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16/11/2017 10:41 AM AEDT | Updated 16/11/2017 10:41 AM AEDT

Paterson’s Quest To Water Down Marriage Equality Is Not Dead Yet

Here are five reasons his proposals should be resisted.

Liberal senators James Paterson and Dean Smith.
Andrew Meares
Liberal senators James Paterson and Dean Smith.

Yesterday, Australia decisively voted to provide legal equality to same-sex couples who wish to marry. However, significant opposition to same-sex marriage remains within the parliament. Having lost, the 'no' campaign has shifted its political agenda from stopping all change to Australia's marriage laws, to limiting its scope.

The scramble to limit the impact of the 'yes' outcome started earlier this week, when conservative Liberal Senator James Paterson published a draft bill that he said would protect freedom of conscience, religion and belief in "traditional marriage". While his bill was rushed and confusing, it basically created protections and exceptions for those who want to discriminate against same-sex marriage on the basis of their beliefs.

Soon after the survey result, Paterson seemed to step back from his bill, admitting that a majority of parliamentarians preferred Senator Dean Smith's marriage equality bill -- a bill which Paterson had previously criticised as "not going far enough".

However, this is unlikely to be the last we see of Paterson's bill or the ideas behind it. In fact, Paterson and his supporters have only accepted that the Smith bill is "where we should start". In a statement on his Senatorial Facebook page Paterson reasserted that he would push for the "strongest possible protections for the freedoms" in any amendments to marriage laws.

This was echoed by strong 'no' campaigners like Tony Abbott. Given the political state of play, it is unlikely Paterson ever thought his bill would win over a majority of parliamentarians. Instead his intention, as he explained to Alan Jones in anticipation of the 'yes' vote, was that "those protections in my bill find their way into the law".

With pressure to legislate before Christmas, the approach of Paterson and his supporters is likely to be to use his draft as a source of amendments that can be inserted into Smith's bill. The campaign to achieve genuine marriage equality is not over, and Paterson's draft provisions and ideas are likely to persist.

Here are five reasons why Paterson and his supporter's distortion of religious freedom should be resisted.

Freedom of religion is not a freedom to discriminate.

Paterson's proposal would allow people to put signs on their websites or shops to say they don't serve 'gays' or 'people celebrating same-sex marriages'. It would allow a baker to refuse to sell a cake to someone just because they are participating in a ceremony that all of us will be equally entitled to.

The whole notion evokes memories of historic racial segregation and discrimination. We no longer accept such segregation as legally or ethically permissible. Human rights law focuses on the impact of such actions rather than the excuses for them. Here the impact is to discriminate, pure and simple. This is not about religious freedom, it is about discriminating against others in the delivery of goods and services.

Freedom of belief is not unlimited.

Paterson's proposals make a false claim that freedom of religion permits you to do whatever you 'strongly' believe in. Human rights law does not allow this, and never has.

Individual rights are not unlimited, they must be balanced and measured against the duty to respect the rights and dignity of others. You can't injure or kill someone just because you're exercising your right to political expression. Nor can you improperly discriminate against someone based on their sexual orientation.

For instance, the courts have rejected the notion that a commercial campsite could refuse accommodation simply because the potential clients were gay and the owner's belief was that they were not equal to other campers.

The late (and conservative) United States Supreme Court Justice Scalia was clear about this: If people are permitted to claim exemptions from the general law on the basis of their beliefs, everyone becomes a law onto themselves.

You can't believe your way out of taxes.

Religious conservatives, like Paterson, seek to guarantee that religious groups who discriminate against same-sex couples won't lose their tax-free status or public funding. This is another attempt to place freedom of religion above other rights and duties. Such assertions are legally flawed.

For example, it is clear that pacifists can't refuse to pay tax just because part of it will be used for national defence. Nor can homeowners refuse to pay rates because they believe that the 'land belongs to the heavenly father'. Nor can you refuse to lodge your tax form electronically because you believe the internet is evil.

Individuals cannot opt-out of the content of state education.

Paterson and his supporter want an exception for education too, proposing that parents should have the 'right' to withdraw their children from classes which contain any material they believe is 'objectionable'. Again, this is based on a false claim to parental rights.

In other jurisdictions, it has been rejected as being unworkable -- if every parent could stipulate what was taught at school the whole system would collapse. It has also been found to be discriminatory. Children have a right to learn important lessons about diversity, respect and human rights.

This is an exercise in political correctness.

In 2013, the High Court made it very clear that there is no fixed constitutional definition of marriage because its elements have changed so much over time -- that it's 'for life', how many people can be married, who can marry at what age and so on. The Court confirmed that these changes are driven by social and political views, and the law has always changed to respond to those. Our contemporary acceptance of same-sex marriage is just another political change.

In fact, vocal 'no' campaigners such as Tony Abbott confirmed the political nature of marriage when he argued that 'sport and politics shouldn't mix' after the ARL publicly supported marriage equality. Ironically, he then argued that a 'no' vote was "the best way of stopping political correctness in its tracks".

The postal survey has shown that Abbott's, Paterson's and other opponent's views are now in the minority. Those views are political in nature. Trying to create laws to insulate them is an attempt to legally enforce a minority view of what is 'politically correct' on the rest of us.

That is what should be stopped in its tracks.

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