The Australian Marriage Law Postal Survey was designed to gauge support for legalising same-sex marriage in Australia. The survey was conducted between September and November 2017. Of those who participated, 7,817,247 (61.6%) voted ‘Yes’ and 4,873,987 (38.4%) voted ‘No’.[1] A couple of weeks before voting commenced, I delivered a public lecture in which I said, ‘Though a committed Catholic, I could vote ‘yes’ in a survey on same sex marriage while hoping and demanding that the parliament do the hard work on religious freedoms when considering amendments to the Marriage Act. I am one of those Australians who will be pleased when same-sex marriages are recognised by Australian law but with adequate protection for religious freedoms.’[2]
Once the plebiscite was done and dusted, Cardinal Ladaria, the Prefect of the Congregation for the Doctrine of the Faith, wrote on 8 February 2018 to say that my position was ‘not acceptable, and it must be publicly retracted’. I declined to retract. During the conduct of the plebiscite, I had explained to local bishops that there is a difference between marriage as a sacrament available only to a restricted class of citizens in a pluralist democracy and multi-faith community like Australia, and marriage as a civil institution made available in a non-discriminatory way to all citizens. When I had made my position public, I had presumed rightly that the plebiscite would be carried overwhelmingly, that Catholics would vote in proportions roughly equivalent to the general community, and that there would be work to do after same sex marriage was enacted to ensure adequate protection of religious freedom for all. I thought it would be helpful that it be known that someone like me was in favour of civil recognition of same sex unions while at the same time being concerned that religious freedom be adequately protected. It would be fair to say that some bishops agreed with my position, and others (probably the majority) disagreed with my position. When one bishop wrote to me after the plebiscite handing on an anonymous complaint he had received from a parishioner concerned about my public utterances, I replied:
‘The majority of Catholics who completed the survey voted yes, and many of them for the sorts of reasons I had expressed. Just last night, a woman unknown to me approached me at a public event. She clasped my hand and thanked me …, saying, “I am one of those Catholics who is holding on just by a thread, and you are that thread. “… Many well educated and reflective Catholics have thanked me for making the church sound credible and compassionate in the public square. I readily concede that these people are not your preferred sorts of Catholic – just as the anonymous complainant in your letter is not my preferred sort of Catholic. But I think we need to accept that they are all Catholics in good faith seeking ‘caritas in veritate’ for all.’
St John Henry Newman, the patron of our college, would never have contemplated that the civil institution of marriage could include the recognition of the union of a same sex couple. He was a man of his times. But I have taken heart and some guidance from Newman who was asked to involve himself in a public controversy when Prime Minister William Gladstone considered legislation which would permit an atheist elected to the House of Commons to take an affirmation rather than swearing the oath.
"After the plebiscite, Prime Minister Malcolm Turnbull appointed me to an expert panel chaired by long time Liberal member of Parliament Philip Ruddock. Our task was to ‘examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion’."
Newman received the red hat as cardinal at the age of 78 in 1879. The next year, the Liberal Party had a resounding win at the election and Gladstone was prevailed upon to be Prime Minister once again. One of the newly elected members of the Commons was Charles Bradlaugh an atheist and republican. A decade previously, Bradlaugh had successfully lobbied to permit atheists to take an affirmation rather than an oath in court proceedings. Bradlaugh asked if he could take an affirmation rather than an oath before taking his seat in the Commons. A parliamentary committee considered the matter and refused his request. So he said he would swear the oath ‘so much the worse for those who force me to repeat words which I have scores of times declared are to me sounds conveying no clear or definite meaning’.[3] This bold declaration of atheistic intent caused even more consternation in the Commons and in the press. Bradlaugh was refused permission to swear the oath while being told that an affirmation was not an option. He could not take his seat in the Commons. This standoff continued for six years during which time Bradlaugh was returned by his constituents at successive elections.
Cardinal Manning was particularly exercised about this matter, as were most Irish members of the Commons. Catholics generally were convinced that a law permitting the taking of an affirmation would be unacceptable. There were ‘the honour . . . and the moral sense of Parliament to be considered’. Bradlaugh’s admission would allow a solemn form ‘to be trampled and held up to public scorn.’ Lord Randolph Churchill declared that should Bradlaugh be permitted to take his seat having made an affirmation, it would become ‘an absolute impossibility that either loyalty or religion (could) occupy in minds of Members of Parliament or of the English people the same lofty, unshaken, and unassailable position which they have occupied without interruption down to the present day.’[4]
In 1883, the Gladstone government presented a new bill to Parliament providing for the taking of an affirmation. The Reverend Malcolm MacColl, an Anglican clergyman and friend of Gladstone, was a strong advocate for the Bill. He wrote to Newman enlisting his support, conceding that ‘the large majority of the English clergy take the other side’. Newman, as ever, despite his age, responded promptly the next day, saying, ‘I feel some shame in having to say that I have a very vague notion what the Affirmation Bill is, and a simple ignorance what the amendment to it may mean.’[5] Newman went on to say, ‘You will think my want of interest to be strange; but I think it implies that in the main I agree with you.’ Newman explained: ‘At least two years ago, when the question of protesting against abolishing the Parliamentary recognition of Almighty God came before me, I felt that since Christianity had ceased to be the religion of Parliament for many years, the God of the Christians was no longer the God of Parliament, and I did not see what was gained by acknowledging any God but Him who in Scripture and the Creed is defined to be ‘Maker of Heaven and Earth’ and ‘Father of our Lord Jesus Christ.’[6]
Once the debate had commenced in Parliament, there was considerable attention to the matter in the papers and many petitions were being presented to Parliament. Newman wrote again to MacColl conceding that the petitions might be the result of a well conducted campaign. He cautioned: ‘But, if on the contrary, it is a genuine protest against atheism, and a fear of its spreading have we a right to throw cold water on what we may at a later date seek in vain for in the religious sentiment of the nation. This consideration would be sufficient to lead me to keep neuter, though one might think the vox populi illogical.’[7] MacColl wrote back assuring Newman that the opposition to the bill had been ‘artificially organised by the “Church Defence Institution” whose officers had much greater zeal against Gladstone than for Christianity’[8].
Newman concluded the correspondence with this observation:
‘For myself, I have declined taking part for or against the present bill. It never has been my line to take up political or social questions, unless they came close to me as matters of personal duty, and this Bill by being rejected, would bring so little gain to religion, and by being passed would be so little loss, that I do not see reason for taking a side.’[9]
There have been many occasions these last four years when I have thought the same about any proposed Religious Discrimination Bill.
After the plebiscite, Prime Minister Malcolm Turnbull appointed me to an expert panel chaired by long time Liberal member of Parliament Philip Ruddock. Our task was to ‘examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion’.
The Ruddock Committee reported to government in May 2018. Parts of our report were leaked selectively during the Wentworth by-election in October 2018. There was a passionate and divisive debate in the Parliament in December 2018 when the Labor Party unsuccessfully introduced a Bill seeking protection for LGBTQI students in religious schools. Both sides of politics pledged their commitment to resolving the issue before the 2019 election. They did not. Last week, three years on, our politicians reactivated the debate and once again failed to resolve the matter. Once again we will go to the polls with the matter unresolved.
Back in 2009, I had the privilege of chairing the National Human Rights Consultation for the Rudd Government. I was chosen as the chair because I had written an academic article declaring myself to be a fence-sitter on the issue of a national human rights act. Previously I had published a book expressing opposition to a US style constitutional bill of rights. During that consultation, I came down off the fence, and supported a recommendation for a statutory human rights act. My main reason was a little esoteric in the eyes of non-lawyers. I was aware that in the past the Australian High Court often looked to the decisions of other ultimate courts of appeal, especially in countries such as the UK, New Zealand and Canada. But all those other countries now have some form of national human rights act. Whenever the courts are needing to consider novel legislation dealing with emerging problems such as border security and terrorism, the courts of those other countries scrutinise the new laws in light of their human rights act.
"At the national level we have never enacted a law prohibiting discrimination on the ground of religion. With the multiplication of discrimination laws, it would make sense to harmonise those laws. But that is easier said than done."
I thought that the Australian High Court risked becoming jurisprudentially isolated from other ultimate courts of appeal. Ironically, by not legislating for a national human rights act, our politicians are leaving it up to the judges to invent for themselves the criteria for assessing these contested new laws. I say ‘ironically’, because the politicians most opposed to a human rights act say they want to ensure that the judges are not given too much power. It’s only a human rights act which will provide the bright line solutions set down by elected politicians for unelected judges to follow.
In the absence of a human rights act, we Australians have prided ourselves on being good international citizens having signed up to all the key international human rights instruments and taking them seriously. This means enacting domestic legislation reflecting the key provisions of these international covenants and providing detailed reports to UN committees overseeing the implementation of these instruments. We have tended to do this by enacting laws which prohibit discrimination, whether on the grounds of race, sex, age, or disability. But at the national level we have never enacted a law prohibiting discrimination on the ground of religion. With the multiplication of discrimination laws, it would make sense to harmonise those laws. But that is easier said than done.
The Ruddock panel members, like the Australian community, had varying views on the desirability of a national human rights act. At the time, no major political party supported a national human rights act. That’s still the case. A human rights act was not an option for our panel to propose. Many religious groups who appeared before the Ruddock panel agitated for a Religious Freedom Act which would guarantee religious groups a panoply of positive rights. But in the absence of a human rights act, we could not see how we could privilege the right to religious freedom over other rights. The best we could do was to recommend a national Religious Discrimination Act which ensured that individuals and groups would not be discriminated against on the basis of their religion and that individuals and groups could be discriminating in preferring the appointment or employment of individuals who supported the religious mission of a religious organisation, in much the same way that a political party or politician could preference the employment of staffers who support their political agenda.
In recent days, if you were to listen to the media reports, you could be forgiven for thinking that religious educators want to retain a right to exclude children or teachers from their schools on the basis of their gender or sexual orientation. Nothing could be further from the truth. Or nothing should be further from the truth. Three years ago, Archbishop Mark Coleridge, the President of the Australian Catholic Bishops Conference, told the Parliament: ‘Catholic schools do not use the exemptions in the Sex Discrimination Act to expel or otherwise discriminate against students on the grounds of sexual orientation, gender identity or intersex status.’ Ms Ann Maree Rebgetz, Board Director of Secondary Principals Australia told the parliamentary committee: ‘Catholic secondary principals have a strong moral compass in relation to the treatment of secondary students in our schools. They believe that inclusivity, as a gospel value, must reign supreme in the treatment of their clientele. This translates into the safeguarding of all students, and particularly those students who are in a minority and may feel marginalised. Religious schools should not be able to discriminate against students on the basis of their sexual orientation and identity.’[10]
Undoubtedly there are many sensitive and novel issues to consider when looking to the best interests of transgender children and their classmates, especially in single sex schools. These are challenges for all schools, and not just religious ones. All school systems need to train teachers and administrators to deal with these issues compassionately and competently. The guidelines of the Melbourne archdiocese for ‘Pastoral care for students experiencing gender dysphoria’ are an indicator that the Catholic school system is responding appropriately from the top.[11] The challenge is to ensure that teachers in the classroom have a clear understanding of the Church position and community expectations, as well as the training to assist children in these circumstances.
When marking the 50th anniversary of the UN Declaration of Human Rights, Pope John Paul II called for a collective examination of conscience. He spoke of ‘the tendency of some to choose one or another right at their convenience, while ignoring those which are contrary to their current interests occurs too frequently. Others do not hesitate to isolate particular rights from their context in order to act as they please, often confusing freedom with licence, or to provide themselves with advantages which take little account of human solidarity.’[12]
Whatever happens with the religious discrimination debate before and after the next election, we need to ensure that we are not trumpeting one right over another. Religious schools should retain the freedom to teach their religious doctrine and to choose staff sympathetic to the school’s religious ethos. We all have the freedom to manifest our religion or beliefs subject to whatever lawful limitations are needed to protect the fundamental rights and freedoms of others. And we all have the right to equality before the law being entitled without any discrimination to the equal protection of the law.
After the next election, it would be desirable for our Parliament to legislate a lean and clean Religious Discrimination Act. The Religious Discrimination Act and the Sex Discrimination Act should be harmonised to ensure that no school can discriminate against any child on the basis of their gender or sexual orientation; and that ‘nothing in the Sex Discrimination Act renders it unlawful to engage in teaching activity if that activity is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings’[13].
It behoves us to have a care for those who are most marginalised in our society. When Gladstone’s 1881 Affirmation Bill was first proposed, two years before McColl started his correspondence with Newman, people were asking Newman to put his name to a petition opposing the Bill. Newman the Catholic convert of 1845 had been a fellow at Oriel and Vicar of St Mary the Virgin at Oxford when the Emancipation Act was passed in 1829 admitting Irish and English Roman Catholics to Parliament and to all but a handful of public offices. He asked, ‘Is it free to us, who profit by the Act of 1829 to protest against the Act of 1881?’[14]
Newman would be well pleased if we all had a care for those who have been caught in the crossfire these past days in Canberra, and that includes religious educators simply wanting to run schools which are true to their religious ethos as well as gay and transgender kids. Would Newman die in a ditch for a Religious Discrimination Bill? Perhaps not. But he would respect those of us who think it is worth getting it right in the thickets of a legal landscape where there is neither a Human Rights Act nor a harmonisation of our discrimination laws.
[1] ‘All states and territories recorded a majority Yes response. 133 of the 150 Federal Electoral Divisions recorded a majority Yes response, and 17 of the 150 Federal Electoral Divisions recorded a majority No response.’ See https://www.abs.gov.au/ausstats/abs@.nsf/mf/1800.0
[2] Frank Brennan, ‘Citizenship and the Common Good’, 2017 Lionel Bowen Lecture, Marcellin College, Randwick, 30 August 2017, available at https://www.eurekastreet.com.au/article/citizenship-and-the-common-good
[3]Walter L. Arnstein, ‘The Bradlaugh Case: A Reappraisal’, Journal of the History of Ideas, Vol. 18, No. 2 (Apr., 1957), pp. 254-269, at 257
[4] Ibid, 260
[5] The Letters and Diaries of John Henry Newman, Volume XXX, Clarendon, 1976, p. 205
[6] Ibid, p. 206
[7] Ibid, p. 208
[8] Ibid, p. 208
[9] Ibid, p. 209
[10] Legal and Constitutional Affairs Legislation Committee, Report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, February 2019, p. 33.
[11] https://www.macs.vic.edu.au/About-Us/Policies/Pastoral-care-for-students.aspx
[12] Pope John Paul II, Message to the president of the 53rd session of the UN General Assembly, to mark the 50th anniversary of the Universal Declaration of Human Rights, 30 November 1998,
available at https://www.vatican.va/content/john-paul-ii/en/letters/1998/documents/hf_jp-ii_let_19981130_diritti-umani.html
[13] This amendment to Penny Wong’s 2018 bill was proposed by Jacinta Collins, Senate Hansard, 3 December 2018, p. 9117. Senator Michaelia Cash for the government responded that religious educational institutions need to be able to ‘maintain their ethos through what they teach and the rules of conduct they impose on students’. (p. 9121)
[14] The Letters and Diaries of John Henry Newman, Volume XXIX, Clarendon, 1976, p.381
Fr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). He is a peritus at the Fifth Plenary Council of the Australian Catholic Church.
Main image: Parliament House. (Chris Beavon/Getty Images)