So, the results of Australia's non-binding and unnecessary post vote 'survey' on marriage equality are in, and it's an emphatic victory for "Yes". Finally! What happens next, hopefully, is that a flawed but largely fine bipartisan bill will be introduced to Parliament, voted on, and undo the terrible wrong that was committed in 2004 when marriage was restricted to only hetereosexual couples (a moment that led me to almost turn in my ALP membership in disgust). On a personal note, gay rights has been an animating issue for me politically since I was a teenager in the 90s and finally, if belatedly, seeing this moment arrive feels like a great national and personal catharthis.
But. This isn't over; it isn't over in the United States, and you can be sure the religious right is going to import much of the same politics into Oz in coming months and years. The first battle is going to be to stop parliament's hardline conservatives from inserting broad-ranging exemptions into the bill that allow religious groups and others who express a 'moral belief' in the exclusivity of traditional marriage broad licence to discriminate. Without a bill of rights of our own in Australia, local progressives aren't practiced at making these sorts of arguments. So here's my quick'n'dirty guide to arguing against them.
Five Ways They're Wrong
Liberal rights make a distinction between the public and private. People are free to believe and act however they wish in private, but the public sphere is a neutral space where no belief is privileged over any other. By asking for an exemption to a law of general application, people with moral beliefs are asking the state to privilege those beliefs, and thus violate its obligation of secular neutrality. Why do we make this distinction? Because . . . .
Rights are not unlimited. They extend only so far as they don't infringe on the rights and freedoms of others. People are free to belief and act however they wish; however, we live an an interdependent social setting where our actions affect others and we must take the rights of others into account if we recognise their equal human dignity. So, sorry, you can't unilaterally infringe the right of others to marry and found a family, or (if you're a social service provider) deny them their right to education, healthcare, housing and social support. But what essential rights are infringed by cake-shop owners or wedding venues? Well . . . .
Everyone is entitled to protection from arbitrary discrimination in public life, including access to general goods and services in the marketplace. It is fundamental to the mutual recognition of human dignitty and equality that everyone is entitled to equal treatment, regardless of any arbitrary personal characteristic, including race, biological sex, gender expression and family structure. Protection from discrimination is a human right, and is embodied in a series of positive Australian Acts. We accept without reflection that market participants must not discriminate against persons of particular races or religions; sex and gender are no different.
But wait, they say, we need an exemption from just those discrimination laws! And exemptions to laws of general application may be justified if their neutral application leads to adverse or discriminatory consequences in fact. However, this is a matter of consequentialist weighing of harms against rights. For example, ministers of religion are exempt from an obligation to perform religious ceremonies in violation of their rites because that would constitute a direct infringement of their right to practice their religion freely. I can eve see an argument that churches and religious buildings be exempt from being hired for religious ceremonies outside their doctrine. On the other hand, we must weigh up the manifest harm of the denial of equal treatment to members of the community against the psychic 'harm' to the 'true believer', who has freely chosen to engage in market activities fundamentally unrelated to their exercise of religious freedom. For example, religious groups that own public venues discriminate when they use their private beliefs to exclude certain people from accessing their services.
But wait, they say, forcing us into a neutral public stance threatens the ongoing viability of our community of belief! However while some liberal philosophers accept that the survival of a religious community sometimes justify special treatment, not a single one accepts that this extends to imposing restrictions on individuals 'external' to the community. In other words, a religious group is free to expel a homosexual couple from membership of its congregation (an 'internal' regulation), but cannot claim to regulate the rights and responsibilities of other members of the community with different views (which would constitute regulation external to its community).
So there you go, five quick and dirty arguments to win the argument and make sure the Smith bill passes speedily and unchanged.