Government and governance, Arts, culture & society | Australia

24 October 2017

Allowing religious arguments to be heard in Australia’s same-sex marriage debate is not only consistent with the separation of Church and State – it is also part and parcel of democracy, Alex Deagon writes.

Australia is a religiously diverse society. The historical dominance of Christianity has been decreasing and the influence of secularism and other religions such as Islam and Buddhism is on the rise. Though Australia is still predominately comprised of those identifying as religious, and mainly Christian, the single largest ‘religious’ group in Australia are now those identifying as ‘no religion’.

When society debates contested social issues such as same-sex marriage, and governments need to make decisions with legal implications for religious and non-religious people, the influence of religious arguments is controversial. This has been most recently exposed in the 2017 Frank Walker Memorial Lecture, delivered by Federal Labor Senator Penny Wong.

Senator Wong spoke on what she saw as the conflation of religious concepts of marriage with secular concepts of marriage. “The problem in all of this, of course, is the application of religious belief to the framing of law in a secular society,” she said.

“And in societies where church and state are constitutionally separate, as they are in Australia and the US, this leads not only to confusion, but also to inequity.”

Many others have already argued religious arguments should have no place in the same-sex marriage debate for similar reasons.

However, the underlying assumption that Australia has a principled constitutional separation of church and state like the US, and consequently religion should not influence politics, is misplaced.

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Certainly Section 116 of the Australian Constitution institutes some kind of separation between church and state. But the High Court has also said that Section 116 “cannot readily be viewed as the 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.”

Consequently any Australian version of ‘separation’ is just the legal effect of Section 116. And Section 116 does not even come close to preventing the use of religious arguments to inform public policy.

So without any legal impediment, the question must turn to whether religious arguments influencing public policy is actually a good idea.

Senator Wong expresses the common view that religion should not directly influence public policy and law because it can be sectarian and divisive, and people will resent being coerced by laws motivated by religious assumptions they might not share.

However, there is also a growing view that it is actually inconsistent and unfair to exclude religion from influencing law and public policy when deeply held non-religious convictions play essentially the same role as religious convictions, and religious arguments can pursue the public good as much as secular ones.

There are a number of examples one can point to historically and today. After his conversion to Christianity, William Wilberforce relied on Christian ideas of intrinsic dignity and equality when arguing for abolition of the African slave trade in the British Parliament, against the tide of his time.

Today in Australia, Christian, Muslim, Buddhist and Hindu individuals and organisations have advocated for better treatment of refugees, fundamentally disagreeing with contemporary border protection policies on a religious basis.

Of course, there are also the religious arguments in support of legalising same-sex marriage itself.

More on this: Lessons from Ireland about legalising same-sex marriage

Perhaps the most powerful example of a religious argument producing public good is the way Lord Atkin relied on the Parable of the Good Samaritan in the New Testament to clarify and expand the ‘neighbour principle’ in the famous case of Donoghue v Stevenson, which forms the foundation for modern negligence law.

This is far from confused and inequitable. Even if people do not agree with the underlying theological concepts, they can rationally accept and implement the practice of loving your neighbour as yourself as beneficial for society. If we were to divorce the neighbour principle from its theological context, making it a secular argument rather than a religious one, the argument would lose all its force and context. We would not even know what ‘loving your neighbour’ really means without considering the Parable.

Therefore, Senator Wong’s view presents serious challenges to holistic, inclusive public policy debate. This is especially the case in light of Australia’s religious diversity, and the number of varying religious and non-religious perspectives on important social issues. It would mean religious belief could not influence policy debate on issues such as same-sex marriage, abortion, euthanasia, offshore detention, poverty and climate change – effectively disenfranchising a significant portion of Australians and limiting ways of thinking about how we can attain public good.

None of which is to say religious arguments should be privileged above secular arguments or given more merit than secular arguments. The operating principle should be freedom to pose religious arguments for influencing public policy, and these arguments can be debated and critiqued alongside secular ones. All these arguments from various perspectives can then be meaningfully considered by the people and laws can be enacted based on whatever compromise is made between their representatives, which is just our normal democratic process.

Since we all agree marriage is a public good, facilitating a diversity of arguments will help us make the most informed decision about how the law can best implement the public good in the marriage debate.

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One Response

  1. Trevor Bell says:

    You are misleading people by suggesting that the benefit of Donoghue V Stevenson derived in part from a religious argument. The reference to loving your neighbour was a mere literary reference to set up a class of persons which needed to be better defined. Here is the relevant passage and people can make up their own minds.

    “The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

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