Last week, the Commonwealth’s Attorney-General Senator George Brandis gave the Annual Lecture on Religious Liberty at Notre Dame University. In his speech, Senator Brandis said Australia has seen, in recent years, much debate about human rights which has had “an aggressive, almost hectoring tone”.

“Too often, it has been one-sided, as if there were a received body of doctrine about human rights which was beyond challenge, to question which was the secular equivalent of heresy,” he said.

According to Senator Brandis, the right to personal freedom has been “shamefully neglected”. One of those freedoms is the right to religious freedom. “In fact, not only has religious freedom been neglected, it has actually been the subject of open attack from those who dominate much of our political discourse, particularly in the national broadcaster and the Fairfax media,” he said.

Conservative think tank The Centre For Independent Studies released a report last month titled The Forgotten Freedom: Threats to Religious Liberty in Australia. In it, author Peter Kurti documents what he considers “an assault of religious liberty” seen in the same-sex marriage debate in particular.

Here, he writes for Eternity on the basis of that report.

---

OPINION  |  Peter Kurti

Questions about how much freedom religious believers should enjoy to express their faith and dutiful obedience to a supreme being have been in the news more frequently in recent days.

In the United States, the Supreme Court ruled in favour of family-owned company Hobby Lobby which challenged the government over insurance obligations to pay for birth control for its employees, imposed by US health care reform (Obamacare).

The decision, which was handed down by a majority of the justices, upholds the right of faith-based employers to choose freely how to provide benefits for their employees.

Meanwhile, the European Court of Human Rights (ECtHR) handed down a decision that appears to impose limits upon a person’s right to express their religious beliefs.

In that case, the ECtHR upheld a decision by the French government to ban the wearing of the niqab (a veil for the face that leaves area around the eyes clear) in public places and ruled that the ban did not infringe the right to religious freedom.

Although Article 9 of the European Convention on Human Rights (ECHR) upholds the freedom to manifest one’s religious beliefs, it does set limits if they are in the interests of social cohesion.

In other words, the ECHR states that the right to manifest one’s religious beliefs is not an absolute right. It must always be balanced against other rights and freedoms enjoyed by citizens.

The limits of religious liberty and the right to free and public expression of religious ideas are also being debated in Australia where there is a broad commitment to upholding freedom of religion.

Every state and territory has anti-discrimination legislation which contains exemptions protecting the right to religious liberty and ensuring it is balanced against other rights.

These exemptions are not there to justify discriminatory behaviour. Rather they are there to protect the right to religious liberty and to strike the balance between different rights and freedoms.

Unfortunately when they evaluate these exemptions, Australian courts look to be taking a more restrictive view of religious liberty as they seek to strike an appropriate balance.

Earlier this year the Victorian Court of Appeal upheld a decision which found a Christian youth camp liable for refusing to take a booking from a homosexual support group.

In what was one of the most important elements of the decision, all three justices held that there was no distinction between homosexual behaviour and homosexual orientation.

The youth camp’s policy was intended to uphold its view of Christian standards of behaviour. Instead it was found to have discriminated against the persons involved themselves.

Once claims about discriminatory behaviour or beliefs are presented as assaults upon the person rather than as simply being about the content of religious faith, rights become non-negotiable.

One judge in the youth camp’s case, Neave JA, said there can be no exemption for religion in situations “where it is not necessary for a person to impose their religious beliefs upon others.”

This test invites scrutiny of a wide range of religious practices including marriage. Would the refusal of a minister of religion to perform a same sex marriage amount to such an unnecessary imposition of religious belief?

Indeed, the issue of same sex marriage and the campaign to promote it by groups such as the Australian Greens is an example of the threat posed to religious liberty by aggressive secularism.

Of course, any decision about the changes proposed to the Marriage Act 1961 is ultimately a matter for our democratically elected Federal Parliament.

But the campaign to amend the Act in order to allow for same sex marriage does seek to silence the views of those who might harbour religiously based reservations about such a change.

Proponents of same sex marriage argue that it needs to be adopted in the name of tolerance, dignity and equality.

But the push for what is dubbed ‘marriage equality’ makes little allowance for those whose religious convictions lead them to stand up for the traditional meaning of marriage.

Instead it imposes what can be described as a ‘tyranny of tolerance’ under which the individual law-abiding religious believer has no place in the public sphere to express dissent.

The mark of the good citizen used to be the display of personal conviction. Now it is the ostentatious display of open-mindedness often resulting in traditional religious beliefs being supressed.

Instead of allowing greater freedom to express religious belief in the public sphere, the impact of a
tyranny of tolerance religion is to confine religion to the private, subjective realm of the mind.

But belief and practice are inseparable. Freedom to believe must surely be accompanied by the freedom to speak so long as no threat is posed to social cohesion and the well-being of others.

However, it may often be the case that those whose ways of life are guided by the search for meaning and solemn obligation to live dutifully may clash with the values of the secular state.

For example, if the search for ultimate truth leads to an individual believing that same sex marriage is wrong, she or he may face accusations of hate speech and homophobia.

Yet it is in just such circumstances that the religious believer may demand the freedom to express in public his or her religiously inspired views about human sexuality.

It is not hard to see that if those actions are met with the coercive force of the state, broader rights of freedom of association and freedom of expression are bound to be put at risk.

Peter Kurti is a Research Fellow in the Religion and the Free Society Program at the Centre for Independent Studies