National Faith and Civil Marriage Equality Forum

National Faith and Civil Marriage Equality Forum
Hosted by Australians 4 Equality
Main Committee Room, Parliament House, Canberra
Edward Santow, Human Rights Commissioner, Australian Human Rights Commission

Introduction

My late father used to talk about our family’s motley religious heritage. Dad’s mother was Anglican, his step-mother was a Quaker and his father, my grandfather, converted from Judaism to Quakerism not long after immigrating to Australia. My mother and her parents were Jewish and this too is an important part of my heritage.

Because things didn’t seem complicated enough, my wife is Catholic. It feels like, in religious terms at least, I’m closer than I’ve ever been to having a full collection…

There are important links, of course, between religion and human rights.

The rise of international human rights law was, at least in part, a response to the Holocaust, anti-Semitism and the broader horrors of the Second World War. It repudiated a time where religious affiliation could be mortally dangerous. So, as the guns were falling silent at the end of the war, the world recognised a need to articulate a new, positive vision of human relations where the protection of individual dignity would be paramount. This started in 1948 with the drafting of the Universal Declaration of Human Rights – the first of the major international human rights instruments.

As Archbishop of Canterbury, Dr Rowan Williams, and others have observed, religious concepts as well as people of faith were central figures in drafting the Universal Declaration.

This is no surprise. The world’s great religions all share a set of precepts that find voice in human rights – as a body of law, a set of principles and a way of seeing the world. That is, they all focus on the protection of individual dignity, kindness, treating the other as if they were one’s brother or sister…

It is equally unsurprising that there is an over-representation of people of faith among movements that aim to promote human rights. Take, for instance:

• the Quaker, Eric Baker, who was one of the founders of Amnesty International;
• Abdol Hossein Sardari, known as the Oscar Schindler of Iran; or
• Archbishop Desmond Tutu and Canon John Collins in the struggle against Apartheid.

In view of this history, it pains me deeply that in very recent times the religious community often appears to be presented as being at odds with the human rights community. This can be on issues as diverse as anti-discrimination laws, freedom of speech and equality before the law.

It pains me because this is such a recent phenomenon and it is so unnecessary. For so much of history, there has been no real antagonism between people of faith and advocates of human rights. In fact, these two communities were in so many ways the same community.

The debate on civil marriage equality is, once again, being presented by some as a battle between people of faith and human rights advocates. I think this forum – and the broader debate to which it contributes – presents a vital opportunity to focus much more on what binds us, rather than on what divides us, and to prove that we can all be authentic in the expression of our deeply-held views and beliefs and that we can embrace that diversity.

My experience and approach

I approach the issues of religious faith and civil marriage equality in the same way that I do all of the areas within my responsibility as Human Rights Commissioner. That is, I start by asking the question: how does international human rights law help us to resolve this problem?

It would be handy if international human rights law lent itself to a sort of mathematical approach to problem solving: you put in the variables and the legal answer generator spits out a result – lawful or unlawful. There are some areas – eg, war crimes – where the law really is almost this black and white.

Inconveniently, however, those areas are rare. More often, international human rights law provides a guide in how we should accommodate competing rights and interests. It reflects that, because humans are social animals, what we do generally causes us to interact. And as soon as we interact we need to find ways to compromise so that our interactions don’t impinge more than is absolutely necessary on the basic dignity of those around us.

Marriage equality

Marriage equality is an issue where international human rights law provides guidance, as distinct from a clear-cut binary answer. At the Human Rights Commission, we have reflected in particular on Article 26 of the International Covenant on Civil and Political Rights. It says:

There are some interpretations of this and other provisions in international human rights treaties that don’t go so far as to protect marriage equality. The 1999 opinion of the UN Human Rights Committee in Joslin is most often cited to this effect.

However, such opinions are largely being confined to a historical minority. On the contrary, there’s a broad, emerging consensus from respected and authoritative international bodies, as well as courts in comparable jurisdictions to Australia, that the principles of ‘equality before the law’ and ‘non-discrimination’ demand that marriage be extended beyond heterosexual couples.

At the same time, we must consider whether legal recognition of marriage equality involves an impingement on other human rights.

The clearest example of this is in relation to freedom of religion. Some, but of course not all, religious organisations see marriage equality as contrary to their core religious beliefs. Accepting this means carving out space to ensure that members of those religious organisations can continue to practise their religion without more than necessary interference.

For this reason, we at the Human Rights Commission endorse the widely-accepted view that religious organisations that object to marriage equality on religious grounds should not be required to solemnise a same-sex marriage. This is the current approach taken in the Marriage Act. That position is necessarily a compromise. As with any compromise, it involves some ‘give’ from each side, but crucially it aims to preserve the dignity of all parties to the maximum extent possible.

How to resolve this debate

We are conscious that we’re in the middle of a vigorous public debate about this potential reform but, most recently, particular attention has focused on how that reform should be formally considered.

Obviously, it now seems very unlikely that a plebiscite will take place, and all sides of parliament will need to resolve how to move forward. In the meantime, the public debate remains intense.

We see the Commission as having two key roles in respect of marriage equality.

First, central to the Commission’s role is to set out what international human rights law informs us about this issue. It pains me to say this as a human rights lawyer, but in a big public debate a careful exposition of international human rights law is useful to some, but perhaps not all, of the population.

For that reason, the Commission will seek to provide community education about the human rights issues associated with marriage equality – in a way that is simple and easy to understand and avoids legalese. It will hopefully breaks down myths and promote an accommodation of competing rights, beliefs and interests.

There’s also a second role for the Commission that is just as important. It is in promoting respectful discussions that accommodate the human rights and freedoms of all Australians.

This could mean discussing how to avoid, where possible, language that is harmful or particularly hurtful. For example, many opponents of marriage equality object to labels such as ‘homophobe’ or ‘bigot’ being deployed too readily. This is an entirely reasonable concern.

On the other hand, where opposition to civil marriage equality is framed as an attack on all parents who happen to be in same-sex couples, members of those families, especially children, can de deeply hurt by this.

Faith and LGBTI rights: false dichotomies and over simplification

Today’s forum has been important in challenging a pervasive and powerful false assumption in this debate – that is, that faith and LGBTI rights are inherently at odds.

Presenting the debate in this way is problematic, partly because it suggests some kind of Stalinist homogeneity in views among people of faith in Australia. In fact, there are as many different faith organisations as there are nuanced views between them on the issue of civil marriage equality. And, of course, individuals within faith organisations also have a multiplicity of spiritual, doctrinal and ethical views on this issue.

For example, in 2011, Australians for Marriage Equality commissioned Galaxy Research to determine support for civil marriage equality. 53% of people who identified as Christian supported same-sex couples being allowed to marry.

In particular, the voices of people of faith who also happen to identify as LGBTI have largely been missing from this national debate. This is not because they are unwilling to speak out. It’s vital that the voices and concerns of these people are heard in this debate, not least because LGBTI people of faith fall into some of the higher risk categories of poorer mental health outcomes as a consequence of their lived experience.

A second problem with creating this false dichotomy is that it can entrench a perceived division among people of faith and LGBTI people, whereas in reality there appears a great deal of desire for respectful discussion.

The experience of civil marriage equality in countries with larger faith-based communities that Australia challenges the idea that a country cannot value simultaneously the faith-based backgrounds of its citizens as well as an important representation of equality for LGBTI people.

For instance, in the 2011 census, 61% of the Australian population identified with a Christian faith. By contrast, civil marriage equality has been legislated in a number of countries where that proportion is significantly higher, including:

• Brazil (87%)
• Ireland (84%)
• Portugal (81%)
• Spain (70-75%).

My point is simply that there is a complex and diverse range of views among religious groups on this issue, and it’s important to see that diversity reflected in the national debate.

Conclusion

Australia, much more than many countries, coheres around good, positive ideas – like the fair go and egalitarianism. Those are the principles that I hope will come to the fore in the next stage of our national debate on civil marriage equality.

Australia is not really a country for revolutions. They seem, sort of, a bit too high-falutin’ or up yourself. Change, especially social change, in our country usually requires talking sincerely and openly with those who don’t share your views; finding compromises where they don’t jeopardise the foundation of the change you’re seeking; and being open, respectful and kind.

I can see, among advocates for civil marriage equality and among people of faith that these characteristics are valued and pervasive. Forums like today’s bear that out.