A “respectful, constructive” discussion concerning religious freedom and how it looks should same-sex marriage be legalised needs to take place before any such change occurs to ensure the issue is properly taken into account, according to Australia's Human Rights Commissioner Tim Wilson.

In an interview with Sight, Mr Wilson says that one of the challenges of the debate over same-sex marriage to date has been with engaging those who are opposed outright to changing the definition of marriage on what religious freedom should look like if the change takes place.

A CHURCH WEDDING: Human Rights Commissioner Tim Wilson is proposing the definition of marriage in the Marriage Act be split into 'civil marriage' and 'religious marriage' to ensure religious freedom  is respected under any change to the act. PICTURE: www.freeimages.com

“There is a real opportunity in this period before the law is changed…to actually have a respectful engagement about what it is that some people who are opposed to the change in the law want and why they want it…Because I don’t think we should be replacing the trampling of one group of people’s rights with the trampling of another group’s rights.”

- Australia's Human Rights Commissioner Tim Wilson

“If your starting point is you won’t support a change to the law, it’s very difficult to then say this is how we want to preserve and protect religious freedom,” he says.

“And what I think the experience in the United States recently has shown is when you aren’t active participants in discussing how to preserve religious freedom, the law will be changed and it will not be overly accommodating."

He says he's attempting to start a "respectful, constructive discussion now about these issues". "(S)o that we don’t have a replication of the experience in the United States where people find themselves in the situation where…people are hauled before tribunals or face fines because they think they’re exercising their religious freedom.”

Mr Wilson says that, given his belief that at some stage there will be a change to the definition of marriage in the Marriage Act, the question then becomes “how much effort can we put in to protecting and preserving religious freedom in that discussion?”

“There is a real opportunity in this period before the law is changed...to actually have a respectful engagement about what it is that some people who are opposed to the change in the law want and why they want it…Because I don’t think we should be replacing the trampling of one group of people’s rights with the trampling of another group’s rights.”

Mr Wilson's comments come after Federal Opposition Leader Bill Shorten introduced a private members' bill which would legalise same-sex marriage in Australia into the House of Representatives on 1st June. A cross-party bill also aimed at legalising same-sex marriage is expected to be introduced after Federal Parliament resumes on 10th August.

Mr Wilson says that while marriage itself is not a human right but a civil right, it is affected by the human right of equality before the law which says “everybody must have an equal right to civil rights”.

“(S)o long as the government recognises marriage through a civil marriage system, which it does at the moment, the human right of equality before the law necessitates that same-sex couples are able to access it.”

Mr WIlson, who is preparing to host a roundtable on religious freedom later this year, says the issue of what religious freedom looks like after the legalisation of same-sex marriage is one which has been repeatedly raised with him during his discussions with religious communities.

He has put forward a proposal which he believes would satisfy the requirements of equality before the law and uphold religious freedom. It would split the definition of marriage in the Marriage Act into ‘civil marriage’ – under which all people are seen as equal before the law - and ‘religious marriage’, which would respect the beliefs of religious group and how, within parameters, they define marriage. "So they can have their religious ceremony and it not be interfered with."

Mr Wilson says another option could be the approach foreshadowed by the Presbyterian Church in New South Wales which has asked its national branch to take the necessary steps to withdraw from the Marriage Act if same-sex marriage is legalised.

“That’s one way of doing it. I’ve proposed an alternative but I’m sort of relaxed either way, I just want to make sure that...when there is change to the law, it properly respects religious freedom and find a way to accommodate that.”

When it comes to incidences such as those seen overseas in recent months where cake shop owners, florists and wedding photographers have been taken before the courts after refusing to provide services to a same-sex couple and claiming that to do so conflicts with their religious beliefs, Mr Wilson says that while it’s a “highly contentious area”, there are options.

“In the end it comes down to how do you make the market work? Because the fact of the matter is that if you are a same-sex couple and XYZ bakery or florist doesn’t support your marriage, would you like to buy a service from them and, of course, the answer is, ‘Of course not’. Would you rather buy from somebody who does support you – of course, you would. So how do you provide market signals to enable that to work?" 

Mr Wilson says that the issue is a “lot about messaging”. “Discrimination will have a part of it but the fundamental of it is actually about making sure everybody knows where they stand."

“What we can’t have is a situation where secularism is forced on society through a back door. We live in a pluralist society - that means we accommodate diversity and difference and we have to manage the tensions that come with diversity and difference.”

www.humanrights.gov.au