Dear Panel of the Inquiry into Freedom of Religion,
In making this submission, I understand that:
(1) My submission will be disclosed to the Expert Panel and may be disclosed to consultants and contractors for the purpose of preparing reports for the Department and/or the Expert Panel.
I fully consent to having my submission and name only published.
The Optics of this Inquiry
I wish to state both my surprise and displeasure at the existence of this Inquiry. This is a process that I do not believe we should be having, as it comes as a direct result of the Marriage Equality survey and subsequent overwhelming vote of support in the Parliament to change the wording of the Marriage Act. In the normal course of political discourse, such an Inquiry as this would not disturb me remotely, but this Inquiry is a direct reaction to the extension of marriage rights to the LGBTIQ community.
I also note that the Chairperson of this Inquiry is Mr Philip Ruddock, who was the author of the original change to the Marriage Act in the Howard Government that excluded LGBTIQ people from marriage for so long, at a time when there was clear and growing public support for a change, and which caused so much pain and heartache for good people. This Inquiry therefore and its Chairperson hardly engender trust.
Optics are important. The well-known aphorism that the law must be impartial but also be seen to be impartial speaks to the optics of a process.
The look of this Inquiry, I say with the greatest respect, smacks of a conservative and religious re-action to the progress of LGBTIQ civil rights, and on the part of the Prime Minister, to keep the No voting troops in his Government happy. We all know the history of how the survey was birthed, as a way to placate the No voters in the LNP, and how it was foisted upon the LGBTIQ community against our wishes. The panel of eminent people facilitating this Inquiry may differ from me in both their view of, and efforts within, the Inquiry, but they cannot reasonably avoid the compromised look that this Inquiry possesses even before it starts.
There was no call for an Inquiry into Freedom of Religion before the Marriage Equality debate, but once lost by opponents of Marriage Equality, an Inquiry was announced. Thus, this Inquiry around religion is manifestly and inextricably linked with Marriage Equality, and as a consequence, to the LGBTIQ community.
LGBTIQ History with the Church and Religion
There is nothing iconoclastic in the statement that historically, the Christian Church has been the greatest single oppressor of LGBTIQ people in history. And there should be no shock to the panel that, as LGBTIQ people, we are very aware of it. Many of us have lived it. Countless thousands of us have lived through extremely dark days as a result of church teaching about us. And the cemeteries have disproportionate numbers of gay and lesbian people in them who did not make it due to their inability to reconcile their faith and their ineradicable sexual orientation. However, this oppression, let’s call it what is — persecution — is not a modern phenomenon, but dates back to the very first century and has continued unabated to the present day.
Throughout the centuries, gay people have been vilified, discriminated against in the workplace and in accommodation settings, attacked, pilloried, tortured and murdered in the name of Christ. Today, there are still bigots jailing gay people in African countries, and in central Asian countries, gay men are being rounded up and put through kangaroo courts in order to imprison them, and doing so, as good Christians in the name of the Lord’s work. So-called Christian values and scripture have been and are today being appealed to as weapons against us. Thus it has always been.
The traditional Christian teaching about us is that we are sinners, unnatural, even against nature, rejecting of God, idolaters, that we will not inherit the Kingdom of God, that we are abominations. Old Testament passages in Leviticus written in the times of Jewish exile referring to ‘heathen’ worship, and passages from St Paul in the Book of Romans appealing to a Jewish constituency in Rome in Paul’s own time alluding to the earlier Levitical passages, all used against us, as weapons over the centuries. They are known in the literature as the clobber passages. I call them in my own book, Being Gay Being Christian (2012), the sledge-hammer passages. The Catholic Church continues to call us officially, ‘intrinsically disordered’ and ‘inclined to moral evil.’ The Pentecostals, like the Hillsongers and other groups of their ilk, actually believe that gay people are demon possessed and that we need deliverance from Satanic forces.
It has been and remains, extremely harmful, extremely hurtful and completely wrong.
These teachings frame a model of the homosexual person from the ancient world. They constitute an unsophisticated tradition that needs jettisoning in the modern world, where we actually do understand the origins of human sexuality now from the various sciences. We know better today. Australia is living and growing as a nation in a post-enlightenment world where the sciences have done away with all that homophobic invective. Gay people are not unnatural nor are we abominations.
In the modern world, a gay sexuality is viewed as an orientation, neither wilfully chosen nor wilfully changed. It is stable across the lifespan and is not a sickness, an illness or a psychopathology. It is not a proclivity to future psychopathology. Sexual orientation asserts itself in all people typically around the time of puberty when the erotic becomes conscious. People who are gay must navigate this orientation in a world where there are still church folk telling us that we will burn in hell for eternity, no less.
At every stage in LGBTIQ rights in Australia, the Church has opposed us. It has been there arguing against us, trying to stop the progression towards equality, impeding us every small step of the way on the road to better treatment from wider society. And the optics? Take the Rev Fred Nile literally praying for it to ‘rain on our parade.’ From the Festival of Light, to the Christian Democrats under Nile, to the Australian Christian Lobby under Jim Wallace, and more recently under Lyle Shelton, to Marriage Alliance, a conservative Catholic group, to traditionalist Roman and Anglican Archbishops, to the Baptists and other evangelical ‘Bible-believing’ churches, to the Pentecostals, we have been opposed at every turn. When Australian states added sexual orientation to race, colour, gender and disability in our anti-discrimination laws, outlawing discrimination on all those grounds, the Christian Church opposed that too. It wanted to be able to continue to discriminate against LGBTIQ people based on their sexual orientation.
Most LGBTIQ people walked away from the churches. Too hurt to stay. Too angry at the blatant hypocrisy as they preached love. The imago dei, that humanity is made in the image of God, apparently didn’t apply to us. We were never welcomed. We were judged. We were mischaracterised as moral reprobates. We were vilified. In America even today, some evangelical parents kick their kids out onto the street, rejecting them because they are gay. Even gay people of faith, and there are many of us, have found it very challenging to be part of the Church.
The Marriage Survey
The LGBTIQ community never wanted the marriage equality plebiscite. We told everyone who would listen that it would cause immeasurable harm to people and to the fabric of the nation. We were right. As a man approaching sixty years of age, well-educated and a clinically mature therapist, even I struggled immensely through this survey. It was not long before the notion of ‘civil marriage rights being extended to same sex couples’ was overtaken by the category of homosexuality itself as the focus of attention and evaluation. I felt greatly devalued and demeaned and my life was objectified and weighed in the balance between being deemed worthy or unworthy, acceptable or not acceptable.
Younger ones, less mature and with less life experience, fared less well. There was demonstrable anger and some understandable outbursts from the more reactive, but to have your life and love put to a popular vote where, sanctioned by the Prime Minister no less, it will be publicly derogated and then voted on, not only by the intellectually uninvested, but by your implacable enemies, was too much to ask of us. Despite the arrival of marriage equality, I do not think the LGBTIQ community will ever forget what has happened to us. A Government initiated postal plebiscite initiated by an enfeebled Prime Minister gave the imprimatur for every homophobic and redneck bigot to come out of the woodwork and start taking shots at us; which is exactly what happened. They are now more present, louder, more strident and more organised as a result. Australia has changed and it will take years of hard work to turn the social fabric around where such people are reticent to air their violent views.
Freedom of Religion
It should come as no surprise then, that for the LGBTIQ community, the phrase, ‘freedom of religion’ drips with exceedingly uncomfortable connotations. Gay folk already live with the knowledge that pastors, priests and prelates preach against us in their churches. We know the stuff that is said about us. We live within the knowledge that young LGBTIQ people in say, Hillsong or some other Pentecostal church, notorious for their authoritarian models of governance, are being told outrageous lies about their orientation that are incredibly harmful and very risky. I am a casualty of such teaching from my youth as are many friends. For now, we have to live with the fact that gay people can be sacked from their jobs by church-run schools and hospitals with impunity; never mind their financial commitments like mortgages, loans, rent, bills etc. Needless to say, as a community we are unhappy with such exemptions from our current anti-discrimination laws. But, I think a tipping point for change is coming, and it will not be in the too distant future. Such sackings are inhumane, gross punitive weapons that are unsophisticated in their model of the human condition and cause great damage to people.
We also know from the marriage equality debate what conservatives and religionists want. They made this very clear in their argument about marriage equality. In conflating marriage equality with freedom of speech, freedom of religion, sex education in schools, the right to refuse service in commercial transactions on the grounds of religious belief, they belled the cat on their own ambit claims. In my self-published opinion piece on Medium, ‘When We Voted Yes, We Also Voted No’ 10 December, I made the point that Australians had rejected these arguments. Overwhelmingly. When the No case stated that marriage equality meant all those dreadful outcomes, then that was the argument, the position, that Australians voted on. And with an unprecedented 80% turnout, 62% of Australians who voted, said Yes to marriage equality and No to all that other stuff. They said No to Archbishops Anthony Fisher, Denis Hart and Glenn Davies, No to Lyle Shelton, No to Sophie York, No to Fred Nile, No to David van Gend, and No to religious politicians like Tony Abbott, George Christensen, Scott Morrison, Eric Abetz and Kevin Andrews who all spruiked the same religious-based No message predicting a moral decline, a democracy in chaos and an apocalypse for Australia.
This Inquiry will need to answer the thorny question as to how much of personal religious faith do we allow to bleed into the civil arrangements of our country. This is slippery slope territory. If you begin to allow exemptions or a privileged place for one religion, then others will want, demand, the same treatment. Understandably so. Given that most religions have practices and perhaps values that are not always congruent with modern day human rights as we understand them, at least in their strictest forms, eg., the treatment of women and gay people, and there are always zealots within those religions who believe that such rigor is the only way to be orthodox, there will be inevitable demands on the nation to change its laws to allow for the most strident of religious voices, for theirs is always the loudest voice. Moderates within religions tend to get shouted down. Great care should now be taken that we do not allow these voices the capacity to wind back the protections and freedoms hard-won in our secular laws for all.
Church and State
Australia’s constitution is not a bill of rights type document when it comes to a broad statement of the separation of church and state.
Section 116 of the Australian Constitution specifically refers to religion and allows for four tenets:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth”.
It draws on, and outdoes I think, America’s First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. While America’s is specific in denying the right of a religion to be the ‘established’ or official religion of the land and denying the right of a government to stop people exercising their right to religious freedom, it stops there. Australia’s, on the other hand, goes a little further explicitly:
- No established religion
- No government can legislate to impose any religious observance
- No government can legislate to prohibit the free exercise of religious observance
- No religious test or benchmark for holding any public office.
It is therefore not uncommon to hear some say that because of the four strongly asserted tenets of s116, that the separation of church and state is enshrined in our Constitution. But in fact, such separation is not enshrined in the Constitution and the High Court has explicitly said so in the State Aid or Defence of Government Schools case in 1981.
Justice Sir Ronald Wilson said:
The fact is that s.116 is a denial of legislative power to the Commonwealth and no more … The provision therefore cannot answer the description of a law which guarantees within Australia the separation of church and state.
Justice Sir Ninian Stephen said s.116:
… cannot readily be viewed as a repository of some broad statement of principle concerning the separation of church and state, from which may be distilled the detailed consequences of such separation.
It is therefore not a fleshed out doctrine of separation of church and state. It tells the executive what it can and cannot do, and as a result, there does exist a loose convention that has been followed in Australia. And it is essential that we keep such a convention in mind when tackling social issues, for while the Constitution does not give us a fleshed out doctrine, it does state that there shall be no official religion in Australia. The founding authors were careful and thoughtful enough to ensure that disestablishmentarianism was the first and foremost issue that would be prescribed.
Now this means that Christianity cannot be the officially Government sanctioned religion. Neither Islam, not Hinduism or Buddhism or any other. But it is conservatives of the Christian religion who most want this Inquiry and it is they who were the most strident against marriage equality. It is conservative Christians who now argue that we should roll back anti-discrimination laws so that those of their number can refuse service to gay people on religious grounds. They unfailingly put their specific ideology, not shared by the whole of Christian Australia, before people. And even here they pick and choose to suit their own ideology. They say that it is okay for the florist or the baker or the marquee owner to refuse service to same sex couples, but not so for the taxi driver. But if they are to be consistent, then why not the taxi driver too and the hotel where the couple will spend their wedding night and the restaurant where they have their breakfast the following morning.
Where does it end? When does individual religious belief manifest in the public space start to interfere in the social cohesion of our nation? Where does your religious right transgress my civil right?
While I am not a Constitutional expert nor a scholar in jurisprudence, I would like to suggest that the founding scribes of our Constitution, while not giving us a fleshed out doctrine of separation of church and state, did in fact want to say something about religion and the public square. It seems to me that they wanted to make sure that religion was kept safe for people to practise without censure, but that it was also to be kept in its place, that, because of the divisiveness of religion by its very nature, it should not be allowed to roam free across the laws and by-laws of Australian governance. Governance was to be secular. The founding authors were educated people and they knew the horrors of religious sectarianism and religious wars. They knew their history and they ensured that a religious ‘section’ was placed into the Constitution that lay the basic ground rules. It was a pre-emptive strike against theocracy or creeping theocracy. They knew that unfettered religious freedom is no freedom at all, that it can lead to, “I saw Goody Proctor with the devil.”
A Change for the Worse
Should Australia go down the path that some American states have taken, where exemptions to fundamentalist Christians to anti-discrimination laws have been legislated, it would fundamentally change our nation. We would become a different type of nation, no longer recognisable to us now. The modern, inclusive, tolerant, pluralist, ‘fair-go’ society that we value so highly would utterly change. Giving personal religious belief privilege in the civic space fundamentally changes who we are. Frankly, the statistics by the social researchers show us to be a fairly secular lot, not necessarily unspiritual or anti-spiritual, but definitely suspicious of organised religion, and I remain convinced that any party winding back anti-discrimination law by allowing one segment of the community to treat a minority segment differently based on religious grounds, would be unacceptable to the wider electorate.
But hypothetically, should such a change be enacted, Australia’s present social cohesion would intrinsically change to its clear detriment. We would at once become a judgmental, nasty and uncharitable nation, where LGBTIQ people and others would be treated as second-class citizens and where homophobes and bigots would get free rein under the protection of ‘my faith’ clauses, just as they did in the marriage equality survey under ‘my say’ clauses. It would also mean that the average Australian could turn a blind eye to the suffering of others, especially while under conservative governments. We have had a taste of this already with the attitudes of right-wing leaning people to refugees and asylum seekers and Australia’s pitiful efforts in trying to alleviate that harm.
The outcome of such a change for the LGBTIQ community would see us once again being persecuted by the religious conservatives, taking us back forty years to the 1970s, and would almost certainly galvanise us in anger like never before. And we would not stop, ever, until such prejudicial laws were repealed. It would be a festering sore at the heart of the nation. LGBTIQ people have had enough of being oppressed by the Church and its representatives. We will no longer sit quietly and take it, not in the twenty first century.
I would like to see Australia’s future continue on in the fine path that it has started. We are a much admired democracy. We have never had a civil war since European settlement, but we do have many problems facing us. We do not need a religion vs the gays war. Most people voted Yes on the marriage equality survey because they believe in a ‘fair go’ national identity. They understand that gay people have no choice in their sexual orientation but to accept it and to try to live life well. They wanted us to have the right of marriage afforded us as a way to reify that belief. But it is much harder for us as LGBTIQ people to accomplish living well, for we are a tiny minority, perhaps about 7% statistically, there are still residual pockets of dedicated homophobia and bigotry in society, and we live in a large disconnected land where LGBTIQ people are scattered across its vastness and not all huddled together in solidarity in Oxford Street. It is difficult enough a journey for young LGBTIQ people without the added burden of religious sanctions against their lives by giving a Governmental imprimatur to reactionary and quite mediaeval laws.
And on the religious side of this equation, religion in Australia is already safe. Churches, temples and mosques can preach what they like with impunity, even if it goes against the values of a modern society. They can tell their adherents that women are not equal to men or that they can never be ordained, or that they should keep quiet during the ceremony. I think this is wrong, but under Australian law, they can do it. They can tell their gay young people that they will burn in hell for eternity, that their sexual orientation goes against nature, that they are not welcome in the faith community. I think this is wrong, but under Australian law, they can do it. Churches can sack teachers or doctors from their schools and hospitals for being gay. I think this is wrong, but under Australian law, they can do it. What I am saying here is that religion in Australia is free essentially to practise even those aspects of their various faiths that most Australians would deem repugnant.
So of course, they can practise the more noble aspects of their faith, their theologies about God, their liturgies of great beauty, their pastoral care of the sick and dying, the aged, the homeless, the needy, without rancour from anyone. But they do not have a right in the public square to break the law any more than anyone else. Giving them free rein to do so really is a slippery slope. Winding back anti-discrimination laws that protect minorities like LGBTIQ people to privilege the private sensibilities of religious people would be a catastrophic social mistake.
If Lyle Shelton and his ilk want to say things about LGBTIQ people in the privacy of their church buildings, then that is one thing. If he wants to vilify, demonise or spread lies about us as a group or an individual, then that is another. If he breaks the law as it stands now, he should account for it before the Court. I note that Mr Shelton has never and will never codify what it is he wants to say that he cannot say now. And he says plenty now!
Regarding the Australian Christian Lobby itself, I think it is high time that its tax-exempt status be re-visited by authorities. The ACL, by any standard, is a highly political, very loud, strident, arch-conservative organisation that has nothing to do with the Gospel of Jesus Christ as it is described by Jesus himself in Matt 25: 31–46, and whose remit seems to be nothing else but to advocate conservative social causes under the titular falsehood of ‘Christian’ lobby. Research shows that most churches will have nothing to do with them and we know that most Christian individuals state unequivocally that the ACL does not speak for them. The ACL is not a charity and it does no service for the real religious life of this nation. It is a divisive, nasty group that, based on strict evangelical ideology, has a history of ‘gay-bashing’ the LGBTIQ community in Australia. I do not believe its tax-free status is valid or should remain.
The laws in Australia that govern religion right now have struck the right balance mostly, even though I do think that exemptions to unfair dismissal on the grounds of sexual orientation should absolutely be repealed by a Government in the very near future. Sacking someone for their sexual orientation is like sacking someone for having hazel eyes; a phenomenon over which both groups have no choice or power. It is positively mediaeval. But aside from this, religion is safe in Australia. Those of faith can still practise with impunity. Many churches are having the ‘gay’ conversation and looking at their theology around human sexuality. It is interesting that the statistics from the marriage equality survey show that the majority of Christians voted Yes, ignoring the official line from leaders. I would venture to say that the bulk of these would not want to see special laws enacted about religious institutions from what is there already now.
So while people of faith should be protected in Australia to practise their faith, of necessity, their protection must be balanced against the need for LGBTIQ people to have the right to feel safe in the social sphere. Safe from bigotry, safe from prejudice, safe from homophobia, safe from violence, safe from unjust discriminatory laws, safe from the forces of conservatism that would ‘disappear’ us, force us back into the closet where we are not seen, not heard, our presence not felt, not appreciated. All Australian governments no matter their political persuasion owe us that safety.
I respectfully ask that the issues raised in this submission will be genuinely and seriously considered by the Inquiry.
Dr Stuart Edser PhD. BA (Hons)(Psych). Grad Dip Psych Stud. M Ed Stud. Dip Clin Hyp. BA. Dip Ed. ATCL.
Newcastle Psychology & Health
Member of the Australian Psychological Society
Member of the APS College of Counselling Psychologists
Member of the International Association of Clinical Neuropsychotherapists
Certified Practitioner of Clinical Neuropsychotherapy
Member of the Australian Society of Clinical Hypnotherapists
Author: Being Gay Being Christian (Exisle, 2012)