Bill of rights next step after marriage poll

Human rights questions linger after the same-sex marriage vote. Anja Hilkemeijer clears them up

INTERNATIONAL

human rights law prohibits discrimination against samesex couples

Following the successful Yes vote, Hobart Catholic Archbishop Julian Porteous claimed in last Thursday’s Mercury that to “actually live up to our treaty obligations” federal laws should allow people to discriminate against same-sex celebration, education, welfare and health care on the grounds of religion and belief. These, and other claims made by the archbishop, mistake the nature and content of human rights law.

The right to believe something doesn’t give you the right to be a law unto yourself

Archbishop Porteous argues that individuals and government-funded welfare agencies are entitled to deny services to people whose sexual orientation offends their strongly held beliefs. This argument assumes people are permitted to do whatever it is they conscientiously believe in. Human rights law does not allow this, and never has.

The right to act on genuinely held beliefs is limited for good reasons. The late United States Supreme Court Justice Antonin Scalia was clear about this: if people are permitted to claim exemptions from the general law on the basis of their beliefs, everyone becomes a law onto themselves.

Any claim based on freedom of belief requires a close connection between the belief and the action. For example, pacifists cannot refuse to pay taxes because some of it is spent on military forces. Nor can a pharmacist refuse to sell contraceptives on religious grounds or homeowners refuse to pay rates because they believe the land belongs to God.

These arguments have already been rejected by the courts

Courts in Australia and other Western countries with strong human rights protection have consistently rejected the archbishop’s arguments. For example, judges have made it clear that religious opposition to homosexuality does not allow managers of commercial campsites, owners of private hotels, civil marriage celebrants or relationship counsellors to discriminate against LGBTQI people. They have also found that online comments on a news story about same-sex marriage, while “inspired” by religious belief, were not justified by it.

Freedom of religion may be limited to protect the rights and freedoms of others. Giving people who believe in “traditional” marriage the right to refuse the supply cakes, flowers or catering services to a same sex wedding is contrary to human rights law.

Human rights do not require a separate religion protection Act

The archbishop and other conservative Christian leaders have argued the right to religious freedom justifies separate protection by way of a federal religious freedom Act.

It is odd that the fundamental rights Australia has committed to internationally are “without serious federal or state protection”. That is why many people have long argued for a federal Bill of rights. Australia is the only Western liberal democracy that has not enshrined fundamental rights in its national law. Canada enacted a Bill of rights in 1960, New Zealand in 1990 and the United Kingdom in 1998.

But to give legislative protection to freedom of religion alone would not meet Australia’s international obligations. It is in the nature of human rights law that individual rights must be balanced and measured against the duty to respect the rights and dignity of others — enshrining just one right into law would not achieve that. It would be contrary to the International Covenant on Civil and Political Rights because this treaty aims to protect a wide-ranging set of civil and political rights.

Rather than pursuing implementation of a single human right, the momentum of same-sex marriage legislation could provide the inspiration to implement Australia’s international human rights obligations through a bill of rights.