legalise SSM. His comments about the bill have raised serious doubts in my mind over the Coalition’s ability to guarantee the aforementioned rights, particularly as they pertain to religious freedom. Smith was quoted recently in The Australian saying that whilst his bill provided safeguards to religious institutions, ministers, and the like, it did not extend those protections to business owners who provide wedding-related services, unless they could “prove a link to a religious body” (“Same-sex safeguards not for all businesses,” September 18th, 2017; article paywalled). He said that if a bakery, for example, failed to substantiate a formal connection to a church (or mosque, synagogue, etc.), it would not be afforded legal defence if it refused to bake a cake for a same-sex wedding. Smith argued that because people cannot presently discriminate against gays and lesbians, they should not be able to refuse services to a same-sex couple wanting to get married. In his mind, this would represent a regression in current anti-discrimination law.

Should conscientious objectors take moral issue with rendering services to a same-sex couple for their wedding, they are likely to be left completely exposed under such proposals. I recognize that there are important legal questions related to whether providing, say, floral arrangements at a same-sex wedding ceremony constitutes endorsement of that union, just as there are debates regarding the provision of such services, and whether this violates the vendor’s moral and/or religious convictions if they happen to oppose SSM. But the religious exemption clauses in Smith’s bill do not assuage my concerns at all. Woefully inadequate, they are built upon logical inconsistencies and false assumptions – trading, it seems, on very narrow conceptions of both religious expression and legitimate grounds for dissent. I think it’s worth examining these intellectual infelicities in a little more detail.

Religious Bodies and Believers: An Illegitimate Distinction

To begin, there is the question of consistency within the proposed exemptions, particularly as they apply to people whose objections to SSM stem from religious convictions. Smith’s bill artificially divides formal ecclesiastical bodies (as well as ministers in their employ) and the wider pool of religious adherents who compose them. Such bodies are far more than the institutional frameworks distinguishing them from other organised groups. Similarly, the ongoing life and reality of religious institutions exceeds the work of ministers, pastors, imams and the like. Rather, they are sustained by the activities of individual believers, as they gather for worship, serve each other in a variety of ways, and generally manifest the communal dimensions of their respective faith traditions. Religious institutions are, in other words, social realities, embedded in a complex set of networks in which “professional” clergy and laypeople both participate. In the case of Christian churches, ministers exist for the sake of their congregations – conveying religious truth, which is then embodied and enacted in the lives of congregants (whether individually or corporately). The doctrinal positions which define or constrain a minister’s behaviour – which in this case entails beliefs about the nature of marriage – will normally perform the same functions over the lives of those he serves, wherever they happen to find themselves.

Additionally, Christian accounts of religious life emphasize the inherently unitary nature of the church, such that religious officeholders and members form one coherent organism. One is an “in-grafted” member of this organism by virtue of being a professed and genuine Christian, regardless of where he or she happens to be. In many ways, there is no substantive distinction, on either theological or sociological grounds, between religious bodies or ministers on the one hand, and the laity on the other. The religious provisions of Senator Smith’s bill rest upon an unwarranted abstraction, failing to recognize the inherent inseparability of religious institutions and their adherents. To refer to the former apart from the latter – as the bill effectively does – is to trade in illusory deconstruction. The bill’s exemptions divest formal ecclesial bodies of the very believers who help maintain their distinctive shape and identities, even as they remove said believers (at least conceptually) from the communal context that sustains and grounds their beliefs. That’s why Rev Dr Joseph Parkinson, director of the L.J. Goody Bioethics Centre in Perth (attached to that city’s Catholic archdiocese) was correct when he recently wrote to the editor of The Australian that “it is inconsistent and illogical to create exemption for ministers” if they are not extended to “individual religious adherents” – for the very reason that “in respect of beliefs about…marriage, there is no distinction” between the one and the other.

Narrowing Religion

But if Senator Smith has illegitimately tried to parse religious bodies and believers, he is also guilty of holding to a reductive account of religion. A reading of the relevant exemptions suggests that it is only the work of official clergy, operating within an explicitly or institutionally religious setting, which warrants protection; religious adherents who try to conform to the teachings of their faith tradition in their daily lives – including, in the case of religious conservatives, adherence to teachings concerning traditional marriage – are not afforded the same courtesy. But that the bill exclusively concentrates on the activity of formal religious bodies and accredited ministers suggests that Senator Smith is thinking of spiritual expression in extremely narrow terms. It is, in other words, far too restricted an understanding of what religion is, and the role it plays in – and over – a person’s life.

To be sure, practices within formal houses of worship (singing, prayers, chants, readings from sacred texts, recitation of creeds, rituals, etc.) constitute important manifestations of religious devotion. This cannot be denied. But just as religious bodies are not exhausted by either their institutional architecture or their official representatives, so religion in general is not completely captured by what happens in formal services (however articulated). For many believers, religiosity is something that colours and shapes every dimension of life – not only within, but beyond, the church, mosque or synagogue. Any serious religious individual will seek to implement, where possible, the teachings of her religion in whatever station or environment, including the workplace. This is only natural: an authentically religious view of life would seem to entail a fully integrated existence, rejecting of crude, post-Enlightenment divisions between the secular and the sacred. Trying to compartmentalize something as all-embracing as religion is simply impractical, for it is commonly embedded in the deepest strata of a person’s thinking. Moreover, for those who swim in the Protestant stream of Christianity, work – even “secular” work – is often viewed as a divine calling, offering the believer the opportunity to worship God through her labour. Obviously, this attitude must be carefully balanced with the right of others to pursue their goals unmolested. But if religion is a whole-of-life concern, then it normally entails the adoption of a comprehensive approach to the teachings and ethos of one’s particular faith tradition.

Senator Smith’s bill recognizes none of this. It relies instead upon the forced demarcation I noted earlier – owing so much to Enlightenment thought – between spiritual and secular affairs. That seems to be implicit in the proposal to grant formal religious bodies and employees legal protections if they do not wish to solemnise a same-sex wedding, but not, say, a Christian florist who declines to provide services for such a ceremony. It wrongly assumes that the influence of one’s religious beliefs can simply cease at the door of one’s house of worship, safely corralled by the dictates of a secular society. But to repeat myself: religion does not actually work in this fashion. Offering an interpretive framework within which to make sense of the various elements of one’s existence, it has the potential to indelibly influence every dimension of life. Religion is far more than a series of atomised opinions about a transcendent realm, severed from the everyday concerns of the individual adherent. It cannot be reduced to a clutch of discrete acts, performed in well-defined settings, that can be described as overtly “spiritual” (e.g., worship in a church setting). The proposed bill leaves the public with a “thin” – nay, eviscerated – conception of religiosity, failing to capture the broadness of the phenomenon as it actually occurs outside the pages of proposed legislation.

What Counts as (Unfair) Discrimination Anyway?

I must confess that clearly interpreting Smith’s reasons for limiting the bill’s anti-discrimination exemptions isn’t easy. One might argue that the proposed parameters are intended to prevent some vendors from cloaking anti-gay animus in the garb of recognized religious systems, thereby saving gay couples from reputational and psychological damage. By limiting the right to conscientiously decline participation in a same-sex wedding to ministers of religion, invidious discrimination against homosexuals by supposedly bigoted commercial operators can largely be erased; if that means capturing other business owners who, because of genuine religious or moral objections, cannot contribute to the production of a same-sex wedding (so the argument might go), so be it.

But I wonder whether a more disturbing interpretation of the bill’s exemption clauses might not be more accurate. On this view, any refusal to provide wedding services to a same-sex couple constitutes unfair discrimination, regardless of motive or sincerity. This would make sense of the absolutism in Senator Smith’s remarks concerning commercial businesses and current anti-discrimination law, where he offered a fairly unnuanced position on what counts as discrimination. Indeed, that he grounded the narrowness of proposed exemptions in the fact that people cannot presently discriminate on the basis of sexual orientation implies some kind of equivalence: refusing service because a person is gay and refusing service because one does not want to implicitly endorse a same-sex wedding amount to the same thing. Such an interpretation would also cohere with what appears to be Smith’s restricted view of legitimate religious expression and discrimination. Finally, and as we’ll soon see, it would conform to established judicial and legislative practice overseas, which seems to regard conscientious objection to SSM on the part of commercial operators as a form of invidious discrimination.

Let’s assume this latter reading is correct. If so, there are a couple of problems with the way Senator Smith has cast a commercial operator’s possible moral-religious objections to SSM. First, it would seem to rely on Smith’s impossibly narrow conception of religious expression – which, as we have already seen, hardly reflects religiosity as it is instantiated in the experiences of ordinary people. Second, equating such objections – and the consequent refusal to offer one’s commercial services – with homophobic prejudice is simply fallacious. It is false to think that a vendor’s decision to withhold their products and skills from a same-sex wedding is merely a subset of anti-gay discrimination. Contrary to what some SSM activists believe, it is logically possible to hold traditional views around marriage whilst also being completely free of animus towards gays and lesbians. Indeed, a positive view of same-sex relationships is logically consistent with the conviction that marriage is, by definition, a dyadic union of sexual complements. In my view, these positions can be clearly distinguished. But Senator Smith fails to recognize this, conflating opposition to SSM – perhaps expressed by a refusal to render services to a same-sex wedding – with a more general refusal to serve customers based on their sexuality.

The case of Barronelle Stutzman, a florist in the United States, is instructive in this regard. For many years, Ms. Stutzman served Robert Ingersoll and Curt Freed, a gay couple. She knew they were in a homosexual relationship, whilst they knew she was a conservative Christian. Ms. Stutzman had no qualms serving the couple, and supplied them with floral arrangements for a variety of personal and celebratory occasions. But when they asked her to supply flowers for their wedding, she politely declined. Ms. Stutzman grounded her refusal in her belief that marriage is defined by the union of one man and one woman. The couple sued her, as did the state of Washington. In its final judgment, the Supreme Court of Washington stated that Ms. Stutzman’s decision amounted to unfair discrimination on the basis of sexual orientation. But as Ryan Anderson, writing for The Public Discourse, has said, the court’s ruling (and, by extension, Senator Smith’s bill), illegitimately elides real and imagined discrimination. Anderson asks us to consider a florist who refuses to serve customers who identify as LGBT simply because of that identification. He contends, “that would be a case of invidious discrimination because the mere knowledge that they identify as LGBT should have no impact whatsoever on the act of the florist selling flowers, because there is no rational connection between the two”. But, Anderson continues, in the case of Ms. Stutzman, her decision “did not spring from any convictions about people who identify as LGBT”, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage. If Senator Smith, like Washington State’s Supreme Court, thinks that commercial operators who are uncomfortable offering their services to a same-sex wedding are guilty of making unfair distinctions as a result of one’s sexuality, then he has simply recapitulated those earlier conceptual errors: not only are we brought back to the original blunder concerning the scope of acceptable religious expression; it would appear that on this view, refusal to lend one’s creative talents to a same-sex wedding is per se an instance of unjustified discrimination.

Needless to say, these errors have practical consequences. They leave ordinary people – people like Ms. Stutzman – vulnerable to grievous violations of conscience or ruinous legal and pecuniary costs. Harnessing the state’s power to curtail a person’s ability to live in accordance with deeply-held beliefs corrodes our society’s commitment to liberty of conscience. Trying to coerce conformity on a particular question is neither practical nor ethical in a profoundly pluralistic society; indeed, opinions on this question – as on so many questions – are radically incommensurate, such that to compel a person’s participation in something they regard as spurious isn’t simply to inconvenience them, but to force them to betray their own, deeply-rooted convictions. Against this, one might invoke the harm principle: excluding swathes of people from anti-discrimination exemptions saves same-sex couples from psychological injury caused by a denial of service. But where does the real harm lie? With the hypothetical same-sex couple, which may be forced, say, to look for another vendor to organise the floral arrangements for their nuptials? Or with the dissenting florist, who is confronted with the unenviable choice of either violating her conscience, or leaving herself open to hefty legal and financial penalties?

Conscience Protections for the Non-Religious: A Forgotten Constituency?

Up to this point, I have only spoken of the flaws contained in Senator Smith’s bill as they relate to religious sources of opposition to SSM. But what about people – wedding services providers, celebrants, and the like – who may hold non-religious objections? Admittedly their numbers are likely to be miniscule. Still, the importance of individual rights isn’t determined by the number of people who are likely to hold them. There may well be some business owners, providing a variety of wedding services, whose secular belief system does not permit them to validate the reality or morality of SSMs. Even if a vendor’s religious concerns were to be recognized, and exemptions were extended to them, this would still leave non-religious conscientious objectors exposed to legal action. On a conceptual level, the bill commits itself to what I regard as a falsely restricted view of opposition to SSM. It tacitly assumes that only those whose disquiet is grounded in religion could credibly refuse to participate in a same-sex wedding (and then, only in the context of one’s institutional affiliation with a recognized denomination). Smith’s proposed bill says nothing about opposition to SSM that isn’t grounded in religious belief. Does this not represent the presumption that such an attitude can only ever stem from a religious worldview? Certainly, it’s possible to base one’s commitment to so-called “conjugal” marriage upon a deference to traditional mores and norms, or the belief that children ideally ought, where possible, to be raised and socialized by their biological parents. Moreover, academics, like the legal scholar Robert P. George, have sought to root their conviction that marriage is a union characterized by sexual complementarity in a specific metaphysic – one that does not, in the final analysis, rely upon religious tradition, belief in God, or revelatory claims. Whether such arguments are successful in persuading others is beside the point; the fact that they exist suggests that it is possible to hold to a view of traditional marriage apart from religious belief. Yet the proposed bill apparently makes no references to this reality, allowing for only the most narrow expressions of intellectual liberty. I recognize that wedding vendors, regardless of the source of their beliefs, are not afforded legal protection; neither a religious florist nor a secular baker – both of whom oppose SSM – can expect to find solace in anti-discrimination exemptions. Still, I worry that secular business owners who may oppose SSM are being ignored, and left out in the cold: unable to practice freedom of conscience, for fear of legal sanction; and bereft of the sustaining networks that flow from religious affiliation or identification.

Conclusion

Claiming that the Liberal Party is the primary political guarantor of individual freedoms is to state only the most trivial of truths. The foregoing examination has, I think, made that clear. Yes, it’s probably the case that they are to be (marginally) preferred to the ALP. Yes, they nod in the direction of freedom of religious expression. But if Senator Smith’s bill is anything to go by, then the Coalition is prepared to offer only minimalistic concessions to those in the wedding industry who decline to support SSM. Smith’s proposals are riddled with false conceptions, fallacious elisions and a variety of inconsistencies, giving the lie to his contention that this strikes a fair balance between religious expression and freedom from discrimination. The bill itself fails to properly capture the meaning and scope of religion for so many people, whilst saying nothing at all about other (non-religious) forms of opposition to SSM. All told, it makes too large a concession to the idea of “unjust” discrimination, resulting in many of the flaws I have noted. Coalition promises in this regard need to be taken with a sizeable pinch of salt. On so many issues (think the debate around 18C of the RDA, for example), they have shown themselves to be lacking in moral and intellectual fiber. This isn’t to say that the Liberals don’t have men and women of integrity working for it. I think of people like Andrew Hastie, Tim Wilson and James Paterson, who all evince a robust and sincere commitment – not mere rhetorical badge-making – to our society’s fundamental freedoms. But the party as a whole seems to have drifted away from its ideological moorings, whether through fear or a simple lack of intellectual sustenance. Moreover, the wholesale evacuation of Christianity from modern Australian culture – and with it, the attendant rise in religious illiteracy – means that concerns regarding encroachments upon freedom of religion are more likely to be met with a bemused impatience. Present claims notwithstanding, not even the Liberal Party is immune to such developments. I’m skeptical, then, of the notion that voting strategically for change will help proponents of traditional marriage salvage anything more than a narrow, restricted – and largely token – band of rights.