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

Update 15 February 2017:

The Senate Committee Inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill has been completed, with its report tabled in Parliament this afternoon (Wednesday 15 February 2017). A copy of the Report can be found here.

 

The Report itself includes some positives, and some areas of possible concern.

 

On the positive side, the Committee has acknowledged that adding a stand-alone right for ministers of religion to discriminate against same-sex couples is both unnecessary, and explicitly discriminatory (page 15).

 

The Committee also did not support the introduction of broad new rights for civil celebrants to discriminate against LGBTI couples, noting that they “are authorised to perform a function on behalf of the state and should be required to uphold Commonwealth law” (page 24).

 

On the other hand, the Committee has attempted to define a new category of ‘religious marriage celebrants’ – who are not ministers of religion but conduct marriages for faith communities – and then providing them with similar rights to discriminate as ministers of religion (page 23).

 

While that compromise may seem reasonable, some of these same celebrants also officiate at secular ceremonies, and under no circumstances should they be allowed to discriminate when they are effectively operating as a civil celebrant.

 

In the same way, the proposal that existing civil celebrants should be allowed to register as ‘religious marriage celebrants’, and therefore benefit from the same right to discriminate (page 24), must not apply to any situation in which they continue to oversee civil ceremonies.

 

The Committee also questioned the need for new special rights for religious bodies and organisations to discriminate against same-sex couples – although that is because it believes they may already be allowed to do so because of the overly-generous religious exceptions provided under the Sex Discrimination Act 1984 (page 31).

 

It also discusses, although doesn’t explicitly support, clarifying their ‘right’ to refuse to provide facilities, goods and services in situations that are “intrinsic to, directly associated with and intimately involved in a wedding ceremony” (page 32). Once again, this would unacceptably undermine a reform that is, at its heart, supposed to be about the equal recognition of equal love.

 

Finally, the Committee observed that “[i]n relation to military chaplains, the committee notes that the proposed amendment would not change the current law”, and then suggests the reintroduction of ‘marriage officers’ to provide an alternative method for LGBTI military couples to marry (page 24).

 

While it may not change existing law, a) there must not be a new stand-alone note to section 81 that singles out same-sex couples for adverse treatment and b) as public servants, paid for with our taxes, and with an obligation to serve all personnel equally, the right of military chaplains to discriminate in this way should be abolished.

 

With the Report finalised, pressure now returns to our 150 House of Representatives MPs, and 74 Senators (with two current vacancies), to find a way forward on marriage equality, and ensure it is passed as quickly as possible.

 

But it must also be done as fairly as possible. I would argue there is absolutely nothing in the Committee Report that would justify the inclusion of new special rights to discriminate against LGBTI couples in any marriage equality bill.

 

In which case, in the coming weeks and months it will be up to us to continue to remind Prime Minister Malcolm Turnbull – and Opposition Leader Bill Shorten, as well as the Greens and crossbench MPs and Senators, in fact anyone who will listen to us – that equal means equal, and that means passing marriage equality without new religious exceptions.

 

Original Post:

The Senate is currently conducting an inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill. This is the legislation that the Government would have introduced had the marriage equality plebiscite been held, and had that vote been successful.

Full details of the inquiry can be found here. It is due to report on Monday 13 February 2017, although what happens afterwards remains unclear.

My submission to the inquiry, which focuses on the provisions of the Bill that seek to treat LGBTI couples differently to, and worse than, other couples, has now been published, and is reproduced below:

 

Committee Secretary

Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Department of the Senate

PO Box 6100

Canberra ACT 2600

samesex.marriage.sen@aph.gov.au

 

Friday 13 January 2017

 

Dear Committee Secretary

 

Submission on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

 

Thank you for the opportunity to provide a submission in relation to this inquiry, which is examining the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (‘the Bill’).

 

In this submission, I will explain my personal reasons for opposing several provisions contained within the Bill, before addressing terms of reference a), b) and c) in detail. This will include my main recommendations for amendment to, and improvement of, the proposed legislation, before concluding with a short summary of this submission and its recommendations.

 

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Introduction: Equal Means Equal

 

I met my fiancé Steven in August 2008, two weeks after my 30th birthday and just one week after the wedding of my brother to his wife.

 

It was clear from the very beginning that this relationship was different from any that had come before. And I know that applies for both of us.

 

Within 12 months we began planning the rest of our lives together. Steven and I have lived together from January 2010 onwards, and now own a home together.

 

More importantly, we have been engaged to be married since 23 January of that same year.

 

That means, in exactly ten days’ time, we will have been waiting for the legal right to get married for a full seven years. Our engagement has already lasted longer than the marriages, from beginning to end, of many Australian couples.

 

All we want is exactly the same right to wed, and to have that wedding recognised under secular law, as my brother when he married his wife, and as my sister when she married her husband in 2006.

 

Significantly, the Bill that is being considered as part of this inquiry would allow Steven and I to finally ‘tie the knot’. That aspect of the Bill, contained in clause 1 (amending subsection 5(1) (definition of marriage) to “omit “a man and a woman”, substitute “2 people””), is obviously welcome.

 

However, if passed as drafted, a number of other provisions in the Bill would ensure that, rather than being treated the same as my brother and his wife, or my sister and her husband, this legislation would ensure Steven and I were subject to adverse, and discriminatory, treatment simply because of who we are.

 

The civil celebrant who officiated at the ceremony between my sister and her husband would have the ‘right’ to reject us because we are not “a man and a woman”.

 

Any ‘religious organisation or body’, broadly defined, that provided wedding-related facilities, goods and services would be able to turn us away because of our sexual orientation. And that ‘right’ would apply even where they operated for profit, and even though the same groups could not discriminate against my siblings.

 

In short, the Bill would establish two different classes of couples – ‘man and woman’ couples, versus everyone else – with the latter category, including Steven and me, enjoying lesser rights than the former.

 

While this legislation will deliver marriage, it will not deliver marriage equality. That outcome is unacceptable both to me, and to my fiancé Steven.

 

There is no legitimate reason why we should be treated worse than my brother and my sister were when they decided to marry their respective partners. Because we are not ‘worse than’ anyone, them included.

 

Equal means equal. Or at least it should – and I sincerely believe that principle must be reflected in the Marriage Act.

 

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Term of reference a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions.

 

The Bill proposes four new and/or expanded special rights to discriminate against couples that include lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. All four are unnecessary and unjustified. All four should be removed from the legislation to help achieve genuine marriage equality.

 

  1. A specific right for ministers of religion to discriminate against couples that are not “a man and a woman”

 

I should begin by noting that I agree with the ability of authorised celebrants who are ministers of religion to refuse to perform any religious ceremonies, including weddings, that do not fit within the beliefs of their religion. That obviously includes the right to refuse to marry LGBTI couples, even if I personally believe that such discrimination is abhorrent.

 

However, it is important to remember that ministers of religion already have the right to refuse to perform any ceremony under existing section 47 of the Marriage Act 1961:

 

Ministers of religion not bound to solemnise marriage etc.

Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

 

If the right for LGBTI couples to marry was finally recognised under Commonwealth law, that section would plainly allow ministers of religion to deny them service. Therefore, no new amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings.

 

In which case, the proposed repeal of section 47, and replacement with a more detailed right to discriminate, is entirely unnecessary. In particular, proposed new sub-section 47(3) states:

 

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

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

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

(b) any of the following applies:

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

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

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

 

The inclusion of this unnecessary new sub-section, which highlights the ability of ministers of religion to discriminate against one class of couple (LGBTI people) and one class of couple only, is discriminatory and should be rejected.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

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  1. A new special right for civil celebrants to discriminate against couples that are not “a man and a woman”

 

Currently, only ministers of religion have an explicit ‘opt-out’ clause under the Marriage Act 1961, allowing them to decline to perform any marriages with which they disagree.

 

No equivalent provision or power exists for civil celebrants – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

 

However, the Bill proposes an entirely new special right for ‘secular’ civil celebrants to reject LGBTI couples just because of who they are. Proposed new section 47A reads:

 

Marriage celebrants may refuse to solemnise marriages

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

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

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

 

This is, to put it simply, outrageous.

 

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

 

The fact that, unlike ministers of religion who are able to discriminate against any couples, civil celebrants will only be allowed to discriminate against LGBTI couples, merely highlights the homophobia, biphobia, transphobia and intersexphobia that lies at the heart of this proposed new section.

 

And, with civil ceremonies now accounting for three-in-four of all mixed-sex weddings[i], and likely forming an even higher proportion of LGBTI weddings (at least in part because some religions will continue to turn couples away that are not “a man and a woman”), this prejudiced provision will impact on a large number of LGBTI couples. For all of these reasons, it should be rejected.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

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  1. A new special right for religious bodies and organisations to discriminate against couples that are not “a man and a woman”

 

Unfortunately, under the Bill it is not just civil celebrants who will be allowed to put up unwelcome (on multiple levels) signs saying ‘no gays, or lesbians, or bisexuals, or trans people, or intersex people, allowed.’

 

Religious bodies or organisations will also be able to do so under proposed new section 47B, which reads:

 

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

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

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

(b) the refusal:

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

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

 

There are a number of significant problems with this provision.

 

First and foremost, by not defining what a ‘religious body’ or ‘religious organisation’ is, it is difficult to know exactly who will be able to exercise this new specific right to discriminate (with the possibility that the number of groups permitted to turn away LGBTI couples will be quite high).

 

Secondly, by not defining the phrases ‘for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage’, (and especially the term ‘reasonably incidental’) it is also difficult to know the scope of this new special right to discriminate.

 

However, even if both the number of groups allowed to discriminate, and the exact circumstances in which they were allowed to do so, were known, this proposed new section would still be fundamentally flawed.

 

That is because it authorises discrimination against LGBTI couples far beyond any right to refuse to conduct weddings in places of worship, like churches, which would likely be justified on the basis of religious freedom.

 

Instead, it permits adverse treatment of couples who are not “a man and a woman” in a wide range of circumstances, including in hiring venues where it is not a place of worship, and in the provision of goods and services even where this is engaged in on a commercial basis, for profit.

 

One consequence of this is that it would establish a negative precedent for the future expansion of this right to discriminate to other individuals and businesses, such as florists, bakers, photographers or wedding reception venues, who are not religious bodies or organisations, to refuse service to LGBTI couples.

 

If other commercial enterprises are allowed to do so (because they are run by religious groups), and even civil celebrants are permitted to discriminate on the basis of their personal beliefs, it is entirely predictable that additional groups will demand their own ability to reject couples who are not “a man and a woman.”

 

Despite all of the above faults, however, the major flaw with the provision is that it is a direct attack on LGBTI couples and LGBTI couples only. It singles out any relationship that doesn’t fit within the definition of “a man and a woman” for special, and detrimental treatment – and literally nobody else.

 

That makes this proposed provision homophobic, biphobic, transphobic and intersexphobic, and it too should be rejected.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

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  1. A specific right for Defence Force chaplains to discriminate against couples that are not “a man and a woman”

 

The Bill’s fourth and final new and/or expanded special right to discriminate against LGBTI couples is provided to Defence Force chaplains.

 

This is established through the addition of a note to existing section 81 of the Marriage Act 1961, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings. That note would read:

 

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

 

While these chaplains are ministers of religion, and therefore would potentially have the ability to discriminate against any couple, they are also a special class of celebrant, because:

 

  • They are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ii], and
  • In their duties, Defence Force chaplains are expected to “administer spiritual support to all members, regardless of their religion”[iii] (emphasis added).

 

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

 

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

 

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, it must include the weddings of LGBTI people. To do otherwise is, once again, homophobic, biphobic, transphobic and intersexphobic, and it should be rejected.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are obligated to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

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As suggested by term of reference a), the above four new and/or expanded special rights to discriminate against LGBTI couples have ostensibly been included in the Bill by the Government on the basis of the need to protect ‘religious freedom’.

 

However, I would argue that, upon closer inspection, they do no such thing. Rather than protecting religious freedom, these provisions instead protect homophobia, biphobia, transphobia and intersexphobia and merely use religion as an excuse.

 

This can be seen when one remembers that there are a wide variety of different religious beliefs about marriage.

 

Some people believe only cisgender heterosexual couples should be able to marry.

 

Others do not believe in divorce, and therefore oppose the right of people to participate in second, or subsequent, weddings.

 

Some even continue to hold the (once widespread) belief that people of different faiths should not marry – and, in extreme cases, that people of different types of christianity should not marry.

 

I should note that I do not share any of the above beliefs. But others do, and I have no doubt that their views are sincerely held.

 

Given this, there is no possible justification for the Marriage Amendment (Same-Sex Marriage) Bill to allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against LGBTI couples but not discriminate against divorced people, or against interfaith couples (or on the basis of other religious beliefs about marriage).

 

The fact that it does so, establishing new special rights to discriminate against LGBTI couples, and only LGBTI couples, reveals the fundamental truth of this Bill: it has very little to do with protecting religious freedom, and is more concerned with ensuring people who hold anti-LGBTI views are free to discriminate against couples who are not “a man and a woman” in a wide variety of circumstances.

 

In effect, the Bill privileges homophobic, biphobic, transphobic and intersexphobic beliefs, rather than protecting religious beliefs.

 

That is unacceptable, and merely confirms the earlier recommendations in this submission that these new and/or expanded special rights to discriminate are discriminatory and should be removed from the Bill.

 

I should note here that the Government, having revealed its discriminatory intentions, cannot now turn around and extend these new special rights to discriminate to cover divorced people and interfaith couples because they will only be doing so to cover up the anti-LGBTI nature of its original legislation.

 

Instead, the Government, and Parliament, should focus on amending the Bill to ensure that all couples are (finally) treated in exactly the same way – that equal means equal.

 

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Term of reference b) the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it.

 

Currently, sub-section 40(2A) of the Sex Discrimination Act 1984, the legislation that establishes Commonwealth anti-discrimination protections on the basis of sexual orientation, gender identity and intersex status, ensures that “anything done by a person in direct compliance with the Marriage Act 1961” cannot be the subject of an anti-discrimination claim under that legislation.

 

This is justified because it would be entirely unreasonable to hold civil celebrants and others accountable for discriminating against LGBTI couples (because they legally cannot marry them) that has been made compulsory since the Howard Government prohibited marriage equality in August 2004.

 

The amendment of the Marriage Act, to permit all couples to marry irrespective of sexual orientation, gender identity or intersex status, and the removal of this requirement, should therefore be an opportunity to remove or at least significantly curtail this exception to the protections contained in the Sex Discrimination Act.

 

Indeed, the only provision of the Marriage Act that should require an exception would be the ongoing ability of ministers of religion to discriminate against any couples, as established by existing section 47.

 

Consequently, sub-section 40(2A) of the Sex Discrimination Act could, and I would argue should, be restricted to the following:

 

“Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person as authorised by section 47 of the Marriage Act 1961” (emphasis added).

 

Instead, the Bill as drafted actually proposes to expand the exception to the Sex Discrimination Act, because it would permit any discrimination that is ‘as authorised by’ the entirety of the Marriage Act, as redrafted.

 

This is obviously intended to capture all four of the new and/or expanded special rights to discriminate against LGBTI couples outlined earlier. Given the inclusive way this amendment is framed, it may even permit additional forms of anti-LGBTI discrimination.

 

In my view, this is a perverse outcome. Legislation that is intended to remove a long-standing inequality, and injustice, affecting lesbian, gay, bisexual, transgender and intersex Australians, by finally allowing them to marry, actually expands relevant exceptions to the Sex Discrimination Act, thereby increasing the circumstances in which they can lawfully be discriminated against.

 

Once again, this confirms the inappropriateness of the four new and/or expanded special rights to discriminate against LGBTI couples. The proposed amendment to section 40(2A) of the Sex Discrimination Act is also inappropriate, and should be replaced with a narrower exception to that legislation.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

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Term of reference c) potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate.

 

In terms of amendments to improve the effect of the Bill, I have already made five recommendations to significantly improve its impact on the recognition of the human rights of LGBTI Australians. In this section, I will nominate two further areas of necessary reform.

 

  1. The Bill should refer to marriage equality rather than same-sex marriage

 

The Bill, as drafted, would allow all couples, including those that involve lesbian, gay, bisexual, transgender and intersex individuals, to marry under the law. This is an important reform, and it will substantively improve the lives of many LGBTI Australians.

 

However, the title of the Bill – the Marriage Amendment (Same-Sex Marriage) Bill – only refers to ‘same-sex marriage’, rather than marriage equality.

 

This is problematic because the term same-sex marriage does not include all LGBTI couples. It specifically excludes some transgender people (especially those who identify as non-binary or gender-fluid) and some intersex people.

 

The term same-sex marriage should be replaced with marriage equality in the title of the Bill, to ensure that, alongside recognising the substantive human rights of LGBTI Australians, it symbolically recognises the diversity of these communities.

 

Of all major contemporary public policy issues, marriage is a subject in which both the substantive, and the symbolic, are equally important.

 

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

 

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  1. The Bill should allow couples to apply to have specified pre-existing unions recognised as marriages

 

The wait for marriage equality to be recognised under Australian law has been long, often painfully so.

 

It is entirely understandable that, in the interim, many LGBTI couples have chosen alternative ways to have their relationships recognised. This includes many who have travelled overseas (or to consulates within Australia), where marriage equality is lawful, to wed.

 

It also includes couples who have decided to have their relationships recognised under state and territory relationship recognition schemes, including civil partnerships and registered relationships, with or without an associated formally-recognised ceremony.

 

While the Bill will, thankfully, recognise the former (overseas marriages) as marriages, it will not provide any avenue for the latter (civil partnerships or registered relationships) to be recognised in a similar manner.

 

Allowing couples in this situation to apply to have their existing relationship recognised as married would be an acknowledgement of the fact that their mutual commitment to a shared life, and wish to be married, has existed since the date of their commitment being made.

 

It would also acknowledge the discrimination that these couples have endured as a result of the exclusionary nature of the Commonwealth Marriage Act 1961.

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

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  1. Marriage equality should be passed as a matter of priority

 

Term of reference c) asks for ‘potential amendments to improve the… likelihood of achieving the support of the Senate.’ With all due respect, I believe that to be an inappropriate request.

 

The real question is why the Senate – and the House of Representatives – have not yet passed legislation to recognise the equality of our relationships, irrespective of sexual orientation, gender identity or intersex status.

 

It has been more than a dozen years since the Howard Government’s homophobic ban on marriage equality was first passed by the Commonwealth Parliament.

 

That means LGBTI couples have now experienced more than a dozen years of discrimination, treated as distinctly ‘2nd class’ in comparison to the relationships of cisgender heterosexual Australians.

 

Tragically, in those dozen years, there have also been countless LGBTI relationships where one or both members have passed away without being able to have their relationship recognised under Commonwealth law. The longer the ban continues, the more relationships will be denied justice.

 

That same dozen years has witnessed much ‘sound and fury’ within the Commonwealth Parliament on this issue, including countless inquiries in the House of Representatives and the Senate (with this one now added to the list), ultimately achieving nothing – because we still cannot marry.

 

So, rather than asking how the Bill can be amended to improve the chances of Senators voting for it, as if just one more ‘compromise’ will be enough to secure sufficient support to get it over the line, we should be asking why won’t Senators, and their colleagues in the lower house, do their jobs and pass marriage equality as a matter of priority.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

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Conclusion

 

In this submission, I hope I have successfully conveyed my passion, not just for the subject of marriage equality generally, but also about the issue of marriage equality and religious exceptions specifically – and why any amendments to the Marriage Act should ensure that all couples are treated exactly the same.

 

I am glad that these issues are being examined by the Senate, through this inquiry, and I look forward to the Committee making recommendations to improve both the substance, and the symbolism, of the Marriage Amendment (Same-Sex Marriage) Bill.

 

Thank you for your consideration of this submission. I would welcome the opportunity to speak to the matters raised above at a Committee hearing, should one (or more) be held.

 

I have also included a Summary of this submission on the following two pages.

 

Please do not hesitate to contact me, at the contact details provided with this submission, should you require clarification, or further information.

 

Sincerely

Alastair Lawrie

 

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Summary

 

Marriage equality is an important issue that affects tens of thousands, hundreds of thousands, Australians, including couples like my fiancé Steven and me.

 

We have been together for more than eight and a half years, and engaged for almost seven years. All we want is the right to be married under secular law, in exactly the same way that my brother married his wife, and my sister married her husband.

 

Unfortunately, while the Marriage Amendment (Same-Sex Marriage) Bill would allow us to marry, it would not do so equally, because it would expose us to potential discrimination that my siblings did not experience.

 

It is marriage, but not marriage equality. And that is not good enough, because equal means equal – and that principle should be reflected in the Marriage Act.

 

I make seven recommendations to improve the Marriage Amendment (Same-Sex Marriage) Bill, as well as an eighth, that marriage equality should be passed as a matter of priority.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are supposed to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

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

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

Whenever marriage equality is finally passed by the Commonwealth Parliament, and I genuinely hope it does so soon, it must ensure that all couples are treated equally, because we cannot end up with a situation where ‘some couples are more equal than others’.

 

equalmeansequal-4

 

Footnotes:

 

[i] “[T]he proportion of marriage ceremonies overseen by a civil celebrant increased again to 74.9 per cent of all marriages in 2015”: Marriage and Divorces, Australia, 2015, Australian Bureau of Statistics, November 2016.

[ii] The Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

[iii] Also from the Defence Jobs Australia website.

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

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

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

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

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

That is simply not good enough.

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

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

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

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

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

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

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

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

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

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

  • This Bill is NOT marriage equality

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

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

There are a variety of different religious beliefs about marriage. Some people believe only cisgender heterosexual couples should be able to marry[x]. Others do not believe in divorce, and therefore oppose the right of people to participate in second (or subsequent) weddings. Some even continue to hold the (once widespread) belief that people of different faiths should not marry.

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

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

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3 Ways to Take Action

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

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

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

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

equalmeansequal-3

Footnotes:

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

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

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

[iv] Proposed sub-section 47(3)

[v] Proposed new section 47A

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

[vii] Proposed new section 47B

[viii] Proposed new note to section 81

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

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

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

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

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

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

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

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

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

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

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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.

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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.

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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.

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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.

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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?

Dear Joe Hockey, If you’re serious about cutting expenditure, you must axe school chaplains

As promised during the 2013 federal election campaign, one of the first actions of the Tony Abbott-led Liberal-National Government was to establish a National Commission of Audit, to review all Commonwealth expenditure in an effort to reduce spending and ultimately deliver a Budget surplus.

Indeed, the Terms of Reference for the Commission of Audit described it as a “full-scale review of the activities of the Commonwealth government to:

-ensure taxpayers are receiving value-for-money from each dollar spent;

-eliminate wasteful spending; …

-identify areas or programs where Commonwealth involvement is inappropriate…” [among other objectives].

The Commission’s first report was delivered to the Treasurer, Joe Hockey, in mid-February, and the second was handed over at the end of March. The contents of both reports were, quite cynically, kept from the public ahead of the Western Australian half-Senate election on 5 April (because you wouldn’t want an electorate to actually be informed about impending spending cuts before they vote), although, with only one month left until the Federal Budget is handed down it’s highly likely they will be released in the next week or two.

It is expected that the Commission will recommended that the axe fall on (or at least make significant cuts to) a wide range of different programs, with apparently ‘authorised’ leaks focusing on things like the aged pension, Medicare (through a $6 co-payment) and other vital health, education and welfare services.

However, there is one program that, I believe, meets all of the above criteria and thoroughly deserves to be cut as part of any serious expenditure review: the National School Chaplaincy and Student Welfare Program. It is almost impossible to argue that putting ministers of religion into government schools could ever be value-for-money, when compared with almost any other government expense. As well as being enormously wasteful spending, it would also seem to be the definition of a program where Commonwealth involvement is inappropriate.

And yet, given the highly political nature of the Commission of Audit, I suspect it is unlikely the National School Chaplaincy Program is under any real threat. Even if the Commission were to recommend its abolition, it is hard to believe that Joe Hockey would actually follow through on any such advice when he rises to the dispatch box on the night of Tuesday 13 May.

More’s the pity. The National School Chaplaincy Program is amongst the worst examples of public policy over the past decade (and there have been some absolute shockers in that time). It was introduced by John Howard in the dying days of his government (2007), as he realised his grip on power was loosening with age – basically, it was a sop to ultra-conservatives and religious fundamentalists (both of which can be found in the form of the Australian Christian Lobby) to entice them to remain aboard his sinking electoral ship.

Alas, in a demonstration that poor policy, and religious pork-barrelling, can be bipartisan, the incoming Prime Minister, Kevin Rudd, maintained the National Schools Chaplaincy Program throughout his first stint in the Lodge. When it came time to review the first three years of its operation, frustratingly he and his then Deputy, Education Minister Julia Gillard, chose to continue, rather than close, the program.

As Prime Minister in the lead-up to the 2010 poll, Gillard then announced a $222 million extension of the program til the end of this year (2014). This money was also provided to allow for expansion of the scheme’s coverage, from 2,700 schools up to 3,550 schools.

The only figure that accomplished anything to at least partially mitigate the genuine awfulness of the National Schools Chaplaincy Program over the past seven years was Education Minister Peter Garrett, who changed the program guidelines from the start of 2012 to allow schools to choose between chaplains or qualified student counsellors (hence the revised name). He also attempted to introduce a requirement that all workers, including chaplains, have some level of relevant qualifications, although recognition of ‘prior learning’ on the job was also encouraged.

Nevertheless, the vast majority of people employed as a result of this scheme remain ministers of religion. Imagine that: in 2014, the Commonwealth Government provides up to $24,000 per year to more than three and a half thousand schools to subsidise the employment of someone whose primary ‘qualification’, indeed whose primary vocation full stop, is to proselytise.

Ironically, the National School Chaplaincy and Student Welfare Program Guidelines then go to great lengths to attempt to limit the ability of chaplains to proselytise or evangelise from their position of authority within the school community, which is about as useful as telling a tree to stop growing leaves (or telling Cory Bernardi to stop being a bigot). It seems like the apotheosis of a set of rules where adherence, rather than breach, will be the exception.

The Guidelines themselves are also full of loopholes, allowing chaplains to “provid[e] services with a spiritual content (excluding religious education) including facilitating discussion groups and lunch time clubs” with approval and consent, as well as “performing religious services/rites (such as worship or prayer during school assembly etc), with… appropriate prior consent”.

This is an obvious and serious contravention of the principle of the separation of church and state. In the United States, such a program – paying for men (and some women) of faith to introduce their religion into government schools – would be struck out as unconstitutional by their Supreme Court.

Sadly, the anaemic interpretation of section 116 of the Constitution adopted by the High Court of Australia in the “DOGS case” [Attorney-General (Vic); Ex Rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981)] meant that it was never going to be struck down here, or at least not on those grounds.

Even after the program was successfully challenged by Toowoomba father, and man of principle, Ron Williams in 2012, with the High Court finding that the scheme did not have a legislative basis to appropriate money, the Government squibbed the ideal chance to abandon a flawed program and instead rushed through legislation to support its ongoing operation [as an aside, the High Court will be hearing a further challenge from Mr Williams, on May 6-8 2014, that the rushed omnibus Bill was itself unconstitutional].

And even if the National School Chaplaincy Program is ultimately found to be constitutional, there is still absolutely zero evidence that it is effective at improving the overall welfare of students.

If any of the Howard, Rudd, Gillard, Rudd (again) or now Abbott Governments genuinely considered that student welfare was a matter of priority, they would properly fund, rather than part subsidise, actual student counsellors or social workers to perform that function in every school, not implement a scheme where cashed-up churches could target individual cash-starved schools and offer the ‘services’ of ministers of religion, essentially as a backdoor way of indoctrinating a fresh generation of children.

There are ways in which the introduction of ministers of religion into schools can lead to direct harm too, not least of which being the issue of potential child sex abuse. In fact, at the same time as the hearings of the Royal Commission into Institutional Responses to Child Sex Abuse, the Government continues to encourage the employment of ministers of religion in public schools, with a code of conduct that allows them to have physical contact with students because “there may be some circumstances where physical contact may be appropriate such as where the student is injured or distraught”. [NB Obviously I am not saying that most, or even many, school chaplains are child sex abusers, but it seems unnecessary, and unnecessarily risky, to bring in people from institutions with a long history of covering-up such abuse and placing them in positions of trust in public schools.]

In addition, some (although obviously not all) ministers of religion also present a clear and present danger to young lesbian, gay, bisexual, transgender and intersex (LGBTI) students, given the blatant homophobia adopted by particular churches and their officials. This threat is explicitly acknowledged by the Guidelines, which in response attempts to prohibit discriminatory behaviour on the basis of sexuality (although it doesn’t appear as though either gender identity or intersex status are mentioned at all).

In the same way as the prohibition on ‘proselytising’ described above, however, it is inevitable that there will be some ministers of religion, in some schools, who deliberately flout those rules, and in the process cause untold harm to young LGBTI students.

In short, the National Schools Chaplaincy Program is philosophically unsound, has no evidence that it benefits student welfare, is expensive, potentially causes harm and is clearly an inappropriate activity to be funded through taxpayers’ money. Surely, out of all of the programs funded by the Commonwealth, across almost all areas, it should be at or near the top of any Commission of Audit ‘hit-list’.

Even if the Commission of Audit abrogates its basic responsibility to recommend that the National School Chaplaincy Program be axed, Treasurer Joe Hockey will still have to make a decision on the future of the program as part of the 2014-15 Budget, because, as noted earlier, funding for the scheme runs out at the end of this year.

What action Joe Hockey takes on this will reveal a great deal about what kind of Treasurer he intends to be. Of all the incoming Abbott Ministers, Hockey has been the loudest in condemning middle-class welfare, in arguing that the role of Government must be smaller, and that inappropriate or unjustifiable programs should be cut.

Well, here is an ideal opportunity to live up to at least some of that rhetoric, savings upwards of $222 million in the process (that’s the equivalent of one and a half $6 GP co-payments for every person in Australia). If he does so on 13 May, then he should be applauded for it (noting of course that there might, just might, be some other things in the Budget that warrant a somewhat different response).

If Hockey fails to rise to the occasion, and extends or even expands funding for ministers of religion in our public schools, then it will show that he is not serious at all about reining in inappropriate spending, and does not believe in small Government – instead, it will simply demonstrate that he believes in big government of a different kind, one that takes money from genuine welfare programs and places it in the hands of ministers of religion for the propagation of their beliefs.

So, now it’s over to you Joe: would you rather take money from people who simply want to see their doctor via a bulk-billed appointment, or from a program which funds the placement of ministers of religion into our public schools? I know which one I would choose. I guess we’ll find out on Budget night which one you do.