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.

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28 Reasons to Vote Yes on Marriage Equality

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  1. Vote yes on marriage equality because love does not discriminate, and neither should the Marriage Act

 

  1. Vote yes for the tens of thousands of LGBTIQ Australian couples who are waiting for the opportunity to marry in front of family members and friends – just like anybody else

 

  1. And for other LGBTIQ couples who don’t want to get married, but who deserve the right to make that decision for themselves and not have it imposed upon them by the Parliament

 

  1. Vote yes out of respect for the couples where one or both have died over the past 13 years without being allowed to marry the love of their life[i]

 

  1. And to stop this same fate being experienced by other couples in the future

 

  1. Vote yes because no-one should be forced to divorce their spouse in order to have their gender identity recognised under the law[ii]

 

  1. Vote yes because a successful marriage is based on the content of your character, not your sex characteristics[iii]

 

  1. Vote yes to make it easier for LGBTIQ Australians to prove their relationships, especially when it matters most[iv]

 

  1. Vote yes to recognise the marriages of thousands of LGBTIQ Australians that already exist, having wed overseas

 

  1. And to ensure that, when some of those relationships break down, they are able to divorce[v]

 

  1. Vote yes so that all members of a family are treated exactly the same under the law

 

  1. Vote yes so that parents, and grandparents, and brothers and sisters, are able to attend the weddings of their family members

 

  1. And so that the children of rainbow families can attend the weddings of their parents

 

  1. Vote yes for all of the lesbian grandmas, gay uncles, bi aunts, trans nephews and intersex nieces, and queer cousins

 

  1. Vote yes if you think that your child should be able to marry whoever they want to when they grow up

 

  1. Vote yes if you think that every child should be able to marry whoever they want to when they grow up

 

  1. Vote yes on marriage equality for your friends

 

  1. And your colleagues

 

  1. And your teammates

 

  1. And your neighbours, and all of the LGBTIQ people in your community

 

  1. Vote yes for the many young LGBTIQ Australians still struggling to comes to terms with who they are, wondering whether they are accepted

 

  1. And for older LGBTIQ Australians who have experienced a lifetime of discrimination

 

  1. Vote yes for every LGBTIQ Australian, to show them that they are not lesser and should not be treated as lesser under the Marriage Act

 

  1. Vote yes because you are LGBTIQ yourself and this is a matter of pride

 

  1. Vote yes because you believe in a fair go for all, irrespective of sexual orientation, gender identity or sex characteristics

 

  1. Vote yes because you think Australia can be a better, fairer and more inclusive country

 

  1. And because you want to help make Australia a better, fairer and more inclusive country

 

  1. Vote yes on marriage equality because all love is equal, and it’s time we changed the law to reflect that.

 

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Two final points:

  • Please share this post, adding your own reason(s) why you will be voting for marriage equality. Or come up with your own list, and share that. Because we have the arguments on our side, but we need to be making them from right now until the postal survey closes.

 

  • To find out how else you can get involved in the Yes campaign, including volunteering opportunities, visit their website here.

 

Footnotes:

[i] Like long-term LGBTIQ rights campaigners Peter and Bon, who were together for half a century, with Bon passing away earlier this year after having pleaded with Malcolm Turnbull to allow them to marry before he died – a plea that was ignored.

[ii] Australia was criticised by the United Nations Human Rights Committee earlier this year because of its policy of forced trans divorce. Find out more here.

[iii] To find out more about how discrimination in the Marriage Act affects people with intersex traits, see OII Australia’s submission to the Marriage Amendment (Same-Sex Marriage) Bill 2016.

[iv] Tragically, Tasmanian Ben Jago was unable to bury his de facto partner, or even attend his funeral, after his premature death (see this piece in the Guardian). While such discrimination is already unlawful, being married would make these situations far less common.

[v] Australia has also been criticised by the United Nations Human Rights Committee because of its failure to allow LGBTIQ couples that have married overseas to be able to divorce when those relationships break down. Find out more here.

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

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

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

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

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

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

**********

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

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

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

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

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

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

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

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

**********

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

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

Indeed, that ‘right’ is already provided to ministers of religion under section 47 of the Marriage Act 1961: “Ministers of religion not bound to solemnise marriage etc. Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

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

Ministers of religion may refuse to solemnise marriages

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

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

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

(b) any of the following applies:

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

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

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

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

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

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

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

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

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

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

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

**********

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

Currently, only ministers of religion have an explicit ‘opt-out’ clause. No equivalent provision or power exists for civil celebrants[iii] – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

However, the Government is proposing, through this Bill, to allow even these ‘secular’ civil celebrants to reject LGBTI couples simply because of who they are (again, this is something that has not been included in most previous Bills, other than that from Senator David Leyonhjelm[iv]). Proposed new section 47A reads:

Marriage celebrants may refuse to solemnise marriages

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

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

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

This is, to put it simply, outrageous.

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

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

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

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

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

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

**********

But it’s not just civil celebrants who will be allowed to put up unwelcome, on multiple levels, signs saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed’. Religious bodies or organisations will also be able to do so as part of proposed new section 47B, which reads:

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

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

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

(b) the refusal:

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

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

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

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

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

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

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

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

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

**********

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

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

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

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

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

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

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

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

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

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

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

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

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

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SENATE SINODINOS DEBATE

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

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

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

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

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

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

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

Footnotes:

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

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

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

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

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

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

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

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

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

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

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

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

[xi] Subsection 40(2A)

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

No 9 Still No Marriage Equality in Australia

This is an issue where there were a number of different highs – and lows – over the course of the past 12 months. Given my naturally glass half empty personality, we’ll start with the lows.

The most obvious ‘low’ was the High Court’s ruling last Thursday (12 December), overturning the ACT’s same-sex marriage laws as unconstitutional, after just five days of operation, as well as annulling the marriages of all the couples who had taken the opportunity to tie the knot under the law.

One can only imagine how awful the past few days would have been for these couples, experiencing the elation of being married, at long last, to the frustration of having that status ripped from their grasp just days later.

In fact, 2013 was not a good year for the idea of state and territory same-sex marriage laws generally. State-based marriage was defeated, narrowly, in votes the Tasmanian upper house (after passing the lower house, yet again), and by one vote in the NSW upper house (although it was likely headed for defeat in the lower house there). A similar Bill was defeated by a much larger margin in South Australian Parliament.

Now, it seems the High Court has ruled out the option of state-based marriage permanently (at least as far as they are close enough to marriage under the Commonwealth Marriage Act to deserve the title ‘marriage’).

And the Federal Election was also not a good one as far as marriage equality was concerned. A Prime Minister who supported marriage equality, leading a party the majority of whose MPs had voted yes just 12 months earlier, was replaced by a Prime Minister who remains staunchly opposed to equality (even that of his own sister), leading a Liberal-National Coalition of whom exactly ZERO MPs voted yes in September 2012.

Overall, then, there was a lot of bad news to spread around. But 2013 was not universally negative for marriage equality in Australia.

The same High Court decision that overturned the ACT’s same-sex marriage laws also included a key finding – that the Federal Parliament unambiguously has the power to introduce marriage equality.

That might sound, to some, as merely a small win, but it actually takes one of the main arguments against marriage equality in the Commonwealth arena off the table (namely that s51xxi of the constitution – aka the ‘marriage power’ – could only mean marriage of opposite-sex couples).

In what turned out to be a quite progressive judgment (despite the outcome), the Justices wrote:

“”marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.”  Link to full judgment here: http://www.austlii.edu.au/au/cases/cth/high_ct/2013/55.html

In short, marriage can be the union of two people (or more, if the Parliament so chooses) irrespective of their sexual orientation, gender identity or intersex status. That is a statement of what is ‘possible’. It is up to our parliamentarians to make it real.

Another ‘high’ was that those couples in the ACT were able to marry in the first place. The fact that, for five full days, newspapers and TV stations around the country carried pictures of happy couples getting married, where the only difference was that their spouse was the same sex as themselves, can only be of cementing victory in the long war of acceptance.

Same-sex couples were married, the sky didn’t fall, nobody else’s marriage was diminished and, for the benefit of people like Senator Bernardi, no pets were interfered with either.

Another glimmer of hope is that the Liberal Party’s position was slightly better at the 2013 election than it was at the 2010 one. While previously the Liberals and Nationals were universally committed to voting no on marriage equality, prior to September 7 they adopted the line that whether there was a conscience vote would be “a matter for the post-election Coalition party-room”.

Given Tony Abbott’s strong opposition, there is no guarantee of a conscience vote happening, but the door is at least slightly ajar – it is now up to people like Malcolm Turnbull to force it open.

Another door that is slightly ajar is the possibility of the 2014 ALP National Conference adopting a binding vote in favour of marriage equality. Something that should have happened in 2011, when the platform was changed, were it not for the homophobic position adopted by then Prime Minister Julia Gillard, is a live option because of recent remarks by AWU National Secretary Paul Howes, who conceded that he had been wrong to support a conscience vote back then.

With Howes’ crucial support, and another three years of time elapsed, there might, just might, be enough support from conference delegates to impose a binding vote on Parliamentary members of the Labor Party. And that is definitely something worth fighting for. Because, mathematically, we may well need a conscience vote from the Coalition, and a binding vote from Labor, for any marriage equality Bill to pass the Commonwealth Parliament, at least this term anyway.

The formation, last week, of a cross-party group to work towards marriage equality in the Parliament, drawing members from the Coalition (Sue Boyce), ALP (Louise Pratt) and Greens (Sarah Hanson-Young), will also likely be remembered as a key step along the road to equality.

The final ‘high’ from 2013 is something which now probably doesn’t hold a lot of sway, but which was a powerful statement of intent at the time: then Prime Minister Kevin Rudd’s ‘Bartlet’ moment on the ABC’s Q&A. (http://www.youtube.com/watch?v=CdU3ooAZSH8)

When asked by a Christian pastor how, as a Christian, Rudd could support marriage equality when the Bible commands him to believe differently, Rudd rebuked him with a smackdown that was brilliant both in its argument and in its eloquence. It was Rudd at his best – and, watching it three months later, it still brings a smile to my face.

Even if it was only for a few fleeting months, we finally had a Prime Minister join the majority of the Australian population in the 21st century in believing that all couples must be treated equally.

How much longer we have to wait for that community belief to be reflected in the statute books will depend a lot on what happens in 2014, inside the Coalition Party-room and at ALP National Conference. I guess it’s time to prepare to protest once more.