Marriage equality or marriage discrimination – a simple test

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.

 

Untitled design-2

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.

Advertisements

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

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.

 

**********

 

Introduction: Equal Means Equal

 

I met my fiancé Steven in August 2008, two weeks after my 30th 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.

 

  1. 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.

 

**********

 

  1. 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.

 

**********

 

  1. 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.

 

**********

 

  1. 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.

 

**********

 

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.

 

**********

 

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.

 

**********

 

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.

 

  1. 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.

 

**********

 

  1. 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.

 

**********

 

  1. 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 ‘2nd 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.

 

**********

 

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

 

**********

 

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 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.

 

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.

 

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.

 

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 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.

 

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

 

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.

 

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.

 

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.

If we want genuine marriage equality, we’re going to have to fight – & write – for it

2017 might be the year that Australia finally introduces marriage equality[i].

If it is, it will only be because lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, and our families, friends and allies, have fought long and hard to make it happen.

However, there is also a very real risk that we end up with something less than genuine equality.

This is because there are some members within the Liberal National Coalition who are willing to support the right of LGBTI couples to marry, but only on the condition that new special rights to discriminate against us are included in any amendments to the Marriage Act.

That is simply not good enough.

As the US Supreme Court found more than 60 years ago[ii], separate but equal is not equal. And so we must reject any attempt to impose a 2nd-class system of marriage for LGBTI Australians, where we can be treated differently to cisgender heterosexual couples, merely because of who we are.

In the same way that we have fought, and continue to fight, for the right to marry, we must also fight for the right to marry equally.

The battleground for this campaign is the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, released in October 2016. This is the legislation that the Government would have introduced had its (unnecessary, wasteful and divisive) plebiscite been held, and had it been successful.

While the Bill allows any two people to marry – and therefore would provide LGBTI Australians with the ability to finally tie the knot – it also proposes four new special rights to discriminate against any relationship that is “not the union of a man and a woman[iii].” This includes:

  1. A specific provision allowing ministers of religion to reject LGBTI couples, and only LGBTI couples[iv] – even though ministers of religion can already reject any couple for any reason. That means this clause is both unnecessary, and unfairly targets our relationships.
  1. An entirely new right for civil celebrants to reject LGBTI couples, and only LGBTI couples[v]. No other section of the Marriage Act 1961 currently allows these celebrants to discriminate. This homophobic provision is especially concerning given three out of every four weddings in Australia are conducted by civil celebrants.
  1. A specific provision allowing ‘religious bodies and organisations[vi] to deny facilities to, and withhold goods and services from, LGBTI couples, and only LGBTI couples[vii]. This has been included despite existing religious exceptions to anti-discrimination laws, at both Commonwealth and state and territory level, and applies even where these groups are engaged in commercial enterprise.
  1. A new right for Defence Force chaplains to reject LGBTI couples, and only LGBTI couples[viii]. This is despite the fact these chaplains are public servants, paid for by all taxpayers – including LGBTI Australians – and that they are expected to “administer spiritual support to all members, regardless of their religion” (emphasis added)[ix].

None of these new special rights to discriminate against LGBTI couples are necessary. All are completely unjustified. All must be challenged.

Fortunately, this Bill generally, and these proposed new ‘religious exceptions’ specifically, are currently the subject of a Senate inquiry.

The Select Committee examining this Bill has called for public submissions, which close next Friday (13 January). Full details of the Inquiry, including how to lodge, can be found here.

I encourage you to make your own submission, calling for the Committee, and ultimately the Parliament, to reject these four new special rights to discriminate against LGBTI couples.

In doing so, you could make the following two main points:

  • This Bill is NOT marriage equality

While the Marriage Amendment (Same-Sex Marriage) Bill would allow LGBTI couples to finally marry, by including new special rights to discriminate against LGBTI couples – and only LGBTI couples – the Bill actually establishes a 2nd-class system of marriage for some Australians based on their sexual orientation, gender identity or intersex status. ‘Separate but equal’ is not equal – which means this Bill would not deliver genuine marriage equality.

  • The exceptions included in this Bill do not protect religious freedom, they promote homophobia and transphobia

There are a variety of different religious beliefs about marriage. Some people believe only cisgender heterosexual couples should be able to marry[x]. 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.

If the Marriage Amendment (Same-Sex Marriage) Bill reflected genuine concerns about protecting ‘religious freedom’, it would allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against divorced people, or against inter-faith couples[xi].

The fact that it does not, and that it establishes new special rights to discriminate solely against LGBTI couples, reveals the fundamental truth of this legislation: it has very little to do with protecting religious freedom, and much more to do with promoting homophobia, biphobia, transphobia and intersexphobia[xii].

**********

3 Ways to Take Action

If you agree with me, then now is the time to get involved, to get fighting – and writing – to let the Senate Committee, and the Government, know that marriage equality should mean exactly that: equality. And we won’t accept anything less.

Here are three ways you can take action in the next week:

  1. Write your own submission to the Senate Inquiry. As noted above, details on how to do so can be found here. Alternatively, two LGBTI organisations have designed web platforms to make writing a submission easier:
  1. Complete these surveys about the Bill. Both the NSW Gay & Lesbian Rights Lobby and just.equal (& PFLAG Australia) are consulting the LGBTI community about what they think of the proposed religious exceptions. Let them know your views here:
  1. Sign and share this petition to Prime Minister Malcolm Turnbull, demanding that Equal love should not be treated unequally.

Above all, if you think that equal means equal, no ifs, buts, or maybes, then it’s time to get writing…

equalmeansequal-3

Footnotes:

[i] Of course, if Malcolm Turnbull continues to fail to show any leadership on this issue, we might instead be forced to wait until 2019 or 2020.

[ii] Brown v Board of Education, 347 US 483 (1954)

[iii] Interestingly, this phrase would not cover all LGBTI couples – for example, civil celebrants, religious bodies and organisations and Defence Force chaplains would not be able to reject heterosexual couples where one or both members are transgender and where the couple identifies as a man and a woman.

[iv] Proposed sub-section 47(3)

[v] Proposed new section 47A

[vi] It is worrying that these terms are not defined in the Bill, meaning the number of bodies or organisations allowed to discriminate against LGBTI couples could be high.

[vii] Proposed new section 47B

[viii] Proposed new note to section 81

[ix] For more on why these new special rights to discriminate must be rejected, see The Marriage Amendment (Same-Sex Marriage) Bill in Unacceptable.

[x] Of course, they should not be able to impose that belief on others through secular law.

[xi] I am not arguing for either to be made lawful, merely highlighting the double-standard that lies at the heart of the Marriage Amendment (Same-Sex Marriage) Bill.

[xii] The Government, having revealed its (homophobic) intentions, also cannot now turn around and extend these new special rights to discriminate against divorced people and inter-faith couples because they will only be doing so to ‘cover up’ the anti-LGBTI nature of its original legislation.

The Marriage Amendment (Same-Sex Marriage) Bill is Unacceptable

This time last week, our major focus was, understandably, on ensuring Bill Shorten and the Australian Labor Party listened to the concerns of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and agreed to block Malcolm Turnbull’s unnecessary, wasteful and divisive plebiscite.

With that particular mission (almost) accomplished – although the plebiscite’s enabling legislation won’t be ‘dead, buried and cremated’ until it is finally voted down by the Senate in November – it is time to turn our attention to another battle, and that is the issue of religious exceptions.

Last Monday night (10 October 2016), the Government, via Attorney-General George Brandis, released an exposure draft of the legislation it would put before parliament in the event the plebiscite is held, and if that vote was successful.

Since that time, a number of people have expressed their serious concerns about the Marriage Amendment (Same-Sex Marriage) Bill, and especially about the broad ‘rights to discriminate’ contained within. Now that I have had the opportunity to examine this Bill in detail, I am afraid I must join their condemnatory chorus.

Nearly everything about this Bill, from its title down, is unacceptable. It is far more focussed on ensuring that religious organisations, and even individuals, can refuse to serve LGBTI people, than it is about ensuring LGBTI couples are treated equally, and above all fairly, under the law. And, for the reasons that I will outline below, I sincerely believe it should be rejected in its current form.

**********

First, let’s start with that title, and specifically the phrase ‘same-sex marriage’, which is also used in the Bill’s long title (“A Bill for an Act to provide for same-sex marriage, and for related purposes”).

For the umpteenth time, and for the benefit of slow learners like Prime Minister Turnbull and Senator Brandis, ensuring that all LGBTI Australians can marry is not ‘same-sex marriage’, but ‘marriage equality’.

The former phrase is narrow and excludes non-binary trans people, as well as many intersex individuals. Only the latter phrase captures all couples, irrespective of sexual orientation, gender identity and intersex status.

Fortunately, the substance of the Bill actually does include all people – the primary clause would amend the homophobic definition of the Marriage Act enacted by John Howard’s Liberal-National Government in 2004 to read “marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

If that is the case, then why has the Government used the inaccurate phrase ‘same-sex marriage’ in the Bill’s title?

Perhaps it is simply politics, and the ongoing inability of the Coalition’s right-wing to acknowledge that this is, fundamentally, an issue of equality (although not referring to it as marriage equality even after the majority of the population voted for it – which is the precondition for this Bill – would seem to me incredibly petty).

On the other hand, maybe Turnbull and Brandis are right to shy away from describing this legislation as ‘marriage equality’ – because, in the vast majority of its provisions, it is nothing of the sort. Indeed, most of the Bill’s clauses are actually concerned with ensuring couples other than ‘a man and a woman’ are able to be refused service in a wide range of circumstances.

Which means that a far more accurate title for this legislation might be the ‘Marriage Amendment (Allowing any 2 adults to marry, but then allowing them to be denied service if they are LGBTI) Bill’. But, as well as being a mouthful, that might be a little too much ‘truth in advertising’ for this particular Government.

**********

Turning to the more substantive faults of the Marriage Amendment (Same-Sex Marriage) Bill, and the first concerns the rights of ministers of religion to refuse to conduct LGBTI weddings.

Now, let me begin by saying that I actually agree that ministers of religion should legally have the ability to accept, or reject, any couple who wishes to be married by them through a religious ceremony (even if I personally believe that such discrimination is abhorrent).

Indeed, that ‘right’ is already provided to ministers of religion under 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…”

Which means that no amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings (and none have been proposed by previous marriage equality Bills from Labor, the Greens and even last-year’s cross-party Bill from MPs including Liberal Warren Entsch). So why then does the Bill repeal section 47 and replace it with the following:

Ministers of religion may refuse to solemnise marriages

Refusing to solemnise a marriage that is not the union of a man and a 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.”

Ministers of religion will still have exactly the same right to refuse to perform any wedding, including newly-recognised LGBTI weddings[i], that they have now. Arguably, it would provide a greater ability for religious organisations to impose their official doctrine on ministers of religion within their faith – although, as we have seen recently, imposing such views is already commonplace.

But the overall power will remain basically the same. So, why introduce these new provisions, spelling out in detail the ability to decline non- ‘man/woman’ marriages, at all?

It is difficult to see any other motivation than plain old homophobia and transphobia.

And that becomes apparent when comparing it against another issue that is also contrary to some religious views – divorce and remarriage[ii]. The Catholic Church in particular espouses an official view against both, and its ministers would therefore reserve the right to decline to officiate second (or third, fourth or even fifth) weddings.

Under both the existing, and the proposed new, sections 47 a minister of religion has the ability to reject couples in these circumstances – without it being spelled out. Just as the wording of the existing section 47 would allow them to reject LGBTI couples, were it to be retained following the introduction of marriage equality, without it necessarily being spelled out.

Which means there is absolutely no valid reason to insert new provisions that single out LGBTI couples (or non- ‘man/woman’ couples) for special, and detrimental, treatment, as part of a redrafted section 47.

Therefore, while the continuing ability of ministers of religion to decline to officiate weddings is not particularly problematic (from a legal point of view anyway), the unnecessary insertion of clauses which specify the right to discriminate against LGBTI couples – but not any other couples – definitely is.

The proposed new section 47 is homophobic and transphobic. It is unacceptable, and it must be rejected.

**********

Sadly, it only gets worse from here. The second substantive fault of the Marriage Amendment (Same-Sex Marriage) Bill is the creation of an entirely new ‘right’ to discriminate against LGBTI couples.

Currently, only ministers of religion have an explicit ‘opt-out’ clause. No equivalent provision or power exists for civil celebrants[iii] – 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 Government is proposing, through this Bill, to allow even these ‘secular’ civil celebrants to reject LGBTI couples simply because of who they are (again, this is something that has not been included in most previous Bills, other than that from Senator David Leyonhjelm[iv]). 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, simply because of their ‘personal beliefs’. It is the equivalent of encouraging them to put up a sign saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed.’

And exactly how outrageous, and offensive, is revealed by once again comparing it to the situation with divorce and remarriage.

Despite whatever personal beliefs a civil celebrant may hold, and even after the Government’s Bill was passed, they would still not be able to formally decline to officiate someone’s second (or subsequent) wedding. Indeed, it is likely such discrimination would be unlawful under the Sex Discrimination Act 1984, which includes ‘marital or relationship status’ as a protected attribute in section 6[v].

In contrast, if the new section 47A was included in any amendments to the Marriage Act, these same celebrants would be able to reject LGBTI couples on the basis that they were not ‘a man and a woman’[vi], and for no other reason.

In effect, Malcolm Turnbull and his Government are saying that the religious beliefs of civil celebrants can be used to justify discrimination – but only if those religious beliefs are anti-LGBTI (and not, for example, if they are opposed to divorce).

Once again, I am forced to conclude that the proposed new section 47A is homophobic and transphobic. It is unacceptable, and it must be rejected.

**********

But it’s 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 as part of 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.”

If this provision were solely concerned with providing clarity that religious bodies were not obliged to conduct any weddings that they did not condone in their places of worship, like churches, then it may have almost been reasonable.

However, section 47B goes far beyond what would be required to achieve that limited goal. Instead, it provides a wide-ranging ‘right to discriminate’ against LGBTI couples, one that is problematic in at least three key ways:

  • It applies to more than just facilities, but also to the provision of ‘goods and services’, which, given the extent of influence of religious bodies and organisations in Australia, is incredibly broad
  • Sub-section (2)[vii] makes it clear that this right extends to religious bodies or organisations that are engaged in providing commercial services, for profit, and
  • The phrase “for purposes reasonably incidental to the solemnisation of a marriage” is vague, and left undefined, and could potentially capture a range of facilities, goods or services that are not directly connected to either a wedding ceremony or reception.

This section is also cause for concern in that it establishes a precedent whereby discrimination against LGBTI couples is encouraged. One consequence is that, while the current Bill does not allow florists, wedding cake-bakers, photographers or reception venues to refuse service (unless of course they themselves are run by a religious organisation), their voices demanding such exceptions in future will only get louder.

But again the major problem with this section is that it is singling out LGBTI couples – or anyone who doesn’t fit within the definition of ‘a man and a woman’[viii] – for special, and detrimental, treatment. And literally nobody else.

As with civil celebrants, it is only homophobic and transphobic religious belief that is preferenced here – other sincerely-held religious beliefs, for example, against divorce and remarriage, do not attract any such right. Which means that, yet again, the Liberal-National Government is expressing its support for religious freedom, but only as long as the beliefs concerned are anti-LGBTI.

The only possible conclusion is that proposed new section 47B is homophobic and transphobic, which makes it unacceptable. It must be rejected.

**********

The fourth and final substantive fault in the Marriage Amendment (Same-Sex Marriage) Bill is the addition of a note to section 81, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings.

The new note reads: “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.”

I am strongly opposed to allowing these chaplains to discriminate against LGBTI couples in this way. Which might be surprising to some, especially given my view, expressed above, that ministers of religion should legally have this right.

Surprising, that is, until you consider that Defence Force chaplains are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ix]. Indeed, the Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

The same website also claims that chaplains must “administer spiritual support to all members, regardless of their religion.”

Therefore, allowing 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 to Defence Force personnel, they are expected to do so for all people, not just those who are cisgender and/or heterosexual.

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, then that must include the weddings of LGBTI people.

To do otherwise is, once again, homophobic and transphobic. It is unacceptable, and it must be rejected.

**********

There follows a few provisions that are actually positive in nature – removing the existing prohibition on the recognition of foreign marriages between two men, or two women[x] – before one final provision that establishes, clearly, that the Marriage Amendment (Same-Sex Marriage) Bill is more concerned with promoting homophobia and transphobia than in addressing LGBTI inequality.

That is an amendment to the Sex Discrimination Act provision[xi] that currently provides an exception for conduct which is “in direct compliance with” the Marriage Act – because, for example, a civil celebrant is unable to lawfully marry an LGBTI couple.

The introduction of genuine marriage equality should lessen that discrimination, and potentially even obviate the need for such a provision to begin with.

Instead, this amendment expands the exception, by adding conduct that is “authorised by” the Marriage Act, thus ensuring that the exceptions to Australia’s federal LGBTI anti-discrimination framework, which are already too broad[xii], are broadened even further.

**********

SENATE SINODINOS DEBATE

Attorney-General George Brandis’ Bill is not aimed at achieving genuine marriage equality, and should perhaps be renamed the Marriage Amendment (Allowing any 2 adults to marry, but then allowing them to be denied service if they are LGBTI) Bill.

It is disappointing, although perhaps not entirely surprising, to observe that Prime Minister Malcolm Turnbull and his Liberal-National Government just don’t get it when it comes to marriage equality.

First, they sought to impose an unnecessary, wasteful and divisive plebiscite on LGBTI Australians in order for our relationships to simply be recognised as equal under secular law.

Then we discover that their planned ‘reward’ – if the plebiscite is held, and if we are ultimately successful in their $200 million+ national opinion poll – is actually a fundamentally flawed piece of legislation, that spends more time and effort in expanding the rights of religious bodies, and civil celebrants, to discriminate against us than in actually implementing marriage equality.

We all know, far too well, that the equal recognition of our relationships is long overdue in Australian law. Unfortunately, that equality, genuine equality, will not be achieved via passage of the Marriage Amendment (Same-Sex Marriage) Bill.

At its core, it is homophobic and transphobic, making it unacceptable. I believe that, just as we have campaigned for Parliament to reject the plebiscite, and adopt a better process, we must also demand that they reject this ill-conceived legislation, and replace it with a better Bill.

If you believe that marriage equality should be exactly that – equality – please sign & share this petition to Prime Minister Malcolm Turnbull: Equal Love Should Not Be Treated Unequally.

Footnotes:

[i] It would appear that this provision does not explicitly allow ministers of religion to discriminate against trans individuals or couples where the union is between two people who identify as a man and a woman – although the catch-all ‘right to discriminate’ in 47(1) “A minister of religion may refuse to solemnise a marriage despite anything in this part” would nevertheless still apply.

[ii] Please note that I am not expressing support for such beliefs (against divorce and remarriage). I am merely using this example because, given many people sincerely hold such views, their differential treatment under the Bill makes it clear that the legislation is not concerned with protecting religious freedom, but instead aims to legitimise homophobia and transphobia.

[iii] Curiously, both the Attorney-General’s Media Release announcing the Exposure Draft Bill, and sub-section 2 of the proposed new section 47A, imply that civil celebrants do have such a power. This may be based on a very generous interpretation of section 39F of the Marriage Act 1961 which notes that “A person who is registered as a marriage celebrant may solemnise marriages at any place in Australia” – and in particular that the word may is used here rather than must.

However, it is just as easily argued that the fact ministers of religion currently enjoy an explicit ‘right to discriminate’ under section 47, while there is no equivalent section for civil celebrants, means civil celebrants cannot simply reject couples for any reason whatsoever.

More importantly, without an explicit power, it is likely the actions of civil celebrants would be captured by the anti-discrimination protections of the Sex Discrimination Act 1984 – currently, with respect to sex and relationship status, and, if marriage equality is passed, with respect to sexual orientation, gender identity and intersex status (unless a new right to discriminate is inserted).

[iv] For more, please see: Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

[v] With the definition of ‘marital or relationship status’ in section 4 of the Sex Discrimination Act explicitly including “(d) divorced”.

[vi] Interestingly, my interpretation of this provision means that, unlike ministers of religion, civil celebrants would not be able to reject trans individuals or couples who identify as a man and a woman, particularly because there is no other stand-alone right to refuse.

[vii] Which reads “Subsection (1) applies to facilities made available, and goods and services provided, whether for payment or not.”

[viii] Interestingly, this section would not allow religious bodies or organisations to refuse to provide facilities, goods or services to weddings involving one or two trans people where the couple identified as a man and a woman, although it is possible religious exceptions contained in the Sex Discrimination Act 1984 would make such discrimination lawful.

[ix] Of course, I would argue that the High Court should find this arrangement – the use of taxpayer funds to hire people to perform an explicitly religious function – to be unconstitutional under section 116, but that is an argument for another day (and probably for a more adventurous High Court too).

[x] Sections 88B(4) and 88EA.

[xi] Subsection 40(2A)

[xii] For more, please see: What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

Letter to ALP Caucus re Senator Leyonhjelm’s Freedom to Marry Bill 2014

The Hon Bill Shorten MP

Leader of the Opposition

c/- PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Monday 23 March 2015

Dear Mr Shorten

Please Amend Senator Leyonhjelm’s Freedom to Marry Bill 2014

I am writing to you regarding Senator Leyonhjelm’s Freedom to Marry Bill 2014, about which debate is scheduled to begin on Thursday 26 March 2015.

Specifically, I call on you, and all federal parliamentary members of the Australian Labor Party, to seek to amend this legislation during debate to remove provisions that would allow civil celebrants to refuse to provide services to LGBTI-inclusive couples, based on nothing more than the celebrant’s personal prejudice.

These provisions are wrong in principle, undermining legislation that is purported to promote the equal right to marriage by also expressly providing a ‘right’ to discriminate on the basis of homophobia, biphobia, transphobia and intersexphobia.

There is no justification to allow people providing secular services in a secular area of public life (ie non-religious wedding ceremonies) to discriminate on the basis of sexual orientation, gender identity or intersex status.

If passed, these provisions would also set a worrying precedent for other legislation. It is no coincidence that this legislation is being moved by an extremist who does not believe in the right not to be discriminated against in public life – indeed, Senator Leyonhjelm has previously stated that “[i]ndividuals should be able to discriminate but governments should not.”

In this way, the civil celebrant provisions of the Freedom to Marry Bill 2014 should be seen for what they are – the first steps in a campaign, supported by religious and libertarian extremists alike, to undermine Australia’s framework of anti-discrimination protections.

It took 38 years, from the passage of the Racial Discrimination Act 1975, for Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community to finally achieve protection against discrimination under Commonwealth law – the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement of, and is an essential legacy of, the previous Labor Government.

It would be devastating if the very next piece of LGBTI-related legislation to be considered by the Commonwealth Parliament were to directly undermine the right not to be discriminated against on the basis of sexual orientation, gender identity and intersex status, by instead granting civil celebrants the ‘right to be bigots’.

I sincerely hope that, given the Australian Labor Party has spent the past 12 months campaigning against Senator Brandis’ proposal that Australians should have the right to be bigots vis-à-vis racism, that you will also seek to amend these provisions that would enable bigotry of a different kind.

I also sincerely hope that enough of your parliamentary colleagues, including from the Greens and from the cross-bench, agree and that therefore these provisions are removed, meaning the Parliament can consider a Freedom to Marry Bill that is not also a ‘freedom to discriminate’ bill.

However, the question remains what the position of the Australian Labor Party should be if these amendments are unsuccessful, or if the House of Representatives insists on the Freedom to Marry Bill 2014 including the freedom to discriminate.

I acknowledge that this is an incredibly difficult decision to make – to reject the ability of LGBTI-inclusive couples to be married or to promote intolerance against those same people – indeed I have written previously of this exact dilemma: https://alastairlawrie.net/2014/12/21/senator-leyonhjelms-marriage-equality-bill-undermines-the-principle-of-lgbti-anti-discrimination-should-we-still-support-it/.

In the absence of LGBTI community consensus on this issue – and there can be no consensus because, as far as I can tell, there has been no genuine community debate or consultation – I am forced to fall back on my basic principles. And they are as follows:

I want marriage. I want the right to be married to my partner of almost seven years, my fiancé of more than five, in exactly the same way that my sister and my brother have been able to marry their respective spouses. There is absolutely no reason why I should have lesser rights than them simply because of who I love.

But, I want equality more. The principle of LGBTI equality is fundamental to any just society, and militates against the creation of ‘special rights’ or ‘special privileges’ to treat us as lesser citizens in any way.

To me, the struggle for LGBTI equality is broader than simply the battle for marriage: it includes improving the protections offered by anti-discrimination legislation (both state and federal), among many other things. This overall struggle is more important than any one Bill, and should not be undermined by the passage of flawed legislation such as this.

I will concede that there are those who wish to pursue the Freedom to Marry Bill 2014 in its current state, ‘warts and all’, as an incremental reform – a stepping stone – and to seek the removal of the civil celebrants provisions at a later date.

Not only do I believe that this could be labelled disingenuous – especially if concerns about these provisions are not placed on the public record ahead of the upcoming parliamentary debate – but it also under-estimates the difficulty of removing such legislative ‘blemishes’ after the central reform has passed.

For example, 33 years after the introduction of ‘homosexual’ anti-discrimination protections in NSW, the worst excesses of that particular compromise (such as the right of private schools to expel gay and lesbian students) remain seemingly intractable. It also took almost two decades to equalise the age of consent in NSW post-decriminalisation – and in Queensland their unequal age of consent is now 25 years old and counting.

Which means that it is no exaggeration to suggest that, if the Freedom to Marry Bill 2014 is passed in its present form, the so-called ‘right’ of civil celebrants to reject LGBTI-inclusive couples will likely still be around in 2025, 2030 or even beyond. And that is an unacceptable situation.

So, with a heavy heart, I urge you, and all federal parliamentary members of the Australian Labor Party to reject the Freedom to Marry Bill 2014 if you are unable to remove provisions which allow civil celebrants to discriminate on the basis of their personal prejudice.

Instead, I urge you to concentrate on passing other legislation, including the Marriage Equality Bill developed by the Deputy Leader of the Opposition, the Hon Tanya Plibersek MP, that does not promote homophobia, biphobia, transphobia and intersexphobia.

Marriage equality will be won, must be won, and it must be won soon. But it must also include both parts – marriage and equality. Senator Leyonhjelm’s Freedom to Marry Bill 2014 only offers the first half of that equation.

Please amend his flawed Bill and, if you are unsuccessful in doing so, please vote against it and instead support genuine marriage equality legislation in the (hopefully) not-too-distant future.

Thank you for taking this correspondence into consideration.

Sincerely

Alastair Lawrie

Cc The Hon Tanya Plibersek MP

Deputy Leader of the Opposition

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Senator the Hon Penny Wong

Leader of the Opposition in the Senate

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

The Hon Mark Dreyfus QC MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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