Liberals Claiming Credit for Marriage Equality Can Get in the Bin

Next Thursday, 15 November, is the one-year anniversary of the announcement of the results of the same-sex marriage postal survey, in which 61.6% of Australians said yes to equality.

 

And December 7 will mark 12 months since the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which finally legalised same-sex marriage in this country.

 

With both milestones rapidly approaching, it is likely we will witness a large number of Liberal Party MPs and Senators try to claim credit for achieving marriage equality.

 

Indeed, now-former Prime Minister Malcolm Turnbull kicked off this predictable right-wing festival of self-congratulation on Thursday night’s QandA,[i] commenting that:

 

“You know, think of the big social reforms, legalising same-sex marriage. I mean, what a gigantic reform that was, I was able to do that … I legislated it, right? So I delivered it.”

 

This statement is about as far removed from the truth as the nonsense that emanates daily from Donald Trump’s twitter account.

 

Rather than ‘delivering’ this important reform, the Liberal Party was in fact the greatest obstacle standing between LGBTI Australians and the right to marry.

 

In case you disagree – or have forgotten the destructive role played by the Liberals on this issue over many years – here’s a reminder of what they actually did:

 

  1. The Liberal Party banned marriage equality in the first place

 

It was John Howard’s Liberal-National Government that prohibited same-sex marriage in August 2004.[ii] While this was prompted by couples who had wed overseas seeking recognition of their marriages under Australian law, it was primarily motivated by the desire to wedge the Labor Party on this issue ahead of the federal election later that year. Sadly it would not be the last time the Liberal Party played with the lives of LGBTI people for base political reasons.

 

  1. The Liberal Party refused to allow Australians to marry overseas

 

The Howard Liberal-National Government actually went further than merely refusing to recognise the marriages of couples who had wed overseas. They then refused to issue Certificates of No Impediment to Australians who wanted to get married in countries where it was legal, even where one member of the couple was from the other, more-progressive country. This was an incredibly petty and mean-spirited move.

 

Fun Fact: The Attorney-General who implemented this pathetic policy was the same person who led the recent Religious Freedom Review which recommended that religious schools continue to be allowed to discriminate against LGBT students and staff, one Philip Ruddock.

 

  1. The Liberal Party voted against marriage equality in September 2012

 

It took eight years before there was a genuine opportunity to repeal the Howard Liberal-National Government’s ban on same-sex marriage. In late 2012, Parliament voted on ALP MP Stephen Jones’ private members’ bill.

 

In line with the hard-fought, and hard-won, decision at its December 2011 National Conference, the Gillard Labor Government gave its members a conscience vote. The majority of ALP MPs and Senators voted in favour of marriage equality.[iii]

 

On the other hand, every single Liberal Party MP and Senator, bar one, voted against same-sex marriage. That includes then-Opposition Leader Tony Abbott, Malcolm Turnbull, Scott Morrison, George Brandis and Dean Smith. The only notable, and noble, exception was Queensland Senator Sue Boyce.

 

The Liberal Party cannot expect to be rewarded for the fact that same-sex marriage was legalised on December 2017 when they were the ones who stopped it from being passed more than five years earlier.

 

  1. The Liberal Party refused to hold a parliamentary vote on marriage equality

 

Following its election in September 2013, Tony Abbott’s Liberal-National Government simply refused to hold another ordinary parliamentary vote on same-sex marriage. This recalcitrant approach continued even after it became apparent the majority of MPs and Senators now supported marriage equality.

 

  1. The Liberal Party challenged the ACT’s same-sex marriage laws

 

While the Abbott Liberal-National Government did absolutely nothing to achieve marriage equality in Commonwealth Parliament, they did take action in at least one area: they challenged the validity of the recently-passed ACT Government’s same-sex marriage laws in the High Court.

 

In fact, this was one of the first things the newly-elected government did on any issue, full stop, revealing its fundamental priority was to stop marriage equality in any way possible.

 

This challenge was ultimately successful, meaning that the marriages of 31 couples were effectively annulled.

 

Fun Fact: The Attorney-General who instigated this High Court challenge, that overturned the marriages of 62 people who his own Government would not allow to marry because of their sexual orientation and/or gender identity, would later claim that marriage equality was one of his, and his Government’s, greatest achievements, one George Brandis.

 

  1. The Liberal Party proposed an unnecessary, wasteful, harmful and divisive plebiscite

 

In August 2015, with public support for marriage equality continuing to build, and the Abbott Liberal-National Government under mounting pressure to finally do something on this topic, they chose not to do the one thing that would actually resolve it (hold a parliamentary vote).

 

Instead, after a six-hour joint party-room meeting, they proposed a same-sex marriage plebiscite. Despite changing leaders the following month, new-Prime Minister Malcolm Turnbull continued to support this policy, including in the lead-up to the 2016 Federal election and beyond.

 

A plebiscite like this was essentially unprecedented – there had been only one plebiscite in the previous 98 years, and that was on the national anthem. It was unnecessary, and – at an estimated cost of $158.4 million – it was fundamentally wasteful too. LGBTI Australians also justifiably feared that, subjecting our relationships and rights to months of public debate would be incredibly divisive, and cause significant harm to the most vulnerable members of our community.

 

It should be remembered that the idea for a plebiscite was only being pushed by those who opposed marriage equality, including Abbott himself, the Australian Christian Lobby and other religious extremists. It was never designed with the best interests of the LGBTI community in mind.

 

  1. The Liberal Party held an unnecessary, wasteful, harmful and divisive postal survey

 

After months of intense lobbying by LGBTI community advocates and organisations, the ALP, Greens and members of the cross-bench rejected the Turnbull Liberal-National Government’s plebiscite in the Senate in October 2016.

 

Despite this, Prime Minister Turnbull and the Coalition still refused to hold a straight-forward parliamentary vote. Instead, in August 2017 they proposed a same-sex marriage ‘postal survey’.

 

This was even more unprecedented, and was an abuse of the power of the Australian Bureau of Statistics’ power to collect, well, statistics. Despite the fact the High Court found it was technically lawful, it could at best be described as ethically dodgy, and at worst a perversion of Australian democracy.

 

Like the plebiscite, the postal survey was entirely unnecessary, and completely wasteful, ultimately costing taxpayers $80.5 million. And for LGBTI Australians and rainbow families its impact was exactly as bad as anticipated, unleashing a torrent of homophobia and transphobia, with the worst attacks of the bigoted No campaign reserved for trans and gender diverse young people.

 

Of course, the architects of the postal survey didn’t care about this negative outcome. Because the postal survey was never about us. It was put forward as a quick political fix for the Liberal Party, who knew they couldn’t continue to oppose marriage equality in the lead-up to the 2019 Federal election, but whose homophobic party-room members refused to hold a parliamentary vote without conducting a costly (in multiple senses of the word) public debate beforehand.

 

And if you disagree with this analysis, perhaps you’ve forgotten whose idea the postal survey was, one Peter Dutton.

 

  1. The Liberal Party didn’t actually pass marriage equality

 

This point might sound strange (especially to new readers of this blog), but it is an important one to make. Because while Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 finally granted same-sex and gender diverse[iv] couples the right to marry, it did not deliver true equality.

 

A hint lies in the title. This legislation did not just amend the Marriage Act 1961 to ensure marriage was available to all couples, it also added new rights for individuals and organisations to discriminate against LGBTI couples on the basis of religious prejudice.

 

This included permitting existing civil celebrants to register as ‘religious marriage celebrants’ and consequently putting up signs saying ‘no gays allowed’. These are not ministers of religion, and the ceremonies they conduct are not religious. But the law, as passed, allows these individuals to discriminate on the basis of their homophobia and transphobia.

 

Smith’s Marriage Amendment (Definition and Religious Freedoms) Act also introduced offensive provisions allowing discrimination by religious organisations in the Marriage Act itself. This includes section 47B:

 

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

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

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

 

Similar provisions allowing discrimination by religious organisations already existed in the Commonwealth Sex Discrimination Act 1984, so at best they were unnecessary here. At worst, because this amendment was phrased as a ‘positive right’, this allows new discrimination, in particular because it is more likely to overrule the better anti-discrimination laws of some states and territories (especially Tasmania’s Anti-Discrimination Act 1998).

 

It should be noted that these discriminatory provisions were not previously required with respect to divorced people remarrying – another issue on which there are strong religious beliefs. The fact they were introduced last year reveals they were motivated not by so-called ‘religious freedom’, but by homophobia and transphobia masked in that language.

 

By introducing new forms of discrimination, Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 delivered same-sex marriage, but it most definitely did not achieve marriage equality.[v]

 

  1. The majority of Liberal Party MPs and Senators voted for even more discrimination

 

Despite the fact the Smith Bill did not deliver equality to begin with, the majority of Liberal Party MPs and Senators voted in favour of at least some (and in some cases all) of the amendments that would have allowed even more discrimination against LGBTI couples.[vi] The only reason these were defeated was because all ALP and Greens MPs and Senators opposed them, alongside a small minority of Coalition parliamentarians.

 

These (thankfully rejected) amendments included granting individuals the right to discriminate in the provision of goods and services on the basis of their ‘religious marriage beliefs’, as well as personal views that same-sex relationships are wrong, or that trans people don’t exist.

 

The then-Attorney-General, George Brandis, even tried to incorporate Article 18 of the International Covenant of Civil and Political Rights into the Marriage Act 1961 (through an amendment that ‘Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching’) while conveniently ignoring the limitation in Article 18(3): that religious freedom can be limited to protect the fundamental rights and freedoms of others (including the right to non-discrimination). Oh, and he moved an amendment that all civil celebrants should be able to discriminate against LGBTI couples because of their personal religious or conscientious beliefs.

 

It is offensive for Liberals to now claim credit for delivering marriage equality when the majority of them voted for it not to be equal.

 

Fun Fact: Our new Prime Minister, Scott Morrison, voted for every amendment in the House of Representatives that sought to increase discrimination against LGBTI couples. This included supporting having two different definitions of marriage (one for ‘traditional marriage’ – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life – and one for everybody else – the union of 2 people to the exclusion of all others, voluntarily entered into for life). He also introduced his own amendments to the Bill, which included protecting individuals who discriminate against others because of transphobic beliefs that ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth’. He might now be Leader of the country, but with views like that he’ll never be a true leader.

 

  1. Even after the postal survey, a significant minority of Liberal Party MPs and Senators voted against same-sex marriage

 

The Liberal Party banned marriage equality in 2004. They voted against it in September 2012. They refused to hold a simple parliamentary vote following their election in 2013. They tried and failed to hold a plebiscite in 2016. They ‘succeeded’ in holding a postal survey in 2017, in which more than three-in-five Australians said yes to equality.

 

After forcing us wait for 13 years, and making us jump through hoops that no other group in Australia has ever had to before (and hopefully none will have to again), a significant minority of Liberal MPs and Senators still couldn’t bring themselves to vote for the ability of all couples to marry, irrespective of sexual orientation or gender identity.

 

In the Senate, Liberals Concetta Fierravanti-Wells, Eric Abetz and Slade Brockman, and Nationals John Williams, Matt Canavan and Barry O’Sullivan, voted no. While Liberal Senators Michaelia Cash, David Fawcett, James McGrath and Zed Seselja, and National Bridget McKenzie, all abstained.

 

In the House of Representatives, Liberal Russell Broadbent, and Nationals Keith Pitt and David Littleproud, voted no. Whereas Liberals (ex-PM) Tony Abbott, Andrew Hastie, Michael Sukkar, Kevin Andrews, (now-PM) Scott Morrison, Rick Wilson, Stuart Robert and Bert van Manen, and Nationals Barnaby Joyce and George Christensen, all abstained.

 

After subjecting LGBTI Australians to an unnecessary, wasteful, divisive and harmful postal survey because of their own internal political divisions, the fact that these 24 Liberal and National MPs could not even respect its outcome by voting yes in parliament shows the absolute contempt that they hold for us and our relationships. Their disgusting behaviour should not be forgiven nor forgotten.

 

**********

 

These ten points unequivocally demonstrate that same-sex marriage was achieved in Australia in spite of the Liberal Party, not because of them.

 

So, in the coming weeks, if any Liberal MP or Senator tries to claim credit for achieving marriage equality, tell them to get in the bin.

 

Because that is where such garbage claims belong.

 

Turnbull-on-QA

Former Prime Minister Turnbull on QandA, where he tried to claim credit for marriage equality. Hey Malcolm, Get in the Bin.

 

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Footnotes:

[i] Not that I was watching: I was not interested in hearing from the fakest of fake (self-declared) friends of the LGBTI community. This quote is from a transcript in CrikeyWorm.

[ii] Yes, this was done with the support of the then-Latham (!) Opposition, a move that also warrants criticism – but Labor will not be the ones falsely claiming credit for marriage equality in the coming weeks.

[iii] Of course, then-Prime Minister Julia Gillard voted against equality, something for which she should be forever condemned.

[iv] Although trans and gender diverse people are still waiting for forced trans divorce laws to be repealed in some jurisdictions (noting that if they are not repealed by 9 December 2018 the Commonwealth Sex Discrimination Act 1984 will overrule them).

[v] There is a second, more technical, argument why the Liberal Party didn’t actually pass marriage equality. That is because the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was a private members’ bill. It was not Government legislation, so its passage cannot be claimed as an achievement of the Liberal-National Government. Indeed, as a private members’ bill, more ALP MPs and Senators voted for it than Liberal and National ones.

[vi] This includes then-Prime Minister Malcolm Turnbull, who voted for three different sets of amendments increasing discrimination against LGBTI couples, while abstaining on the others.

It’s Not Over Yet

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

  1. Reinforcing the ability of charities to discriminate against LGBTI people

 

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

 

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

 

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

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

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

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

He goes on to say:

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

151222 Turnbull

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

Quit Playing Games

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

 

**********

 

Dear MP/Senator

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Nor are any of these new religious exceptions necessary.

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

That simply isn’t good enough.

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

And so, I make this final plea to you:

 

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

 

Sincerely,

Alastair Lawrie

 

10806286_777695055611630_3161779103864809543_n

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

George Brandis 25

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

 

Footnotes:

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

How Dare You

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

 

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

 

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

 

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

 

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

 

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

 

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

 

James Paterson

Liberal Senator James Paterson.

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

How dare you.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Seriously, how dare you.

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Remember, these people are not ministers of religion.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.”

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Conclusion:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

150518 Dean Smith

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

 

Footnotes:

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

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

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

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

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

Marriage equality or marriage discrimination – a simple test

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.

 

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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.

What a binding vote for marriage equality is – and what it is not

With roughly ten weeks left until the 2015 ALP National Conference, and about one month into the public debate around a potential binding vote for marriage equality, there has been considerable media coverage of this issue.

Unfortunately, a lot of this coverage has been unhelpful, focussing on things that might be of interest to political commentators, but in practice having very little to do with what will actually be discussed by delegates sometime between July 24th and 26th.

This post aims to redress some of that imbalance, by attempting to clarify what a binding vote for marriage equality is – and just as importantly, what it is not – about.

A binding vote for marriage equality IS NOT about division, the leadership or the Greens

It was perhaps inevitable that at least some political reporters would cover the question of a binding vote as nothing more than an issue of ‘division’ within the Labor Party, rather than a genuine debate pushed by people who want to see their political party commit to fully supporting the equal rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

What was surprising – and perhaps disappointing – was to observe just how widespread this characterisation was. When even The Guardian writes articles that start like this:

Labor leadership divides over compulsory same-sex marriage yes vote

Tanya Plibersek wants to end the conscience vote, but Bill Shorten says it should stay. And Chris Bowen wants a conscience vote but will now vote for, not against.

Internal division within the Labor party over a binding vote on same-sex marriage has deepened, as senior frontbencher Chris Bowen backflips on his opposition to the issue” (http://www.theguardian.com/australia-news/2015/may/03/labor-leadership-divides-over-compulsory-same-sex-marriage-yes-vote?CMP=soc_567 )

then it is abundantly clear why Australia cannot sustain serious debate, especially on issues such as climate change or refugee policy that are significantly more complicated than this.

Hint to our journalists – this is what internal party democracy looks like, with different people putting forward different positions, and the arguments behind them, in the lead-up to a meeting where representatives from around the country will decide which approach Labor will ultimately take. That is discussion, not ‘division’.

A second recurring theme of coverage has been to view the entire issue through the prism of a supposed ‘leadership challenge’ between current Opposition Leader Bill Shorten, who opposes binding, and Deputy Leader Tanya Plibersek, who supports it (for example, raised in this Sydney Morning Herald article: http://www.smh.com.au/federal-politics/political-news/tanya-plibersek-push-on-samesex-marriage-faces-defeat-amid-labor-leadership-split-20150430-1mww0s.html ).

This is wrong on a number of levels, not least because it is an issue Ms Plibersek has been campaigning on for a number of years – long before she was the Deputy Opposition Leader. It is somewhat galling that, in a political culture where figures are constantly derided for core and non-core promises, and commit backflip after backflip, here someone is being criticised for continuing to push the same progressive agenda she always has even after reaching a senior leadership position.

Indeed, the idea of binding in favour of marriage equality is something that has been pushed by a large number of people within the ALP for a very long time, including well before the last National Conference. At that particular meeting, 184 delegates voted to support a binding vote (narrowly losing to the 208 delegates who supported a conscience vote).

They must have been remarkably prescient, in December 2011, two Prime Ministers and a change of Government ago, to have been expressing a view on a leadership contest in 2015, between two people who were then the Ministers for Financial Services and Superannuation, and Human Services, respectively.

But the main reason why this is not about a leadership challenge is because, while her strong advocacy is obviously welcome, this issue is not really about Ms Plibersek at all.

There are a significant number of ALP MPs and Senators who have expressed their support for a binding vote over the course of the past month (with the Herald reporting that at least 25 members, or almost a third, of caucus back this move: http://www.smh.com.au/federal-politics/political-news/huge-spike-in-labor-mps-support-for-samesex-marriage-20150508-ggx4z4.html ).

And there is an even larger number of ordinary ALP members, and Rainbow Labor members right around the country, who are pursuing this change. To reduce all of their – and our – activism to being about a non-existent leadership challenge is, putting it bluntly, utter rubbish.

Finally, there have a number of reports linking the push by Ms Plibersek and others within the party for a binding vote to a move to combat the rise of the Greens, and specifically as a response to the recent Victorian and NSW State Elections, where the Greens either retained or won the seats of Melbourne, Prahran, Balmain and Newtown.

Malcolm Farr in news.com.au was perhaps the most explicit on this theme: http://www.news.com.au/finance/work/labor-fears-it-is-losing-urban-strongholds-is-behind-the-push-for-binding-marriage-equality-vote/story-fn5tas5k-1227336759408

But, once again, it is hard to see how, when the majority of the Queensland and Tasmanian branches of the ALP voted to call for a binding vote at their state conferences in mid-2014, they were somehow ‘responding’ to elections in other states, that were still six-to-nine months away.

A binding vote for marriage equality has been a long-standing goal of progressive members of the Labor Party – and certainly existed long before the recent inner-city electoral successes of the Greens.

A binding vote for marriage equality IS about both principle and reality

As we all know by now, the overall fight for marriage equality is about nothing more (or less) than the equal treatment of all people, including LGBTI Australians and their relationships, in secular law.

The principle, at its core, is that the Government should not discriminate against people because of their sexual orientation, gender identity or intersex status, by denying them access to state-sanctioned marriage, simply because of who they are and/or who they love.

Turning more specifically to the issue of whether the ALP should adopt a binding vote for marriage equality, it too is about principle – that, as a matter of fundamental equality and human rights, there is no legitimate reason to allow individual MPs and Senators to vote against the caucus position on this issue which acknowledges those rights.

In the same way that the ALP would not allow individual parliamentarians to break from party solidarity to vote for a racist law, there must not be special exceptions provided to allow some MPs and Senators to vote against the rights of LGBTI Australians.

We could have the entire debate, between now and the end of July, focussed exclusively on these two principles.

But marriage equality, and whether we adopt a binding vote, is about more than just that – as we have been starkly reminded over the past fortnight.

Because marriage equality is about reality too – the real-life couples who want nothing more than the right to be married, but who are currently denied that right by their own Government.

Couples like Sandra Yates and Lee Bransden, who were forced to seek money through a crowd-funding campaign to enable them to marry in New Zealand, where marriage equality has been legal for two years, before Ms Bransden dies from lung cancer (http://www.abc.net.au/news/2015-05-04/crowd-funding-campaign-for-gay-wedding-in-new-zealand/6442318 ).

This is the real face of marriage equality – the couples who are waiting for the same rights as everyone else, including those couples for whom time is very quickly running out (and of course the many couples for whom time has tragically already evaporated since the ban was first introduced in 2004).

In this instance, the crowd-funding campaign was successful, and the couple were married in New Zealand on Saturday (http://www.abc.net.au/news/2015-05-16/gay-tasmanian-couple-seal-dying-wish-with-new-zealand-wedding/6475226?WT.ac=statenews_tas ).

Which is heart-warming. But it should not have come to this, we should not be reduced to this – begging via public appeals just to allow older couples to leave the country to marry before they die, and even then stripping them of that legal equality as they re-enter Australia on their way home together for the last time.

This situation is indignity writ large.

Marriage equality is right in principle. Binding for marriage equality is right in principle. But it is the reality – of couples like Sandra and Lee – which reminds us why the issue is so urgent, and why we need as many MPs and Senators as possible, including all of those from the Australian Labor Party, to vote yes on this issue. Right. Now.

A binding vote for marriage equality IS NOT about the ‘rights’ of MPs and Senators to vote no

On the other side of this debate are those who would argue that, while marriage equality may be important, it is more important to respect the supposed ‘rights’ of individual MPs and Senators to vote against it.

The clearest demonstration of this view came on Sunday 3 May when Shadow Treasurer Chris Bowen announced he had switched from his long-standing opposition to marriage equality, to personally supporting it – as part of an ongoing conscience vote. As reported by the Sydney Morning Herald (http://www.smh.com.au/federal-politics/political-news/chris-bowen-drops-opposition-to-samesex-marriage-20150503-1myp1v.html ):

“In a conscience vote I have decided I would support same-sex marriage and that’s not traditionally the approach I took last time,” he said.

“On my marriage certificate at home it has got the Australian coat of arms as it has on all of ours. It is our right as a citizen to get married and it is a right that should be applied equally.”

“I have friends who have had to go overseas to get married; I don’t think they should have to go overseas to get married as Australian citizens so I would support it.”

But Mr Bowen said the matter should be decided by each member of Parliament on its policy merits rather than politicians being forced to vote for or against same-sex marriage.

“I think people should be given their own time to develop their thinking and their approach,” Mr Bowen said…

In effect, Mr Bowen is saying that, while he acknowledges the fundamental injustice experienced by his friends, it would in practice be more unjust to compel his colleagues in the federal parliamentary Labor Party, including Senator Joe Bullock and MP Chris Hayes, to have to vote for his friends’ rights through a binding vote.

This is the reality – people who support a conscience vote in the ALP are actually saying that the right of individual MPs and Senators to vote against marriage equality is more important than the rights of real-life couples, like Sandra and Lee, to marry.

How can that possibly be? One is a genuine injustice – the denial of fundamental rights solely on the basis of sexual orientation, gender identity or intersex status.

The other? How is requiring a Labor member of the House of Representatives, or Senate, to vote in accordance with the Party platform and in favour of marriage equality, in any way unjust, and indeed so unjust that it outweighs anti-LGBTI discrimination?

The way in which opponents of a binding vote try to ‘dress up’ this issue as a matter of competing rights is by claiming that it would be a denial of their freedom of religion to have to vote this way. But, in making this argument, they are misunderstanding and misrepresenting what freedom of religion is, and most importantly, what it is not.

Freedom of religion is allowing people to believe what they wish, including on issues of ‘morality’, within their religion and their particular religious organisations, for example, choosing to recognise, or not recognise as the case may be, LGBTI-inclusive relationships as being equal.

There is nothing in any marriage equality Bill introduced to date that would compel an organised religion to conduct same-sex weddings against its wishes, or to recognise those relationships as equal within their own faith.

And that freedom of religion includes MPs and Senators within the Labor Party – even if they were obliged to support marriage equality under secular law, they would continue to be free to consider LGBTI relationships as second-rate (or worse) within their particular faith.

On the other hand, freedom of religion does not justify allowing those same parliamentarians to impose their particular religious belief, and their definition of marriage, on the rest of us – the growing number of Australians without faith, and the even larger number of believers, including some religious bodies themselves, who do support marriage equality.

The ‘freedom of religion’ of individual MPs and Senators is not a sufficient basis to override the freedom from religion of everyone else, and the legitimate expectation that we should be treated equally under secular law.

And it is definitely not enough of an argument to override the ordinary rules of the Australian Labor Party – which expects solidarity from its parliamentarians on everything from refugees, to metadata, single parent payments to live animal exports, and should be able to expect solidarity on this subject too.

There are only two possible ways in which ‘freedom of religion’ would be a genuine basis on which to argue against a binding vote.

The first would be if a marriage equality law sought to change the definition of marriage within religion(s) – including by ordering particular religious organisations to undertake LGBTI-inclusive marriage ceremonies. And, as already noted, exactly none of the marriage equality Bills proposed in Australia to date require this.

The second would be if a marriage law sought to discriminate against people of religious backgrounds – for example, a law that actively prohibited people of a particular faith (or perhaps prohibited people of different faiths) from marrying, and again no law proposed to date does anything of the sort [as an aside, those same people who claim it would be a denial of fundamental freedoms to compel a religious person to vote for marriage equality had no qualms when LGBTI individuals, including Senators Wong and Pratt, were compelled to vote against their own legal equality].

Given neither of these conditions exist, we are left with a large imbalance, between a genuine injustice on one side (the denial of the right to marry to LGBTI Australians) and only a perceived injustice on the other (the supposed denial of the freedom of religion of individual MPs and Senators), with the latter not withstanding close scrutiny.

The choice between the two should be easy.

Unfortunately, not only does Chris-sy-come-lately Bowen reach the wrong conclusion on this, he – and other recent marriage equality converts like Ed Husic and Julie Owens – take their (il)logic one step further.

As reported by the ABC on Wednesday 6 May, all three have personally switched from opposing to supporting marriage equality (http://www.abc.net.au/news/2015-05-06/western-sydney-labor-mps-swing-to-favour-gay-marriage/6447516 ). But the same report noted that “[a]ll three MPs said the freedom to choose through a conscience vote is an important condition for their support” (emphasis added).

Come again? Do we really have members of the ALP caucus saying they personally support marriage equality, which is also the position outlined in the ALP Party platform, but that they would not support marriage equality if this position was made binding on the Party’s MPs and Senators, in the same way that almost every other issue is subject to a binding vote?

This is really ‘through the looking glass’ stuff. Despite Ed Husic noting that “if there was no logical reason to prevent this change [marriage equality], why stand in the way of it?” (http://www.smh.com.au/federal-politics/political-news/support-for-samesex-marriage-grows-in-the-alp-as-mp-ed-husic-switches-position-20150505-ggu5um.html ) he apparently would do exactly that just to give his colleagues the ‘right’ to vote no.

This is an absurd position to adopt – one hopes it is only (preposterous) posturing ahead of National Conference, and that they will vote yes if and when a binding vote is ultimately adopted with respect to members of caucus.

But irrespective of whether they believe what they are saying or not, Bowen, Husic and Owens, and indeed any ALP MP or Senator who says that marriage equality is important, but not sufficiently important to bind on, should be reminded that this issue is not about them, or their colleagues, or their colleagues’ supposed ‘freedom of religion’ – it is about LGBTI people who are denied equality under secular law.

And there is no reason to extend that injustice for one day longer.

A binding vote for marriage equality IS about the ALP delivering as many yes votes as possible

Of course, the ALP on its own cannot pass marriage equality in the current term of Parliament – in order to pass before the 2016 Federal Election Tony Abbott must grant his MPs a conscience vote.

Consequently, there has been a lot of speculation about what impact an ALP binding vote might have over subsequent machinations within the Liberal Party. Indeed, it is something that I have covered multiple times elsewhere (including under the section “It’s Time to Bind: The Strategy’ here: https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/).

But, what we need to remember is that the ALP has zero actual control over what the Liberal Party room does behind closed doors – if it did, the Liberals would have granted a conscience vote at some point during the three and a half years that Labor has already had one.

What the ALP does control is its own internal rules.

By adopting a binding vote the Labor Party would be delivering as many votes as it possibly can towards the cause of marriage equality – more than the just over 50% of MPs and Senators who voted yes in September 2012, and more than the 78% of MPs, and 68% of Senators who indicate they would support it if a vote were held today (as reported by the Sydney Morning Herald here: http://www.smh.com.au/federal-politics/political-news/huge-spike-in-labor-mps-support-for-samesex-marriage-20150508-ggx4z4.html ).

It is difficult to see how such a move could be criticised by others who also support marriage equality. To do so is effectively arguing ‘please do not provide more votes to the cause which we all agree is important’.

And yet, this is exactly what some have done in recent weeks – with perhaps the most prominent example being another recent convert to supporting marriage equality, openly-gay Liberal Senator Dean Smith.

Immediately after the latest of Ms Plibersek’s calls for a binding vote, Senator Smith responded by saying he was ‘personally disappointed’ by it (http://www.smh.com.au/national/gay-liberal-senator-dean-smith-slams-tanya-plibersek-over-gay-marriage-move-20150427-1mu99l.html ), that “I have always been distrustful of the Left on this issue and now my personal fears have been realised,” and further that “[t]his has put the cause back and she needs to explain herself to same-sex marriage proponents.”

In 2015, with Australia having fallen behind 18 (and soon to be 20) countries on this issue, we seriously have an openly-gay conservative Senator criticising a progressive Deputy Opposition Leader for having the temerity to seek to deliver more votes from her Party in favour of marriage equality.

Dean-ny-come-lately Smith could have been excused for those comments, given it was the day after the issue had ‘blown up’ in the media and upon further reflection he might have recognised how ridiculous they sounded.

Instead, the following week he gave an interview to The Australian’s Janet Albrechtsen (http://www.theaustralian.com.au/opinion/columnists/binding-vote-on-same-sex-will-set-back-cause-ask-a-gay-liberal/story-e6frg7bo-1227337768868 ), where all he managed to achieve was to dig his own hole that much deeper.

Not only did he reiterate his criticisms of Labor for daring to suggest they might all commit to supporting LGBTI equality, he crucially admitted that, even if there was a conscience vote on both sides:

“marriage equality would likely be defeated. He cautions the advocates of gay marriage inside his party to slow down. “Yes, community opinion is changing, but it is changing slowly and I am comfortable with it changing slowly.”

This admission completely undercuts his arguments. He inadvertently concedes that the only way marriage equality could be passed this term is by a binding vote from Labor and a conscience vote from the Liberals, and yet he is explicitly arguing against that outcome (and also arguing against the ability of a new Labor Government to independently pass marriage equality if it was elected in 2016).

But that isn’t even the most offensive thing about the article – that would be his repeated calls for people to ‘slow down’, to ‘wait’, for their fundamental equality. In addition to the above quote, he also said:

“Give the country as much time as it needs. This is not an issue that is going backwards. It is only heading in one direction and the pace of the forward direction should be left to the community to decide.”

Leaving aside the fact the vast majority of the community is already there (with 72% support from the public, the only roadblock is our Parliament), he directly contradicts his own reason for supporting equality, which is included in the very same article:

“I was on a plane. I realised that Tori (Johnson) was gay. His partner had lost his lifelong partner. I thought, ‘I have lots of gay friends who are waiting for the laws to change. They don’t want to go to New Zealand to marry’.”

So, his reason for finally backing marriage equality is that people shouldn’t have to wait for the same rights as their cisgender, heterosexual counterparts, that it is tragic if they die without having realised those rights, and yet in the next breath he argues that they should wait, for as long as he deems necessary (or, to use his own words, as long as he is comfortable with).

That is simply not good enough, not from someone who supports marriage equality as an issue, nor from one of the few openly-LGBTI people ever elected to the Australian Parliament.

Perhaps, instead of attacking people like Tanya Plibersek for trying to deliver additional votes for marriage equality, Senator Smith should spend a little more time making the case for change within his own party room.

If he is successful in that task – and we, the Labor Party, are successful in achieving a binding vote in July – then we could all even see marriage equality passed this year.

Liberal Senator Dean Smith, who is 'relaxed and comfortable' with LGBTI Australians being made to wait for their human rights.

Liberal Senator Dean Smith, who is ‘relaxed and comfortable’ with LGBTI Australians being made to wait for their human rights.

A binding vote for marriage equality IS NOT over

The last misconception that I wanted to address also happens to be the easiest to debunk – and that is the argument that, just because Opposition Leader Bill Shorten has come out against a binding vote, the debate is somehow over.

Yes, it was disappointing that Mr Shorten chose not to demonstrate leadership on this issue (http://www.abc.net.au/news/2015-04-30/shorten-rejects-calls-to-axe-same-sex-marriage-conscience-vote/6434354 ), instead falling back on platitudes like “I certainly have a view, though, that the best way to win the argument on marriage equality is to convince people not force them” (which, when you think about it, sounds like he is arguing for a conscience vote on anything and everything, not just on LGBTI rights).

Nevertheless, just because the parliamentary Leader of the Party has adopted this position does not mean that delegates to ALP National Conference in July will necessarily agree with him.

In fact, all we need to do is look to his predecessor, then Prime Minister Julia Gillard, and the positions which she took to the 2011 National Conference on this issue; to oppose marriage equality, and to support a binding vote.

Not only did the Conference overwhelmingly reject her homophobia on the first (by a margin so large that the count wasn’t called, so she wouldn’t be embarrassed by how comprehensive her ‘defeat’ was), but delegates very nearly voted against her position on the issue of binding, too –it was only defeated by a margin of 208 votes to 184.

Which demonstrates two things – one, that Shorten’s position might be influential, but it is very much possible for National Conference to disagree with the Leader and two, that all it would take is for 13 people to change their minds for the vote to be resolved differently this time around.

Some commentators (looking at you, Barrie Cassidy) might be surprised by the possibility National Conference could decide this way, but they shouldn’t be.

As raised earlier, almost a third of ALP MPs and Senators already support binding (25 out of 80 – with 33 against and 12 undeclared). And, as demonstrated by successive national ballots, for National President and Party Leader, the general membership is in fact much more progressive than the parliamentary caucus.

All of which is to suggest that success on a resolution for a binding vote is very much a possibility. But it will not happen without a sustained push in the weeks that remain – and that is something we all have a responsibility to pursue, in whatever way we can. It’s time we all demanded that #ItsTimeToBind.

LGBTI Voices Absent from the Chamber

This week marked the first sittings of the 44th Parliament of the Commonwealth of Australia. It also marked the 44th sittings in which there have been no openly lesbian, gay, bisexual, transgender or intersex (LGBTI) members of the House of Representatives. The achievements of prominent Senators over the past 15 years – most notably former Greens Leader, Bob Brown, and current Leader of the ALP Opposition in the Senate, Penny Wong – mean many people, including some within the LGBTI community, are unaware of this fact.

However, the truth remains that, 38 years after the first Australian state decriminalised homosexuality (South Australia in 1975), and 16 since the last (Tasmania in 1997), no openly LGBTI MP has ever occupied a seat in our federal lower house. This ongoing absence is both an embarrassment, and means Australia is a statistical outlier amongst similar countries.

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Above: now retired, Senator Bob Brown, former leader of the Greens.

The United Kingdom has a long, and mostly proud, history of ‘out’ House of Commons MPs. Leaving aside the ‘outing’ of Labour’s Maureen Colquhoun in 1976, fellow Labour MP Chris Smith voluntarily came out just a year into his first term, way back in 1984. The first Tory to come out in office – Matthew Parris – did so the same year. In fact, with roughly 20 current openly LGBTI House of Commons Members (there’s so many it’s getting hard to keep up), even adjusting for size Westminster features the equivalent of 4 or 5 openly LGBTI Australian House of Reps MPs.

New Zealand is similarly a long way ahead of Australia. Like the UK, our Trans-Tasman cousins had a female MP who was ‘outed’ whilst in office (Marilyn Waring from the Nationals, in 1976), with the first MP to publicly come out being Labour’s Chris Carter, shortly after his election twenty years ago. New Zealand even had the world’s first openly transsexual Member of Parliament, Georgina Beyer, before the turn of the last millennium. And, despite having a national list as part of their electoral system, these (and several other openly LGBTI) MPs represented single-member geographic electorates.

Meanwhile, the Canadian history of openly LGBTI lower house MPs has already reached a quarter century, following Svend Robinson’s pubic declaration in 1988. Even the United States Congress has featured openly LGBTI members in their House of Representatives; after Democrat Gerry Studds was outed in 1983, fellow Democrat Barney Frank came out voluntarily in 1987. Heck, the first Republican Members of Congress to either be outed (Steve Gunderson in 1994) or come out voluntarily (Jim Koelbe in 1996) happened almost two decades ago.

So, what has gone wrong in the Australian political system such that, despite having six openly LGBTI Senators or Senators-elect (in addition to Brown and Wong, there’s Democrat Brian Greig, Labor’s Louise Pratt, Liberal Dean Smith and newly-elected Green Janet Rice), not one openly lesbian, gay, bisexual, transgender of intersex MP has ever won a seat in the House of Reps? How is it that Liberal Kevin Ekendahl, contesting the seat of Melbourne Ports in September 2013, appears to be the candidate to come closest – and even he fell more than 3.5% short?

The first possible explanation is that the party machines, in particular of the Coalition and the ALP, have actively operated to prevent LGBTI politicians from rising to the top. Given Australia’s incredibly strong two-party system (much stronger than the UK, New Zealand or Canada), it’s plausible that the increasingly powerful religious/conservative wing of the Liberal and National parties, and the virulently homophobic SDA, led by Joe De Bruyn inside the ALP, have each stopped the emergence of LGBTI politicians in Australia.

Except they haven’t been completely successful – 3 of the 6 openly LGBTI Senators have come from major parties (although none yet from the Nationals). And it ignores the Senate’s position as a quasi-‘insiders club’, where the majority of people elected have themselves emerged from, or at least have the support of, the party hierarchy. Which means that, even if discrimination within the party machine offers some of the explanation, there must be more to it.

A second possible explanation is that our political parties, operating in a system of single-member electorates with compulsory voting and compulsory preferential voting, have taken conscious decisions to find candidates who do not risk alienating any specific part of the electorate, and therefore have ruled out pre-selecting openly LGBTI candidates; or have nominated them to the multi-member Senate instead. Especially in marginal suburban or regional electorates, even a small backlash from voters motivated by homophobia (or who could be made to feel so through an exploitative campaign by opponents) could arguably be the difference between success or footnote.

At least historically, that could have been a somewhat rational, albeit craven, view from inside our major parties. But over time, with the growing acceptance of LGBTI people throughout Australian society, that perspective should have become irrelevant. And, once again, it cannot offer a full explanation, because, even accounting for different electoral systems in other countries, LGBTI candidates have had to counter, and survive, explicitly homophobic campaigns against them elsewhere. That could, and should, have happened here too.

A third possible explanation is that LGBTI people themselves have ‘self-selected’ out of becoming members of the House of Reps. There are two main ways in which this could have happened. First, if LGBTI advocates and achievers, becoming disgruntled by a (real or perceived) lack of progress on equality inside the major parties, chose instead to focus their energies on minor parties like the Democrats or, later, Greens, then they have largely ruled themselves out of being viable candidates for the House of Reps. The fact that 3 of the 6 openly LGBTI Senators to date have come from these smaller parties lends some weight to this hypothesis.

The other way in which an LGBTI person might rule themselves out is that, having progressed within the major parties and been in a position to challenge for pre-selection, they instead chose not to expose themselves to public scrutiny of their sexual orientation, gender identity or intersex status, or the possibility of outright homophobia. It’s been reported before that this is one reason why Justice Michael Kirby chose the law instead of politics (as an aside, imagine the achievements of Kirby as an activist Attorney-General?). It’s possible this fear continues to be a factor today. And, given the sexism and misogyny that is still directed at our female politicians, who’s to say they’re being irrational?

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Above: Senator the Hon Penny Wong, currently Leader of the ALP Opposition in the Senate, with her family. Unfortunately, as a Senator she can no longer be promoted unless or until she moves to the House of Representatives.

Last month, Bill Shorten made addressing this issue, through the introduction of LGBTI affirmative action rules for ALP candidates, one of his policy planks in the contest for Labor Leader. The proposal, oft described as a quota, drew condemnation from a diverse range of people, including Andrew Bolt and Crikey’s Guy Rundle. Disappointingly, the debate over his solution (which, for the record, I think is worthy of consideration) ignored the fact that Shorten was talking about a real problem – that LGBTI people continue to be excluded from Australia’s House of Government, long after they have stormed the barricades in comparable nations.

It’s important this problem is addressed, not because a Parliament must automatically reflect the demographic make-up of the people it represents, but because, at a time when the rights of LGBTI people continue to be a matter of major public debate (see: marriage equality), we should at least be at the table; or on a green chair or two, anyway. But above all, removing the barriers which have, in the past, operated to prevent openly LGBTI people being elected to the House of Representatives, means clearing the way to ensure that the best possible candidates are put before the Australian people, irrespective of their sexual orientation, gender identity or intersex status. That’s something we all deserve.

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UPDATE 7 JANUARY 2016:

On Saturday 5 December 2015, Trent Zimmerman became the first out gay man to be elected to the House of Representatives, in the North Sydney by-election created by the resignation of former Treasurer Joe Hockey.

A Liberal, Mr Zimmerman will be the first out member of the LGBTI community to serve in the lower house of our federal parliament when he formally takes his seat on Tuesday 2 February 2016.

While his historic victory was a long time coming, there is some hope that the 2016 Federal Election may even see other out LGBTI representatives elected to join him. The best chance at this stage appears to be gay army major Pat O’Neill, standing for Labor in the marginal seat of Brisbane.

Other candidates with admittedly longer odds include Carl Katter (ALP) and Jason Ball (Greens) in Higgins which is currently held by Liberal Kelly O’Dwyer (they both had much stronger chances before Malcolm Turnbull replaced the bigoted Tony Abbott as Prime Minister), and Labor’s Sophie Ismail who is running against Green Adam Bandt in Melbourne.

Of course, even if Mr O’Neill succeeds, two MPs out of a chamber of 150 do not a landslide make. LGBTI voices will still be under-represented when the issue of marriage equality is debated (yet again) next term, as well as other issues of importance to the LGBTI community.

And Australia remains well behind in terms of LGBTI representation, both in comparison to similar countries elsewhere, and when we remember the fact that there has still not been an out transgender or intersex member in either house. Despite Mr Zimmerman’s victory, there is still a very long way to go.

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Liberal Trent Zimmerman became the first out LGBTI person elected to the House of Representatives on 5 December 2015 [image source: The Weekly Times].

Federal LGBTI Anti-Discrimination Protections, At Last

This week, there was a major legal development which will have a direct and lasting impact on the lives of all lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. No, I am not talking about the US Supreme Court decisions overturning the Defense of Marriage Act, and Prop 8 in California.

Welcome as those decisions are, they will not directly impact Australians, outside of those people who are in bi-national relationships with US citizens (of course, the SCOTUS decision could have significant indirect impact in terms of confirming the global momentum towards marriage equality and heightening the embarrassment we feel that Australia has not adopted this reform).

The major achievement which I am referring to is the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. 38 years after the passage of the Racial Discrimination Act, three decades after the Sex Discrimination Act, two decades since Disability was protected, and nine years since Age was covered, we finally have federal anti-discrimination legislation of our own.

Five days later and I am still smiling about this. And I am still pleased that the removal of exceptions for religious organisations in the provision of aged care services was included, despite the formal Opposition of the Liberal and National Parties. This is incredibly important, not just in terms of protecting vulnerable older LGBTI Australians as they enter aged care facilities, but also in terms of its precedent value – contrary to the public statements of Shadow Attorney-General Senator George Brandis, freedom of religion should not trump the right of LGBTI Australians not to be discriminated against.

Hopefully, the removal of religious exceptions – outside of who can be a member of a congregation, how religious ceremonies are conducted and who is appointed as ministers of religion – will ultimately be delivered.

In the meantime, it is very important that we remember and pay tribute to those LGBTI activists who have helped to make this happen, as well as the politicians who have assisted to achieve this historic reform.

In terms of activists, I would particularly like to mention Anna Brown of the Victorian Gay & Lesbian Rights Lobby, long-term activist Corey Irlam and NSW Gay & Lesbian Rights Lobby policy officer Jed Horner, who were all on the ground in Canberra in the critical final weeks, as people who the community should thank. I think we should also congratulate people like Sally Goldner of Transgender Victoria (and likely several others who I am not aware of) for their success in ensuring an inclusive definition of trans issues in the Bill.

Above all, it was an amazing effort by Gina Wilson and Morgan Carpenter of OII Australia for them not only to raise public consciousness of the needs of intersex Australians, but also for achieving their inclusion as a specific protected attribute in the SDA Bill, the first time intersex people have been explicitly protected at federal level anywhere in the world.

Unfortunately, given the long and winding road which eventually delivered federal LGBTI anti-discrimination protections in Australia it is next to impossible to note all of those who put in the ground work which led up to this year’s Bill, but thank you nonetheless.

In terms of political support, I think it is fair to say that the legislation could not have been delivered without the hard work of Attorney-General Mark Dreyfus, who had oversight of the Bill, as well as the more ‘behind-the-scenes’ support of the ALP’s two queer Senators, Penny Wong and Louise Pratt. And I genuinely believe the removal of the religious aged care service provision exception would not have happened without the efforts of Minister for Mental Health & Ageing Mark Butler. Underneath all of this work, Rainbow Labor played a key role in ensuring the issue of LGBTI anti-discrimination reform remained on the ALP’s agenda.

In the current Parliament, the Bill obviously would not have progressed without the critical support of the Australian Greens and people like Senator Sarah Hanson-Young (who has portfolio responsibility for LGBTI issues). And the Independent cross-benchers should be thanked for shepherding the Bill through, as well as Liberal Senators Sue Boyce (for supporting) and Dean Smith (for abstaining), for providing moral support for the, as yet unnamed, House of Representatives Liberal MPs who were prepared to abstain to ensure its ultimate passage.

As with LGBTI activists, the long history of this issue means it is difficult to point out all of the MPs who have championed this issue over the years. But I would like to pay special tribute to the gay former Democrats Senator Brian Greig who helped to put this issue on the national legislative agenda through his private member’s bill.

Anyway, that is a not-at-all comprehensive list of people who have helped to make the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 a reality. Apologies to those people omitted – please accept that it was not deliberate. This might seem to some like an indulgent blog post, but thanking those people who make our successes happen is not something which our community has traditionally been very good at, and this is my small attempt to redress a little bit of that. Hopefully those people, named and unnamed, know the incredible difference they have made to current and future generations of LGBTI Australians.