During 2015 we saw the legalisation of same-sex marriage in Ireland by popular referendum and in the United States in the landmark Supreme Court decision Obergefell v Hodges. Both decisions reinvigorated the same-sex marriage debate in Australia, leading to a promise by Australia’s then Prime Minister Tony Abbott to hold a plebiscite after the next election - a promise the current Prime Minister Malcolm Turnbull has repeated.
While this may not be the resounding win advocates of marriage equality in Australia are hoping for, the legalisation of same-sex marriage in Australia is closer today than it was at the beginning of 2015.
But if same-sex marriage were to be legalised tomorrow, that would be far from the end of the debate regarding LGBTI rights in this country. In particular, the right not be discriminated against in work and service provision would still be up for debate.
The continued existence of laws which allow for discrimination against the LGBTI community was highlighted in Ireland recently. Its Parliament passed an amendment to the country’s Employment Equality Act to remove exemptions for religious schools and hospitals which allowed them to discriminate in employment. The amendment only awaits the president’s signature to become law.
While these exemptions have been removed in Ireland they continue to persist around the world. In Australia for example, the Sex Discrimination Act 1984 which otherwise protects members of the LGBTI community from discrimination permits religious bodies to discriminate where an act or practice ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’.
The answer may appear simple; remove such exemptions to allow members of the LGBTI community full, non-discriminatory access to work and services. The difficulty is that to do so would potentially trample on another important right – the freedom of religion.
Like the freedom from discrimination, freedom of religion is a fundamental human right, protected in international law. Both are protected by the International Convention on Civil and Political Rights. Where the exercise of these two important rights may conflict there is the potential for significant harm on both sides.
The strength with which people hold to their religious beliefs concerning same-sex relationships and the lengths they are prepared to go to as a result has also been in evidence a in 2015.
Following the legalisation of same-sex marriage in the United States, Kim Davis, a Kentucky county court clerk, was prepared to defy a court order and go to jail rather than issue marriage licenses to same-sex couples.
In Northern Ireland, in the so called ‘Cakegate’, the owners of Ashers Bakery refused to make a cake depicting Bert and Ernie from Sesame Street with the words ‘Support Gay Marriage’. In response the Equal Opportunity Commission of Northern Ireland took action against them resulting in a finding in Lee v Ashers Baking Co Ltd & Ors that Ashers Bakery had engaged in unlawful discrimination and an order that they pay £500 in damages.
In Australia this so called ‘clash of rights’ is playing out in Tasmania. The Tasmanian Anti-Discrimination Commission is currently investigating a complaint against the Australian Catholic Bishops over its pastoral letter ‘Don’t Mess With Marriage’, which was handed out at Catholic schools around the country.
The booklet sets out the Catholic position on same-sex marriage, emphasising their belief in the fundamental difference between heterosexual and same-sex relationships. The case raises important issues not only of the right not to be discriminated against and freedom of religion, but also freedom of speech. How this case is resolved will have important implications for debate leading up to the promised plebiscite after the next election.
...we must seek a constructive dialogue in which both sides look for ways to promote and protect both fundamental human rights and where a true ‘clash of rights’ exists.
What will be important going forward is that both sides of the debate are able to engage in a respectful way. Hope for such a dialogue can perhaps be seen in the current Religious Freedom Roundtable being facilitated by the Australian Human Rights Commission. In November this year the commission facilitated a meeting of faith leaders which discussed, amongst other things, the issues of religious freedom in the context of same-sex marriage and employment by faith based organisations. In February next year LGBTI organisations will similarly be invited to discuss these issues.
As Australia moves towards the legalisation of same-sex marriage we must not forget that this is just one piece of the puzzle when it comes to removing discrimination and disadvantage experienced by the LGBTI community. However, in seeking to remove legal disadvantages and discrimination we must not trample on other fundamental human rights. Instead we must seek a constructive dialogue in which both sides look for ways to promote and protect both fundamental human rights and where a true ‘clash of rights’ exists, seek compromises that respects the dignity of both the LGBTI community and people of faith.
Dr Renae Barker is a lecturer at the University of Western Australia's Faculty of Law.