Background to current proposals

I have noted previous developments on this area in Australia in a number of previous posts. In brief, marriage in Australia has not been redefined to include same sex couples. At the last Federal election, the LNP made an election promise that before Parliament addressed the issue, a plebiscite of Australian voters would be held to determine the level of actual support for the proposal in the community. Legislation for this plebiscite was proposed by the Government, but the enabling legislation was debated in the Senate, the upper house of Parliament, by the Australian Labor Party (ALP) Opposition together with a number of smaller parties and cross-bench Senators. Opposition to the plebiscite was said to be on the basis of the potential harm to members of the LBGTI community caused by the debate. It has been well-known for some time, however, that a number of individual LNP MP’s and Senators are in favour of changing the law in this way, and have been pressing the Government to change their previously announced policy by having a simple Parliamentary vote on the issue. Supporters of change believe that in a “free vote” on the matter (unconstrained by party platform commitments) the legislation would pass in both Houses. Indeed, for some time the view has been held that even if the LNP did not give its members a formal conscience vote, a number of LNP members and Senators would “cross the floor” to vote against party policy on the issue. (I cannot forbear from noting the irony that the ALP has been vigorously urging the LNP to allow a free vote on the matter, while its own national conference has previously declared that from commencement of the 46th Parliament, probably in 2019, all ALP members of Parliament must vote the party line in support of changing the law, or face being expelled from the party: see p 226, para 56 of the official ALP Party platform and Constitution.) Religious freedom protections have been a significant part of the argument in relation to this proposed change. Many religious groups have clear doctrines which provide that an essential feature of marriage is that it be between a man and a woman, and that homosexual activity is contrary to divine purposes for humanity. That is certainly the mainstream position of the Christian church, and has been since the founding of Christianity. There are a number of religious freedom issues presented for religious groups and individual believers by proposals to fundamentally transform a social institution in which religious beliefs have played a key part for millennia. As I indicated in a submission I made to a Parliamentary Committee considering the religious freedom protections provided by an Exposure Draft released by the Government, some of these issues are:

• whether religious celebrants will be required to solemnise same sex marriages;
• whether other celebrants, not formally associated with a religious group, will be so required;
• whether religious groups will be required to host same sex weddings on their premises;
• whether public servants who are employed in registry offices will be allowed to exercise their religious freedom to decline to solemnise such marriages;
• whether small business owners in the “wedding industries” (such as cake makers, florists, photographers, stationary designers, and wedding organisers) will be permitted to decline to use their artistic talents for the celebration of a relationship that God tells them is not in accordance with his purposes for humanity.

In that submission I noted that the Exposure Draft dealt well with the first three topics, but failed to address the equally important final two categories of believers, whose religious freedom is also protected by Australia’s commitment to international human rights instruments (such as the ICCPR art 18).

The Current Proposed Legislation

I have not yet seen the text of the proposed legislation itself. But a number of press reports indicate the broad nature of the proposed religious freedom protections; see, eg “Marriage bill protects religion: Liberal MP” (Sky News, 6 August 2017); “Rebel Liberal MPs pin same-sex marriage hopes on religious protections” (Sydney Morning Herald, 6 August 2017). And there is a copy linked here of a covering letter sent by the five “rebel” Parliamentarians to the their colleagues, which I will use as my main source for information about the proposed religious freedom protections. In brief, the protections proposed are said to be:

• a minister of religion may decline to solemnise a same sex marriage where that is contrary to the “doctrines, tenets or beliefs of the minister’s religion”;
• a “new” category of “religious marriage celebrant” will be created which will include current so-called “civil” celebrants who want to operate in accordance with their religious beliefs, and also ministers from smaller denominations that are not officially declared to be “recognised” under the Marriage Act 1961 (the Act)- these celebrants will be allowed to decline to solemnise a marriage where the celebrant’s religious beliefs do not allow them to do so;
• religious bodies will be allowed to decline to make their facilities available for solemnisation of same sex weddings.

These three areas of protection are said in the letter to be a “comprehensive accommodation of competing attitudes”, and to reflect the “consensus report” of the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. Sadly, neither claim is accurate.

The proposed protections are too narrow

To take the claim of prior consensus, as I pointed out in my previous poston the Report of the Senate Committee, that Report, despite references to it in press reports at the time, did not go anyway near achieving consensus. It agreed on the minimalist views that there should be “appropriate” protection of religious freedom, and that this at least means that ministers of religion should not be required to conduct same-sex weddings. But there was no agreement in the Committee on almost every other issue! As I said previously:

there [was] no consensus on

• protection of private celebrants who are not ministers of religion;

• protection for registry officers who may have a religious objection to solemnising same sex marriage;

• protection of the ability of religious groups not to offer their premises for use in same-sex weddings;

• protection of business owners in the “wedding industries” such as florists, photographers and bakers, who do not want to be forced to devote their artistic talents to support ceremonies celebrating a sexual relationship which they see as contrary to God’s will.

In particular, the so-called “comprehensive” protections now put forward continue to ignore the religious freedom of individuals who are public servants, and small business owners who are not part of a wider “religious organisation”. I dealt with these issues in my previous submission, but perhaps the most important thing to re-emphasise is this: claims for religious freedom in these areas are not a claim to be completely exempt from discrimination claims on the grounds of sexual orientation. There have been a number of significant cases overseas (see for example cases discussed here and here) where business owners (a florist or a baker, for example) have been perfectly happy to provide general business services to a same sex attracted person. But there is a world of difference between selling someone a meat pie for their lunch, and being asked to devote artistic talents to the “celebration” of a relationship, at the core of which is a rejection of a Biblical view of appropriate sexual behaviour. This is especially so where the relevant services are readily available elsewhere in the community. Nor is it true to say that a public servant who works for a registry office must “park their freedom at the door” when coming to work. All citizens,  public servants or not, have a fundamental human right to have their religious freedom respected. We applaud public servant “whistle blowers” who reveal governments behaving badly, or who speak about asylum seekers. We recognise that no-one should be forced to suppress their conscientious beliefs, and that when those beliefs can be accommodated without interfering with the “fundamental rights and freedoms of others” (to use the language of permitted interference from art 18(3) of the ICCPR), they should be. It is not a “fundamental right” that everyone else in the community agree with and affirm one’s chosen sexuality, so long as they do not impose irrelevant actual harm to someone on that basis. There are also other issues with the proposed protections. One is that the letter, at least, seems to distinguish between when a “minister of religion” of a “recognised denomination” would be able to decline to solemnise a wedding, and when such an option would be available to the new category of “religious marriage celebrant”. This issue may be resolved in the formal draft (which, to repeat, I have not seen), but the difference is this: a “mainstream” minister of religion would apparently be able to decline a same sex ceremony when authorised by “his (or presumably her) religion”. But the new category of celebrant has an exemption where the celebrant’s own beliefs do not allow them to conduct the ceremony. The problem that may arise is where a mainstream denomination as a whole accepts same sex weddings, but an individual ordained minister differs from his denomination on the issue. Will the dissenter be required to either solemnise a same wedding or resign as a cleric? This is not just a hypothetical issue: as I noted in my earlier submission, this is a problem that has been identified by Professor Rex Ahdar in relation to the analogous New Zealand legislation: see Rex Ahdar “Solemnisation of Same-sex Marriage and Religious Freedom” (2014) 16/3 Ecclesiastical Law Journal 283 – 305 at 285. The other concern I have about the new proposals (and this is something of a more technical issue about the interpretation of the current Act, on which other legal colleagues may differ), is that that I do not see the point in setting up a new category of “religious marriage celebrant”. At the moment the Act, in my view, draws a perfectly adequate distinction within the group of celebrants between ministers of religion who belong to so-called s 26 “recognised denominations” (these are authorised under Subdivision A of Division 1 of Part IV of the Act, simply by virtue of membership of the denomination), and other “ministers of religion”, some of whom may be appointed under Subdivision C of Division 2 of Part IV as a “marriage celebrant”. (The definition of “minister of religion” in s 5(1) of the Act does not require that the minister be a representative of a “recognised denomination” declared under s 26). The Department currently appoints religious ministers for small groups under Subdivision C, using a slightly different set of criteria than that applied to what are popularly called “civil celebrants,” who are not associated with a religious group. In short, there is no need to introduce a separate category of “religious marriage celebrant”. Indeed, there is something odd and, to be frank, objectionable about the proposal, suggested in the letter, that existing “civil” marriage celebrants must transfer into the category of “religious marriage celebrant” to have their religious freedom recognised. The assumption seems to be that a citizen can only exercise religious freedom if they classify their whole work as “religious”. But that is not the way that religious freedom works! As a fundamental human right all persons, both clergy but also “secular” workers, small business owners, and people in general, have religious freedom rights. Of course those rights will need to be balanced against other “fundamental rights and freedoms”. But Australia’s commitment to human rights principles ought to lead to the maximum possible space being given for religious freedom when it does not interfere with those other rights.

Conclusion

The drafters of these latest proposals are to be commended for correctly recognising that religious freedom will be challenged if the definition of marriage is changed to include same sex relationships. But their proposed protections are far too narrow and apply in far too few areas. Indeed, outside the confines of the actual ceremony (which as we have seen is itself not adequately protected), there are much wider issues which will follow such a change, which can only be mentioned briefly here. Will there still be robust freedom of speech protection for believers to express their views, based on their deep religious convictions, that same sex marriage is not a good idea? Will religious schools be able to continue to teach children who are sent to them by parents who want their child to have a religious education, what those views are? Will employees be sacked for holding the wrong views? These and other issues need serious discussion before changes of this sort are made. All this points very clearly to the people of Australia being given a chance to make an informed decision in the promised plebiscite, rather than the matter being rushed through Parliament with the support of those who have chosen to ignore their party platform.