The Ethics Of… Religious Freedom

Two days ago Australia made history in the lamest possible way; the results of a non-binding, non-compulsory postal vote on gay marriage were announced and it turns out they pretty much exactly match the unofficial polling done before this entire expensive mess began.

So hooray for us – we sent a fairly clear message to our politicians that they should make gay marriage legal, which they now have the option to bring into law. But if anyone thought this was the end of this sorry excuse for a ‘debate’ then they were sadly mistaken, because it turns out the ‘No’ campaign had a fall-back point prepared in the event of a loss like this; religious freedom.

What does freedom of religion have to do with gay marriage? Well the argument goes that no religious person should be forced by the government to participate in anything that contradicts their beliefs – or as one of our State MP’s recently put it;

“Florists and bakers should be able to choose whether they provide goods for same-sex weddings”

The same argument has been more popularly extended to protecting churches and priests from being compelled to conduct weddings ceremonies for same-sex couples if their religion prohibits it, a clause which has actually been implemented in Ireland after gay marriage was legalised there.

Now on the face of it that might seem reasonable – the government compelling people to do anything is a pretty fraught idea that needs some serious scrutiny, much less them having them power to force people to violate their most closely held beliefs.

This is reflected in Australian anti-discrimination law which protects people from being discriminated against on the basis race, colour, sex, political opinion, national extraction, age, and indeed, religion and sexual orientation among many, many others. The underlying idea of course is that people should be judged based on their conduct rather than arbitrary qualities they may hold, despite or even perhaps particularly when those qualities defy what the rest of us find acceptable.

So this leaves us in a slightly awkward position, doesn’t it? If both the religious and the same-sex attracted are protected from discrimination based on their status, then how do your resolve a situation where a gay couple asks a religious baker to cater their wedding? If both groups are equally defended against discrimination then we have a paradox on our hands, right? How do you protect one group’s essential freedoms when it requires violating those of another group?

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Well the obvious solution is to have a look at the arguments put forward by both sides and, y’know, see who’s actually right. But I’ve already done that twice before, and besides, it’s kinda missing the point on this one. Because the argument for religious freedom isn’t about the validity of those religious beliefs, but rather about the freedom of a given community to uphold their beliefs without the government legally prosecuting them for doing so. And that is a far more compelling argument than whether some ancient dudes though bum sex was weird or not.

So the ethical question then is ‘can the government be justified in compelling people to do things they really, really don’t want to do?’.

Well, yes, obviously. That’s a rough definition of a society as a whole right there, regardless of what the Libertarians would like to believe. But for this debate the question is a bit more nuanced – how can we justify violating the human rights of one group to uphold the human rights of another? Hypocrisy much? Suppressing a minority much? Sure the ‘Yes’ vote won the postal vote, but isn’t it a key tenant of us progressives that simply being the majority doesn’t give you the right to oppress minority groups? Imagine the outrage if the situation was reversed and the majority has supported sending gays for religious re-education, Republican style?

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Didn’t work, guys.

If you’ve read this blog even once before you know what’s coming now so I’ll just get to it; this is what happens when you try to make ethical decisions using rules or principles as your guide. They’re inevitably too simplistic, quickly outdated and generally unexamined, and so we end up in situation where they aren’t helpful, are hopelessly backwards, or worst of all, where two very important rules actually contradict each other – which is precisely what is happening here between the principles of religious freedom and same-sex equality. Both are protected from discrimination, but because the two are incompatible with each other (worth noting many disagree with that), attempting to uphold both as legitimate leads to a paradox we cannot overcome;

  • If you protect religion you enable discrimination against homosexuals (and quite a few other things for that matter – looking at you, literally the entirety of capitalism)
  • But if you protect same-sex equality then you limit the religious from fully following their beliefs.
  • And if you do nothing, then you default to the traditional position and choose religion over same-sex equality.

And so, using such principle-based/deontological approaches, literally every choice you can make in this game leads to injustice and failure.

And so, as usual, as always, we find ourselves looking at consequences to try to undo this nasty mess. Screw your rules and screw your principles. Forget fairness, forget law and make like everyone already does and forget human rights – these rules will not serve us here. The question we have before us now is simple; which course of action will lead to the best outcome with the minimal suffering possible?

Come at the question of religious freedom from this angle and suddenly everything changes – so much so in fact that you really have to wonder whether the religious groups thought this through at all. Because in trying to defend their religious freedom in light of the now-inevitable legalisation of same-sex marriage, religious groups may be creating the biggest single threat to their own existence – the legal right to discriminate against groups you disagree with.

Imagine if they got their way and amendments were made to the impending marriage bill that allowed groups to refuse service to gay couples based on religious beliefs. Sounds not all that big a deal in practice since there’s no shortage of wedding services out there, and why would a gay couple want to be married in a church that considers them an abomination anyway?

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Well it would be pretty damn funny, for one thing.

But consider the precedent set here; we just set a legal precedent that it is ok to discriminate against a group because you disagree with their sexuality, or at least its recognition in marriage. One group was allowed to discriminate against another purely because they did not like the other group, with absolutely no demand for logic, evidence or proof that they were justified in doing so. The one and only qualification for discrimination being justified was the incredibly subjective question of whether you disagree with the group and its practices.

Are you seeing where this is going yet? No? Well here are a few variations on that statement I started this article off with that might make it clearer;

“Florists and bakers should be able to choose whether they provide goods for same-sex weddings”

“Florists and bakers should be able to choose whether they provide goods for interracial weddings”

“Florists and bakers should be able to choose whether they provide goods for disabled weddings”

And of course, my personal favourite;

“Florists and bakers should be able to choose whether they provide goods for Christian weddings”

Are we starting to see the problem yet?

Open up the right for one group to discriminate against another purely based on their beliefs, and you open the floodgates for every powerful group to rain hellfire down on any group that can’t defend themselves, and that includes Christians.

As of the last census in Australia 52.1% of Australians declared themselves some variety of Christian, with 30.1% declaring No Religion. Might not sound like that big a deal until you put those figures on a timeline;

Add to that the number of non-practicing Christians out there who just put it on the form as a sort of tradition, the historical enthusiasm of different brands of Christians for in-fighting, the recent pillorying of the Catholic Church for its endless paedophilia scandal, and indeed the massive brand damage the Christian faith did to itself with young people during this gay marriage debate, and this trend shows no sign of reversing any time soon.

All of which leads us to a situation where the religious groups currently demanding the right to discriminate against others to uphold their beliefs, may be sowing the seeds for their own annihilation in an increasingly secular world.

Now you might argue that this is just a Slippery Slope fallacy I’m making here, and that just because the religious groups discriminate against same-sex couples doesn’t mean it would ever be extended to other groups. And you’d be right – there’s no guarantee it would ever extend beyond this specific issue. But why not? In practice such legalised discrimination sends a very clear message; make enough noise and you too can get the right to discriminate against groups you don’t like! Look how well it worked for the anti-gay-marriage groups! Good thing there isn’t an international resurgence of literal Nazis right now that might take see an opportunity in that, right?

But even ignoring such practical risks, consider the principle of this argument; by saying that there’s no risk of discrimination spreading to other groups and issues, you acknowledge that it would be a bad thing if it did so. Racism, sexism, religious persecution, homophobia, ableism and other forms of discrimination have pretty solidly proven track records for shit results, so you’d be right in that assessment. But doesn’t that beg the question why religious discrimination against same-sex weddings is the exception to this? How come all other forms of discrimination are wrong but your specific case is totally fine? Sounds like a Special Pleading fallacy to me.

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Not like Churches have ever been guilty of that before.

So the case for religious freedom looks set to create an absolute disaster for gay couples, minority groups and even the religious groups themselves, but what about the benefits? Well there’s not a lot of debate that the Bible and most other religious traditions aren’t very enthusiastic about homosexuality (though it’s hardly the slam dunk many seem to think it is), doesn’t it seem a bit odd that Christians in particular feel like catering a gay marriage would anger their God? I mean isn’t this the guy who literally advised turning the other cheek when struck by an enemy? Who advocated loving your neighbour with no regard for who they are or what they do? Who literally advocated paying taxes to a pagan empire which subsequently killed him, and who he subsequently forgave?

Yeah, there’s a god who’s going to get pissed about you serving cake to a gay couple.

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So what’s the alternative? Pretty simple, just keep things exactly how they are. Seriously, while the gay marriage debate in Australia is a powerfully symbolic one, with a few pretty terrible exceptions, it has very little practical consequence. Homosexuality was already both legal and fully recognised as legitimate, gay couples have been recognised as legitimate de facto relationships for years, and have even had the option of ‘civil partnerships’ for ages as some sort of daft compromise by a government who couldn’t commit. Of course none of that changes the fact that gay couple weren’t being recognised as equals before the law, but what it does mean is that all the legal infrastructure is already in place for this – and religious groups would suffer exactly as much persecution with gay marriage legal as they do right now.

Which is to say, sweet fuck all.

So to sum it all up, what we have here is a situation where religious groups are seeing same-sex marriage as a threat to their beliefs, and are acting to make it legal for them to discriminate against gay couples, despite the fact that legal gay marriage would be functionally identical to current practices, and that their proposed ‘freedoms’ would likely lead to legal persecution of millions of powerless groups, including themselves.What else is left to be said?


10 thoughts on “The Ethics Of… Religious Freedom

  1. I think a distinction needs to be made between the product or service one provides and to whom one is supplying the product or service.

    For example an owner of a supermarket should not have the right to refuse to sell a product to someone of a particular religious persuasion, sexual orientation, or skin colour. But that owner should be able to choose whether or not to sell condoms if he/she has objections to birth control, just as he/she should be able to choose whether or not to sell products high in sugar or salt if they believe such products are harmful.

    I run a small web hosting business and I choose what types of websites to host. I as the business owner have that right. On the other hand I do not have the right to refuse hosting services to someone based on their religion, marital status, sexual orientation or ethnicity. So while I might choose not to host a site promoting a brothel, or a site critical of atheism, or promoting a lifestyle I am uncomfortable with, I don’t believe I have the right to refuse to provide hosting services to someone who is a prostitute, a Christian fundamentalist or the president of the local swingers society.

    If I made wedding cakes with bride and groom figures on top, I shouldn’t be required to also make cakes with two brides or two grooms on top. But I don’t have a right to refuse to sell one of my cakes with bride and groom on top to someone from the LGBTQ community.

    In Aotearoa New Zealand, a marriage celebrant (or church) has the right to decline to perform any marriage ceremony if they so choose. No reason need be given. I don’t think this right should be removed. On the other hand, a registrar does not have the right to refuse to register a marriage if it complies with the law.

    As far as rights go, there is now no difference between registered marriages and de facto (common law) marriages. Perhaps it’s time for the state to remove itself from licensing/registering marriages altogether.

    • Right, so making that distinction between people who have interest/rights that need to be respected regardless of the person’s choices, and ideas/practices which are fair game? It’s a good distinction, agreed. So in this context, you can choose whether or not you stock cakes for same-sex weddings but cannot refuse service to someone because they’re in said relationship? Hmm, that gets a bit blurry though – wouldn’t that allow you to refuse to cater for their idea, and thus infringe on their interests?

      • I’m not sure what you mean by “cater for their ideas”. In a free society, I have the right to express my beliefs and ideas, but I most certainly do not have the right to require someone else to listen or to relay those ideas on my behalf.

      • Sorry wrote that in a hurry yesterday. I like the distinction between ideas and people but it gets blurry in practice. Say we have a racist baker – he’s legally and ethically prohibited from discriminating on the basis of race, so can’t kick black people out of his shop for being black (unless he falsifies his reasons, but whatever). However using your distinction, he cannot be required to proactively cater for black people or provide catering services to a black event for example – but isn’t that just the same discrimination at play? Same problem, different format.

        I suppose the angle I’m taking here is that it doesn’t matter whether it’s proactive or reactive, if your beliefs is demonstrably wrong then you have no right to it. Granted, actually putting that into practice is a hellish mess that strays into authoritarianism really fast, so I’m fine with the proactive/reactive distinction from a legal perspective, but certainly not from an ethical one.

      • I’m not sure what you mean by a black event. But let’s take an example of a black couple getting married. I can see no reason why an events organiser could be exempted from providing a service on the grounds that all or most of those attending are black. However if those were black supremacists and they were going to use the function to also promote their ideals, I think an events organiser should have the right to decline to provide service.

        I acknowledge that our jurisdictions are different, but here in Aotearoa New Zealand, no person or business (apart from government agencies) has a legal obligation to provide a product or service to any other person or business. However it is illegal to discriminate on the grounds of sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, or sexual orientation. So while I couldn’t refuse to provide a product or service to a white supremacist simply because of his beliefs, I could decline to provide a product or service if it was going to be used to promote white supremacist views.

        A simple example might be if I was a stationer, I have right not to sell cardboard and marker pens to someone if I was reasonably sure they would be used to create placards for an anti LGBTQ rally, but I couldn’t refuse to sell those product to someone simply because they were anti-gay.

      • So the distinction is active versus passive? Ie. Being gay, discrimination unacceptable; promoting homosexuality, discrimination acceptable? Wouldn’t a gay wedding technically fall under the latter? At least from the anti-gay marriage baker’s perspective

      • Not necessarily. It would depend on how the cake was to be used.

        My issue is with the ethics of compelling someone do do something they have a moral objection to. Requiring they do something they find objectionable cuts both ways.

        How about someone requesting a baker decorate a cake with a quotation from the bible purportedly supporting male domination? Or a statement denying the Holocaust? Or highly critical of atheists? Or supporting “religious freedom”?

        And how about the anti-gay baker in the Bible belt refusing to supply a cake on the grounds that by “pandering to the gays” he’ll suffer financial hardship when his business is boycotted buy the majority of the community?

        Something to consider. In NZ it’s probably illegal to refuse service to someone wearing a hijab, or burka, it’s not illegal to refuse service to someone wearing lycra shorts.

      • Good points. I think my angle comes down the validity of the moral objection, in that I’m fine with discrimination against ideas (and thereby the people facilitating those ideas) provided the belief can be demonstrated unethical. Marriage equality is valid so no discrimination, holocaust denial isn’t so discrimination fine. I agree however that the legal standard needs to be way less prescriptive that than given the potential for abuse. Also keenly aware that all my opinions on ethical/unethical are very much open to question.

      • Of course then it comes down to how one decides if a moral objection is valid or not. I’m not sure that that can ever be completely objective.

        And I guess jurisdictions vary considerably on how they decide if something is ethical or not. Legislation, litigation, arbitration, public opinion, to name some.

  2. Pingback: The Ethics Of… Barnaby Joyce | The Ethics Of

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