In the wake of the legalisation of same-sex marriage, the Australian government set up an expert panel to see whether amendments are needed to protect freedom of religion. The president of the Australian Marriage Forum, Dr David van Gend, made a lengthy submission. Here is an excerpt.  


This Review has been triggered by concern over threats to religious freedom from the redefinition of marriage. I doubt it is possible to enjoy authentic religious freedom under a regime of “marriage equality”.

A law for homosexual “marriage” will intimidate religious leaders (and their insurers) with the relentless threat of anti-discrimination lawsuits; individuals who speak out against LGBT dogma will be harassed by the “Human Rights” censors; marriage doctrine and moral teaching will become something to be whispered in private.

There can be no peaceful coexistence between state-enforced homosexual orthodoxy and Christian moral orthodoxy. It will require a robust Conscientious and Religious Freedom Act to protect people of faith in an increasingly hostile culture, but I doubt there is the political will.

Freedom of “thought, conscience and religion” should not be divided

The Review fails to link conscientious freedom with religious freedom.

These two freedoms describe the exercise of the same moral faculty and should not be artificially divided. Any such division might create an “us and them” attitude where a Review like this is perceived as only for religious types and of no interest to the rest of us.

In fact, religious freedom is a subset of conscientious freedom, and conscientious freedom is crucial for all of us, whether our deepest convictions lead us to a religious worldview or not. I will link “conscientious and religious freedom” in this submission and I hope the Review will consider doing so.

The essence of our humanity is our reason and conscience, the faculties by which we strive to distinguish right from wrong, truth from error.

Top priority in the Universal Declaration of Human Rights is given to reason and conscience, as being central to human dignity. The opening Article states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 18 reinforces the fact that reason and conscience and religion are linked, since the search for meaning and questions of right and wrong are central to a rational being:

Everyone has the right to freedom of thought, conscience and religion.

This triple freedom – of thought, conscience and religion – is at the centre of the structure of human rights, because it is at the centre of human life. These are the freedoms that, throughout history, men and women would die for.

A Review of Religious Freedom should not imply that the conscientious freedom of a non-religious person is in any way inferior, or even different, to religious freedom. Both exercise the same moral faculty with the same objective of understanding what is right and just. This Review should not be on behalf of “religious types” but on behalf of us all.

Freedom of “thought, conscience and religion” is not an “exemption” to be granted by the state

That which government did not give, government has no authority to take away.

Conscientious and religious freedom must not be seen as an “exemption” granted graciously by the state; it is a prior liberty that predates all politics and pulls rank on novel laws that would compel our conscience – laws for same-sex marriage or abortion-on-demand, for example.

These inalienable rights are ours by virtue of being rational creatures, not by fiat of any political power. One of the drafters of the Universal Declaration of Human Rights, the head of UNESCO, Charles Malik, stressed that these rights were recognized as inherent to human nature, not subject to the spirit of the age:

It is not an accident that the very first substantive word in the text is the word “recognition”: “Whereas recognition of the inherent dignity and of the equal and inalienable rights, etc.” Now you can “recognise” only what must have been already there, and what is already there cannot, in the present context, be anything but what nature has placed there … Dignity and rights are natural to our being and are not the generous grant of some external power.

Freedom of religion is not limited to what happens in church

Religious freedom should not be limited to what goes on within the walls of the church or synagogue or mosque. A religious philosophy of life, like any philosophy of life, is made to be lived out – or it is lifeless. Limiting “religious freedom” to what may be said or done in church while shackling its activities in the rest of our lives (how religious individuals raise their children and conduct their private businesses, or how religious institutions run their schools, their adoption agencies, their charities, their hospitals) is to treat this core liberty with contempt – and it violates the full provision of Article 18 of the UDHR:

Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Unless a religious worldview can be manifested outside the place of worship, it is not free.

US Supreme Court Chief Justice, John Roberts, and three of his fellow judges were scathing about the prospects for authentic religious liberty after “marriage equality” was imposed on the entire USA by their five fellow judges in March 2015.

Roberts was astonished at the majority’s trivial notion of religious liberty, as if it were merely the freedom to hold private beliefs and did not extend to living out one’s life in accordance with those beliefs:

“The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage.”

But as Roberts points out, the First Amendment in the US Constitution is not just about ideas but actions; it “guarantees … the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”

His colleague, Justice Thomas, expanded on this critique of religious liberty-lite:

Religious liberty is about more than just the protection for “religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Chief Justice Roberts noted the barely disguised hostility to religious believers in the Supreme Court’s majority ruling:

Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today … The most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate … These apparent assaults on the character of fair-minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous … It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Fellow dissenter, Justice Alito, pointed out that the majority’s contemptuous opinion put opponents of homosexual “marriage” on a moral par with the racists of an earlier era:

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent … I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labelled as bigots and treated as such by governments, employers, and schools.

The abolition of the natural truth of marriage and parenting, of father, mother and child, is a frontal assault on religious culture and the victors will take no prisoners.

Canadian Queen’s Counsel, Barbara Findlay, declared years ago: “The legal struggle for queer rights will one day be a showdown between freedom of religion versus sexual orientation.” Law professor and “activist for LGBT rights”, Chai Feldblum, was asked about such a showdown. Her views carried weight because she was an Obama-appointee to the US Equal Employment Opportunity Commission. She answered, “In almost all cases sexual liberty should win, because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.” The editorial of America’s leading journal on religion and public life, First Things, responded to Feldblum’s comment, “It’s a frank statement that clarifies how few restraints progressives feel once they are convinced that they are fighting for ‘the great civil-rights issue of our times’.”

Laws normalising gay “marriage” will be the big stick needed for “queer rights” to beat religious freedom into legal submission. And any who pretend otherwise are deluding themselves. It will take a sturdy Conscientious and Religious Freedom Act to keep the peace in a divided culture.

David van Gend is a Queensland doctor and president of the Australian Marriage Forum. His full submission is here

David van Gend

David van Gend is a family doctor in Toowoomba, Queensland, and a frequent contributor to debates on family, faith and freedom. He has briefed MPs in state and federal parliament and, in 2006, a group...