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  • Peter Francis Fenwick

The Tyranny of the Majority

John Stuart Mill

The high turnout and overwhelmingly positive result of Australia’s voluntary postal plebiscite on same sex marriage enabled our parliament to enact marriage equality laws with public approval. The people had spoken, and the support was clearer than if politicians had made the decision alone. The parliament erupted with joy when the legislation passed.

However, there were concerns about the impact of the SSM bill on religious freedom. These persist. Attempts to modify the SSM bill to protect freedom of speech and religious beliefs got little support and amendments to the bill were voted down. Once the emotional euphoria has settled, these issues should be revisited.

We live in one of the freest and most prosperous societies in the history of mankind. This has not happened by chance. It is due to the institutions we inherited from Britain:

  • the rule of law;

  • the principle of private property,

  • a free enterprise economy, and

  • a culture that accepts a wide range of human rights –

  • to free speech,

  • to our political and religious beliefs,

  • to choose our friends and associates, and where we may meet with them;

  • to choose whom we may marry, and how many children we may have;

  • to choose our occupation;

  • to choose where we may live;

  • to choose what we may eat or drink or wear;

  • to choose our entertainments;

  • to equal protection under the law;

  • not to be detained unlawfully;

  • to be able to form voluntary associations - clubs, societies and businesses;

  • to be able to enter into legally enforceable contracts;

  • to retain the rewards from our work and to dispose of them as we see fit;

  • and so on

Our freedoms and prosperity are also enhanced by living in a democratic society where men and women are equal before the law and have an equal opportunity to contribute.

These are what distinguish us from the totalitarian regimes which deliver poverty, destroy trust among their citizens, and terrorize, censor and imprison or kill those who disagree with the party line.

Our human rights are so ingrained that we take them for granted. Moreover, we scoff at those who seek to protect them, often accusing them of ulterior motives.

Formerly, many societies shared common cultural and religious beliefs. Nowadays most societies are pluralist. The political culture of such democratic societies is marked by a diversity of opposing and irreconcilable religious, philosophical and moral disciplines. It is important to realise and accept that such views can be reasonably held. Consequently, there is a need to embrace often conflicting values. We need to tolerate others' views even if we do not agree with them.

The virtues of tolerance, respect, civility and decency are essential to the workings of a good society. We need to avoid inflicting our views on others. If we wish to change others’ views it should be done by persuasion, not coercion.

We will wish to encourage everyone’s right to their religious and political beliefs; their right to express their views publicly and perhaps to persuade others; their right to associate with whomever they choose without the threat of physical or verbal violence; their right to hold meetings to discuss and debate issues they feel passionately about; their right not to be coerced into joining a group or expressing a view under the threat of a boycott of their business, or being banned from their profession.

In recent years, our governments have enacted laws seeking to protect people from discrimination on the grounds of their identity – their gender, their race, their religion, their sexual preference etc. These laws protect the victim from being offended – an unfortunately subjective concept.

Whilst well-intentioned, such laws are fraught, often producing unintended and undesirable consequences - for example, the cases against the QUT students and Bill Leak.

Enforcing moral conduct is a contradiction in terms. Anti-discrimination objectives are better achieved through changes to cultural norms than the use of the law. In fact, the use of the law may be counter-productive, attracting a resistance to change. Significantly the recent plebiscite on same sex marriage highlighted wide-spread positive changes in community attitudes to homosexuality that have happened over recent decades. These preceded the same sex marriage laws.

On most issues, the law and competing entrenched beliefs can co-exist. We can have laws which make abortion or euthanasia legal, yet still permit citizens to argue that our society should not kill the unborn child or the terminally ill. The difference with same sex marriage is that those who might wish to argue for the traditional view that marriage should be between a man and a woman may be seen as saying something that is offensive to homosexuals.

This is the nub of the problem. The anti-discrimination laws have created the potential for someone exposed to opposing views to feel victimised, to feel offended.

Without wishing to offend homosexuals, we must also respect the rights of those who hold a traditional view of marriage. Those who continue to argue for traditional marriage may have no desire for hate speech. They may not seek to offend. They may simply seek rational, tolerant, respectful debate between decent people. This should not be outlawed.

The Catholic Archbishop in Tasmania was charged under anti-discrimination laws for sending a pamphlet on the church’s view on traditional marriage to his parishioners. A Get-Up sponsored petition called for the medical deregistration of Dr Pansy Lai for her participation in a “No” campaign advertisement; there were 6000 signatures before it was withdrawn! Coopers Brewery was boycotted for sponsoring a debate on same sex marriage between Tim Wilson (“Yes”) and Andrew Hastie (“No”). Cake makers have been sued for declining to bake a cake promoting something offensive to their beliefs.

For an excellent article on this topic, see Thomas Eckert's analysis of the case currently before the US Supreme Court concerning Masterpiece Cakeshop Limited.

The potential for our anti-discrimination laws to restrict people's ability to work is a serious concern. There is a danger under current laws that citizens expressing their belief in traditional marriage may be denied their livelihood. It would be intolerable to deny anyone the right to practice medicine, or law, or teaching, or cake decorating because of their religious beliefs.

Consider the case of the school teacher who believes in traditional marriage and wishes to explain it to her class. May she be refused registration because of her views? Or what about schools run by religious organisations. Should they be allowed to deny employment to teachers who do not adhere to the school’s belief systems? Should schools which allow the teaching of traditional marriage be refused government funding? There are many things to ponder here.

There is also the contentious “Safe Schools Program”. Ostensibly this is an anti-bullying campaign. However, many parents believe it has been designed with ulterior motives to indoctrinate children with an ideology that conflicts with their beliefs. Will parents be permitted to withdraw their children from such classes?

Clearly these are difficult issues. There is much work to be done. It needs to be approached in good faith. We will want to talk with those who voted “no” and try to persuade them to the majority opinion. At least we will want to reassure them that there are no adverse effects flowing from the new law. And if there are, we will want to act to redress them. This probably means that we will have to re-examine our anti-discrimination laws and adjust them appropriately.

John Stuart Mill warned us of the tyranny of the majority. The battle to revise our anti-discrimination laws (both federal and state), and to abolish 18C and the counter-productive Australian Human Rights Commission should be reactivated in 2018.

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