The Growing List of Problems with the Religious Discrimination Bill(s)

The Religious Discrimination Bill(s), released by Attorney-General Christian Porter in late August, remind me a lot of the ongoing Sydney apartment crisis.

 

They are the inevitable consequence of a system that has been designed to serve the interests of one group over and above everyone else. Except instead of property developers, these new laws would benefit religious fundamentalists. While those left picking up the tab are women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities, and plenty of others.

 

And, just like a recently-built Sydney apartment, what might seem shiny and new on first inspection reveals a growing list of defects the closer one looks.

 

Here then is a look at the serious problems with the Religious Discrimination Bill(s) that we are already aware of (a list I’m sure will grow if we ever have the misfortune of ‘living’ under these shoddily-constructed laws):

 

The Religious Discrimination Bill will make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities

 

The worst provision of the Exposure Draft Religious Discrimination Bill is proposed section 41. This provides that ‘statements of belief’ are basically exempt from discrimination complaints under all Commonwealth, State and Territory anti-discrimination laws (including the Fair Work Act 2009).

 

As long as the person making such comments does so on the basis of their religion and they are made ‘in good faith’, they will be lawful unless the person on the receiving end can show they are malicious, or likely to harass, vilify, incite hatred or violence. In practice, that would be extremely difficult to prove.

 

This section is a radical departure from our current anti-discrimination framework, under which Commonwealth laws like the Sex Discrimination Act 1984, and State and Territory laws like the NSW Anti-Discrimination Act 1977, operate alongside each other, allowing victims to decide where to complain.

 

The provision also specifically overrides section 17(1) of Tasmania’s Anti-Discrimination Act 1998, which prohibits conduct that ‘offends, humiliates, intimidates, insults or ridicules’ people on the basis of a wide range of protected attributes, including:

  • Gender
  • Race
  • Age
  • Sexual orientation
  • Lawful sexual activity
  • Gender identity
  • Intersex variations of sex characteristics
  • Disability
  • Marital status
  • Relationship status
  • Pregnancy
  • Breastfeeding
  • Parental status, [and]
  • Family responsibilities.

 

That’s a long list of groups who will find themselves the targets of derogatory comments having lost one of the few effective shields against them.

 

But that’s exactly what section 41 seems intended to achieve: to make it easier for religious fundamentalists to speak evil, and write evil, comments about different groups. With the obvious consequence that women, LGBTI people and others will be forced to see evil and hear evil comments about themselves.

 

This provision would build a fundamental imbalance into our existing anti-discrimination system, privileging the rights of one group within society at the expense of everyone else. It must not be allowed to pass.

 

The Religious Discrimination Bill will make it more difficult for big business to promote diversity and inclusion

 

Another serious problem of the Exposure Draft Religious Discrimination Bill are provisions which are based on the circumstances of a certain (ex-)footballer.

 

Proposed sub-sections 8(3) and 8(4) would make it much more difficult for major employers (organisations with revenue of at least $50 million per year) to introduce codes of conduct that prevent employees from making derogatory comments about minorities outside ordinary working hours where those comments are ‘statements of belief’.

 

The only way an employer will be able to enforce such restrictions is if they are able to demonstrate failure to do so would inflict ‘unjustifiable financial hardship’ on them. On a practical level, it will be extremely difficult to prove hypothetical yet significant future harm in order to justify imposing these rules in the here and now. Many big businesses will (quite understandably) simply avoid doing so.

 

It should also be noted that ‘unjustifiable financial hardship’ is the only criteria to permit these codes of conduct. They cannot be implemented on the basis of wanting to promote diversity and inclusion within the workplace (including to make other employees feel welcome), or to associate their ‘brand’ with values of diversity and inclusion more broadly – unless they can attach a sufficiently-large dollar value to it.

 

Once again the likely consequence of these provisions is to make it easier for religious fundamentalists to make offensive comments about women, LGBTI people, single parents, people in de facto relationships, divorced people and people with disabilities, among others. That seems to be the opposite outcome to what a well-constructed anti-discrimination law should achieve.

 

The Religious Discrimination Bill will make it easier for health practitioners to refuse to serve minorities

 

The next major defect of the Exposure Draft Religious Discrimination Bill is also found in proposed section 8 – this time sub-sections 8(5) and 8(6). These provisions make it easier for health practitioners to conscientiously object to providing health services.

 

If, upon reading this, you think these provisions must be referring to ‘controversial’ medical procedures such as abortion and euthanasia, you should be aware they actually cover a much, much wider range of health services.

 

This includes assisted reproductive technology, where health practitioners would presumably be empowered to ‘conscientiously object’ to providing access to single women, unmarried couples and LGBTI people.

 

But even that is just the tip of the iceberg in terms of services where it will be more difficult to impose ‘health practitioner conduct rules’ to treat all patients with dignity and respect. Indeed, the definition of ‘health service’ in section 5 ‘means a service provided in the practice of any of the following health professions:

  • Aboriginal and Torres Strait Islander health practice
  • Dental …
  • Medical
  • Medical radiation practice
  • Midwifery
  • Nursing
  • Occupational therapy
  • Optometry
  • Pharmacy
  • Physiotherapy
  • Podiatry, [and]
  • Psychology.’

 

This full list makes it abundantly clear these provisions are not restricted to permitting health practitioners to refuse to perform certain acts, but instead will encourage them to refuse to serve certain classes of people (unless someone can explain what ‘controversial’ procedures are involved in dentistry, medical radiation practice, or optometry).

 

For example, it could allow a pharmacist to refuse to dispense hormone treatments to trans customers, while providing them to cisgender women. Indeed, this is something that the Human Rights Law Alliance (which is aligned to the Australian Christian Lobby) has been publicly advocating.

 

If you are now thinking that these provisions have the potential to substantively undermine Australia’s health care system, and in particular the right of all people to access essential health services without fear of discrimination on the basis of who they are, you would be right.

 

Both of these sets of unusual amendments to the ordinary ‘reasonableness’ test for indirect discrimination (sub-sections 8(3) and (4) re big business, and sub-sections 8(5) and (6) re health practitioners) must be rejected.

 

The Religious Discrimination Bill will make it easier for religious bodies to discriminate against others

 

The fourth and final serious problem in the Exposure Draft Religious Discrimination Bill is the broad ‘exception’ in proposed section 10 that would allow religious bodies, including religious schools and registered charities, to discriminate against others on the basis of religious belief, or lack of belief.

 

Given this provision effectively allows discrimination between religions, it would be tempting for women’s organisations, and groups representing LGBTI Australians, to give it less attention than those outlined above. But it would be ill-advised to ignore its potentially far-reaching consequences.

 

For example, the test to allow discrimination: ‘conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’, will be much easier to satisfy than the existing criteria in section 37 of the Sex Discrimination Act 1984: ‘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’ [emphasis added].

 

If the test in section 10 of the Religious Discrimination Bill becomes law, it would set a negative precedent, with some in the Government then pushing for the same, lower standard to be included in the Sex Discrimination Act (potentially through the current Australian Law Reform Commission inquiry into religious exceptions).

 

The exception in section 10 also applies to an incredibly wide range of circumstances. For example, it would allow a religious school to expel a student in year 12 for expressing doubts about the school’s religion (something that is specifically excluded under equivalent laws in Queensland, Tasmania, the ACT and Northern Territory, which allow discrimination on the basis of religious belief at admission, but not once enrolled).

 

Finally, if section 10 becomes law it could set up a potential ‘time-bomb’ for future anti-discrimination reform. If and when we finally achieve repeal of the religious exceptions in the Sex Discrimination Act, this provision could allow religious schools to expel LGBT students who refuse to repent for their sexual orientation or gender identity (where the school attempts to claim they are not discriminating because they are LGBT, but instead on the basis of their religious beliefs about being LGBT).

 

For all of these reasons, proposed section 10 must be substantially narrowed in order to avoid creating a structural flaw not just in the Religious Discrimination Bill itself, but across anti-discrimination legislation more generally.

 

**********

 

These four sets of provisions are dangerous, unprecedented, unwanted and unwarranted additions to Australia’s anti-discrimination regime (so much so they might be described as the four horsemen of our ‘religious freedom’ apocalypse).

 

They will disturb any sense of balance or proportion in our laws, by making it clear the right of religious fundamentalists to discriminate against others is more important than the rights of women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live their lives free from discrimination.

 

The Religious Discrimination Bill will ensure that religious belief is privileged in several key ways, in an almost unlimited range of everyday situations.

 

But they are not the only threats in the draft laws released by the Attorney-General a fortnight ago.

 

You may have noticed in this article’s title, and introduction, references to Religious Discrimination Bill(s). That’s because, along with the Exposure Draft Religious Discrimination Bill itself, Mr Porter also released the Religious Discrimination (Consequential Amendments) Bill 2019, and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.

 

While these two Bills have received far less attention than the Religious Discrimination Bill, they too contain provisions that could undermine the human rights of other Australians, including:

 

The Religious Discrimination (Consequential Amendments) Bill creates the unnecessary position of Religious Freedom Commissioner

 

The Government’s own Religious Freedom Review (aka the ‘Ruddock Review’) found it was not necessary to create the position of Religious Discrimination Commissioner within the Australian Human Rights Commission.

 

Despite this, the Consequential Amendments Bill would do exactly that. Further, it frames this position as a Religious Freedom Commissioner, in contrast to the Age, Disability, Race and Sex Commissioners who are all explicitly appointed as ‘Discrimination’ Commissioners.

 

Finally, adding insult to injury, the Government would be appointing a Religious Freedom Commissioner when LGBTI Australians still do not have our own Commissioner, more than six years since the introduction of protections on the basis of sexual orientation, gender identity and intersex status.

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily amends the objects clauses of anti-discrimination laws

 

This Bill would introduce the following words into the objects clauses of all other Commonwealth anti-discrimination laws:

 

‘In giving effect to the objects of this Act, regard is to be had to the indivisibility and universality of human rights, and the principle that every person is free and equal in dignity and rights.’

 

Which sounds innocuous enough, except that in the explanatory notes for the Bill the only other human right that is specifically mentioned by name is ‘the right to freedom of religion.’

 

These explanatory notes can and will be used by the judiciary in determining how these amended objects clauses affect the interpretation of the Racial, Sex, Disability and Age Discrimination Acts, potentially giving more weight to so-called religious freedom (at a time when we need to be reducing religious exceptionalism, not exacerbating it).

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily ‘protects’ charities advocating discriminatory marriage

 

This Bill would also amend the Charities Act 2013 (Cth) to ensure that charities that advocate for only cisgender heterosexual marriage are not de-registered. Specifically, it would include the following in section 11:

 

‘To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.’

 

Except, when the Marriage Act 1961 (Cth) was amended in 2017, the Charities and Not-for-profits Commission advised Parliament such an amendment was not needed. And, in the two years since then, there is exactly zero evidence of any charity being adversely affected.

 

Nor is there any justification for singling out this one discriminatory and exclusionary belief for special protection in our charities regulation.

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill inserts more discriminatory religious exceptions into the Marriage Act

 

Speaking of the Marriage Act, this Bill would also insert even more religious exceptions into that law. Specifically, new section 47C would explicitly allow religious educational institutions to discriminate in the provision of facilities, goods and services for the purposes of the solemnisation of marriage.

 

This would permit schools to discriminate against LGBTI couples, divorced people re-marrying and people who had previously cohabitated – even where these facilities, goods and services are provided publicly on a commercial or for-profit basis.

 

As I have written previously, the amendments that were included in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 already mean we do not currently enjoy genuine marriage equality in this country. We should be aiming to remove those religious exceptions, not entrench them.

 

**********

 

I wrote at the beginning of this post that the Religious Discrimination Bill(s) share several similarities with the ongoing Sydney apartment crisis.

 

But there is also one key difference – while these plans have been drafted, they have not yet been ‘built’. Which means there is still time to avert this new crisis, for the Morrison Government, and Parliament more generally, to amend the Religious Discrimination Bill and its two accompanying laws, and thereby avoid their adverse impact on large numbers of everyday Australians.

 

However, if the Government and Parliament fail to listen and take action, and instead pass these Bills unamended, they will be condemning women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live under the legislative equivalent of Opal Tower, or Mascot Towers.

 

We will always be fearful of the next crack to emerge: of the next time we are discriminated against simply because of who we are, entirely lawfully, because of somebody else’s religious beliefs. We will never get to feel at home.

 

Opal Tower

The Religious Discrimination Bill(s) are the legislative equivalent of Opal Tower – but there’s still time to avert a new crisis, if the Government and Parliament are willing to listen.

 

To find out more about everyday situations in which religious beliefs will be privileged, check out this twitter thread. And if you’ve enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile.

 

No, We Don’t Have Marriage Equality Yet

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

(i) in writing; and

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Maybe.

 

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

 

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

 

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

 

House of Reps Vote

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

 

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Footnotes:

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

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

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

[iii] Authorised under section 47A:

Religious marriage celebrants may refuse to solemnise marriages

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

Grounds for refusal not limited by this section

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

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

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

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

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

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

Grounds for refusal not limited by this section

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

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

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

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

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

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

In particular:

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

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

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

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.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

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.

Genderless (Notices of Intended) Marriage

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

Thank you for the opportunity to provide a submission to this consultation.

 

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

 

  1. Gender (optional) Male, Female or Non-Binary.

 

This is required to be completed for both parties to an intended marriage.

 

The inclusion of this question is entirely unnecessary and it should be removed.

 

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

 

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

 

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

 

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

 

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

 

I can see no such purpose in this instance.

 

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

 

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

 

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

 

Gender (optional), please specify

 

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

 

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

 

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

 

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

 

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

 

Please do not hesitate to contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

  1. a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).

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.”

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

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

 

**********

 

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

 

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

 

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

 

Your answer: “Yes, and yes.”

 

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

 

You were right then.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

This is despite the fact his draft legislation:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Sincerely,

Alastair Lawrie

 

Bill Shorten Commitment

Will Opposition Leader Bill Shorten support genuine marriage equality?

Footnotes:

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

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

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

 

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

 

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

 

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

 

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

 

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

 

Which is, to put it bluntly, bollocks.

 

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

 

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

 

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

 

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

 

Well, no actually.

 

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

 

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

 

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

 

“the status or condition of being-

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Goodenough

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

 

Footnotes:

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