Not so fast. Dean Smith’s Marriage Bill is deeply flawed.
Posted on October 29, 2017 by Alastair Lawrie & republished with permission
Over the past fortnight, there has been increasing discussion about what marriage equality might look like in practice. Based on the widely-held assumption that a majority Yes vote will be announced by the Australian Bureau of Statistics (ABS) on Wednesday 15 November, there appears to be a co-ordinated push to ‘unite’ behind Liberal Senator Dean Smith’s Marriage Bill.
This includes the decision by the Labor caucus, on Tuesday 17 October, that it will support Smith’s Bill being passed as quickly as possible after the conclusion of the postal survey.
This was almost immediately followed by an opinion piece from Alex Greenwich and Anna Brown of Australian Marriage Equality describing Smith’s Bill as ‘a game changer’ and claiming that ‘[i]t would deliver equality for same-sex couples and it also ensures that faith communities can continue to celebrate religious marriage.’
One state-based gay and lesbian rights lobby even went so far as to declare Senator Smith’s draft legislation – which, let’s not forget, hasn’t even been introduced into Commonwealth Parliament yet – as ‘the only legitimate bill.’
In response to these developments, I had two equally-strong reactions.
The first was to say ‘not so fast’. Voting in the postal survey was still well underway, so to presume victory, and to start discussing how it might be implemented, could be seen as hubris, as well as confusing what should have been the one and only message of the Yes campaign – to #postyouryes.
It is for this reason that I chose not to write about this topic (what marriage equality legislation should look like) until after Friday 27 October, the date by which the ABS recommended people post their ballots in order to ensure they are counted.[i]
My second reaction was also to say ‘not so fast’, only this time in relation to the substance of Smith’s Bill. And that is because his draft legislation might give us marriage, but it will not deliver marriage equality.
In fact, on closer analysis it is a deeply flawed Bill. From the title: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (notice what word is missing?). To its apparent purpose: to appease conservative Liberal and National MPs and Senators who oppose the equal treatment of LGBTI Australians under secular law. To its all-important details (discussed below).
It is clear that Senator Smith’s Marriage Bill is far less concerned with allowing all couples to marry irrespective of sexual orientation, gender identity and sex characteristics, and far more concerned with allowing individuals and organisations to discriminate against couples on the basis of these very same attributes.
Three major shortcomings can be seen by examining key aspects of his draft legislation:
Dean Smith’s Marriage Bill gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples
Under the Marriage Act 1961, ministers of religion already have the ability to refuse to officiate the wedding of any couple, for any reason. There has never been a serious proposal to remove this ‘right’ to discriminate, and Smith’s Bill won’t alter this situation either.
However, what the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 proposes in this area is actually far more radical – and that is to give a new special privilege to existing civil celebrants allowing them to discriminate against LGBTI couples, and to do so entirely lawfully.
It would provide people who are already registered as civil celebrants the ability to simply fill out some paperwork and declare themselves to be ‘religious marriage celebrants’ [clause 39DD(2) of the draft legislation].
There is only one substantive criterion that an existing civil celebrant must satisfy – that “the choice is based on the person’s religious beliefs” [clause 39DD(2)(c)].
That’s it – self-identification is enough. It is the legislative equivalent of never-was-a-Senator Malcolm Roberts’ approach to life: ‘I think I am a religious marriage celebrant, therefore I must be.’ Or the Andrew Bolt version of Descartes’ proposition: ‘I discriminate, therefore I am.’
In practice, the Registrar of Marriage Celebrants would be obliged to accept this application and voila – an existing civil celebrant can suddenly refuse to perform weddings of couples solely on the basis of their sexual orientation, gender identity or sex characteristics.
Remember, these people are not ministers of religion.
They are not formally associated with any church or religious body.
And the weddings they officiate do not have to be ‘religious’ in any way, shape or form.
But none of that would matter because, on the basis of their personal views and nothing more, they would be provided with what George Brandis would describe as ‘the right to be a bigot’.
This situation is bad enough in and of itself. But it is even worse when you consider that it would be setting a terrible new precedent in Commonwealth law.
As many people would know, the anti-discrimination protections contained in the Sex Discrimination Act 1984 are already limited by ‘religious exceptions’, which provide religious organisations with special privileges to fire, refuse to hire or deny service to LGBT people.
The main exception is contained in sub-section 37(1)(d), which protects
“any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”
This is supplemented by special privileges for religious schools to likewise discriminate against LGBT students and teachers [section 38].
One limitation on both of these exceptions is that they apply to religious organisations only, like churches or schools. They do not provide individuals, who are not connected to any other religious body, the right to discriminate solely on the basis their own personal beliefs (or prejudices).[ii]
The introduction of a new special privilege for individual celebrants to discriminate against LGBTI couples, based on their own religious views and nothing else, would therefore be creating a dangerous precedent, one which could be used to argue for expanded rights to discriminate in the future.
Indeed, this appears to be the goal of anti-LGBTI hate groups like the Australian Christian Lobby, as well as Liberal backbencher Andrew Hastie who has argued that the exceptions in Smith’s Bill should go much, much further:
“The protections offered [extend] only to the wedding and the wedding participants themselves. They need to be expanded to whole-of-life protections”
In the long-term, that is what is really at stake in the debate around marriage equality and religious exceptions – whether individuals will be able to discriminate against us as LGBTI Australians, in every aspect of our lives, based on nothing more than their personal views.
And so, while achieving marriage equality in the short-term is obviously important (and I write that as someone who has been engaged for almost eight years), we should make sure we don’t win the battle but lose the war.
Dean Smith’s Marriage Bill includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples
The second major shortcoming of the Smith Bill is how it approaches the issue of ‘religious exceptions’ more broadly.
As indicated above, the Commonwealth Sex Discrimination Act 1984 already provides religious bodies with extremely generous special privileges to discriminate against LGBT Australians.
Despite this, the Marriage Amendment (Definition and Religious Freedoms) Bill includes the following:
“47B(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”
There are two possible readings of this clause. The first is that it merely reflects existing Sex Discrimination Act provisions, and grants the same privileges to discriminate within the Marriage Act. To which the obvious reply is: if religious bodies already have the ability to discriminate in this way, why does it need to be replicated (some might say duplicated) here?
The alternative reading is that this is an expansion of the ability of religious bodies to discriminate, in that it grants new special privileges in relation to same-sex weddings in particular.
How broad these new special privileges are depends on what ‘reasonably incidental to the solemnisation of a marriage’ means. Proposed new sub-section 47B(5) notes that
“[f]or the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage.”
Which isn’t exactly helpful (and nor is the Explanatory Memorandum).
Irrespective of which reading you adopt, however, I would argue that these new provisions should be rejected. Because they either unnecessarily duplicate protections that already exist. Or they introduce new special privileges to discriminate in wedding-related services simply because same-sex couples will finally be able to get married.
This last point is particularly important. Debate around the right to marry is at least as much symbolic as it is practical, and the marriage equality movement has meant so much to so many because it has taken on larger significance – whether lesbian, gay, bisexual, transgender and intersex Australians are considered full citizens. Or not.
To give marriage with one hand, but take equality away with the other – by including new special privileges to discriminate against us – fundamentally undermines what should be a powerful symbolic moment.
And make no mistake, it does so because of anti-LGBTI prejudice. As much as proponents of this legislation will try to argue it is necessary to protect ‘religious freedom’, as I have written previously this can be seen as a transparent lie.
After all, many religious bodies have strong beliefs about divorce and remarriage. And yet following the introduction of ‘no fault’ divorce via the Family Law Act 1975, and during the four decades since, there have not been any amendments to the Marriage Act to grant special privileges to religious bodies allowing them to discriminate against people who remarry.
The fact that they are being introduced now, when LGBTI Australians might finally get a seat at the ‘head table’, reveals that these new exceptions are not aimed at protecting ‘religious freedom’ – they are instead designed to protect homophobia (and transphobia, and biphobia, and intersexphobia).[iii] Nothing more and nothing less.
Dean Smith’s Marriage Bill strengthens special privileges for some public servants to discriminate against LGBTI couples
The final major shortcoming of the Smith Bill relates to the ability of Australian Defence Force Chaplains to discriminate against personnel who wish to get married.
Importantly, ADF Chaplains already have the ‘right’ to refuse to officiate the ceremonies of anyone they wish, for any reason they wish, as a result of section 81 of the Marriage Act.[iv]
Nevertheless, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 reinforces this ability by adding the following:
“81(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body or religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.”
The duplication of the existing right of ADF Chaplains to discriminate in this way is entirely unnecessary.
But I have a much more substantive problem with the Marriage Act granting such privileges: ADF Chaplains are public servants, and therefore should be able to, indeed should be required to, serve all members of the ADF equally, including lesbian, gay, bisexual, transgender and intersex personnel.
The Defence Jobs website seems to recognise this obligation in its advertisements: “the military Chaplain must provide spiritual ministry to all members of the Army, regardless of faith or denomination … in recognition of the imperative to foster firm faith as described, every Chaplain must be the spiritual minister to every member” (emphasis added).
Every member should mean every member – not just cisgender and/or heterosexual members. To determine otherwise is to permit public servants to discriminate against people simply because of their personal beliefs, thereby creating Australia’s equivalent of Kentucky’s infamous Kim Davis.
The most offensive aspect of these special privileges is that ADF Chaplains are paid for by taxpayers’ money, including LGBTI taxpayers, and yet they will continue to be free to discriminate on the basis of their own anti-LGBTI beliefs.
Smith’s Marriage Bill is therefore a missed opportunity to remedy this injustice, either by requiring all Chaplains to serve all ADF personnel without prejudice (which, based on the public debate so far, seems unlikely to be acceptable to religious stakeholders) or by removing the ability of these Chaplains to officiate any weddings, and coming up with a suitable alternative.
Which brings me to one of maybe three positive aspects of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, proposed section 71A, which provides that:
“The Chief of the Defence Force may, by instrument in writing, authorise an officer (within the meaning of the Defence Act 1903), other than a chaplain, to solemnise marriages under this Division.”[v]
I can see no reason why the appointment of these officers should not be the primary way in which ADF personnel are able to marry while on deployment, something that would effectively guarantee every serving member is treated equally, irrespective of sexual orientation, gender identity or intersex status. Surely that is a goal we can all agree on.
If the result of the same-sex marriage postal survey on 15 November is the one that we want, that is not the end of the story – not by a long way.
We must also ensure that the legislation that is passed afterwards reflects what we want, or as close to it as possible – and that means not rushing to accept a Bill that might give us marriage, but not deliver marriage equality.
We should consider, in detail, all possible legislative options and decide whether what they offer is ‘acceptable’.
From my perspective, I don’t think we should accept a Bill that gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples.
Nor we should accept a Bill that includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples.
Finally, I don’t think we should accept a Bill that strengthens special privileges for some public servants to discriminate against LGBTI couples.
Consequently, I don’t think we should accept Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017.
I think we can, and we must, do better. Because LGBTI Australians deserve more than just marriage. We deserve genuine marriage equality.
150518 Dean Smith
Liberal Senator Dean Smith, whose Marriage Bill uses just nine words to amend the definition of marriage, but more than 400 introducing or expanding special privileges to discriminate against LGBTI couples.
[i] If you are reading this article after 27 October, but before 7 November, and still have your postal survey, then please #postyouryes as soon as possible. The earlier you do, the more chance there is it will be counted, and help Australia finally achieve marriage equality.
[ii] Even the religious exceptions contained in the NSW Anti-Discrimination Act 1977 – which are the broadest (and arguably the worst) in the country – only apply to religious bodies, or educational authorities, and not to individuals.
[iii] The same argument can be made against proposals for civil celebrants to become ‘religious marriage celebrants’ allowing them to discriminate, discussed above. This ‘right’ has not previously been offered (nor sought apparently) in relation to people who remarry – it is only being added now to allow discrimination against LGBTI couples. That is homophobia, pure and simple.
[iv] “A chaplain may refuse to solemnise a marriage under this Part on any grounds which appear to the chaplain to be sufficient and, in particular, on the ground that, in the opinion of the chaplain, the solemnisation of the marriage would be inconsistent with international law or the comity of nations.”
[v] The other two positive features of the draft legislation are the proposed change to the definition of marriage (sub-section 5(1) “Omit ‘a man and a woman’, substitute ‘2 people’”) and the recognition of existing same-sex marriages.