The tyranny of the majority

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of Dr Pansy Lai for her participation in a "No" campaign advertisement; there were 6000 signatures before it was withdrawn!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? Will the course on "How to be a gay communist" be an elective?

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.