Leyonhjelm’s Trojan Horse


Look this gift horse in the mouth

People are starting to get excited over marriage equality again. LDP Senator David Leyonhjelm has tabled his Freedom To Marry Bill for debate. Rumours are circulating that a party room vote, if granted by Tony Abbott, would give Liberal MPs a free vote. People are daring to dream that there might even be a majority for Leyonhjelm’s bill in Parliament. Happily, it’s mostly a lot of wishful thinking. Why do I say that? Why am I raining on the parade?

I’m not alone in my worries. Alastair Lawrie has written an open letter to Labor leader Bill Shorten pointing out a serious and dangerous flaw in Senator David Leyonhjelm’s Freedom To Marry Bill.

Alongside provisions which would grant all Australian couples the ability to get married, irrespective of sexual orientation, gender identity and intersex status, the Freedom to Marry Bill 2014 would also grant all non-government employed marriage celebrants, including civil celebrants, the ‘right’ to refuse to perform the marriages of LGBTI-inclusive couples.

Currently, section 47 of the Marriage Act 1961 restricts the right to refuse to officiate a marriage to ministers of religion, which is both increasingly irrelevant (given only 27.4% of marriages in 2014 were performed by religious celebrants) and at the very least philosophically consistent with existing exceptions to anti-discrimination laws which are granted to religious organisations.

Now of course some people are going to say, “So what? I don’t want a celebrant who doesn’t want to perform the ceremony.” But such a narrow selfish view overlooks the danger inherent in allowing this bill to pass with this clause intact. Back to Alastair again:

If a claim of conscience exists for a civil celebrant – allowing them to treat LGBTI people unfavourably on the basis of sexual orientation, gender identity and intersex status – then, logically, it should also exist for anyone else in society who has an ‘objection’ to LGBTI equality, whether based on religion or otherwise.

Thus, the civil celebrant provisions of the Freedom to Marry Bill 2014 can be seen for what they are – a dangerous new precedent establishing a fundamental ‘right to discriminate’ against LGBTI Australians, one that goes much further than existing laws granting anti-discrimination exceptions to religious organisations, because they would allow private citizens, without any connection to organised religion, the ability to exercise this ‘right’.

This opens the door to any business or service – not just those hiding behind religious affiliations – to refuse to serve gay couples, just because they don’t feel like it. Because they are prejudiced against us. A quick look at the LDP website confirms this is indeed the point of the clause.

[The LDP] Believes those who perform marriages and provide marriage services should be free to discriminate in accordance with their own views of marriage.

Leyonhjelm also confirmed this in the press. He told the Sydney Morning Herald “It’s libertarian philosophy: Individuals should be able to discriminate but governments should not.”

Think about that for a moment. Would it still be OK if “the Freedom to Marry Bill 2014 would also grant all non-government employed marriage celebrants, including civil celebrants, the ‘right’ to refuse to perform the marriages of mixed race, non-white, divorced, or Jewish couples.”?

If it is OK to permit civil celebrants to refuse to perform marriages because they are prejudiced against LGBTIQ people, then logically it is also OK for them to refuse to perform marriages for others against whom they are prejudiced.

LGBTIQ people are already handicapped in Australia by the unjust exemptions to anti-discrimination laws granted to those claiming religious objections – in reality, prejudices – against homosexuality, single parenthood and believers in other religions. Instead of adding to those unjust exemptions, we should be seeking to remove them all.

However, Sen Leyonhjelm belongs to the extreme libertarian DLP party. He would like to see all anti-discrimination law affecting private individuals unwound. He backed George Brandis’s attempts to amend the law on vilification, and castigated Tony Abbott for abandoning the attempt.

The policies of his party state:

Freedom of speech and expression should not be limited because the speech or expression is defamatory, offends, insults, humiliates or intimidates, because it is thought to be wrong, or because it is immoral, indecent, or contrary to community expectations.  Freedom of speech and expression should only be limited under long-standing laws against aiding or inciting a crime or disturbing the peace.

This clause in this bill is a Trojan horse for widespread anti-LGBTIQ discrimination to become legal and respectable again. We should be doing our utmost to remove this clause from the bill before it comes to a vote. If this clause remains in the bill, LGBTIQ advocates should not be supporting it.

About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years. "Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe." (Daniel Witthaus, "Beyond Priscilla", Clouds of Magellan, Melbourne, 2014)