Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

Liberal Democrat Senator David Leyonhjelm introduced his Freedom to Marry Bill 2014 on Wednesday 26 November. As the name implies, if passed it would provide lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians the freedom to marry their partner, something denied to them currently.

The fact it is being proposed by the Liberal Democrats, and not the Labor Opposition or the Greens, is seen as giving it a greater chance of securing the support of enough Liberal MPs to force Prime Minister Tony Abbott to grant a conscience vote within the Liberal Party, and therefore of having at least some chance of becoming law in 2015.

Which means we should automatically be putting our collective energies behind this Bill, in an effort to ensure its passage through parliament as quickly as possible, shouldn’t we? Well, no actually. Because, while the Leyonhjelm Bill gives marriage equality with one hand, it takes away from LGBTI non-discrimination with the other.

Alongside provisions which would grant all Australian couples the ability to get married, irrespective of sexual orientation, gender identity and intersex status, the Freedom to Marry Bill 2014 would also grant all non-government employed marriage celebrants, including civil celebrants, the ‘right’ to refuse to perform the marriages of LGBTI-inclusive couples.

Currently, section 47 of the Marriage Act 1961 restricts the right to refuse to officiate a marriage to ministers of religion, which is both increasingly irrelevant (given only 27.4% of marriages in 2014 were performed by religious celebrants) and at the very least philosophically consistent with existing exceptions to anti-discrimination laws which are granted to religious organisations.

Instead, the Freedom to Marry Bill 2014 would provide civil celebrants, who now perform 72.5% of weddings (up from 42.1% just twenty years ago), the ability to refuse to officiate marriages for LGBTI-inclusive couples. It would do so without even requiring them to be religious themselves, or to provide an explanation for their refusal – their ‘claims of conscience’ in this regard apparently trump any expectation they should perform their roles in a non-discriminatory manner.

Technically, the Bill grants religious and civil celebrants the right to reject heterosexual couples, too – and this is something that was stressed by Senator Leyonhjelm in spruiking the law to the Sydney Morning Herald in September (“[i]t’s a minor tweak but we envisage that there will be people who wish to specialise as same sex celebrants and they may not want to do conventional weddings. It will work both ways.”).

But, make no mistake, these provisions are squarely aimed at granting civil celebrants the right to refuse service to LGBTI-inclusive couples. That much is made clear by the Explanatory Memorandum to the Bill, which states that “[s]econd, it imposes no claims or burdens of conscience on those persons who object to marriages other than between a man and a woman for both religious and non-religious reasons”. There is no equivalent statement of principle setting out the ‘right’ of celebrants to refuse to perform man/woman marriages.

This view – that the provisions are aimed at allowing all celebrants to refuse LGBTI-inclusive couples (and not heterosexual couples) – is reinforced by the fact the only other specific example of refusal cited is in clause 10 of the Bill (“[i]f a chaplain refuses to solemnise a marriage because the marriage is not the marriage of a man and a woman, the chaplain must, if possible, substitute another chaplain who is willing to solemnise the marriage.”

In short, the Freedom to Marry Bill 2014 goes to great lengths to ensure that civil celebrants can refuse to officiate the marriages of LGBTI Australians, and they can do so for any reason whatsoever.

The instinctive response of many people to these changes is to say “so what, who would want their marriage officiated by someone who doesn’t approve of that marriage anyway?” And of course, there is much validity in this sentiment – as someone who is engaged to be married myself (and has been for almost five years now), I would obviously not want my wedding to be presided over by someone who opposed the fundamental equality of my relationship.

But, if we are to leave our response at that, then we are guilty both of intellectual laziness, and of misunderstanding the role of anti-discrimination protections. Because anti-discrimination laws are designed to protect people from adverse treatment on the basis of particular attributes (in this case, sexual orientation, gender identity and intersex status) in a wide range of areas across society, not simply to reinforce the understandable tendency for people to ‘choose’ employers, or goods and service providers, that are already favourable to them.

To presuppose that people have the ability to ‘choose’ is also to assume everyone has the same level of power or privilege in society that you may have. In many cases this is clearly not true – just because a highly-qualified gay man in inner-Sydney may be able to reject employment by a homophobe, does not mean a less-qualified trans* person in a regional centre with high unemployment would have the same power to do so.

With respect to the Freedom to Marry Bill 2014 in particular, just because LGBTI-inclusive couples in major cities could easily find alternative celebrants, does not mean people in small country towns, or even larger non-metropolitan centres, would have the same ‘freedom’. It is entirely conceivable that, in a place with few celebrants, all may exercise their ‘claim of conscience’ to refuse service.

Indeed, the Explanatory Memorandum concedes the possibility of lack of access to marriage due to geography in discussing the aforementioned defence chaplains provision (“[t]he requirement of ‘possibility’ recognises that there may be circumstances where a willing chaplain cannot be arranged (e.g. if the people involved are in a remote location”).

Why then should the Marriage Act 1961 allow the few civil celebrants that do exist in remote areas to refuse to perform LGBTI-inclusive weddings, imposing on those couples significant extra expense simply because of their sexual orientation, gender identity or intersex status? (After all, wouldn’t that be the definition of adverse treatment?)

There is an even larger problem with these provisions of the Leyonhjelm Bill, however. That is because there is absolutely no ideological or conceptual reason why, if the law is to recognise the ‘claim of conscience’ of a civil celebrant to refuse to officiate an LGBTI-inclusive wedding ceremony, it should not also allow goods and service providers to refuse to host or supply that wedding, for hotels or bed-and-breakfasts to deny accommodation to the couple on their honeymoon, for restaurants to deny reservations to that couple celebrating their wedding anniversary, and even to employers to be able to deny recognition to that relationship in the workplace.

All of these people can have similar, and similarly passionate, views and beliefs opposing LGBTI-inclusive marriages – and, perhaps in a preview of where Australia might be heading, all are the subject of ‘claims of conscience’ by individuals and groups against marriage equality in the United States.

If a claim of conscience exists for a civil celebrant – allowing them to treat LGBTI people unfavourably on the basis of sexual orientation, gender identity and intersex status – then, logically, it should also exist for anyone else in society who has an ‘objection’ to LGBTI equality, whether based on religion or otherwise.

Thus, the civil celebrant provisions of the Freedom to Marry Bill 2014 can be seen for what they are – a dangerous new precedent establishing a fundamental ‘right to discriminate’ against LGBTI Australians, one that goes much further than existing laws granting anti-discrimination exceptions to religious organisations, because they would allow private citizens, without any connection to organised religion, the ability to exercise this ‘right’.

In some respects, these provisions are simply the natural extension of Senator Brandis’ claims earlier in 2014 (in a different context) that “people do have a right to be bigots.” It certainly appears as if Senator Leyonhjelm was listening – with his first private member’s bill, he is promoting the right of civil celebrants to be homophobes (and biphobes, transphobes and intersexphobes, too).

This fits perfectly within his overall political approach as well – when describing the Bill in the Sydney Morning Herald he said “[i]t’s libertarian philosophy: Individuals should be able to discriminate but governments should not.”

It is therefore easy to see this move as the first step in efforts to unwind our relatively comprehensive system of anti-discrimination laws, not just in relation to sexual orientation, gender identity and intersex status, but also race, sex, disability and age (among other attributes).

The threat is that he is not alone in holding such an extremist view of – or more accurately, against – the principle of anti-discrimination generally, and anti-discrimination laws specifically. He is bound to receive significant support from more radical elements within the Liberal and National Parties (such as Senator Bernardi, and even the aforementioned Attorney-General) in this approach.

It will also be cheered on by conservatives in the media (hello Andrew Bolt) and by right-wing think-tanks, such as the Institute of Public Affairs, who hold an inordinate amount of influence over the current Abbott Coalition Government.

In fact, the current Australian Human Rights Commissioner with responsibility for sexual orientation, gender identity and intersex issues, Tim Wilson, made exactly the same arguments as Senator Leyonhjelm when appearing on behalf of the IPA at the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Human Rights and Anti-Discrimination Exposure Draft Bill in early 2013 (notable quotes including:

  • “We certainly support very strongly discrimination law related to government and the way it operates towards government, but in a broad philosophical concept we [the IPA] are not a big fan of discrimination law being imposed across civil society in the private sector. The private sector should be able to make choices…” (emphasis added)
  • “What we have made crystal clear is we believe that anti-discrimination laws should operate on government. That is different from what operates within the private sector and within a free society…”
  • “Discrimination occurs within society. Sometimes it exists for the right reasons, because there are organisational goals that people, when they freely come together and associate, believe in. People should be allowed to reasonably exercise those and they do themselves a disservice because of something that is not relative to the objective of the organisation. I think that is a very fair and reasonable principle.”
  • “[Y]ou have a human right of freedom of association, you have right of speech; I am not sure I am convinced there is a human right against discrimination, as abhorrent as it is.”)

Viewed in this context, the decision by Senator Leyonhjelm to introduce the civil celebrant ‘claim of conscience’ provisions, as part of the Freedom to Marry Bill 2014, is a very clever move – in the ‘John Howard’ sense of the word. It undermines the principle of LGBTI anti-discrimination as part of a law which simultaneously recognises a separate LGBTI right – to have our relationships treated in the same way as cisgender, heterosexual couples.

The question then is, how should we, as members of the LGBTI community, respond to this Bill? I would argue that the initial response is relatively straightforward – to call on Senator Leyonhjelm to withdraw these aspects of the legislation, so that the forthcoming debate can be solely about the principle of marriage equality, and not also the potential roll-back of LGBTI anti-discrimination laws.

If, as expected, he refuses to amend the Bill, then I believe we should be lobbying the ALP, Greens, crossbench Senators and LGBTI-friendly sections of the Coalition to vote against these provisions in the Parliament. Hopefully, enough votes can be secured on the floor to ensure marriage equality succeeds without establishing a new ‘right to discriminate’ against LGBTI people in the process.

But the most important question comes if this effort is unsuccessful – what should we do if the Bill reaches the final vote, unamended, especially if this is seen as the best chance of securing marriage equality during this term of parliament?

Should we support passage of the Freedom to Marry Bill 2014 even though it actively undermines the principle of LGBTI anti-discrimination? Or should we call for the Bill to be rejected, so that another marriage equality Bill can take its place, in full knowledge it could be delayed until 2017 as a result?

I acknowledge that this is a very difficult question to answer, and that there will obviously be a range of different responses across our community. For my part, I would choose the latter option – because I sincerely believe that the Senator Leyonhjelm Bill is so flawed, in its current state, that it should not be supported.

I write this as someone who strongly believes in marriage equality (both personally, and for our community), but who does not see this one issue as trumping other LGBTI rights which we have either already achieved, or for which we must still campaign.

It took 38 years from the passage of the Racial Discrimination Act 1975 for lesbian, gay, bisexual, transgender and intersex Australians to receive equivalent anti-discrimination protections under Commonwealth law (with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013).

To me, it is unconscionable that the very next major Commonwealth law reform concerning LGBTI rights would actively undermine the principles at the heart of the Sex Discrimination Act reforms.

Indeed, one of the most positive features of those amendments was the ‘carve-out’ which meant that Commonwealth-funded aged care services operated by religious organisations cannot discriminate against LGBT people accessing their services (unlike religious organisations in other areas).

This was important not just to protect ageing LGBT individuals and couples who need this care, but also because it set an important precedent, demonstrating that the ‘right’ for religious organisations to discriminate on the basis of sexual orientation and gender identity is not inviolable, thereby paving the way for future reforms in this area.

A victory for Senator Leyonhjelm and the extreme libertarians on the civil celebrant provisions would set an equally-important (and perhaps even more important) precedent in the other direction, establishing the ‘claim of conscience’ for private citizens to discriminate against LGBTI people, for any reason whatsoever, and emboldening them to pursue wider reforms aimed at unwinding anti-discrimination law. I believe this precedent should be denied to them, even if it means marriage equality might be delayed in the process.

Of course, I absolutely respect that other people may reach a different conclusion – that, having waited more than a decade since the Howard Coalition Government’s original homophobic ban on marriage equality in 2004, and the failure of successive Parliaments since then to remedy this injustice, people may be willing to accept the ‘claim of conscience’ provisions in this legislation as simply the price of doing business.

In fact, I suspect the majority of our community may feel that way – if so, I would accept that verdict, and agree we should actively lobby to have the Freedom of Marry Bill 2014 passed in 2015 (while making sure we strengthen our collective resolve to fight against any further moves against LGBTI anti-discrimination protections in the future).

But, as I have attempted to outline above, this is not an easy or straight-forward decision. I believe this debate – whether we are willing to accept a marriage equality Bill that undermines the principle of LGBTI anti-discrimination – is one that we must have first, before the Bill is to be voted upon.

We should not simply ‘sleepwalk’ into supporting the Freedom to Marry Bill 2014 without first considering the consequences. Nor should we automatically allow Senator Leyonhjelm to take the helm of the marriage equality push – because, while he might be an ally in allowing us to say “I do”, he also wants to allow civil celebrants to tell us that they won’t.

Senator Leyonhelm might want you to be able to say "I do", but he also believes civil celebrants should be able to tell you they won't.

Senator Leyonhelm might want you to be able to say “I do”, but he also believes civil celebrants should be able to tell you they won’t.

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24 thoughts on “Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

  1. Why on earth would anyone want to be married by a civil celebrant who was forced by law to marry someone they didn’t want to? Given the importance of the day, I think people would shop around to find someone who shared their values. This is an important bill and it needs our support.

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  2. Thanks for your comment Jeremy. As I discussed in the post, I wouldn’t. Nor would I want to work for an employer who is homophobic. But that doesn’t I believe either should be allowed to discriminate. The question is, why should someone who is engaged in the provision of services, in the public sphere, be given a special right to deny those services to LGBTI Australians? And, even more importantly, if we accept this special right, won’t it set a precedent to allow others, whether they are employers, or people providing other goods and services, to discriminate against people simply on the basis of their sexual orientation, gender identity and intersex status?

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    • Most religious groups are discriminatory – for a woman to marry a Muslim man she must convert to islam, some religions advocate death by stoning is the required punishment for gay or adulterous relationships. Some groups don’t allow women members or atheists, many sports are gender divided etc.
      BUT the key thing is the Government should not be discriminatory – these other churches or whatever else are a different matter and if you feel that there is an issue with discrimination by them that is a separate matter.
      Many people would like to see marriage equality recognised by the government within this decade. If the bill forced homophobic priests to marry gay clients any politician who may otherwise have voted for the bill will get inundated with email and phone threats and abuse and instead will vote against it – which is why the bill explicitly recognises the right for a celebrant to abstain from offering service if they do not wish to do so. One may as well go and ask a dentist to perform a heart bypass.

      Dealing with these other groups who may have had their bibles and traditions about marriage entrenched for centuries may well take many many decades to alter. But one thing that may encourage such groups to alter their views is that the government it’s self will no longer pander to their ideology about who can get married.

      Anyone is worried about finding a marriage celebrant should not be. There are and will be plenty of celebrants glad to offer their services to LBGT clients.

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      • Thanks for your comment Steve. In my post I was not arguing the point re religious celebrants (i.e. ministers of religion) retaining their existing exemption – because to compel a minister of religion to perform a LGBTI wedding within their church would arguably be a contravention of the separation of church and state. But no such argument, philosophical or otherwise, can be made with respect to civil celebrants, who are service providers in the public sphere, and who should abide by the requirement not to discriminate on the basis of sexual orientation, gender identity and intersex status.

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  3. Alastair, your perspective sounds so intolerant. So much like you want to force your ideology on others who do not share it. If you cannot persuade people you seem to like the idea of having them fined, threatened with the law or locked up. I have no interest in creating such a society.

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    • And I am not interested in a society where people can discriminate, in employment, education, health, and goods and service provision, against people on the basis of sexual orientation, gender identity, intersex status, or race, sex, age, disability etc without consequence.

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  4. We all discriminate, we all have difference preferences in life. If we can choose freely who we love, why can’t we choose freely with who we trade?

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    • Because, in society, there are power imbalances meaning that a ‘let it rip’ attitude in terms of discrimination would mean that some vulnerable groups (including Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds, women, people with a disability and LGBTI people, among others) would inevitably lose out.

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  5. Alastair, you seem to take it for granted that people have a right to be married by whomever they want, and that others don’t want to you should be able to force them to. Could you please start by giving reasons why you think this is the case?

    You keep questioning why people should have the “right to refuse service” without first establishing why anyone has a right to demand someone else’s time and affirmation.

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    • I believe that people have a right to engage in the public sphere without fear of discrimination because of their sexual orientation, gender identity, intersex status, race, sex, disability etc. People do not have an inherent right to discriminate against others in public life on the basis of these attributes.

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  6. Also, you seem worried about this sliding down the slippery slope until people are refusing to sell bread to a gay person because of their conscience. However there’s a big difference between selling someone bread and affirming something you disagree with.

    Similarly, I hope you’d agree that a paint store selling paint to a KKK member and a painter being forced to paint the KKK member’s “WHITE POWER” mural are different things.

    (In this analogy I’m not equating same sex relationships with the KKK. The KKK is just an example of something that goes against almost everyone’s conscience).

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  7. Senator Leyonhjelm, and other extreme libertarians (such as Tim Wilson, at least when he was with the IPA), believe that people should be able to discriminate against LGBTI people in both examples (officiating a marriage, or selling bread). That is the point of the post, that according to this philosophy, our entire anti-discrimination system could be placed at risk.

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  8. I agree with Mick. Being Bi myself, I’m in the conflicting situation of being able to marry one gender but not the other. Why, must we show intolerance to those who do not support us. We can build our own community of ministers who are more than happy to marry us how we would like. Your making an ant out of a mole hill buddy, and this particular inclusion will make it easier for a marriage bill to pass.

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    • To follow up, I would consider forcing a minister or celebrant to marry LGBTI+, akin to someone forcing religious education in public schools. People take these issues very seriously, it’s the only semi-legitimate reason to oppose equal marriage that they have. Live and let live.

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  9. Jordan, where would you drawn the line? Should anyone who provides goods and services to weddings similarly be able to discriminate? Should anyone who provides goods and services in public – e.g. restaurants, or hotels – similarly be able to discriminate against LGBTI inclusive couples also be able to discriminate? And if not, why not – because they too would claim that their conscience would be just as offended by being required to serve LGBTI people?

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  10. On the other hand, the bill could be passed (which is the most difficult thing), with this detail modified at a later date by a new government, to fit the anti-discrimination act.
    How long do you want to wait to avoid this compromise? 5 years? 10 years? What kind of harm will be done in the mean time?

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  11. Thanks for your comment Andrew. I agree, that is one of the options on the table, which needs to be weighed up by the LGBTI community. Although we could be accused of being duplicitous if we supported these provisions now, and then campaigned to remove them – our opposition to them should be explicit from the beginning.

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  12. You simply do not understand Libertarianism, which is the ideology of the LDP. Our view is simply that no one has the right to force anyone to do anything against their will if it does not directly harm someone else’s Life, Liberty or Property. That is all. Leave everyone alone to choose to do whatever they want. Anti-discrimination laws are a burden and a waste of time, and also unnecessary. Society deals with discrimination anyway, since people are scared to discriminate due to public reaction. Laws are not the answer, and Government is not your friend. You have no moral right to force anyone to do anything else no matter how badly your (sensitive or otherwise) feelings may be hurt by discrimination. Its really that simple. It is also the business of the Marriage Celebrant to accept the voluntary bilateral deal with any customer (i.e., the defintion of business), or reject it. Just like it is the right of a owner not to sell his product, the same applies to any services. I sincerely hope this bill passes, and eventually, a bill delegislating all marriage entirely, since I see no reason why the Government has to have any involvement in marriage whatsoever.

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    • RET, I understand libertarianism, I simply don’t agree with it, particularly when it is used to justify the rights of bigots to discriminate, in employment or the provision of goods and services, against people on the basis of sexual orientation, gender identity or intersex status (or race, sex, disability etc).

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      • Who said anything about “justifying”?! It doesn’t justify anything at all. It simply removes the Government from what is not their business. I have experienced Anti Semitism being a Jew, and yet I still do not want the government to arrest the morons who shout their idiotic epithets, unless they actually threaten me or others. Society will look down on these people and people will avoid them and their businesses. It is not the Government’s business to restrict free choice and speech, no matter how abhorrent it may be, neither is it your right to.

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    • “Society deals with discrimination anyway,”. Are you serious? Do you seriously think for example the police would have stopped picking on us, brutalising us and treating us like cattle without a change of law that made discrimination illegal even though brutalisation was already illegal? Tip: police brutality based on LGBTI continued many years after it was illegal (if it indeed has actually been stopped in Australia). Would we have won damages for the 1995 fraudulent Victoria Police raid on the Tasty Nightclub in Melbourne if it wasn’t against anti-discrimination law? And would that have lead to massive changes in Victoria Police training and culture that now works with LGBTI communities? Of course not.

      On one hand you are against anti-discrimination law, yet in stark contradiction you think “..no one has the right to force anyone to do anything against their will..”. But this is the definition of discrimination: being forced to be second class and not having the freedom or choice or liberty of other ‘better’ people who deserve a ‘better life and better property’. It is like you can only see the businesses and no people. Your philosophy is both irrational and immoral because it has a charade of fairness but carves off what you greedily want for yourself. You haven’t promoted liberty at all. You have sullied it with selfishness.

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  13. “within their church would arguably be a contravention of the separation of church and state. But no such argument, philosophical or otherwise, can be made” …. so some how if I suddenly choose to believe in a mystical sky spirit you are okay with not forcing me to officiate your marriage.

    But, if I say that mystical sky spirits are not real, but I still don’t agree with your marriage, you would want to FORCE, that is, use force, such as literally get a police man to pull out a gun and say “perform this marriage or we lock you in a jail cell”.

    If that is the three choices you are willing to allow me:
    * Say that I believe in mystical sky spirits; or
    * Perform a marriage I don’t want to perform; or
    * Get locked in a jail cell at gunpoint,

    then, I hope to never meet you.

    In my opinion, you are just fear mongering and it looks like you want to prevent LGTBI people from getting married, continue to block them, whilst supporting the church.

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    • The only person here mentioning police, guns and jail is you. If a civil celebrant refused to comply with their legal obligation not to discriminate, the simple option would be to deregister them, meaning they could no longer lawfully officiate weddings.

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    • Sly, you lack synthesis that connects your ideas with reality (and perhaps a reading of the article too). We are talking about religious objection to serving LGBTI. If you believe in the spaghetti monster that lives behind the moon you may not be able to use that as an excuse not to marry certain people as a celebrant, eg LGBTI or fat people say, if it is well known that high-priest Richard Dawkins said authoritatively she was a lovely monster that hated discrimination.

      Here is another test of reality: Given services providers like celebrants or shop assistants are not allowed to but do reject serving fat people because they are fat or Asian people because they look Asian, are they ever forced to do so, legally, by guns or police? Tip: this isn’t the USA or a Western.

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