7 Reflections on the Marriage Debate

It has truly been an amazing few days. With the House of Representatives vote on the Smith Bill on Thursday afternoon, its royal assent on Friday morning, and commencement at 12am Saturday (instantly recognising the overseas marriages of many LGBTI couples, and allowing thousands more to register their intention to marry), Australia is a different country – a better, fairer and more inclusive country – today than it was this time last week.

 

Now that I’ve had a few days to let this historic achievement sink in, here are some personal reflections on the marriage debate:

 

  1. It’s LGBTI marriage. It’s not marriage equality.

 

My first reflection is probably the most controversial: while the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which permits all couples to marry irrespective of their sexual orientation, gender identity or sex characteristics, is obviously welcome, it does not deserve the moniker ‘marriage equality’.

 

That is because, as well as amending its definition, it also changes the ‘terms and conditions’ surrounding marriage in Australia, simply because LGBTI couples are finally allowed to participate.

 

This includes enabling existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, solely on the basis of their personal religious beliefs [sub-section 39DD(2)]. As well as unnecessarily duplicating religious exceptions from the Sex Discrimination Act 1984 within the Marriage Act itself [section 47B].

 

The fact these amendments have been included now, but were not previously required in relation to divorced people re-marrying, suggests they have very little to do with ‘religious freedom’, and much more to do with homophobia, biphobia and transphobia.

 

Informed by past experience, the majority of LGBTI Australians fear that new rights to discriminate will be primarily used to target us – with recent research finding more than 60% of respondents strongly agreeing that, even if these laws technically allow discrimination against all couples, ‘it will disproportionately discriminate against same-sex couples’.

 

Of course, in the interests of ensuring LGBTI couples are able to marry at all, many people were prepared to accept these concessions. I certainly understand that viewpoint. But from my perspective, it means we now enjoy LGBTI marriage (or what a respected friend of mine describes as ‘partial marriage equality’) rather than genuine marriage equality.

 

And I think it is important to remind ourselves of this compromise, so that we can work to remove these discriminatory provisions in coming years.

 

  1. It could have been worse

 

Despite the significant flaws of the Smith Bill, we should also remember that it could have been much worse. At the start of November, most media commentary focused on how many ‘conservative’ amendments would be passed, allowing even more discrimination against LGBTI couples.

 

There was even the short-lived Bill from Liberal Senator James Paterson, the entire purpose of which appeared to be about entrenching ‘religious privilege’. Followed by amendments put forward by Attorney-General George Brandis, and supported by Prime Minister Malcolm Turnbull, to permit all civil celebrants to say ‘no gays allowed’.

 

One of the proudest moments of my own participation in the long fight for equality came in recent months, collaborating with a small group of advocates to oppose these changes. Rodney Croome, Felicity Marlowe, Shelley Argent, Brian Greig, Sharon Dane, Ivan Hinton-Teoh, Sharyn Faulkner, Robin Banks and Peter Furness all fought for the principle of full equality until the very end.

 

In that struggle we were not alone, with others – notably including the Equal Marriage Rights Australia Facebook page, Pauline Pantsdown, Jacqui Tomlins and Doug Pollard –making important public contributions.

 

I should also take this opportunity to thank everyone – family members, friends, blog readers, No Homophobia No Exceptions followers, and complete strangers – who completed the just.equal webform, to let MPs and Senators know there should be ‘No compromise on equality’. I understand close to 200,000 emails were sent, obviously having a massive impact. Thank you.

 

Together, we were able to alter the conversation, so that the Smith Bill was no longer seen as a ‘starting point’, to inevitably be dragged further to the right, but as the compromise it clearly was.

 

Together, we were able to persuade the Greens to introduce amendments to remove the egregious elements of the Smith Bill, amendments that, even if they failed last week, can be used for advocacy in the future.

 

Together, we helped to stop the Marriage Amendment (Definition and Religious Freedoms) Act 2017 from being much, much worse.

 

  1. It could still get worse

 

We must not overlook the fact that the reforms introduced last week are already under serious threat, as a result of the Review into ‘Religious Freedoms’ announced by Malcolm Turnbull on 22 November.

 

Former Liberal MP Philip Ruddock – the Attorney-General who oversaw the introduction of the ban on marriage equality in August 2004 – will spend the first three months of 2018 examining how Australian law can ‘better protect’ religious freedoms.

 

As we all know, increases in special privileges for religious individuals and organisations almost inevitably come at the expense of the rights of lesbian, gay, bisexual, transgender and intersex Australians (as well as other groups, including women).

 

Despite this, the panel for the Ruddock Review does not include any representatives from the LGBTI community (with Ruddock joined by the head of the Australian Human Rights Commission Rosalind Croucher, retired judge Annabelle Bennett and Jesuit priest Frank Brennan).

 

So, by all means spend the remainder of December celebrating our recent success. Because when 2018 starts we must stand ready to defend those gains, as well as protecting a wide range of other existing LGBTI rights, which will likely come under sustained attack.

 

  1. Renewed appreciation of the importance of LGBTI anti-discrimination laws

 

Some of the rights most at risk in the Ruddock Review – as they were during the parliamentary debate of the Marriage Amendment (Definition and Religious Freedoms) Bill – are our essential LGBTI anti-discrimination protections.

 

Indeed, one of the few positives of the past few months, amid the intense lobbying surrounding the Smith Bill, Paterson Bill and attempted conservative amendments, has been renewed appreciation of the importance of these laws within the LGBTI community itself.

 

After all, it is difficult to convey the significance of provisions, like LGBTI anti-discrimination sections within the Sex Discrimination Act, that should be needed less and less in practice as homophobia recedes (although the experience of the postal survey indicates that hopeful vision of the future remains some way off).

 

However, even if we don’t individually use them to lodge complaints, we all rely on the standards these laws set. Hopefully, the recent focus on the subject of anti-discrimination laws means the LGBTI community will be ready to fiercely defend our existing protections in the near future.

 

But we must do more than merely maintain the status quo. We must campaign to improve the protections offered by these laws, especially in terms of who is covered, removing religious exceptions, and introducing LGBTI anti-vilification laws where there currently are none (Commonwealth, Victoria, Western Australia, South Australia and the Northern Territory).

 

To find out more about the current status of these laws in your jurisdiction, see: A Quick Guide to Australians LGBTI Anti-Discrimination Laws.

 

The first opportunity to improve these laws is the public consultation by the Northern Territory Government on modernisation of their Anti-Discrimination Act. Submissions close 31 January 2018. For more information, click here.

 

  1. Marriage is not, and never has been, the only LGBTI issue

 

This point may seem obvious to most (but sadly not all) people within the LGBTI community, but it is less so to those outside, including some who sit in our nation’s parliament.

 

The denial of the right to marry was never the only form of discrimination to adversely affect lesbian, gay, bisexual, transgender and intersex Australians. For a lot of people, it wasn’t even close to being near the top of a long list of concerns.

 

Now that LGBTI marriage has been legalised, it is time to ensure a wide range of other issues receive the level of attention that they deserve, including (but definitely not limited to):

  • Ending involuntary surgeries on intersex children
  • Improving access to identity documentation for trans and gender diverse people
  • Ensuring the national Health & Physical Education curriculum includes LGBTI students, and content that is relevant to their needs
  • Implementing nation-wide LGBTI anti-bullying programs in schools
  • Fixing LGBTI anti-discrimination laws (including the broken NSW Anti-Discrimination Act 1977)
  • Stopping the offshore detention, processing and resettlement of people seeking asylum, including of LGBTI people in countries that criminalise them (such as Papua New Guinea), and
  • Ending HIV.

 

These last two issues directly affect the LGBTI community, albeit not exclusively. There are other issues that may not be specifically ‘LGBTI’ per se, but that we have an interest in, and a responsibility to help address.

 

That includes improving the treatment of people seeking asylum generally, supporting the campaign for constitutional reform for Aboriginal and Torres Strait Islander people – especially because the same-sex marriage postal survey was used to push the Uluru Statement from the Heart off the political agenda – and helping to Close the Gap. Oh, and addressing climate change (including stopping the Adani coal mine) because there’s no human rights on a dead planet.

 

  1. The ends do not justify the means

 

One of the most nauseating parts of the parliamentary debate last week (amid some fairly stiff competition) was the sight of Liberal and National Party MPs trying to retrospectively justify their decision to hold the postal survey in the first place.

 

They must never be allowed to get away with this argument.

 

The postal survey was unnecessary.

 

It was wasteful – at a final cost of $80.5 million (a figure that Coalition MPs should arguably be forced to repay).

 

And it was harmful, just as LGBTI Australians always said it would be: “experiences of verbal and physical assaults more than doubled in the three months following the announcement of the postal survey compared with the prior six months”, while “more than 90% reported the postal survey had a negative impact on them to some degree.”

 

As Junkee’s Rob Stott aptly described it: “Hey Malcolm, I’m glad you enjoyed the postal survey. It was one of the worst times of my life.”

 

Even the United Nations Human Rights Committee recently criticized the Government for this process:

 

“While noting that the State party is currently undertaking a voluntary, non-binding postal survey on the legalization of same-sex marriage, the Committee is of the view that resort to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups.”

 

Which is exactly what happened.

 

The fact Commonwealth Parliament has since passed LGBTI marriage cannot be used to excuse the postal survey – because passing legislation is what parliaments are supposed to do. You know, like how John Howard banned marriage equality in August 2004, without an $80.5 million farce beforehand.

 

The postal survey should never have happened. And it must never be allowed to happen again.

 

  1. This was not Malcolm Turnbull’s victory. It was ours.

 

Another extremely nauseating moment last week was watching Prime Minister Malcolm Turnbull try to claim credit for the passage of LGBTI marriage.

 

This is a so-called ‘leader’ who:

  • Refused to introduce legislation to legalise marriage equality
  • Instead, imposed an unnecessary, wasteful and harmful postal survey on the LGBTI community
  • Then refused to participate in the Yes campaign, and
  • When legislation was finally before parliament, supported amendments to allow even more discrimination against LGBTI couples.

 

Thankfully, his brazen ‘gloating’ has been called out by people like Magda Szubanski and perhaps even more powerfully by Jordan Raskopoulos.

 

Malcolm Turnbull does not deserve credit for what he did. He deserves our condemnation.

 

On the other hand, and given the sheer scale of the accomplishment, there are plenty of individuals and organisations that do deserve our thanks. Including the advocates I named earlier. As well as, obviously, the Yes Campaign and Australian Marriage Equality, GetUp!, PFLAG Australia, Rainbow Families Victoria, the NSW Gay & Lesbian Rights Lobby, just.equal, Equal Love, CAAH, Rainbow Labor and the unions (well, most of them), and the Greens. Plus many, many more.

 

Nevertheless, one of the best parts about the long struggle for LGBTI marriage in Australia is that it was truly a collective effort, much bigger than any one individual. Because it involved millions of actions, by millions of people, the vast majority of which will never be recorded by history. Which means the victory belongs to everyone who has contributed to the fight along the way. All of us.

 

**********

 

So, there you have it, my final thoughts on the marriage debate. Feel free to share yours – including where you may passionately disagree – in the comments below.

 

But now, on a personal level, it’s time for me to stop writing about the right to get married. And to instead go and exercise that right, by planning Steven and my long overdue wedding.

 

House of Reps Vote

The moment LGBTI marriage was passed by the House of Representatives.

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It’s Not Over Yet

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

He goes on to say:

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

151222 Turnbull

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

Quit Playing Games

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

 

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Dear MP/Senator

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Nor are any of these new religious exceptions necessary.

 

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

 

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

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

That simply isn’t good enough.

 

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

 

**********

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

And so, I make this final plea to you:

 

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

 

Sincerely,

Alastair Lawrie

 

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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.

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.