No, We Don’t Have Marriage Equality Yet

Posted on December 7, 2018 by Alastair Lawrie

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

12 months ago today, the House of Representatives passed Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017.

It was the culmination of more than 13 years of campaigning by Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.

When that law took effect, two days later, Australia finally permitted same-sex couples to wed and recognised the marriages of most[i] LGBTI couples.

But we did not achieve genuine marriage equality – nor do we enjoy it exactly one year later.

This is because the terms and conditions which apply to the marriages of LGBTI couples after 9 December 2017 are different to those which applied to cisgender heterosexual couples before that date.

First, and most importantly, at the time of writing, forced trans divorce – where a transgender person who is already married cannot gain access to accurate identity documentation unless they first divorce their partner – still exists in Western Australia and Tasmania[ii] (while legislation to abolish forced trans divorce has only passed in the Northern Territory in the past fortnight).

One of the positive aspects of last year’s marriage Bill is that it included a 12-month phase out of exceptions to the Commonwealth Sex Discrimination Act 1984 which allowed states and territories to enforce these discriminatory laws.

Which means that, from this Sunday, trans people who are already married in WA and Tasmania will be able to lodge a complaint with the Australian Human Rights Commission (AHRC) about their mistreatment under the Gender Reassignment Act 2000 (WA) and the Births, Deaths and Marriages Registration Act 1999 (Tas).

Presumably, they will also be able to seek a new birth certificate through this process (although whether the respective state Governments provide one remains to be seen).

Nevertheless, for as long as forced trans divorce sits on the statute books in any Australian jurisdiction, and we compel some trans people who are already married to take action with the AHRC – or even have to go to Federal Court – just to gain access to accurate identity documentation, it is inaccurate to say we have genuine marriage equality in Australia.

[Update May 2019: Western Australia abolished its forced trans divorce laws in February 2019, while Tasmania removed its own forced trans divorce provisions in April 2019, taking effect earlier this month. This means that – finally – forced trans divorce is history.]

Second, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 didn’t just allow LGBTI couples to wed – it also inserted new ‘religious exceptions’ into the Marriage Act 1961 itself. For example, it gave existing civil celebrants the ability to nominate themselves as ‘religious marriage celebrants’ and thereby refuse to perform the ceremonies of same-sex couples.

Importantly, this didn’t just apply to civil celebrants who were ‘ministers of religion’ of unrecognised religions (sub-section 39DD(1), which is at least arguably consistent with freedom of religion).

It also allowed existing civil celebrants to gain access to these special privileges based on nothing more than their personal beliefs. As is now set out in sub-section 39DD(2) of the Marriage Act 1961:

Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs

(2) The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

(a) the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

(b) the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:

(i) in writing; and

(ii) in a form approved by the Registrar; and

(iii) within 90 days after Part 1 of Schedule 1 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and

(c) the choice is based on the person’s religious beliefs [emphasis added].

In effect, a civil celebrant who was registered before 9 December 2017 could simply sign-up to be able to say ‘no gays allowed’ (or no lesbians, bisexuals or transgender people allowed either).[iii]

[Update 13 December 2018: In fact, as revealed by the Ruddock Religious Freedom Review Report, 406 existing civil celebrants registered to take advantage of these new special privileges to discriminate against LGBTI couples. Which, to be honest, is even more people choosing prejudice over equal love than I had anticipated.]

Remember that these celebrants are not ministers of religion, and the ceremonies they officiate need not be religious. There is also no test of their beliefs – it is based solely on self-declaration.

In practice, this provision has very little to do with actual religious freedom, but instead provides new legal protections to homophobia, biphobia and transphobia as long as it is dressed up as ‘religious’.

That much is made abundantly clear by the fact similar provisions had never been introduced to ‘protect’ civil celebrants who wanted to refuse to (re-)marry people who had previously been divorced, or to reject ceremonies for couples of different faiths – both of which arouse strong religious beliefs for many people.

These provisions were introduced only when LGBTI couples were finally allowed to marry, demonstrating that they are not aimed at protecting genuine religious freedom at all – their real target is undermining LGBTI equality.

This is obviously a terrible provision in and of itself. It also sets a negative precedent for other laws.

After all, if civil celebrants – who are in reality a small business, offering commercial services to the public at large – are allowed to discriminate against their customers on the basis of the customer’s sexual orientation or gender identity, then why shouldn’t other businesses be allowed to do the same (a point that religious fundamentalists made frequently during the Ruddock Religious Freedom Review).

Indeed, that brings me to the third reason why we still don’t have genuine marriage equality in Australia.

Amidst all of the celebrations of the passage of same-sex marriage (and yes, as someone engaged to be married, I still think some celebration was justified), I wonder how many people understand that the following is now written into the Marriage Act:

47B Bodies established for religious purposes may refuse to make facilities available or provide goods or services

(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

(2) Subsection (1) applies to facilities made available, and goods or services provided, whether for payment or not.

(3) This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.

(4) To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

(5) For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage [emphasis in original].

This is an incredibly broad exception, applying to anything provided by a religious organisation that has anything to do with a LGBTI wedding – even where it is provided by a service that advertises to the public at large and is run for profit.

The most generous interpretation of the inclusion of this amendment is that it merely replicates, and reinforces, the existing religious exceptions found in section 37(1)(d) of the Sex Discrimination Act 1984 (provisions which have come under scrutiny this week because they also allow discrimination by religious schools against LGBT students and teachers).

But, if that is the case, their inclusion in the Marriage Act is entirely unnecessary. And for a reform that has powerful symbolic value, what does it say about the passage of same-sex marriage that it was accompanied by these equally symbolic, but discriminatory, amendments.

On the other hand, it is arguable that the addition of section 47B has actually increased the range of circumstances in which religious organisations can discriminate against people on the basis of their sexual orientation or gender identity.

This is particularly the case in relation to Tasmania, where the Anti-Discrimination Act 1998 remains the best practice LGBTI discrimination law in Australia.

This is because the religious exceptions in section 47B of the Marriage Act 1961 are framed in a positive way (‘a body established for religious purposes may refuse…’), whereas the existing Sex Discrimination Act 1984 exceptions are phrased in a negative way (‘Nothing in Division 1 or 2 affects…’).

This is an important distinction because it is more likely that a positively-framed religious exception will override the anti-discrimination laws of jurisdictions which are inconsistent. In practice, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 has likely allowed new forms of discrimination in our most Southern state.

Even if that interpretation is incorrect, it should again be highlighted that this type of exclusionary provision was never needed to allow religious organisations to refuse to serve couples where one or both had previously been divorced, or where the couple had different religious backgrounds.

Section 47B was only introduced when LGBTI couples were allowed to walk down the aisle. It’s true purpose is to allow religious bodies – even where they are advertise to the public at large and are run for a profit – to tell same-sex couples to go somewhere else.[iv]

Perhaps the most disappointing part about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is that, despite being one of the worst marriage amendment Bills ever introduced into Commonwealth Parliament,[v] it was signed-off on by Australian Marriage Equality (AME), and the Equality Campaign, supposedly on behalf of the LGBTI community.

In the days after the announcement of the postal survey results, they presented Senator Dean Smith’s Bill as a fait accompli, arguing for its passage without calling for the removal of its unnecessary provisions regarding existing civil celebrants or wedding-related services, effectively making them accomplices to this new discrimination.

In my opinion, AME/The Equality Campaign were wrong to do so.

They were wrong on principle. As an organisation purporting to advocate for marriage equality, they should have been calling for genuine equality, not defending the inclusion of provisions that were never needed for anyone else, but were only introduced to target LGBTI Australians. Their acquiescence makes it harder to push for the removal of these provisions in the future.

They were wrong on strategy. The religious fundamentalists inside the Coalition Government were the ones who had pushed for the unnecessary, wasteful, harmful and divisive postal survey – and they lost, with the majority of Australians showing they supported the equal treatment of all couples, irrespective of sexual orientation, gender identity or sex characteristics.

That is what the LGBTI community should have been demanding: full equality and nothing less. If the Coalition Government refused to pass it because it did not include new rights to discriminate against LGBTI couples, even after imposing an unprecedented $80.5 million three-month national opinion poll, then they would have experienced the biggest of backlashes. It was not up to the LGBTI community to save the Government from itself.

And they were wrong on process, because they never secured the informed consent of the LGBTI community to these changes. They never explained, in detail, what had been given up and why, and they never asked lesbian, gay, bisexual, transgender and intersex (LGBTI) people whether it was a price they were prepared to pay.

Indeed, when other organisations like just.equal and PFLAG Australia did ask the community what they thought, the response was generally unequivocal – there must be no new discrimination.[vi] In the absence of other evidence, that is the position I think AME/The Equality Campaign should have adopted.[vii]

It is likely I will be criticised, possibly quite strongly, for writing this (and especially those last few paras). Many will argue that what’s done is done, and should therefore be left alone.

Maybe.

Except I would argue that what was done last year – the inclusion of new discriminatory provisions in the Marriage Act itself – needs to be undone.

In order to do so, we need to know what exactly is in the Act, and how and why it was included. And then we need to work out a strategy for ensuring sections 39DD(2) and 47B are removed from the statute books so that the stain of discrimination is washed clean, permanently.

Because for as long as any LGBTI couple is turned away by a homophobic or transphobic civil celebrant (calling themselves a ‘religious marriage celebrant’), and for as long as religious organisations enjoy special privileges to discriminate in the provision of wedding-related goods, services or facilities, then we don’t enjoy genuine marriage equality in Australia.

The moment Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It introduced same-sex marriage. But it isn’t marriage equality.

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Footnotes:

[i] See the discussion of forced trans divorce below.

[ii] Legislation to abolish forced trans divorce – as well as making the inclusion of gender on birth certificates optional – has passed Tasmania’s Legislative Assembly, but it is unclear if or when it will pass the Legislative Council.

Legislation to abolish forced trans divorce passed Western Australia’s lower house in late 2018. It was finally passed by the Legislative Council on 12 February 2019, leaving Tasmania as the last state yet to abolish Forced Trans Divorce.

[iii] Authorised under section 47A:

Religious marriage celebrants may refuse to solemnise marriages

(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage

Grounds for refusal not limited by this section

(2) This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

[iv] There is a fourth problem with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and that is it reinforces the ability of defence force chaplains to discriminate in terms of which marriage ceremonies they will officiate. As outlined in section 81 of the Marriage Act 1961:

(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body of religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

Grounds for refusal not limited by this section

(3) This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.

This provision is offensive because military chaplains are public servants, paid for by the taxpayer (including of course LGBTI taxpayers), and obligated to serve all of the people supposedly under their pastoral care. They should be required to provide these services to all ADF personnel, irrespective of their sexual orientation or gender identity – and if they cannot, they should find another job.

On the other hand, it should be acknowledged that defence force chaplains already had the ability to determine who they performed marriages for (although the revised section 81 made this power even clearer) meaning it is somewhat distinct from the existing civil celebrant, and wedding-related services, religious exceptions, both of which are genuinely new ‘rights’ to discriminate.

[v] Perhaps equal worst with Liberal Democrat Senator David Leyonhjelm’s Freedom to Marry Bill 2014, which allowed all civil celebrants to turn away LGBTI couples, but which did not insert new general religious exceptions in the Marriage Act itself.

Liberal Senator James Paterson’s Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 – written in conjunction with the Australian Christian Lobby – was obviously far worse than both, but it was never formally introduced.

[vi] See the results of their November 2017 community survey here.

In particular:

63.1% of respondents opposed the Smith Bill’s civil celebrant provisions
86.9% opposed the wedding-related services exceptions, and
77.4% opposed provisions allowing military chaplains to refuse to officiate the ceremonies of LGBTI ADF personnel.

Importantly, 53.7% of respondents indicated they were willing to wait until marriage equality could be achieved without such provisions (while only 27.9% were not willing to wait and 18.4% were neutral on this issue).

[vii] For more on these issues, see Rodney Croome’s excellent recent article in New Matilda, ‘Yes Yes No: Why the History of Marriage Equality Must be Told Accurately’.

It’s Not Over Yet

Posted on November 30, 2017 by Alastair Lawrie

Just when you thought Prime Minister Malcolm Turnbull couldn’t physically be any more disappointing on marriage equality than he already is, he goes and announces his support for adding new forms of discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (aka the Smith Bill).

That’s right, less than 24 hours after yesterday’s emotional celebrations when that Bill cleared the Senate – something which Turnbull himself tweeted showed ‘Parliament at its best today – the Senate passed the same-sex marriage bill’ – he has revealed he will support multiple negative amendments in the House of Representatives, including some that were explicitly rejected in the upper house.

This significantly increases the chances that the legislation that is ultimately adopted falls well short of genuine marriage equality, even risking the passage of the Bill entirely if we end up with deadlock between the two chambers.

It is unclear whether Turnbull actually believes in the amendments himself, or if he is simply supporting them in a(nother) craven capitulation to capital ‘c’ Conservatives within his party, in a last-ditch effort to save his leadership.

Frankly, my dear readers, I don’t give a damn what his motivation is. Because, far more importantly, it is clear what the impact will be: more discrimination against LGBTI couples, and LGBTI Australians more broadly.

Let’s turn to the possible amendments themselves. Based on media reports in The Australian, and Guardian Australia, it appears Turnbull now supports at least two, probably three, and potentially even more amendments undermining the Smith Bill, which as we already know is a significant compromise. These include:

Providing all civil celebrants with an ability to discriminate on the basis of their personal conscientious or religious belief

As reported by The Australian, “[t]he Prime Minister supports… provisions that would ensure that marriage celebrants are able to decline to solemnise marriages which they do not wish to solemnise.” Presumably, this means supporting Attorney-General George Brandis’ amendments on this topic.

This proposal is so terrible it is almost unbelievable we have to keep explaining why, but just to reiterate the many reasons why we should say ‘I don’t’ to religious exceptions for civil celebrants:

Civil wedding ceremonies are not religious, therefore a celebrant’s personal beliefs are irrelevant
The ability to discriminate does not currently exist with regards to divorcees remarrying, so should not be introduced for LGBTI couples
Civil celebrants are performing a duty on behalf of the state, so should not have the power to discriminate on the basis of sexual orientation, gender identity or intersex status
Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious belief
If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses, and
Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia, opening the door to further discrimination in the future.

Reinforcing the ability of charities to discriminate against LGBTI people

These amendments are being sold as a supposed ‘shield’ to protect charities from some unspecified, nefarious action by future governments. In reality, they are more likely to be used as weapons against lesbian, gay, bisexual, transgender and intersex Australians, further entrenching the ability of religious organisations to discriminate against employees, and people accessing their services.

Irrespective of which view you adopt, however, the amendments are completely unnecessary. As revealed by Liberal Senator Dean Smith during Senate debate of his Bill on Tuesday, he wrote to both the Australian Commissioner of Taxation, and the Acting Australian Charities and Not-for-Profits Commissioner, about the impact of his proposed legislation. From Hansard:

“I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry – that is, the future act. ‘The short answer’, the commissioner said to me, ‘to this question is yes’.

“The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory anti-discrimination laws would result in any adverse consequences in relation to an entity’s charitable status. ‘The short answer’, he says in correspondence to me, ‘is no’.

“For the sake of completeness, the Australian Taxation Commissioner says:

… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on [Deductible Gift Recipient] endorsement.

He goes on to say:

Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.”

Turnbull’s own Government agencies – including the Taxation Commissioner himself – have effectively rejected any need for amendments in this area. He should not be jeopardising the introduction of marriage equality for the sake of something that is, at best, unnecessary, and at worst, a Trojan horse for increased discrimination against LGBTI people.

Including a declaratory statement about ‘religious freedom’ in the Marriage Act

Another Trojan horse for new, adverse treatment of LGBTI Australians is the second of Attorney-General Brandis’ failed amendments: a proposal to add a statement from Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) in the objects of the Marriage Act itself.

At this stage, there are mixed signals about whether the Prime Minister supports this change. What is not ‘mixed’ – indeed, what is unequivocal – is that such a change must be rejected.

In the words of ALP Senate Leader Penny Wong, during the same debate on Tuesday:

“As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

“Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

“I pick up those two aspects of the covenant because it seems to us on this side that there’s obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.

“The Labor Party’s view reflects to some extent Senator Brandis’ introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established [the Ruddock review]. We believe that an amendment of this sort would better be considered in the context of that process.”

Greens’ Senator Nick McKim noted even more serious concerns with this amendment:

“Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and… transforms what is a limited right into an absolute right.

“…I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance… they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to anti-discrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as ‘a shield’. It’s not a shield; it’s a sword. It’s a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that’s why it should be stridently opposed.”

**********

I started this post by expressing my disbelief that Malcolm Turnbull could have found a new way to let me, and LGBTI Australians, down. Again.

But, putting aside my own incredulity, that’s exactly what he’s done. Again.

Even after deciding that LGBTI Australians must be subjected to an unnecessary, wasteful and divisive plebiscite on our fundamental human rights.

Even after that was rejected by the Senate, and he determined that we would be subjected to an unprecedented three-month, $100 million postal survey instead.

Even after Australians overwhelmingly voted Yes, and he refused to put forward marriage equality legislation that simply amended the definition, and recognized foreign marriages – without additional discrimination against LGBTI couples.

Even after the Smith Bill was passed by the Senate. Now that legislation that would finally allow all LGBTI couples to marry is before the House of Representatives, and its passage is so close we can almost touch it, the Prime Minister is still finding new ways to treat us as second-class citizens.

But, just as we’ve overcome all of the previous hurdles that have been placed in our way, we must do everything we can to clear this one too.

That means taking action one more time to say that second-class is not good enough. That we won’t accept new forms of discrimination as part of any marriage equality Bill. That the House of Representatives must reject any amendments that can be used to discriminate against us.

Please make sure you complete the #equalmeansequal webform, calling on MPs to vote against new discrimination: www.equal.org.au/equalmeansequal

Because now is definitely not the time to hold your peace.

Prime Minister Turnbull, who wants to add new discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill in the House of Representatives.

Quit Playing Games

Posted on November 26, 2017 by Alastair Lawrie

With marriage equality set to be debated in Commonwealth Parliament during the next fortnight, I have written the below letter to all MPs and Senators, calling on them to legislate for genuine marriage equality, not a Bill (or amendments) that entrenches our second-class status. To send your own message that #equalmeansequal, click here.

**********

Dear MP/Senator

I met my fiancé Steven two weeks after my 30^th birthday.

Within a few months it was clear this relationship was something special. Just 17 months after we met, in January 2010, we did what most couples who are in love do: we got engaged.

That means we have been engaged, waiting for the right to marry, for almost eight years.

Obviously, a lot of ‘life’ can happen in eight years. We’ve moved cities, changed jobs – almost as many times as the country has changed Prime Ministers – and even bought a home together (well, the small fraction that isn’t owned by the bank).

But, nearing the end of 2017, we still can’t plan our wedding day. I want to draw your attention to one of the consequences of our extended, involuntary wait.

My grandmother, who is now in the second half of her 90s, would have been able to attend our wedding had we held it when most couples do, within a year or two of our engagement.

Instead, with her health declining and having recently moved into assisted living, she won’t be there when Steven and I tie the knot.

The delay in passing marriage equality, due to the intolerance, and intransigence, of too many politicians over too many years, has stolen that moment of celebration from us all.

Steven’s situation is only slightly better. With a Portuguese background, family is even more important to him. He would love nothing more than to be able to wed in front of his grandmother.

But, in her late 80s and having recently had a pacemaker installed, we cannot ignore the possibility his dream may not come true, especially if marriage equality is delayed any further.

I think I will be even more upset for him if that moment is stolen, too.

Of course, the failure to lead on this issue by Julia Gillard, Tony Abbott, and Malcolm Turnbull among others, has taken much, much more from other couples, including Peter Bonsall-Boone and Peter de Waal who, after 50 years together, will forever be denied the ability to marry each other.

It’s time for you, as our elected representatives, to end the interminable wait for marriage equality, a wait that has already proven too long for too many.

Quit playing games with our relationships. Pass marriage equality now.

**********

I met my fiancé Steven one week after my brother’s wedding. Two years earlier I attended my sister’s wedding.

I look forward to being able to invite both of my siblings, and their respective spouses, to Steven and my nuptials.

When we finally say ‘I do’, though, there is a real chance our marriage will be subject to different terms and conditions than theirs. Because the legislation that will give us the right to marry will likely take away our rights in other areas.

The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, introduced by Liberal Senator Dean Smith, is already deeply flawed, allowing existing civil celebrants to simply declare themselves ‘religious marriage celebrants’ in order to turn away same-sex couples, and unnecessarily duplicating religious exceptions from the Sex Discrimination Act within the Marriage Act.

Yet, there are many MPs and Senators who seem intent on making this unsatisfactory legislation even worse.

From Attorney-General George Brandis, who wants to provide all civil celebrants with the ability to discriminate against couples on the basis of their personal religious or conscientious beliefs, even though their role is entirely secular in nature.

And to add a ‘religious freedom’ declaration to the Act that will almost inevitably be used by the Australian Christian Lobby-created Human Rights Law Alliance to litigate to establish new ways of discriminating against LGBTI couples.

To Treasurer Scott Morrison, who apparently thinks school students need to be protected from learning about couples like Steven and me, and wants to legislate an unprecedented power for parents to withdraw their children from any class that even mentions the fact same-sex marriages exist.

Then there’s Liberal Democrat Senator David Leyonhjelm, who has already circulated amendments that would allow commercial businesses to discriminate against LGBTI couples on their wedding day. And, if they hold one, at their engagement party. Oh, and on all of their wedding anniversaries too.

None of these so-called ‘freedoms to discriminate’ operate currently with respect to inter-faith marriages, or to divorced couples remarrying. The fact they are being proposed now is homophobic.

Nor are any of these new religious exceptions necessary.

All that is required to introduce marriage equality is to amend the definition in the Marriage Act to be the union of two people, and to recognise the foreign marriages of same-sex couples that already exist. Nothing more.

After all, when Steven and I do eventually marry, there is absolutely no reason why we should be treated any differently to, or worse than, my brother or my sister were.

Quit playing games with our rights. Pass genuine marriage equality.

**********

I met my fiancé Steven four days before the 4^th anniversary of John Howard’s ban on marriage equality.

His Government’s discriminatory Bill was rushed through the Parliament, and passed by the Senate on Friday 13 August, 2004.

Lesbian, gay, bisexual, transgender and intersex Australians have spent more than 13 years trying to undo his changes, and for a better, fairer, and more-inclusive Marriage Act to be adopted in its place.

The process for doing so should have been the same one employed by the then-Liberal Prime Minister: a parliamentary vote.

Instead, our two more-recent Liberal Prime Ministers have both argued that LGBTI Australians should have to overcome hurdles that have not been placed in front of other groups.

First, it was the proposed plebiscite – a national, non-binding vote that has only been used three times in the 117 years since Federation, but not once to decide on the human rights of a minority, and not once in my lifetime.

Then, when that process was firmly rejected by the Senate – at the request of the LGBTI community itself – the Turnbull Government decided to invent a ‘postal survey’ run by the Australian Bureau of Statistics, a 3-month, $100 million farce that confirmed what every opinion poll of the last decade had already found, while also stirring up homophobia, biphobia and transphobia in the community.

Let’s be clear: the postal survey should never have been held. And it must never, ever be imposed on any other group.

Now, having jumped through those extra hoops, and with marriage equality set to be debated by Commonwealth Parliament, the rules have apparently changed once more.

Instead of respecting the outcome of the process they chose, which overwhelmingly supported marriage equality, some MPs and Senators are spending more time creating additional restrictions to ensure our relationships are considered lesser than the marriages of cisgender heterosexual couples.

They are trying to change the rules of the game, right when LGBTI couples finally get the chance to take our rightful place on the field. Or at the altar. Or wherever we decide to marry.

That simply isn’t good enough.

Quit playing games with our community. Pass marriage equality, and stop creating new ways to discriminate against us.

**********

I met my fiancé Steven at a time when I had started to genuinely wonder whether I would ever find someone to spend my days with, let alone share a wedding day.

As an LGBTI advocate, the ability to marry felt like an abstract, or even hypothetical, right – important, yes, but not something I thought I would exercise myself.

Fortunately, falling in love made the hypothetical real, and today, more than nine years into our relationship, our desire to get married is more real than ever.

Unfortunately, public discussion over the past few weeks has at times felt ‘un-real’, as some MPs and Senators have debated the abstract ability of people to discriminate against LGBTI couples, rather than the practical rights of those couples to marry.

They have focused on hypothetical homophobic bakers, florists, and wedding-venue providers, and lost sight of the fact marriage equality should be about removing discrimination, not adding to it.

Once this parliamentary debate is over, if any of their amendments are passed, the rights of people to discriminate against us will sadly be very real.

The message that parliament would send – that our marriages are second-class – would be very real too. And LGBTI Australians would be reminded of that fact every time we are turned away by civil celebrants, or other wedding-related businesses, for years or even decades into the future.

It’s time for you, as our elected representatives, to decide what kind of legacy you want to leave. A better, fairer, and more-inclusive Australia. Or a country that chose something else, something lesser.

I started this letter by noting that Steven and I met two weeks after my 30^th birthday. As much as I might try to deny it that means next year we will celebrate two major milestones: my 40^th birthday and, much more significantly, our 10^th anniversary.

As verbose as I am, I don’t actually have the words to express how much it would mean to me to finally be able to marry the man I love after all this time.

And so, I make this final plea to you:

Quit playing games. Pass marriage equality now. But, when you do, make sure it treats all couples equally. Because we are. Equal.

Sincerely,

Alastair Lawrie

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Why we should say ‘I don’t’ to religious exceptions for civil celebrants

Posted on November 25, 2017 by Alastair Lawrie

The issue of marriage equality will be decided by Commonwealth Parliament in the next fortnight, first in the Senate (from Monday 27 November) and then, assuming it clears the upper house, in the House of Representatives (from Monday 4 December).

The ‘starting point’, problematic though it may be, is Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017. Although what this legislation looks like by the end of this process remains unpredictable.

That’s because a wide variety of Coalition MPs are likely to put forward an even more diverse range of amendments. In this post I will discuss just one, already foreshadowed by Senator George Brandis: to provide all civil celebrants with the ability to discriminate on the basis of their personal religious or conscientious beliefs.[i]

I do so because, at this stage, this amendment seems to have a better chance of being successful – in part because of who is proposing it (the Attorney-General, a supposed ‘moderate’ within the Government) and also because it is marginally less extreme than some of the other changes flagged by people like James Paterson, Scott Morrison and Peter Dutton.

I don’t, however, support Senator Brandis’ amendment, for the following reasons:

Civil wedding ceremonies are not religious. Indeed they were explicitly created as an alternative to religious ceremonies – and are now a very popular alternative, accounting for 3-in-4 weddings in Australia in 2015. If the wedding itself is not religious, surely the religious beliefs of the person officiating it are irrelevant.

The ability to discriminate does not currently exist. There are a wide range of religious beliefs around marriage, including people who don’t support marriages between people of different faiths, while others don’t believe in divorce and remarriage. And yet, civil celebrants do not enjoy a special privilege to discriminate for these reasons. That it is being contemplated now, when LGBTI Australians might finally be able to wed, reveals that such an amendment is fundamentally homophobic.

Civil celebrants are performing a duty on behalf of the state. Only people who are formally registered are given the legal authority to officiate marriage ceremonies – their role is regulated by, and delegated by, the Commonwealth Government. If the Government is not able to discriminate on the basis of sexual orientation, gender identity or intersex status, then nor should people who are fulfilling a secular function on its behalf.

Some people do not accept this characterisation, instead asserting civil celebrants are more akin to small business owners. But even on this theoretical foundation, there is absolutely no basis to provide them with special privileges to discriminate against LGBTI couples (or any other couples for that matter):

Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious beliefs. They cannot be allowed to hang signs in their windows – real, or online – saying ‘no gays allowed’. In 2017, it feels strange to actually have to put that down in black and white, but it is the inevitable consequence of Senator Brandis’ proposal. And others within the Turnbull Government would go even further (with Kevin Andrews arguing Jewish bakers should be able to refuse Muslim customers, and vice versa).

If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses. While some claim civil celebrants play such a central role in weddings they alone should be able to discriminate, philosophically it is hard to distinguish their position from others closely involved in the same ceremonies (including photographers, wedding venue-providers and even florists). If the former is permitted to reject couples on the basis of personal prejudice, why not the latter? By opening the door to civil celebrants, we may end up inadvertently allowing plenty of others to walk through – when all should be kept outside.

Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia. Currently, the Commonwealth Sex Discrimination Act, and most state and territory anti-discrimination laws, only permit religious organisations to discriminate against LGBT people. They do not provide the same special privileges to individuals. The Australian Christian Lobby desperately wants an individual ‘freedom to discriminate’ against people on the basis of sexual orientation, gender identity or intersex status. By granting this ability to civil celebrants in the Marriage Act, a change that may seem small to many, we would actually be handing Lyle Shelton a large victory, and an invaluable tool in his ongoing campaign against LGBTI equality.

For all of these reasons, I think that anyone who supports genuine marriage equality – including the LGBTI community, our families, friends and allies, and the 61.6% of the population who voted Yes – should say ‘I don’t’ to religious exceptions for civil celebrants.

**********

It would, however, be remiss of me not to address an argument that is commonly used to support such special privileges, one that is advanced even by some within the LGBTI community itself. That is the view that ‘why would couples want to be married by someone who disagrees with their relationship?’

The answer, of course, is that the vast majority of couples do not (although some, especially in rural and regional areas, may have few other options).

But, with all due respect to the people making this case, so what? That response doesn’t actually deal with the substantive issue at hand, and completely misunderstands the essential role of anti-discrimination law.

To see why, let’s apply the same question to other scenarios: Why would anyone want the florist for their wedding to be prejudiced against LGBTI people? The (now clichéd) baker? The wedding venue-provider?

Why would an LGBTI couple want to spend their honeymoon at a hotel where the proprietor disagrees with their relationship? Or to celebrate their anniversary at a restaurant whose owner is homophobic, biphobic, transphobic or intersexphobic?

Why would a lesbian, gay, bisexual, transgender or intersex employee want to work for an anti-LGBTI employer?

The answer, again, is that most LGBTI people do not want to find themselves in any of these circumstances. But, for a variety of reasons (including the impact of historical discrimination, ongoing homophobic attitudes in society-at-large, and differences in power and privilege) plenty of people do – and that is the reason we have anti-discrimination laws in the first place.

The Sex Discrimination Act, and its state and territory equivalents, operate to protect vulnerable groups against adverse treatment, wherever it occurs: the provision of goods and services, education, employment and other areas of public life. That obviously covers civil celebrants offering their services to the public, too.

In amending the Marriage Act, we should not support anything that undermines these vital anti-discrimination protections. By conceding that discrimination by civil celebrants should be allowed, by effectively ‘picking and choosing’ when anti-LGBTI prejudice is made lawful, we would be doing exactly that.

Once this broader principle of anti-discrimination has been sacrificed, our opponents will stake their claims for ever-widening ‘freedoms to discriminate’. Indeed, Liberal Democrat Senator David Leyonhjelm has already circulated amendments to the Smith Bill that would make it entirely legal to discriminate against LGBTI couples in providing goods, services or facilities in relation to:

“(a) the solemnisation of a marriage under the Marriage Act 1961; or

(b) the preparation for, or celebration of, such a marriage; or

(c) the preparation for, or celebration of, events associated with such a marriage, including:

(i) an event announcing or celebrating the engagement of the parties to be married; and

(ii) an event celebrating the anniversary of the marriage.”

No doubt other conservative MPs and Senators will move their own amendments in the course of parliamentary debate, some perhaps more expansive, and even worse, than these.

They must, of course, be rejected – for exactly the same reasons that we must reject Senator Brandis’ amendment concerning civil celebrants. Because lesbian, gay, bisexual, transgender and intersex Australians should not be discriminated against in any area of public life. No exceptions.

If you agree, please take two minutes to write to Commonwealth MPs and Senators to let them know that #equalmeansequal, and that there should be ‘No compromise on equality’ (click here).

**********

One final point before I conclude. By now, I have hopefully convinced you to say ‘I don’t’ to Senator Brandis’ amendment to create religious exceptions for civil celebrants.

If that is the case, then logically you should also say ‘I don’t’ to the Smith Bill itself – because all of the above arguments can also be made against sub-section 39DD(2), which would allow existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, based on nothing more than their personal religious beliefs.

That’s why I and others have argued passionately that the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, as it currently stands, does not offer genuine marriage equality. And why we should be pressuring Labor, the Greens and anyone else who claims to support LGBTI equality to amend that legislation to remove such discriminatory provisions.

I guess we’ll all find out in the coming fortnight how real their commitment to equality actually is.

Attorney-General George Brandis, who is proposing religious exceptions for civil celebrants.

Footnotes:

[i] Interestingly, Senator Brandis is doing so even though civil celebrants themselves do no support such an amendment. As reported this week in the Sydney Morning Herald , Dorothy Harrison, the chair of the Coalition of Celebrant Associations, said: “We don’t approve of exemptions. We feel that if that’s the law of the country, then that’s what you do. We have discrimination laws and we have to live by them.”

How Dare You

Posted on November 18, 2017 by Alastair Lawrie

I‘ve been writing this blog for more than five years. In that time, I have tried to stick to a few guiding principles in what I publish:

To be factually accurate, and to correct the record as quickly as possible where I do (occasionally) make a mistake. Because there’s not much point in having an uninformed debate.
To only divulge as much personal information as is relevant to the topic at hand, and to try to respect the privacy of my fiancé Steven (although sometimes, as with our appearance on The Drum this week, there is a compelling reason to share our story).
To try not to write, or post, while angry.

Today, I’m breaking rule number three. To put it bluntly, I’m mad as hell, and not in an amusing, Shaun Micallef kind of way.

The source of my frustration? The fact that, in the same week the overwhelming majority of Australians voted for marriage equality, some Commonwealth Parliamentarians have decided to undermine that same equality by pushing for new special privileges to discriminate against us.

Those arguing for something less than full equality include Attorney-General George Brandis, who has already indicated he will move multiple amendments to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (aka the Smith Bill) which, as we have seen, is itself an unsatisfactory compromise.

Senator Brandis’ proposals include providing all civil celebrants with the ability to reject couples on the basis of their personal religious or ‘conscientious’ beliefs – despite the fact civil celebrants are performing a secular function delegated by the state.

He is also suggesting a provision to state that “nothing in the bill makes it unlawful for people to hold and to express the views of their own religion on marriage.” Which sounds fairly innocuous, but when we eventually see the detail could include an attempt to override state and territory anti-vilification laws.

Liberal Senator James Paterson.

Then of course there is Senator James Paterson who, on Monday, released his own draft legislation that sought to grant special privileges to discriminate against LGBTI people in a wide variety of circumstances, including allowing commercial businesses to deny goods and services to same-sex weddings.

Thankfully, his legislation won’t ultimately be introduced, but he and others are likely to move the majority of its measures as amendments to the Smith Bill.

Perhaps the most egregious of these is the concerted push to include, within the Marriage Act itself, a ‘right’ for parents to withdraw their children from any class with which they disagree on the basis of their religious beliefs. This move, reportedly supported by Senators David Fawcett and Zed Seselja, as well as MPs Scott Morrison and Andrew Hastie, is a naked attack on the Safe Schools program.

In the words of Peter Dutton: “I want to make sure that proper parental protections are in place… Because I do think this Safe Schools movement will use this debate as a launching pad for their next wave.”

It could even extend to parents withdrawing their children from any and all sex education lessons, or Health and Physical Education generally – basically, any class that might teach students the incontrovertible fact that LGBTI people exist, and that we are normal.

If you’re struggling to figure out how parents withdrawing children from Safe Schools lessons has anything to do with marriage equality, you’re not alone. Because they are completely unrelated issues, deliberately conflated by the ‘No’ campaign during the postal survey, and again now by conservative MPs.

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It is not difficult to legislate for marriage equality: to amend the definition to be the union of 2 people, and recognise the marriages of LGBTI couples that already exist. That is all that is required to implement the equal treatment of LGBTI relationships – nothing more and nothing less.

Instead, we are seeing some Liberal and National politicians using this debate to try to add to, rather than subtract from, anti-LGBTI discrimination, to fight an unrelated ‘culture war’ rather than do the one thing 7,817,247 people voted for: pass marriage equality.

My message to Senators Brandis, Fawcett, Seselja and Paterson, MPs Morrison, Dutton and Hastie, and anyone else who is contemplating amendments that have the practical impact of discriminating against LGBTI people and our relationships:

How dare you.

How dare you hold a 3 month, $100 million non-binding postal survey on the worth of our relationships, and of our lives, in the first place.

How dare you decide, when your unnecessary, wasteful and harmful process is finally over and the overwhelming majority of Australians have voted for marriage equality, to offer us something that falls far short of that standard.

How dare you attempt to change existing laws so that civil celebrants, who are performing a secular function delegated by the state, can simply say ‘no gays allowed’ on the basis of nothing more than their personal beliefs.

How dare you use this debate to attack Safe Schools, and inclusion programs for LGBTI students more generally, so that young people are denied the right to learn that who they are and who they love is okay.

How dare you amend legislation that would finally give lesbian, gay, bisexual, transgender and intersex Australians equal recognition under the law by taking away our rights in other areas, including anti-discrimination and anti-vilification protections.

How dare you place any terms or conditions on the right of LGBTI couples to get married in the (hopefully near) future that do not currently exist for cisgender heterosexual couples.

How dare you vote to ensure that your own weddings and marriages are treated any differently to, or better than, my wedding and marriage to my fiancé Steven.

Seriously, how dare you.

**********

I thought long and hard before writing this post, and then again before deciding to publish it. There is obviously a risk that, in doing so, I could simply be dismissed as an ‘angry gay’ (which is usually very far from the truth).

But then I realised I can live with that description. Particularly because there is a much greater risk: that, after coming so far since the Howard Government first banned marriage equality way back in August 2004, after fighting so hard, and overcoming every obstacle placed in our way – including the unnecessary, wasteful and harmful postal survey – we are denied true marriage equality at the final hurdle.

That is what is at stake in the final parliamentary sitting fortnight of the year, starting Monday 27 November: full equality, or something that falls short, potentially by a long distance.

I don’t want to think back on this moment and realise that we could have achieved something wonderful, but instead ended up with something flawed.

So, if you believe in genuine marriage equality like I do, if you think that LGBTI relationships should be treated in exactly the same way as cisgender heterosexual couples are today, then it’s time to get active.

Please write to MPs and Senators who support marriage equality and let them know that there should be No compromise on equality.

If you can, call the office of your local MP to reinforce that message. Tweet, share, and do everything you can to make sure your voice is heard at this critical point.

This is the best opportunity for our relationships to be treated equally under the law. Don’t let some conservative MPs and Senators take that right, your right, away.

Bill Shorten, It’s time to honour your commitment on marriage equality

Posted on November 12, 2017 by Alastair Lawrie

The following is my open letter to Opposition Leader Bill Shorten, ahead of the announcement of the postal survey result this Wednesday (15 November) and likely subsequent parliamentary consideration of marriage equality legislation:

**********

On 31 March 2016, you attended a panel event called ‘Why Knot?’ in Redfern, co-hosted by the Guardian Australia and Australian Marriage Equality.

At the end of that forum, during the Q&A session, I asked you the following question:

“There is a real risk that, when Malcolm Turnbull finally gets around to drafting it, his Marriage Amendment Bill will seek to include new special rights for civil celebrants and other wedding business-providers to discriminate against LGBTI couples. Just to get it on the record: Mr Shorten, will you commit the Labor Party to voting against any attempts to expand religious exceptions beyond existing provisions and, if they do somehow end up being passed and polluting the Marriage Act, will you seek to repeal them at the earliest available opportunity?”[i]

Your answer: “Yes, and yes.”

As reported by the Guardian, you went on to state: “It’s not allowed under the current law – why would we water down existing laws? We don’t need to water down anti-discrimination law to keep some people [who oppose same-sex marriage] happy.”

You were right then.

You were right because this reform, marriage equality, is about removing discrimination against people on the basis of their sexual orientation, gender identity or sex characteristics. One form of discrimination should not simply be replaced by another.

You were right because protections for ‘religious freedom’ that are only introduced when LGBTI couples might finally have the opportunity to wed should be seen for what they are: attempts to legitimise homophobia, biphobia and transphobia.

You were right because the vast majority of LGBTIQ Australians do not want our long desired, long fought for and long overdue equal right to marry undermined by new special privileges to discriminate against us – with research at the start of 2017 confirming that:

“81% of the 6,352 LGBTIQ adult Australians taking part in this survey were strongly opposed to potential new laws making it legal for individuals and organisations to refuse their services to same-sex couples, based on personal conscience or religious belief.”

And you were right because four-in-five Australians agree, with a poll earlier this month reporting that:

“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes. This figure consisted of 98% of respondents who said they had voted ‘yes’, and also 43% of those who said they had voted ‘no’.”

You were right then. Are you still right now? Specifically, will you, and the Labor Party, do the right thing when marriage equality legislation is likely considered by Commonwealth Parliament in the coming weeks and months?

I ask this question because I am extremely disappointed by reports that the Labor Caucus has already decided to support Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, describing it as an ‘acceptable compromise’.

This is despite the fact his draft legislation:

Permits existing civil celebrants to discriminate against LGBTI couples by nominating to become ‘religious marriage celebrants’ based on nothing more than their personal beliefs [section 39DD(2)], and
Unnecessarily duplicates exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples [section 47B].

Both of these provisions appear to be matters you either explicitly or implicitly rejected in your answer at that forum in Redfern just over 19 months ago.

I urge you to reconsider your, and your Party’s, position on the Smith Bill, not just because of your previous commitment to me and to that audience, but also because of the principle that marriage equality should be exactly that: equal. The weddings of LGBTI Australians, when they are finally made legal, must not be subject to any extra terms and conditions than those that already exist.

At the very least, I believe you should develop amendments to remove both of the above provisions from the Smith Bill prior to its potential passage.

I am sure you are also aware of reports that conservatives within the Liberal and National Parties are busy preparing their own amendments to the Smith Bill that would extend discrimination against lesbian, gay, bisexual, transgender and intersex people across a wide range of areas of public life.

It is incumbent upon you, and every member of the parliamentary Labor Party, to vote against every amendment that seeks to perpetuate the second-class treatment of LGBTI Australians, our relationships and our families.

In this context, the debate around marriage equality legislation will be an opportunity for you to show, once again, the leadership on this issue that Prime Minister Malcolm Turnbull will not.

You stood with the LGBTI community against the unnecessary, wasteful and divisive plebiscite in October 2016.

You stood with the LGBTI community again, earlier this year, against the equally unnecessary, wasteful and divisive (and arguably illegitimate) postal survey.

When the survey went ahead, you stood with the LGBTI community a third time by campaigning to help win the public vote.

Please stand with us now by voting to ensure any Bill that is passed represents genuine marriage equality, not just same-sex marriage subject to additional discrimination.

It’s time to honour your commitment, to me, to LGBTI Australians, and to every person who has voted Yes to the equal treatment of equal love.

Sincerely,

Alastair Lawrie

Will Opposition Leader Bill Shorten support genuine marriage equality?

Footnotes:

[i] I recorded the question shortly thereafter – and published it in April 2016 in the following article: In the battle for marriage equality, we must not forget to fight against religious exceptions.

The push for new exceptions in the Marriage Act is homophobic. Here’s why.

Posted on November 11, 2017 by Alastair Lawrie

Voting in the same-sex marriage postal survey has now closed. Based on the widely-held assumption that the majority of Australians have voted Yes, discussion has now turned to what amendments will be made to the Marriage Act to implement this outcome.

Conservatives who have opposed marriage equality throughout this process, including the Australian Christian Lobby and many Liberal and National Party MPs and Senators, are now arguing that any change to the law must include new exceptions providing a broad range of special privileges to discriminate against LGBTI couples.

As WA Liberal MP Ian Goodenough has publicly acknowledged: “[t]he focus will be in the area of preserving parental rights, freedom of speech, and institutional considerations such as curriculum in schools, access to reproductive technology, correctional facilities, etc…”

This is on top of those new exceptions already included in Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedom) Bill 2017, which, as I have written elsewhere, would:

Permit existing civil celebrants to nominate to become ‘religious marriage celebrants’ so they can avoid marrying LGBTI couples,
Duplicate exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples, and
Reinforce the ability of military chaplains, who are public servants, paid for with taxpayers’ money, to refuse to perform the marriage ceremonies of LGBTI personnel serving within the ADF.[i]

The supposed justification for these new exceptions? That they are essential to protect the ‘religious freedom’ of people who object to marriage equality on the basis of their personal faith.

Which is, to put it bluntly, bollocks.

The coordinated campaign for new exceptions in the Marriage Act has very little to do with ‘religious freedom’. This push is primarily, almost exclusively, about legitimising homophobia, biphobia and transphobia.

This motivation can be seen through one simple comparison – how the Marriage Act has treated divorced couples remarrying over the past four decades versus how conservatives are proposing LGBTI couples should be treated now.

After all, there are a variety of religious beliefs about divorce and remarriage, just as there is a range of religious perspectives about marriage equality. The single largest religious organisation in Australia – the Catholic Church – remains staunchly opposed to both. Other faith groups support both.

So, if there are individuals and groups with strong views about, specifically against, divorce and remarriage, surely the Marriage Act will already contain special privileges allowing discrimination against people having second, or subsequent, weddings?

Well, no actually.

Even following the introduction of ‘no fault’ divorce as part of the Family Law Act reforms in 1975, the Marriage Act was not amended to provide civil celebrants with the ability to discriminate against people remarrying. Nor were military chaplains given ‘strengthened’ powers to refuse to perform the marriage ceremonies of ADF personnel tying the knot for the second time.

The inconsistent treatment of divorced people remarrying and LGBTI couples is demonstrated even more powerfully by considering the introduction of the Sex Discrimination Act 1984.

As well as prohibiting discrimination on the basis of sex, from its very beginning this legislation has protected people against discrimination on the basis of their ‘marital status’, an attribute that was originally defined as:

“the status or condition of being-

(a) single;

(b) married;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person…” [emphasis added].

Discrimination on the basis of ‘marital or relationship status’ remains prohibited under the Sex Discrimination Act today.

Which means that, for 33 years, the Marriage Act has happily coexisted with legislation that prohibits discrimination against divorced people remarrying – including discrimination by civil celebrants.

For 33 years, there has apparently not been a need to duplicate exceptions from the Sex Discrimination Act within the Marriage Act allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away couples wishing to remarry.

For 33 years, there has been no massive campaign to ‘preserve parental rights, freedom of speech, and institutional considerations such as curriculum in schools’ about divorce and remarriage.

At no point during this time, not when marriage equality was originally banned by the Howard Government in August 2004, or even when the same Government had a majority in both houses of parliament between 2005 and 2007, has there been a concerted push to amend the Marriage Act to protect the ‘religious freedom’ of people who object to divorce and remarriage on the basis of their personal faith.

So, why now? If it was not necessary to protect ‘religious freedom’ following the introduction of no fault divorce more than four decades ago, nor at any point since the prohibition of discrimination on the basis of marital status more than three decades ago, why is it suddenly necessary to defend ‘religious freedom’ today?

The logical conclusion – in my view, the only possible conclusion – is that the changes being put forward, in Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill, and by others like his Coalition colleague Ian Goodenough, are not actually about religious freedom at all.

If these amendments are only being put forward now that lesbian, gay, bisexual, transgender and intersex Australians might finally have the opportunity to legally marry, then their intended purpose appears to be: to legitimise discrimination against LGBTI couples.

These provisions are inherently homophobic. And biphobic. And transphobic, too.

People arguing for ever-widening exceptions in the Marriage Act can dress their proposals up in all the fine language they want. But they cannot hide the naked truth: such amendments are just homophobia in a fancy frock.

It is simply not good enough for the long desired, long fought for, and long overdue introduction of marriage equality to be undermined by the inclusion of religious exceptions that will, in practice, perpetuate discrimination against LGBTI couples.

Equal should mean equal – and that means LGBTI couples marrying in the future should be treated exactly the same as divorced people remarrying are now.

Liberal MP Ian Goodenough, whose proposed amendments to the Marriage Act are definitely not good enough for LGBTI Australians.

Footnotes:

[i] It should be noted that Smith’s Bill also permits increased, or strengthened, discrimination against other groups, including divorced people remarrying. This is to avoid criticisms of Senator Brandis’ 2016 Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, which explicitly discriminated against same-sex couples. It is unlikely that many divorced Australians understand they could theoretically be discriminated against as a result of the Smith Bill. Then again, they probably shouldn’t worry too much – the timing of the introduction of these amendments, and the public debate surrounding them, confirm that LGBTI Australians are the real target.

Not so fast. Dean Smith’s Marriage Bill is deeply flawed.

Posted on October 29, 2017 by Alastair Lawrie

Over the past fortnight, there has been increasing discussion about what marriage equality might look like in practice. Based on the widely-held assumption that a majority Yes vote will be announced by the Australian Bureau of Statistics (ABS) on Wednesday 15 November, there appears to be a co-ordinated push to ‘unite’ behind Liberal Senator Dean Smith’s Marriage Bill.

This includes the decision by the Labor caucus, on Tuesday 17 October, that it will support Smith’s Bill being passed as quickly as possible after the conclusion of the postal survey.

This was almost immediately followed by an opinion piece from Alex Greenwich and Anna Brown of Australian Marriage Equality describing Smith’s Bill as ‘a game changer’ and claiming that ‘[i]t would deliver equality for same-sex couples and it also ensures that faith communities can continue to celebrate religious marriage.’

One state-based gay and lesbian rights lobby even went so far as to declare Senator Smith’s draft legislation – which, let’s not forget, hasn’t even been introduced into Commonwealth Parliament yet – as ‘the only legitimate bill.’

In response to these developments, I had two equally-strong reactions.

The first was to say ‘not so fast’. Voting in the postal survey was still well underway, so to presume victory, and to start discussing how it might be implemented, could be seen as hubris, as well as confusing what should have been the one and only message of the Yes campaign – to #postyouryes.

It is for this reason that I chose not to write about this topic (what marriage equality legislation should look like) until after Friday 27 October, the date by which the ABS recommended people post their ballots in order to ensure they are counted.[i]

My second reaction was also to say ‘not so fast’, only this time in relation to the substance of Smith’s Bill. And that is because his draft legislation might give us marriage, but it will not deliver marriage equality.

In fact, on closer analysis it is a deeply flawed Bill. From the title: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (notice what word is missing?). To its apparent purpose: to appease conservative Liberal and National MPs and Senators who oppose the equal treatment of LGBTI Australians under secular law. To its all-important details (discussed below).

It is clear that Senator Smith’s Marriage Bill is far less concerned with allowing all couples to marry irrespective of sexual orientation, gender identity and sex characteristics, and far more concerned with allowing individuals and organisations to discriminate against couples on the basis of these very same attributes.

Three major shortcomings can be seen by examining key aspects of his draft legislation:

Dean Smith’s Marriage Bill gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples

Under the Marriage Act 1961, ministers of religion already have the ability to refuse to officiate the wedding of any couple, for any reason. There has never been a serious proposal to remove this ‘right’ to discriminate, and Smith’s Bill won’t alter this situation either.

However, what the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 proposes in this area is actually far more radical – and that is to give a new special privilege to existing civil celebrants allowing them to discriminate against LGBTI couples, and to do so entirely lawfully.

It would provide people who are already registered as civil celebrants the ability to simply fill out some paperwork and declare themselves to be ‘religious marriage celebrants’ [clause 39DD(2) of the draft legislation].

There is only one substantive criterion that an existing civil celebrant must satisfy – that “the choice is based on the person’s religious beliefs” [clause 39DD(2)(c)].

That’s it – self-identification is enough. It is the legislative equivalent of never-was-a-Senator Malcolm Roberts’ approach to life: ‘I think I am a religious marriage celebrant, therefore I must be.’ Or the Andrew Bolt version of Descartes’ proposition: ‘I discriminate, therefore I am.’

In practice, the Registrar of Marriage Celebrants would be obliged to accept this application and voila – an existing civil celebrant can suddenly refuse to perform weddings of couples solely on the basis of their sexual orientation, gender identity or sex characteristics.

Remember, these people are not ministers of religion.

They are not formally associated with any church or religious body.

And the weddings they officiate do not have to be ‘religious’ in any way, shape or form.

But none of that would matter because, on the basis of their personal views and nothing more, they would be provided with what George Brandis would describe as ‘the right to be a bigot’.

This situation is bad enough in and of itself. But it is even worse when you consider that it would be setting a terrible new precedent in Commonwealth law.

As many people would know, the anti-discrimination protections contained in the Sex Discrimination Act 1984 are already limited by ‘religious exceptions’, which provide religious organisations with special privileges to fire, refuse to hire or deny service to LGBT people.

The main exception is contained in sub-section 37(1)(d), which protects “any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

This is supplemented by special privileges for religious schools to likewise discriminate against LGBT students and teachers [section 38].

One limitation on both of these exceptions is that they apply to religious organisations only, like churches or schools. They do not provide individuals, who are not connected to any other religious body, the right to discriminate solely on the basis their own personal beliefs (or prejudices).[ii]

The introduction of a new special privilege for individual celebrants to discriminate against LGBTI couples, based on their own religious views and nothing else, would therefore be creating a dangerous precedent, one which could be used to argue for expanded rights to discriminate in the future.

Indeed, this appears to be the goal of anti-LGBTI hate groups like the Australian Christian Lobby, as well as Liberal backbencher Andrew Hastie who has argued that the exceptions in Smith’s Bill should go much, much further:

“The protections offered [extend] only to the wedding and the wedding participants themselves. They need to be expanded to whole-of-life protections” (emphasis added).

In the long-term, that is what is really at stake in the debate around marriage equality and religious exceptions – whether individuals will be able to discriminate against us as LGBTI Australians, in every aspect of our lives, based on nothing more than their personal views.

And so, while achieving marriage equality in the short-term is obviously important (and I write that as someone who has been engaged for almost eight years), we should make sure we don’t win the battle but lose the war.

Dean Smith’s Marriage Bill includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples

The second major shortcoming of the Smith Bill is how it approaches the issue of ‘religious exceptions’ more broadly.

As indicated above, the Commonwealth Sex Discrimination Act 1984 already provides religious bodies with extremely generous special privileges to discriminate against LGBT Australians.

Despite this, the Marriage Amendment (Definition and Religious Freedoms) Bill includes the following:

“47B(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

There are two possible readings of this clause. The first is that it merely reflects existing Sex Discrimination Act provisions, and grants the same privileges to discriminate within the Marriage Act. To which the obvious reply is: if religious bodies already have the ability to discriminate in this way, why does it need to be replicated (some might say duplicated) here?

The alternative reading is that this is an expansion of the ability of religious bodies to discriminate, in that it grants new special privileges in relation to same-sex weddings in particular.

How broad these new special privileges are depends on what ‘reasonably incidental to the solemnisation of a marriage’ means. Proposed new sub-section 47B(5) notes that “[f]or the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage.” Which isn’t exactly helpful (and nor is the Explanatory Memorandum).

Irrespective of which reading you adopt, however, I would argue that these new provisions should be rejected. Because they either unnecessarily duplicate protections that already exist. Or they introduce new special privileges to discriminate in wedding-related services simply because same-sex couples will finally be able to get married.

This last point is particularly important. Debate around the right to marry is at least as much symbolic as it is practical, and the marriage equality movement has meant so much to so many because it has taken on larger significance – whether lesbian, gay, bisexual, transgender and intersex Australians are considered full citizens. Or not.

To give marriage with one hand, but take equality away with the other – by including new special privileges to discriminate against us – fundamentally undermines what should be a powerful symbolic moment.

And make no mistake, it does so because of anti-LGBTI prejudice. As much as proponents of this legislation will try to argue it is necessary to protect ‘religious freedom’, as I have written previously this can be seen as a transparent lie.

After all, many religious bodies have strong beliefs about divorce and remarriage. And yet following the introduction of ‘no fault’ divorce via the Family Law Act 1975, and during the four decades since, there have not been any amendments to the Marriage Act to grant special privileges to religious bodies allowing them to discriminate against people who remarry.

The fact that they are being introduced now, when LGBTI Australians might finally get a seat at the ‘head table’, reveals that these new exceptions are not aimed at protecting ‘religious freedom’ – they are instead designed to protect homophobia (and transphobia, and biphobia, and intersexphobia).[iii] Nothing more and nothing less.

Dean Smith’s Marriage Bill strengthens special privileges for some public servants to discriminate against LGBTI couples

The final major shortcoming of the Smith Bill relates to the ability of Australian Defence Force Chaplains to discriminate against personnel who wish to get married.

Importantly, ADF Chaplains already have the ‘right’ to refuse to officiate the ceremonies of anyone they wish, for any reason they wish, as a result of section 81 of the Marriage Act.[iv]

Nevertheless, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 reinforces this ability by adding the following:

“81(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body or religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

The duplication of the existing right of ADF Chaplains to discriminate in this way is entirely unnecessary.

But I have a much more substantive problem with the Marriage Act granting such privileges: ADF Chaplains are public servants, and therefore should be able to, indeed should be required to, serve all members of the ADF equally, including lesbian, gay, bisexual, transgender and intersex personnel.

The Defence Jobs website seems to recognise this obligation in its advertisements: “the military Chaplain must provide spiritual ministry to all members of the Army, regardless of faith or denomination … in recognition of the imperative to foster firm faith as described, every Chaplain must be the spiritual minister to every member” (emphasis added).

Every member should mean every member – not just cisgender and/or heterosexual members. To determine otherwise is to permit public servants to discriminate against people simply because of their personal beliefs, thereby creating Australia’s equivalent of Kentucky’s infamous Kim Davis.

The most offensive aspect of these special privileges is that ADF Chaplains are paid for by taxpayers’ money, including LGBTI taxpayers, and yet they will continue to be free to discriminate on the basis of their own anti-LGBTI beliefs.

Smith’s Marriage Bill is therefore a missed opportunity to remedy this injustice, either by requiring all Chaplains to serve all ADF personnel without prejudice (which, based on the public debate so far, seems unlikely to be acceptable to religious stakeholders) or by removing the ability of these Chaplains to officiate any weddings, and coming up with a suitable alternative.

Which brings me to one of maybe three positive aspects of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, proposed section 71A, which provides that:

“The Chief of the Defence Force may, by instrument in writing, authorise an officer (within the meaning of the Defence Act 1903), other than a chaplain, to solemnise marriages under this Division.”[v]

I can see no reason why the appointment of these officers should not be the primary way in which ADF personnel are able to marry while on deployment, something that would effectively guarantee every serving member is treated equally, irrespective of sexual orientation, gender identity or intersex status. Surely that is a goal we can all agree on.

Conclusion:

If the result of the same-sex marriage postal survey on 15 November is the one that we want, that is not the end of the story – not by a long way.

We must also ensure that the legislation that is passed afterwards reflects what we want, or as close to it as possible – and that means not rushing to accept a Bill that might give us marriage, but not deliver marriage equality.

We should consider, in detail, all possible legislative options and decide whether what they offer is ‘acceptable’.

From my perspective, I don’t think we should accept a Bill that gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples.

Nor we should accept a Bill that includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples.

Finally, I don’t think we should accept a Bill that strengthens special privileges for some public servants to discriminate against LGBTI couples.

Consequently, I don’t think we should accept Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

I think we can, and we must, do better. Because LGBTI Australians deserve more than just marriage. We deserve genuine marriage equality.

Liberal Senator Dean Smith, whose Marriage Bill uses just nine words to amend the definition of marriage, but more than 400 introducing or expanding special privileges to discriminate against LGBTI couples.

Footnotes:

[i] If you are reading this article after 27 October, but before 7 November, and still have your postal survey, then please #postyouryes as soon as possible. The earlier you do, the more chance there is it will be counted, and help Australia finally achieve marriage equality.

[ii] Even the religious exceptions contained in the NSW Anti-Discrimination Act 1977 – which are the broadest (and arguably the worst) in the country – only apply to religious bodies, or educational authorities, and not to individuals.

[iii] The same argument can be made against proposals for civil celebrants to become ‘religious marriage celebrants’ allowing them to discriminate, discussed above. This ‘right’ has not previously been offered (nor sought apparently) in relation to people who remarry – it is only being added now to allow discrimination against LGBTI couples. That is homophobia, pure and simple.

[iv] “A chaplain may refuse to solemnise a marriage under this Part on any grounds which appear to the chaplain to be sufficient and, in particular, on the ground that, in the opinion of the chaplain, the solemnisation of the marriage would be inconsistent with international law or the comity of nations.”

[v] The other two positive features of the draft legislation are the proposed change to the definition of marriage (sub-section 5(1) “Omit ‘a man and a woman’, substitute ‘2 people’”) and the recognition of existing same-sex marriages.

Marriage equality or marriage discrimination – a simple test

Posted on August 1, 2017 by Alastair Lawrie

Based on media coverage over the past few days, it now seems possible that Commonwealth Parliament will – finally – hold a free vote in coming weeks on the right of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians to marry.

Of course, it is just as likely (perhaps even more likely) that the Turnbull Government will instead decide to hold a non-binding, voluntary postal vote on the subject, but that unnecessary, wasteful, divisive and downright offensive proposal is a subject for another day.

What I wanted to write about today is the kind of legislation that might ultimately be voted upon.

Because, amidst the understandable excitement of activists and advocates, the LGBTI community, our family members and friends, indeed all Australians who believe in fairness and the right of all people to marry the person they love, that progress might be imminent, we must not overlook a fundamental question:

Is it marriage equality, or is it marriage discrimination?

That is, does the Bill treat LGBTI-inclusive couples exactly the same as cisgender heterosexual couples, or will it introduce new special rights for civil celebrants and/or other wedding-related businesses to discriminate against us?

If it is the former, it is genuine marriage equality. If it is the latter, then it is something else, something lesser: marriage discrimination.

Unfortunately, based on multiple news reports it appears that the private member’s bill being drafted by Western Australian Liberal Senator Dean Smith will include new ‘protections’ that provide celebrants with the right to refuse to officiate the ceremonies of LGBTI couples.

Given religious celebrants already have this ability, presumably Senator Smith’s Bill will extend this ‘right to discriminate’ to (at least some) civil celebrants.

The argument that will inevitably be put forward to justify the differential treatment of couples under the Marriage Act 1961 is that it is necessary to protect the ‘religious freedom’ of the celebrants involved.

From my perspective, whether we should accept this argument, and indeed whether we should accept legislation that includes these types of ‘religious exceptions’, comes down to this simple test:

Will it treat LGBTI couples in the future differently from, and worse than, divorced people seeking to get (re-)married today?

Now, I admit this might seem to be a somewhat strange comparator, so please allow me to explain.

There is a wide range of religious beliefs about the rite of marriage, from groups who believe in marriage between more than two people, to others who do not believe in marriage between people of different faiths.

One of the more common religious beliefs about marriage, and indeed still the official position of what is the second-largest religious group in Australia (the Catholic Church, after ‘No religion’), is that divorce is a sin, and consequently people who have divorced should not be allowed to re-marry.

The Marriage Act currently allows churches, and religious celebrants, the ability to refuse to officiate the ceremonies of couples where one or both parties have already been divorced.

However, despite the fact some civil celebrants are Catholic themselves (and therefore may have some qualms about second, third or even fourth marriages), there is no equivalent right for civil celebrants to decline to perform these weddings.

And that seems like a reasonable distinction to make – because civil ceremonies under the Marriage Act are secular, rather than religious, in nature, there is no need to provide civil celebrants with the right to reject divorced people on the basis of their personal religious beliefs.

But, if it is not deemed essential to protect ‘religious freedom’ by allowing civil celebrants to discriminate on the basis of marital or relationship status now, then it should not be necessary to permit discrimination on the basis of sexual orientation, gender identity or intersex status in the future.

Indeed, by comparing the rights of divorced people seeking to re-marry today with the rights of LGBTI couples under any future legislation that seeks to permit all couples to marry, it becomes clear that:

Amendments that provide civil celebrants with the ‘right to discriminate’ against LGBTI couples are not based on protecting ‘religious freedom’, but instead are legislating a right to homophobia, biphobia, transphobia and intersexphobia.

As a result, any legislation that allows LGBTI Australians to get married, but does so on the condition that civil celebrants are able to turn them away because of their personal prejudices, is not marriage equality, it is marriage discrimination.

The Marriage Amendment (Same-Sex Marriage) Bill that was released by the Attorney-General, Senator George Brandis, during the debate on the (traditional) plebiscite way back in October 2016 clearly failed on this front.

Not only did it significantly expand the right of civil celebrants to discriminate against LGBTI couples, it also clarified that defence force chaplains (who are public servants) could reject people on the basis of their sexual orientation, gender identity or intersex status. It even allowed for-profit businesses, run by religious organisations on a commercial basis, to turn LGBTI couples away.

For all of these reasons, the Marriage Amendment (Same-Sex Marriage) Bill was Unacceptable.

It is possible that Senator Smith and others have ‘learned’ from that experience, and that his private member’s bill will look significantly different to the Brandis Bill on the surface. The new ‘protections’ may not even explicitly target LGBTI couples, and instead be couched in more neutral terms.

But the real question will be how it treats LGBTI people in its substance. Irrespective of the wording used, if the legislation allows civil celebrants and/or other wedding-related businesses to treat LGBTI couples differently from, and worse than, divorced people seeking to re-marry today, it is simply homophobia, biphobia, transphobia and intersexphobia in a pretty wedding dress (or tuxedo).

And so, by all means get excited by the possibility that the interminable debate about the right of LGBTI couples to marry in Australia might soon be over. But we should also be on guard against any proposals that provide civil celebrants and others with the ‘right to discriminate’ against us.

We’ve waited long enough for genuine marriage equality. We shouldn’t settle, or be forced to settle, for marriage discrimination.

We should hold off on cutting the celebratory wedding cakes until we know exactly what is in the substance of any Bill, including any religious exceptions it may contain.

Equal Means Equal – Submission to Inquiry into Marriage Amendment (Same-Sex Marriage) Bill

Posted on February 7, 2017 by Alastair Lawrie

Update 15 February 2017:

The Senate Committee Inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill has been completed, with its report tabled in Parliament this afternoon (Wednesday 15 February 2017). A copy of the Report can be found here.

The Report itself includes some positives, and some areas of possible concern.

On the positive side, the Committee has acknowledged that adding a stand-alone right for ministers of religion to discriminate against same-sex couples is both unnecessary, and explicitly discriminatory (page 15).

The Committee also did not support the introduction of broad new rights for civil celebrants to discriminate against LGBTI couples, noting that they “are authorised to perform a function on behalf of the state and should be required to uphold Commonwealth law” (page 24).

On the other hand, the Committee has attempted to define a new category of ‘religious marriage celebrants’ – who are not ministers of religion but conduct marriages for faith communities – and then providing them with similar rights to discriminate as ministers of religion (page 23).

While that compromise may seem reasonable, some of these same celebrants also officiate at secular ceremonies, and under no circumstances should they be allowed to discriminate when they are effectively operating as a civil celebrant.

In the same way, the proposal that existing civil celebrants should be allowed to register as ‘religious marriage celebrants’, and therefore benefit from the same right to discriminate (page 24), must not apply to any situation in which they continue to oversee civil ceremonies.

The Committee also questioned the need for new special rights for religious bodies and organisations to discriminate against same-sex couples – although that is because it believes they may already be allowed to do so because of the overly-generous religious exceptions provided under the Sex Discrimination Act 1984 (page 31).

It also discusses, although doesn’t explicitly support, clarifying their ‘right’ to refuse to provide facilities, goods and services in situations that are “intrinsic to, directly associated with and intimately involved in a wedding ceremony” (page 32). Once again, this would unacceptably undermine a reform that is, at its heart, supposed to be about the equal recognition of equal love.

Finally, the Committee observed that “[i]n relation to military chaplains, the committee notes that the proposed amendment would not change the current law”, and then suggests the reintroduction of ‘marriage officers’ to provide an alternative method for LGBTI military couples to marry (page 24).

While it may not change existing law, a) there must not be a new stand-alone note to section 81 that singles out same-sex couples for adverse treatment and b) as public servants, paid for with our taxes, and with an obligation to serve all personnel equally, the right of military chaplains to discriminate in this way should be abolished.

With the Report finalised, pressure now returns to our 150 House of Representatives MPs, and 74 Senators (with two current vacancies), to find a way forward on marriage equality, and ensure it is passed as quickly as possible.

But it must also be done as fairly as possible. I would argue there is absolutely nothing in the Committee Report that would justify the inclusion of new special rights to discriminate against LGBTI couples in any marriage equality bill.

In which case, in the coming weeks and months it will be up to us to continue to remind Prime Minister Malcolm Turnbull – and Opposition Leader Bill Shorten, as well as the Greens and crossbench MPs and Senators, in fact anyone who will listen to us – that equal means equal, and that means passing marriage equality without new religious exceptions.

Original Post:

The Senate is currently conducting an inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill. This is the legislation that the Government would have introduced had the marriage equality plebiscite been held, and had that vote been successful.

Full details of the inquiry can be found here. It is due to report on Monday 13 February 2017, although what happens afterwards remains unclear.

My submission to the inquiry, which focuses on the provisions of the Bill that seek to treat LGBTI couples differently to, and worse than, other couples, has now been published, and is reproduced below:

Committee Secretary

Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Department of the Senate

PO Box 6100

Canberra ACT 2600

samesex.marriage.sen@aph.gov.au

Friday 13 January 2017

Dear Committee Secretary

Submission on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Thank you for the opportunity to provide a submission in relation to this inquiry, which is examining the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (‘the Bill’).

In this submission, I will explain my personal reasons for opposing several provisions contained within the Bill, before addressing terms of reference a), b) and c) in detail. This will include my main recommendations for amendment to, and improvement of, the proposed legislation, before concluding with a short summary of this submission and its recommendations.

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Introduction: Equal Means Equal

I met my fiancé Steven in August 2008, two weeks after my 30^th birthday and just one week after the wedding of my brother to his wife.

It was clear from the very beginning that this relationship was different from any that had come before. And I know that applies for both of us.

Within 12 months we began planning the rest of our lives together. Steven and I have lived together from January 2010 onwards, and now own a home together.

More importantly, we have been engaged to be married since 23 January of that same year.

That means, in exactly ten days’ time, we will have been waiting for the legal right to get married for a full seven years. Our engagement has already lasted longer than the marriages, from beginning to end, of many Australian couples.

All we want is exactly the same right to wed, and to have that wedding recognised under secular law, as my brother when he married his wife, and as my sister when she married her husband in 2006.

Significantly, the Bill that is being considered as part of this inquiry would allow Steven and I to finally ‘tie the knot’. That aspect of the Bill, contained in clause 1 (amending subsection 5(1) (definition of marriage) to “omit “a man and a woman”, substitute “2 people””), is obviously welcome.

However, if passed as drafted, a number of other provisions in the Bill would ensure that, rather than being treated the same as my brother and his wife, or my sister and her husband, this legislation would ensure Steven and I were subject to adverse, and discriminatory, treatment simply because of who we are.

The civil celebrant who officiated at the ceremony between my sister and her husband would have the ‘right’ to reject us because we are not “a man and a woman”.

Any ‘religious organisation or body’, broadly defined, that provided wedding-related facilities, goods and services would be able to turn us away because of our sexual orientation. And that ‘right’ would apply even where they operated for profit, and even though the same groups could not discriminate against my siblings.

In short, the Bill would establish two different classes of couples – ‘man and woman’ couples, versus everyone else – with the latter category, including Steven and me, enjoying lesser rights than the former.

While this legislation will deliver marriage, it will not deliver marriage equality. That outcome is unacceptable both to me, and to my fiancé Steven.

There is no legitimate reason why we should be treated worse than my brother and my sister were when they decided to marry their respective partners. Because we are not ‘worse than’ anyone, them included.

Equal means equal. Or at least it should – and I sincerely believe that principle must be reflected in the Marriage Act.

**********

Term of reference a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions.

The Bill proposes four new and/or expanded special rights to discriminate against couples that include lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. All four are unnecessary and unjustified. All four should be removed from the legislation to help achieve genuine marriage equality.

A specific right for ministers of religion to discriminate against couples that are not “a man and a woman”

I should begin by noting that I agree with the ability of authorised celebrants who are ministers of religion to refuse to perform any religious ceremonies, including weddings, that do not fit within the beliefs of their religion. That obviously includes the right to refuse to marry LGBTI couples, even if I personally believe that such discrimination is abhorrent.

However, it is important to remember that ministers of religion already have the right to refuse to perform any ceremony under existing section 47 of the Marriage Act 1961:

“Ministers of religion not bound to solemnise marriage etc.

Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

If the right for LGBTI couples to marry was finally recognised under Commonwealth law, that section would plainly allow ministers of religion to deny them service. Therefore, no new amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings.

In which case, the proposed repeal of section 47, and replacement with a more detailed right to discriminate, is entirely unnecessary. In particular, proposed new sub-section 47(3) states:

“Refusing to solemnise a marriage that is not the union of a man and woman

(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) any of the following applies:

(i) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

(ii) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(iii) the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.”

The inclusion of this unnecessary new sub-section, which highlights the ability of ministers of religion to discriminate against one class of couple (LGBTI people) and one class of couple only, is discriminatory and should be rejected.

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

**********

A new special right for civil celebrants to discriminate against couples that are not “a man and a woman”

Currently, only ministers of religion have an explicit ‘opt-out’ clause under the Marriage Act 1961, allowing them to decline to perform any marriages with which they disagree.

No equivalent provision or power exists for civil celebrants – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

However, the Bill proposes an entirely new special right for ‘secular’ civil celebrants to reject LGBTI couples just because of who they are. Proposed new section 47A reads:

“Marriage celebrants may refuse to solemnise marriages

(1) A marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the marriage celebrant’s conscientious or religious beliefs do not allow the marriage celebrant to solemnise the marriage.”

This is, to put it simply, outrageous.

There is absolutely no reason why someone who is engaged in small business should be able to discriminate in such a way, against people who are LGBTI, solely because of their personal beliefs. It is the equivalent of encouraging celebrants to put up a sign saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed’.

The fact that, unlike ministers of religion who are able to discriminate against any couples, civil celebrants will only be allowed to discriminate against LGBTI couples, merely highlights the homophobia, biphobia, transphobia and intersexphobia that lies at the heart of this proposed new section.

And, with civil ceremonies now accounting for three-in-four of all mixed-sex weddings[i], and likely forming an even higher proportion of LGBTI weddings (at least in part because some religions will continue to turn couples away that are not “a man and a woman”), this prejudiced provision will impact on a large number of LGBTI couples. For all of these reasons, it should be rejected.

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

**********

A new special right for religious bodies and organisations to discriminate against couples that are not “a man and a woman”

Unfortunately, under the Bill it is not just civil celebrants who will be allowed to put up unwelcome (on multiple levels) signs saying ‘no gays, or lesbians, or bisexuals, or trans people, or intersex people, allowed.’

Religious bodies or organisations will also be able to do so under proposed new section 47B, which reads:

“Religious bodies and organisations may refuse to make facilities available or provide goods or services

(1) A religious body or a religious organisation may, despite any law (including this Part), refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the refusal:

(i) conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or

(ii) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

There are a number of significant problems with this provision.

First and foremost, by not defining what a ‘religious body’ or ‘religious organisation’ is, it is difficult to know exactly who will be able to exercise this new specific right to discriminate (with the possibility that the number of groups permitted to turn away LGBTI couples will be quite high).

Secondly, by not defining the phrases ‘for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage’, (and especially the term ‘reasonably incidental’) it is also difficult to know the scope of this new special right to discriminate.

However, even if both the number of groups allowed to discriminate, and the exact circumstances in which they were allowed to do so, were known, this proposed new section would still be fundamentally flawed.

That is because it authorises discrimination against LGBTI couples far beyond any right to refuse to conduct weddings in places of worship, like churches, which would likely be justified on the basis of religious freedom.

Instead, it permits adverse treatment of couples who are not “a man and a woman” in a wide range of circumstances, including in hiring venues where it is not a place of worship, and in the provision of goods and services even where this is engaged in on a commercial basis, for profit.

One consequence of this is that it would establish a negative precedent for the future expansion of this right to discriminate to other individuals and businesses, such as florists, bakers, photographers or wedding reception venues, who are not religious bodies or organisations, to refuse service to LGBTI couples.

If other commercial enterprises are allowed to do so (because they are run by religious groups), and even civil celebrants are permitted to discriminate on the basis of their personal beliefs, it is entirely predictable that additional groups will demand their own ability to reject couples who are not “a man and a woman.”

Despite all of the above faults, however, the major flaw with the provision is that it is a direct attack on LGBTI couples and LGBTI couples only. It singles out any relationship that doesn’t fit within the definition of “a man and a woman” for special, and detrimental treatment – and literally nobody else.

That makes this proposed provision homophobic, biphobic, transphobic and intersexphobic, and it too should be rejected.

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

**********

A specific right for Defence Force chaplains to discriminate against couples that are not “a man and a woman”

The Bill’s fourth and final new and/or expanded special right to discriminate against LGBTI couples is provided to Defence Force chaplains.

This is established through the addition of a note to existing section 81 of the Marriage Act 1961, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings. That note would read:

“Example: a chaplain may refuse to solemnise a marriage that is not the union of a man and a woman where the refusal conforms to the doctrines, tenets or beliefs of the chaplain’s church or faith group.”

While these chaplains are ministers of religion, and therefore would potentially have the ability to discriminate against any couple, they are also a special class of celebrant, because:

They are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ii], and
In their duties, Defence Force chaplains are expected to “administer spiritual support to all members, regardless of their religion”[iii] (emphasis added).

Therefore, permitting discrimination by Defence Force chaplains fails in principle on two counts:

As public servants, they should not be able to discriminate against members of the public simply because of their personal beliefs – otherwise we are allowing the Australian equivalent of Kim Davis, and
In providing spiritual support for Defence Force personal, they are expected to do so for all people, not just those who are cisgender and heterosexual.

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, it must include the weddings of LGBTI people. To do otherwise is, once again, homophobic, biphobic, transphobic and intersexphobic, and it should be rejected.

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are obligated to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

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As suggested by term of reference a), the above four new and/or expanded special rights to discriminate against LGBTI couples have ostensibly been included in the Bill by the Government on the basis of the need to protect ‘religious freedom’.

However, I would argue that, upon closer inspection, they do no such thing. Rather than protecting religious freedom, these provisions instead protect homophobia, biphobia, transphobia and intersexphobia and merely use religion as an excuse.

This can be seen when one remembers that there are a wide variety of different religious beliefs about marriage.

Some people believe only cisgender heterosexual couples should be able to marry.

Others do not believe in divorce, and therefore oppose the right of people to participate in second, or subsequent, weddings.

Some even continue to hold the (once widespread) belief that people of different faiths should not marry – and, in extreme cases, that people of different types of christianity should not marry.

I should note that I do not share any of the above beliefs. But others do, and I have no doubt that their views are sincerely held.

Given this, there is no possible justification for the Marriage Amendment (Same-Sex Marriage) Bill to allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against LGBTI couples but not discriminate against divorced people, or against interfaith couples (or on the basis of other religious beliefs about marriage).

The fact that it does so, establishing new special rights to discriminate against LGBTI couples, and only LGBTI couples, reveals the fundamental truth of this Bill: it has very little to do with protecting religious freedom, and is more concerned with ensuring people who hold anti-LGBTI views are free to discriminate against couples who are not “a man and a woman” in a wide variety of circumstances.

In effect, the Bill privileges homophobic, biphobic, transphobic and intersexphobic beliefs, rather than protecting religious beliefs.

That is unacceptable, and merely confirms the earlier recommendations in this submission that these new and/or expanded special rights to discriminate are discriminatory and should be removed from the Bill.

I should note here that the Government, having revealed its discriminatory intentions, cannot now turn around and extend these new special rights to discriminate to cover divorced people and interfaith couples because they will only be doing so to cover up the anti-LGBTI nature of its original legislation.

Instead, the Government, and Parliament, should focus on amending the Bill to ensure that all couples are (finally) treated in exactly the same way – that equal means equal.

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Term of reference b) the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it.

Currently, sub-section 40(2A) of the Sex Discrimination Act 1984, the legislation that establishes Commonwealth anti-discrimination protections on the basis of sexual orientation, gender identity and intersex status, ensures that “anything done by a person in direct compliance with the Marriage Act 1961” cannot be the subject of an anti-discrimination claim under that legislation.

This is justified because it would be entirely unreasonable to hold civil celebrants and others accountable for discriminating against LGBTI couples (because they legally cannot marry them) that has been made compulsory since the Howard Government prohibited marriage equality in August 2004.

The amendment of the Marriage Act, to permit all couples to marry irrespective of sexual orientation, gender identity or intersex status, and the removal of this requirement, should therefore be an opportunity to remove or at least significantly curtail this exception to the protections contained in the Sex Discrimination Act.

Indeed, the only provision of the Marriage Act that should require an exception would be the ongoing ability of ministers of religion to discriminate against any couples, as established by existing section 47.

Consequently, sub-section 40(2A) of the Sex Discrimination Act could, and I would argue should, be restricted to the following:

“Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person as authorised by section 47 of the Marriage Act 1961” (emphasis added).

Instead, the Bill as drafted actually proposes to expand the exception to the Sex Discrimination Act, because it would permit any discrimination that is ‘as authorised by’ the entirety of the Marriage Act, as redrafted.

This is obviously intended to capture all four of the new and/or expanded special rights to discriminate against LGBTI couples outlined earlier. Given the inclusive way this amendment is framed, it may even permit additional forms of anti-LGBTI discrimination.

In my view, this is a perverse outcome. Legislation that is intended to remove a long-standing inequality, and injustice, affecting lesbian, gay, bisexual, transgender and intersex Australians, by finally allowing them to marry, actually expands relevant exceptions to the Sex Discrimination Act, thereby increasing the circumstances in which they can lawfully be discriminated against.

Once again, this confirms the inappropriateness of the four new and/or expanded special rights to discriminate against LGBTI couples. The proposed amendment to section 40(2A) of the Sex Discrimination Act is also inappropriate, and should be replaced with a narrower exception to that legislation.

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

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Term of reference c) potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate.

In terms of amendments to improve the effect of the Bill, I have already made five recommendations to significantly improve its impact on the recognition of the human rights of LGBTI Australians. In this section, I will nominate two further areas of necessary reform.

The Bill should refer to marriage equality rather than same-sex marriage

The Bill, as drafted, would allow all couples, including those that involve lesbian, gay, bisexual, transgender and intersex individuals, to marry under the law. This is an important reform, and it will substantively improve the lives of many LGBTI Australians.

However, the title of the Bill – the Marriage Amendment (Same-Sex Marriage) Bill – only refers to ‘same-sex marriage’, rather than marriage equality.

This is problematic because the term same-sex marriage does not include all LGBTI couples. It specifically excludes some transgender people (especially those who identify as non-binary or gender-fluid) and some intersex people.

The term same-sex marriage should be replaced with marriage equality in the title of the Bill, to ensure that, alongside recognising the substantive human rights of LGBTI Australians, it symbolically recognises the diversity of these communities.

Of all major contemporary public policy issues, marriage is a subject in which both the substantive, and the symbolic, are equally important.

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

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The Bill should allow couples to apply to have specified pre-existing unions recognised as marriages

The wait for marriage equality to be recognised under Australian law has been long, often painfully so.

It is entirely understandable that, in the interim, many LGBTI couples have chosen alternative ways to have their relationships recognised. This includes many who have travelled overseas (or to consulates within Australia), where marriage equality is lawful, to wed.

It also includes couples who have decided to have their relationships recognised under state and territory relationship recognition schemes, including civil partnerships and registered relationships, with or without an associated formally-recognised ceremony.

While the Bill will, thankfully, recognise the former (overseas marriages) as marriages, it will not provide any avenue for the latter (civil partnerships or registered relationships) to be recognised in a similar manner.

Allowing couples in this situation to apply to have their existing relationship recognised as married would be an acknowledgement of the fact that their mutual commitment to a shared life, and wish to be married, has existed since the date of their commitment being made.

It would also acknowledge the discrimination that these couples have endured as a result of the exclusionary nature of the Commonwealth Marriage Act 1961.

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

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Marriage equality should be passed as a matter of priority

Term of reference c) asks for ‘potential amendments to improve the… likelihood of achieving the support of the Senate.’ With all due respect, I believe that to be an inappropriate request.

The real question is why the Senate – and the House of Representatives – have not yet passed legislation to recognise the equality of our relationships, irrespective of sexual orientation, gender identity or intersex status.

It has been more than a dozen years since the Howard Government’s homophobic ban on marriage equality was first passed by the Commonwealth Parliament.

That means LGBTI couples have now experienced more than a dozen years of discrimination, treated as distinctly ‘2^nd class’ in comparison to the relationships of cisgender heterosexual Australians.

Tragically, in those dozen years, there have also been countless LGBTI relationships where one or both members have passed away without being able to have their relationship recognised under Commonwealth law. The longer the ban continues, the more relationships will be denied justice.

That same dozen years has witnessed much ‘sound and fury’ within the Commonwealth Parliament on this issue, including countless inquiries in the House of Representatives and the Senate (with this one now added to the list), ultimately achieving nothing – because we still cannot marry.

So, rather than asking how the Bill can be amended to improve the chances of Senators voting for it, as if just one more ‘compromise’ will be enough to secure sufficient support to get it over the line, we should be asking why won’t Senators, and their colleagues in the lower house, do their jobs and pass marriage equality as a matter of priority.

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

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Conclusion

In this submission, I hope I have successfully conveyed my passion, not just for the subject of marriage equality generally, but also about the issue of marriage equality and religious exceptions specifically – and why any amendments to the Marriage Act should ensure that all couples are treated exactly the same.

I am glad that these issues are being examined by the Senate, through this inquiry, and I look forward to the Committee making recommendations to improve both the substance, and the symbolism, of the Marriage Amendment (Same-Sex Marriage) Bill.

Thank you for your consideration of this submission. I would welcome the opportunity to speak to the matters raised above at a Committee hearing, should one (or more) be held.

I have also included a Summary of this submission on the following two pages.

Please do not hesitate to contact me, at the contact details provided with this submission, should you require clarification, or further information.

Sincerely

Alastair Lawrie

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Summary

Marriage equality is an important issue that affects tens of thousands, hundreds of thousands, Australians, including couples like my fiancé Steven and me.

We have been together for more than eight and a half years, and engaged for almost seven years. All we want is the right to be married under secular law, in exactly the same way that my brother married his wife, and my sister married her husband.

Unfortunately, while the Marriage Amendment (Same-Sex Marriage) Bill would allow us to marry, it would not do so equally, because it would expose us to potential discrimination that my siblings did not experience.

It is marriage, but not marriage equality. And that is not good enough, because equal means equal – and that principle should be reflected in the Marriage Act.

I make seven recommendations to improve the Marriage Amendment (Same-Sex Marriage) Bill, as well as an eighth, that marriage equality should be passed as a matter of priority.

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are supposed to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

Whenever marriage equality is finally passed by the Commonwealth Parliament, and I genuinely hope it does so soon, it must ensure that all couples are treated equally, because we cannot end up with a situation where ‘some couples are more equal than others’.

equalmeansequal-4

Footnotes:

[i] “[T]he proportion of marriage ceremonies overseen by a civil celebrant increased again to 74.9 per cent of all marriages in 2015”: Marriage and Divorces, Australia, 2015, Australian Bureau of Statistics, November 2016.

[ii] The Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

[iii] Also from the Defence Jobs Australia website.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

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