The ‘Marriage Equality’ Error

In October, Opposition Leader Bill Shorten defended his objection to a national plebiscite on marriage equality by declaring that it would give ‘a taxpayer-funded platform and a megaphone to the very worst forms of hateful abuse’ that would only ‘add to the burden too many Australians have to bear.’ Far from standing behind an option that would allow every eligible Australian voter to express a view about marriage equality, Shorten chose to anticipate his opponents’ positions and condemn them as expressions of yet more malicious homophobia. ‘Marriage equality is an act of justice,’ Shorten declared, ‘too long delayed and denied.’ [i]

In making the erroneous equation between justice and equality, however, Shorten’s attack on his opponents was consistent with the accusations of bigotry, hatred and homophobia that pepper the debate in Australia about ‘marriage equality.’ Broadly speaking, those in favour of a change to the Marriage Act 1961 to allow same-sex couples to marry portray themselves as just, compassionate and tolerant; they denigrate as heartless bigots those with another point of view. These categories are immediately deployed when those advocating same-sex marriage encounter even the most courteously expressed difference of opinion.

Opponents of same-sex marriage whose objections are based on religious belief are already shaping up for an exchange of views. In his recent Acton Lecture delivered at the Centre for Independent Studies, Sydney’s Catholic Archbishop Anthony Fisher expressed concern that what he saw as the declining standard of debate around same-sex marriage was already reflecting poorly on contemporary Australian democracy.[ii] Meanwhile, in his Presidential Address to the Sydney Diocesan Synod in October, Anglican Archbishop Glenn Davies reminded the assembly that, ‘Marriage is fundamentally not a social construct of human invention, but is a divinely ordained institution for the good of humanity and the well-being of society.’[iii] He referred his synod to the three purposes of marriage set out in the 1662 Book of Common Prayer, one of which is as “a remedy against sin” by protecting men and woman from the temptations of fornication.

Unlike the Australian Catholic bishops who have published a national statement on the Catholic understanding of marriage, the Anglican bishops do not hold a common position on same-sex marriage and some, such as Wangaratta bishop John Parkes and Gippsland’s Kay Goldsworthy, see no biblical obstacle at all. Nonetheless, as proponents and opponents of same-sex marriage engage more closely in debate about the nature, meaning and purpose of ‘marriage’, there is a growing sense that each side is actually talking about something completely different. There are two principal reasons why this has come about.

First, in aggressively advancing the cause of marriage equality and promoting the idea of inherent unfairness, proponents have made use of a greatly expanded notion of equality without first testing the adequacy of its philosophical foundation. The structure they have built on that foundation is unsound. Second, by advancing equality and fairness as the values that must take priority over all others, proponents of marriage equality are threatening the fundamental human right to religious liberty. For example, even though Australian Marriage Equality states that when engaging with religious communities it will “always debate the issues at stake in a mature way that does not denigrate the views of others”, it was AME’s National Director Rodney Croome who first condemned the Catholic Archdiocese of Tasmania for daring to distribute copies of the Catholic booklet Don’t Mess with Marriage through the Catholic schools of the archdiocese.[iv] This essay will explore these reasons in depth.

The Book of Common Prayer states that marriage can only be between a man and woman, and this is reflected in the Marriage Act 1961 which currently defines marriage as “the union of a man and woman to the exclusion of all others, voluntarily entered into for life.”[v] Proponents of ‘marriage equality’, such as Australian Marriage Equality, seek to expand the current definition of marriage “to embrace those who have been excluded.”[vi] Shorten, too, demands the meaning of marriage must change to recognise “that love between two people of the same gender is of equal meaning, equal value and entitled to equal respect.”[vii] But opponents such as Davies and Fisher would argue that if the meaning of marriage is ‘reformed’ to that extent, what you’re left with is not ‘marriage’ at all, but something completely different.

Newly-minted rights, such as the supposed right to equality, are dreamed up and then asserted aggressively in popular debate. But although these rights are certainly fashionable, they are nonetheless of questionable depth. Critics such as philosopher Roger Trigg argue that “the language of equality…and human rights in general fills the vacuum left, at least in Europe, by the decline of institutional Christianity.”[viii] Considered by many to be both incontrovertible and undeniable, these new rights threaten to trump any right they might conflict with, such as the fundamental right to religious liberty, even though expressed in international treaties to which Australia is a signatory.

Most definitions of religious freedom begin with, or at least take into account, that set out in the United Nations Universal Declaration of Human Rights 1948 (the Universal Declaration), which includes the freedom to believe and disbelieve, and the freedom to refuse to participate in religious practice. The Universal Declaration recognises that the freedom of an individual to believe or think whatever they like is beyond the reach of the state.

In addition, the Universal Declaration recognises two external freedoms: first, a social freedom to manifest belief in private and public; and, second, a right to freedom from external coercion or discrimination on the ground of religious belief. The latter freedom was articulated in the International Covenant on Civil and Political Rights 1966 (ICCPR) although it does allow for the state to set limitations to religious freedom on the grounds of public interest.

Although the Universal Declaration and the ICCPR are the two principal treaties setting out protections of religious freedom, and both have been ratified by Australia, ratification does not automatically confer upon the federal Parliament the power to pass legislation to regulate that freedom. Neither religion nor human rights fall under the constitutional heads of power that confer legislative power upon Parliament. In any case, an easier way of protecting religious freedom than passing legislation is for the state to leave unregulated issues of religious life and practice. This approach gives individuals and communities the freedom to decide for themselves how best to organise matters of life and practice.

The issue of religious freedom can still arise sharply in the event that the secular law commands certain forms of conduct that religious believers find unconscionable. The clash between the dictates of conscience and the requirements of law provokes controversy because it raises the extent to which religious believers should be free to manifest their religion; and the extent to which religious freedom should be reconciled with the requirements of other laws such as anti-discrimination laws.

The essence of law is the protection of some interests at the expense of others when they come into conflict.[ix] The law is therefore concerned with distributing rights, resources, and opportunities to prevent the interests of some being interfered with by the interests of others. And so the Marriage Age 1961 explicitly distributes rights, resources and opportunities to protect the interests of children, to prevent coerced unions, and to describe the legal capacity required of those who wish to marry.

Australian law places no barriers in the way of non-heterosexual people and affords them treatment in every sphere of life that is directly comparable to that afforded heterosexual people. This includes legal provisions against discrimination on the grounds of sexual orientation, and entitlements to benefits, pensions and rights of next of kin. Under the Marriage Act 1961, however, marriage is neither applicable to nor available to those in same-sex relationships. If you are a man or woman, over the age of 18, and not currently married to another person, you may get married; but you may only marry a person of the opposite sex. The law thereby defines a choice set which is the same for everyone – gay or straight.

Proponents of marriage equality argue that the law as it stands is unfair because of its unequal impact. But if the law has no application to a person or group of persons, it must be reasonable to ask how non-application is unfair. If that reasoning is followed, and given that it was clearly the intention of the federal Parliament to define marriage as the union of two people, it must surely be open to a bigamist, or for that matter a child under the age of 18, to appeal against unfairness of the law, too.

The principle that all people are entitled to equal treatment under the law is held to be foundational to the Australian legal system. Equality can be understood as the principle that ‘people who are alike should be treated alike.’ This principle also requires that ‘people who are unalike should be treated unalike.’ If a person is to receive equal treatment, it is because that person is like, or equal to, or the same as, another person who receives that treatment. Although it commonly starts from an affirmation that all people are equal in inherent worth as human beings, the concept of equality becomes more complex in its application. This is because any enquiry into similarity requires that the purpose for which the comparison is being made be specified.

For example, if it is claimed that the principle of equality means that women should be admitted as officers to the Australian Defence Force alongside men, the way in which women and men are alike must first be determined. Since they are clearly not alike in their ability to give birth, there must be some other respect in which they are alike that makes them suitable for military careers. But in what respect are they alike for this purpose – is it in their potential to serve as leaders or in their capacity to think strategically?

The challenge for a proponent of an equality argument is to identify this similarity by which an assessment of equality can be made. Once the similarity in respect to their suitability for military careers is identified, however, that would seem to suffice. It seems unhelpful, and indeed circular, to add claims about equality to the argument that people who are similar for the purposes of treatment X should both receive treatment X.[x]

A claim about equality and equal treatment must be based on two elements: first, a determination that two people are, in fact, alike; and second, on the basis of this determination, that one knows how they ought to be treated. But what, for the purposes of the principle of equality, does it mean to say that two persons (for example, male and female applicants to a military training academy) are alike? After all, no two people are alike in every single respect, but all people are alike in some respects. In which respects are people to be considered alike for the purposes, say, of equal treatment in respects of military training? This first element is much more contestable than is often realised, but it is an indispensable element of the principle of equality.

Only when there is agreement about the first element of the principle of equality

(that one knows how two people are alike) is it possible to make a decision about the second, normative element and decide how people who are alike are to be treated. Some scholars note that this opens the principle of equality to the criticism that it is circular:

“[Equality] tells us to treat people alike: but when we ask who ‘like people’ are, we are told they are ‘people who should be treated alike.’ Equality is an empty vessel with no substantive moral content of its own.”[xi]

Unless the purpose for which the comparison is being made can be specified, it is difficult for an enquiry into similarity to make much progress.

Proponents of same-sex marriage argue that a non-heterosexual couple should be permitted to marry, and base their arguments for marriage equality on claims about a similarity between non-heterosexual and heterosexual couples. The issue of religious liberty arises because those who have a religiously informed objection to same-sex marriage hold that no such similarity exists. In other words, since they do not accept that non-heterosexual and heterosexual couples are alike, those with a religiously informed objection to same-sex marriage do not accept the normative claim that they should be treated alike.

There are circumstances in which limits on the exercise of freedom are imposed by the state. For example, every Australian state and territory has passed laws prohibiting female genital mutilation. These laws express the obligation of the state to protect the interests of the individual and are applied equally to all members of society without extending any exemption to members of minorities. Some critics deem the universal application of the law without regard to minority sensitivities a form of unequal treatment. Justice, they say, requires accommodation.

Equality before the law is a principle that can be easily misapplied. Rather than meaning that every provision of the law should apply in the same way to every single person (that is, that people who are alike, albeit in some unspecified way, should be treated alike), equality before the law might more helpfully be understood as meaning that the law should be upheld without discrimination to all people to whom it applies. Unequal impact of a law is not a sign of unfairness. The law prohibiting drink-driving will have an unequal impact on someone suffering from chronic alcoholism but few would argue the law prohibiting drink-driving is unfair. Law must protect some interests — for example, those of other road users — at the expense of other interests when they come into conflict. Equal application of the rule of law — “equality before the law” — cannot entail equal impact.

The mistaken pursuit of equal impact — so that, say, laws prohibiting female genital mutilation are required to afford exemptions to those for whom the practice is said to have cultural significance — places the interests of particular groups ahead of the fundamental rights and freedoms of the individual. The best way of managing the cultural, ethnic and religious diversities that arise naturally and comfortably in a liberal society is to resist creating group-specific, identity-based policies and instead uphold the principle of freedom under, and equality before, the law. Law applied equally to every citizen will not necessarily have an equal impact, but the unequal impact of a law does not entail that the law has been applied unequally or that it is unfair.

If the Marriage Act 1961 is changed, as seems increasingly possible, a question will arise about the extent to which those with a religiously based objection to same-sex marriage should be compelled to comply with the new provision. Does the new right to equality trump the fact that some people may be compelled by law to act in a manner inconsistent with their faith? And if the law requires certain standards of behaviour to be met, can religion ever be invoked as a reason for not complying with those standards?

Members of religious communities do frequently argue for exemptions from particular laws that threaten to impose undue burdens on the practice of their faith in accordance with their religious beliefs.  They base these claims on the human right to freedom of religion. Contemporary debate about religious usually concerns the extent to which the liberal state should permit the free expression of ideas in the public square.

Permission for free expression is closely associated with three other key freedoms: freedom of speech, freedom of conscience, and freedom of association. To this extent, religious freedom provides no guarantee of religion’s success in the contest of rival ideas but is rather a freedom from state persecution.[xii] What the liberal state can and should do is secure the freedom of religious believers to live their lives in accordance with their beliefs as long as they do so in ways that do not undermine social cohesion.

Support for varied forms of expression entails the recognition that real differences exist between people. When the state attempts to manipulate these differences by imposing laws that enforce a particular conception of thought and action, it turns difference — whether cultural, social, intellectual or economic -— into a moral entity to which an obligation of fairness in the pursuit of equality is then owed. Yet equality of outcome is not achievable in a diverse society where different people are pursuing different goals. A society is properly free when it comprises people who can express difference and distinctiveness both by themselves and in association with each other.[xiii]

Disagreement about the meaning and function of equality lies at the heart of the debate about same-sex marriage. Those who advocate for it view marriage as a contemporary social arrangement upon which society can confer its approval. Opponents, by contrast, hold that marriage is more than a contemporary arrangement, that it serves a different purpose and has a future orientation that transcends a social arrangement. They argue that the contours of the institution cannot — and should not — be tampered with according to the mood of the age. Law professor Robert George says, “What is at stake is whether to retain and support marriage in our law and culture or jettison it in favour of a different way of organizing human relationships.”[xiv]

Opponents who object on the grounds of religious belief do not accept the claim made by advocates of same-sex marriage that the demands of equality warrant a change to the law. Indeed, they insist that the very attempt by marriage equality advocates to demonstrate that people who are alike should be treated alike undermines their argument since heterosexual couples and non-heterosexual couples are not at all alike.

The ferocity and intolerance with which the new right to equality is demanded by same-sex marriage advocates threatens real harm to the substantial and foundational right to religious liberty as it has been understood and interpreted in Australia. Shorten’s claim that “at its heart, marriage equality is about removing discrimination from our laws” is simply the use of equality as a weapon with which to beat those whose understanding of marriage differs from that of the Labor leader.[xv]

Deploying the concept of equality in the debate in this way has served not only to drive further apart the proponents and opponents, diminishing areas of shared agreement and threatening the tenor of debate, but also to threaten the right to religious freedom enjoyed by all Australians.

Peter Kurti is a Research Fellow at the Centre for Independent Studies

[i] Bill Shorten, ‘Gay marriage: Malcolm Turnbull’s $140m plebiscite risks a platform for abuse’, Sydney Morning Herald (22 October 2015)

[ii] Anthony Fisher, Should Bakers be Required to Bake Gay Wedding Cakes? (Acton Lecture, Centre for Independent Studies, 14 October 2015; to be published)

[iii] Glenn Davies, Presidential Address (12 October 2015) http://sydneyanglicans.net/news/archbishop-rallies-anglicans-as-synod-begins

[iv] Australian Marriage Equality, ‘Marriage equality and religion’ http://www.australianmarriageequality.org/wp-content/uploads/2012/05/Marriage-Equality-and-Religion.pdf

[v] Marriage Act 1961 s.5

[vi] Australian Marriage Equality, ‘Marriage Equality 101 http://www.australianmarriageequality.org/wp-content/uploads/2012/06/MarriageEquality101.pdf

[vii] Bill Shorten, as above.

[viii] Roger Trigg, Equality, Freedom and Religion, (Oxford: OUP, 2012), 133

[ix] Brian Barry, Culture and Equality (Cambridge: Polity, 2001), 34

[x] For a more detailed treatment of this argument, see George P. Fletcher, ‘In God’s Image: The Religious Imperative of Equality under Law’ Columbia Law Review 99 (1999), 1608-1629 where he argues that a religious standard for affirming human equality would be logically prior to the determination of a particular factual characteristic. “The argument would then run: People are intrinsically equal and therefore must be treated equally in this particular context” (1610).

[xi] Peter Westen. ‘The Empty Idea of Equality’, Harvard Law Review 95:537-596, 547

[xii] Russell Blackford, Freedom of Religion and the Secular State, (Chichester: Wiley-Blackwell, 2012), 191

[xiii] Roger Scruton and Philip Blond, ‘Marriage: Union for the Future or Contract for the Present?’ Res Publica (2012), 9

[xiv] Robert George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism, (Delaware: ISI Books, 2013), 128

[xv] Bill Shorten, as above.