Forget hurt feelings, free speech is a birthright

The case for same-sex marriage in Australia and the protection of religious freedom could have happened hand-in-hand.

It could have been dealt with in an honest and simple way. This is how a proposal for same-sex marriage should have been put to the Australian people. Two simple clauses should have been laid in front of them. Clause 1: Same-sex marriage is legal. Clause 2: Notwithstanding anything in Clause 1, any right, privilege or freedom that was permissible before the legal recognition of same-sex marriage is permissible after it.

The plebiscite ought to be marked down as a failure of the Turnbull government and the same-sex marriage activists to recognise same-sex marriage and guarantee religious freedoms in a simple and honest manner.

Their duplicity is a glaring reminder of what the so-called “progressive” mission has stripped from the liberal project, deliber­ately confusing and conflating universal rights bestowed on us at birth with civil rights that are gifts of the state.

This mission to lump anti-discrimination rights in with universal human rights is retrograde, and it has happened only by ignoring the history of universal human rights as the foundational principles of a liberal democracy.

As Liberal MP Tim Wilson pointed out when he was human rights commissioner back in 2014, human rights are not the same as civil rights — the former are universal and arise at birth; the latter are gifts of citizenship, bestowed by the state on an individual.

Human rights are not the same as social justice aspirations, that nebulous tag given to the pursuit of equity, an equally ambiguous notion.

And human rights are not the same as anti-discrimination laws, Wilson said, pointing out that human rights are often about exercising discrimination.

Not every discriminatory act is a wicked one, such as the freedom to associate with those we choose and the freedom to speak about and to believe in different ideas.

Human rights conflict not just between themselves but with myriad other civil rights bestowed by the state and social goals set and sought by government, industries, individuals and activists. The question then is whether a universal human right should be treated as less important than these other pursuits. So-called progressives answer yes, and have worked tirelessly to downgrade universal human rights, targeting freedom of speech and freedom of religion as particular hurdles to them imposing their views on others.

To understand the depth of the human rights corruption, consider how section 18C of the Racial Discrimination Act has been used as a weapon of first resort by those claiming to have been offended by views they disagree with. This is part of a reckless and ill-considered pursuit of feelings-based rights bestowed by the state over universal rights that accrue be virtue of us being human beings.

Consider, too, how section 17 of Tasmania’s anti-discrimination law was used by trans-activist and Greens candidate Martine Delaney, who claimed her feelings were hurt by a pamphlet published by Hobart’s Catholic Archbishop Julian Porteous that defended traditional marriage. Section 17 pro­tects hurt feelings but there is no protection of religious freedom. The universal human right to freedom of belief has been superseded by a right not to be offended.

It doesn’t matter whether cases about hurt feelings succeed or not; it’s enough that the law is used to shadow box free speech and freedom of religion, creating a chilling effect on what people can say and believe in a liberal democracy.

Casting free speech and religious freedom as inferior to anti-discrimination laws has been central to the same-sex marriage campaign. And this illiberal agenda has been enabled by silence and obfuscation about religious freedom by Yes advocates within the Turnbull government; by George Brandis, Dean Smith, Trent Zimmerman, Christopher Pyne and other so-called moderates who are more intent on claiming a legacy than doing what genuine liberal politicians should do: find the right accommodation between a new civil right to same-sex marriage and a universal human right to freedom of belief.

Canberra’s elite should remember that in polls taken throughout this process, the percentage of Australians who support guarantees for religious freedoms has been consistently higher than the percentage supporting same-sex marriage.

Remember too that census figures released in June show a growing percentage of Australians tick “no religion”, up from 19 per cent in 2006 to 30 per cent last year. The conclusion is that Australians recognise that guaranteeing religious freedoms is not just a matter for the religious: it goes to the core of individual freedom in a liberal democracy because religious freedom is inextricably linked to freedom of expression.

In mid-September, the Prime Minister said he wanted to “reassure Australians that as strongly as I believe in the right of same-sex couples to marry, even more strongly, if you like, do I believe in religious freedom”.

If Malcolm Turnbull and his government walk away from first principles, from their liberal principles premised on the freedom of the individual, freedom of speech, freedom of belief, they will inflict further self-harm on a government and a party that can ill afford more brand damage.

Rather than playing dodge-ball, Turnbull should be praising James Paterson as a young Liberal who understands what’s at stake, not just politically but culturally after more than three decades of the liberal project and human rights being vandalised by the progressive mission to insert hurt feelings into the law at the expense of individual liberty and genuine tolerance.

Paterson, a long-time supporter of same-sex marriage, released his draft private members bill on Monday. It goes much further than the other bill pushed by Smith, the Liberal senator from Western Australia. Paterson’s bill extends religious freedom beyond the church, mosque or synagogue door. It means anyone directly connected to a wedding ceremony may decline services if same-sex marriage is against their beliefs. It provides a limited right of conscientious objection, too, so that sincerely held views are protected.

It protects speech that is not threatening or harassing, rein­forces the rights of parents to decide whether the so-called “safe schools” agenda fits their values, and more.

The Paterson bill seeks a genuine accommodation between same-sex marriage and universal human rights, though a compromise may be somewhere between the two private member’s bills.

Following the release of Paterson’s bill on Monday morning, Guardian Australia’s Katharine Murphy immediately tweeted: “Serious question: why are some people’s freedoms more equal than others?” Other critics claim Paterson’s bill amounts to an opponent of a bill of rights now wanting a limited bill of rights. It’s a cheap shot that betrays a poor understanding of universal human rights as the foundational principles of a liberal democracy.

In a liberal democracy, we shouldn’t need a bill of rights to entrench freedom of expression or religious freedoms; these universal rights accrue at birth, and it’s up to the state to make the case for caveats and carve-outs from those rights. Alas, human rights have been so corrupted, the system is now so topsy-turvy, that we have to go cap in hand to government asking that freedom of belief be explicitly accommodated by same-sex marriage laws.

Those with a poor grip on history and freedom should be careful what they wish for. It’s stunningly ignorant to assume that treating freedom of expression and freedom of belief as second-order rights won’t one day bite those who treat them as disposable today.

The outcome of this contest is not just a matter for gay people and religious people. It’s a matter for all of us in a liberal democracy. It will settle, one way or another, whether the country can finally confront and reconcile a 30-year project aimed at the sustained corruption of classical liberal ideas of universal human rights.

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