Same sex marriage debate must produce a bill for religious freedom

The Yes case is peopled by arrogant, intolerant and irrational campaigners.

Our flawed approach to changes in marriage law is revealed in the latest Newspoll — a 57 per cent majority wants same-sex marriage and an even bigger 62 per cent majority wants religious beliefs protected — yet this obvious nexus is most unlikely to be achieved.

The feature of the campaign so far is the absolute refusal of the Yes camp to concede any legitimacy to warnings of the No camp about the risks to religious freedom and belief. The Yes camp declares such warnings are a red herring, an unjustified scare, an egregious tactic without substance, and tells people not to worry.

At the same time, however, the Yes camp has nothing to say about the actual argument — it simply refuses to engage in the issue. Has there ever been a more arrogant campaign surrounding a national vote? I cannot recall anything to match this but I am happy to be corrected.

The attitude is: we won’t ­address any of your concerns and we’re not interested in your nonsense. A tolerant and rational response from the Yes camp would be to say: “OK, let’s legislate on the basis of religious freedom protections.” What could be more obvious? The Yes camp has spent years telling us to act upon the polls but when the polls don’t suit them, like support for legislation on the basis of religious freedom, they are contemptuous.

The Yes case is still likely to prevail but it treats the Australian public like a bunch of fools. And this might offend a sufficient number of people to give the No case a respectable vote. The plebiscite is serving a public function because it reveals the defect of the Yes case and the assumptions on which it is based.

This is guaranteed to create serious challenges for the Turnbull government. Recall Malcolm Turnbull’s sudden remarks 10 days ago that he believed in religious freedom “more strongly” than in same-sex marriage. What do we make of this?

First, it is a landmark position and it is something the Prime Minister will be expected to honour. Second, it is significant because it contradicts the entire assumption on which this debate has been conducted for many years, namely that same-sex marriage is more important than religious freedom.

Among the litany of bills proposed in federal parliament in recent years, none ever attempted to address religious freedom issues for individuals and institutions. There was no rhetoric to this effect, no debate, no pressure. Same-sex marriage advocates in government and parliament assumed that, apart from protections surrounding the wedding ceremony, no wider protections were needed.

Now they are trapped: having decided this was a non-issue they are left stranded during the plebiscite still insisting it is a non-issue.

What should happen now? The answer is a no-brainer. The principles governing a bill to guarantee freedom of belief and religion should be advanced and put on the public table. The failure of the parliament should be confronted at once. It is not necessary to draft the bill now. But constitutional experts have long considered this issue and the principles for such a bill could quickly be enunciated and published.

This would be in the public interest. Lawyer and priest Frank Brennan in his September 24 ­Eureka Street article has outlined a range of options. They include a human rights act, which he admits the Turnbull government would never contemplate, to a specific religious freedom act.

For tactical reasons, the No case would oppose such an initiative. Its tactic, understandably, is to hammer the inadequate religious freedom provisions. Any move suggesting this problem might be resolved would potentially ruin its campaign.

The Turnbull government will not contemplate such a reversal of position during the campaign since Attorney-General George Brandis and senior cabinet ministers keep pretending there is no wider religious freedom threat beyond the need for protection of religion surrounding the wedding ceremony itself.

The argument, however, to promote a religious freedom act as soon as possible is compelling. The starting proposition is that protection of liberty and belief in Australia is grossly inadequate. This was documented most recently in submissions to and in the report of the Senate committee in February.

Constitutional expert George Williams, a supporter of a bill of rights, says: “Public debates and policy discussions are not informed by legal structures and standards that ensure freedom of religion and belief given the status in Australian society that it ­deserves.”

Another expert, Patrick Parkinson, warns about “deep hatred” towards people of faith and says such laws are necessary “to protect people from discrimination on ­account of whatever views they may hold about marriage” — for or against same-sex marriage — and that protections should cover employment, contracting, academic, trade and professional qualifications, accommodation, education and administration of federal laws and programs.

Brennan, who says a Catholic can vote yes, says the political class has an obligation, so far ignored, to deliver “due protections to religious freedom”. The February Senate committee report found religious protections needed “to be enhanced”. It said this could be achieved through the inclusion of “religious belief” in anti-discrimination law. There is wide support for this view.

It highlights the need for principles in a religious freedom bill to be enunciated now. Such a bill would meet the test demanded by John Howard when he said people must not be asked to vote for a blank cheque. It would, in effect, achieve what the public seems to want: same-sex marriage with protection for individuals and institutions.

Such a proposal would reveal the true character of the Yes campaign. It would test the pivotal question: why is so much of the Yes case so profoundly hostile to religious freedom protections? What are its real motives? The proposition would seem simple. If the Yes case believes in religious freedom, as it says, then why not support such a bill?

The reality, of course, is that most of the Yes case would be horrified by the notion. Can you imagine the outcry? This is obvious from everything it has said and done. And the reason is simple: most of the Yes case opposes stronger religious freedoms and is ready to sacrifice religious freedoms for same-sex marriage. That is the essence of its position.

Claims of the Yes camp that this plebiscite is just about gay marriage are intellectual fraud. They are designed to deliberately mislead. The real issue is about competing rights. In essence, it is about how our nation will manage and reconcile competing rights. It is about whether same-sex marriage will be legalised with or without the loss of other rights.

Australia is not going to be transformed by having a few hundred or a few thousand gays get married. But it is going to be transformed by legalising same-sex marriage in a framework where religious protections are weak and where the ongoing campaign for gay rights and transformed norms in our society is designed to further weaken the freedoms attached to individual liberty and religion, some of the most vital freedoms we possess.

This is a longstanding objective of the Greens. It is the position of wide sections of the ALP left. It is an ideological aspiration of much of the progressive class in this country and in the West. The idea we legislate same-sex marriage and nothing else happens — as the Yes case pretends — is surely the joke of the year. How long can people tell us this with a straight face?

Who might promote a religious freedom bill to test all sides? ­Obviously it should be an independent group with enough media support to put pressure on all sides. Such a group probably does not exist. For the sake of integrity and realism, however, any such bill must be raised now during the campaign, not suddenly after a yes vote when it would be promptly dismissed as an “after the event’’ bid to subvert the result of the national survey.