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.
- 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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- 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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- 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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- 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.
- 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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- 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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- 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’.
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.
alastairlawrie 