Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1694571795730.pdf (Australia)
Inquiry into the status of the human right to freedom of religion or belief by the Joint Standing Committee on Foreign Affairs, Defence and Trade, Australian Parliament SUBMISSION Author: Robyn Lock This submission is regarding implications for the freedom to manifest conscience, religion or belief through practice, that the allowance for Same-sex Marriage would bring to the Australian populace.
As, currently, there is a drive to allow Same-sex Marriage (SSM) in Australia, I believe it is timely to consider the implications of the allowance of SSM for the freedom of conscience, religion or belief for Australians who genuinely and sincerely cannot accept the millennia-old social norm of natural heterosexual marriage being turned on its head.

(I am one of these Australians.)

Term of Reference addressed: 1.


The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses.

1.

Article 18 of the ICCPR The right to freedom to manifest one’s religion or belief is recognised in Article 18 of the ICCPR (International Covenant on Civil and Political Rights): 1.

Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2.

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3.
3.

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

(Highlighting mine.)


1 Inquiry into the status of the human right to freedom of religion or beliefSubmission 70 Clause 1 of Article 18 I believe that clause 1 allows for Australians for whom SSM ‘goes against the grain’, to live out of their conscience, religion or belief (which is ‘practice’ ** in clause 1) against acceptance of SSM.

May I illustrate this with a fictitious example?

A cake shop is requested to bake a wedding cake for a SSM reception.
The owner of the cake shop explains to the people making the request that he cannot bake the cake for them as that would be supporting SSM, and supporting SSM would be going against his conscience (or belief).
(** On the meaning of ‘practice’: The Australian Human Rights Commission site https://www.humanrights.gov.au/freedom-believe-and-freedom-manifest-belief states, regarding: “to manifest his religion or belief in worship, observance, practice and teaching” - 18(1) “the latter category [practice] appears to be the broadest.
Article 18 does not provide any further guidance about the level of connection required between an act and a belief for it to constitute a manifestation through ‘practice’.” (Highlighting mine.)
However, the European Court of Human Rights (ECHR) makes clear what the level of connection between a belief and an act needs to be for the action to constitute a manifestation through ‘practice’ http://hudoc.echr.coe.int/eng#{"itemid":["001-96383"]}: “When the actions of individuals do not actually express the belief concerned, they cannot be considered to be as such protected [by Article 18(1)]” This makes clear (and is an obvious meaning) that ‘practice’ is an action that expresses the belief, and is therefore protected by Article 18(1).)
Taking the example given, the action of the cake shop owner to not support SSM by not baking a cake to celebrate it, does directly express his belief (or conscience) against accepting SSM, therefore his action should be protected by Article 18(1).

The ECHR further states in the same article http://hudoc.echr.coe.int/eng#{"itemid":["001-96383"]}: “….the Court [can make] factual findings as to whether an applicant's religious claims are genuine and sincerely held.” (Highlighting mine.)
Clause 3 of Article 18 I believe the spirit of clause 3 is to protect the freedom to manifest one’s religion or beliefs, except where that manifestation is extreme to the extent that it needs to be limited by the law in order to protect public safety, public order, public health, or public morals, or the fundamental rights and freedoms of others.
The example of the cake shop passes the test of not threatening the abovementioned public wellbeing, but what about “the fundamental rights and freedoms of others”?
One may say that the declining of the cake shop owner to bake a cake impinges on the fundamental right or freedom of 2 Inquiry into the status of the human right to freedom of religion or beliefSubmission 70 the people requesting, but to have a cake baked is not a fundamental right or freedom, and does not match the gravity of threats to public safety etc., and therefore does not fit with the meaning or spirit of clause 3.

2.
2.

Religious Conviction is not always understood An example of a judgement by the European Court of Human Rights (ECHR) illustrates that religious conviction is not always understood by courts.

The example case is Pichon and Sajous v France, App.

No.

49853/99, Decision of 2 October 2001, p 5., and is referenced on the website of the Australian Human Rights Commission.

The case was of Christian pharmacy owners that refused to sell contraceptives because it was against their religious belief to do so.
The case notes of the ECHR state https://www.strasbourgconsortium.org/common/document.view.php?DocumentID=4942 “[The Court] considers that, as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants [the pharmacy owners] cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.” (Highlighting mine.)
It appears, here, that the ECHR did not understand that living out the Christian faith is not about ‘cherry-picking’ beliefs that one chooses to uphold, but upholding with integrity all Christian beliefs all of the time to the best of one’s ability.

The court decision in this case appears to me to be a violation of freedom of religion.

There have probably been many miscarriages of justice in freedom of religion cases, as not all judges necessarily ‘get’ religion.

3.
3.

Anti-discrimination legislation allows for violation of freedom of religion or belief On a number of occasions in recent years, in some countries where there is anti-discrimination law and SSM is allowed, the enjoyment of freedom of religion or belief has suffered because the anti- discrimination law has been given precedence over freedom of religion or belief law.
Five cases of this, given in this link http://family.org.au/other/20170124-Eml-Pt1Extra.pdf are all on a par with the fictitious cake shop example given earlier.

The giving of precedence to anti-discrimination law in these cases meant that the freedoms of religion or belief of these people were thereby violated.

I believe these judgements were miscarriages of justice.
In some anti-discrimination legislation there are exemptions made for religious organisations: I believe that exemptions should also be extended to individuals who need to discriminate against a person in order to not go against their conscience or their religion or their genuine and sincerely held belief.

To not allow for these individuals is unfair and wrong.
Just as a medical doctor in Australia is allowed to decline to perform a legal abortion if doing so would be against his or her own conscience, so should other individuals be allowed to follow their conscience in other matters: the principle of a person’s conscience always remains the same regardless of the subject matter.

3 Inquiry into the status of the human right to freedom of religion or beliefSubmission 70 4.

Repeal of anti-discrimination legislation?


Perhaps it would be instructive to muse on how Australian society got by previous to anti- discrimination law being introduced.

As it was not introduced into Queensland until just 26 years ago (1991), Queensland society must have been finding a way to get by.

Anti-discrimination legislation is open to being abused i.e.

used as a weapon rather than a shield.


With the anti-Christian sentiment that is currently sweeping the world, there will no doubt be a concurrent rise in violations of belief or religious freedom, made possible by anti-discrimination law.
Perhaps it would be more workable for anti-discrimination law to be repealed, and instead, for citizens to be required to exercise common sense, good manners, and respect towards other citizens, whether they agree with their (SSM, religious, or otherwise) lifestyle or not.

A myriad of legal rules is not the answer: it encourages citizens to litigate, rather than taking mutual responsibility for respecting others’ honest sensibilities.
4 Inquiry into the status of the human right to freedom of religion or beliefSubmission 70