Marriage Equality – Unfinished Business

by Jamie Gardiner

Labor can be proud to have led the fight for marriage equality through collective action, quality campaigning and a commitment to equality for all. Without Labor, and without the trade union movement, marriage equality would not have become a reality for LGBTI Australians on 9th December 2017. The Labor Party deserves to welcome and celebrate the achievement.

While the success of the YES campaign was a wonderful affirmation, and the legislative amendment a great achievement, the compromises necessary to achieve an amendment in that parliamentary environment left a law in need of substantial improvement. More work is essential, when the politics are better, to reach a Marriage Act that really embodies the true spirit and letter of equality, and does not carry the burden of those compromises, necessary as they were in 2017.

The 100 Days promise

Labor undertook before the last election to introduce Marriage Equality in its first 100 days in government, if it had not been achieved beforehand. While we may rejoice that it was (partially) achieved in 2017, we must not pretend that the Marriage Act 1961, as amended in 2017, does in fact bring about full and uncompromised equality.

As it stands it contains many additions that should not be there, and alterations that should be better worded, and it lacks several changes that should be made. The 100 Days promise will need to be refreshed and updated for 2019.

A false narrative

To bring this true equality about properly the role of the false narrative of “religious freedoms” needs to be examined, and the narrative rebutted.

Freedom of religion in Australia marks a non-discriminatory, peaceable end to the sectarian bigotry of the 1850s to 1950s. It means that different religions and their adherents should be treated equally, by the state and by each other, and that no-one should be discriminated against because of their particular religious belief system, or their rejection of such beliefs. In the words of the Commonwealth Constitution (though these may not amount to full adoption of the broad principle), “imposing any religious observance” on others is frowned upon, as is interfering with “the free exercise of any religion.” That two people differ in matters of religious belief should not interfere with their ordinary interactions: each can respect the other’s believing propositions which, in their own belief system, are wrong. Respecting another person’s holding a belief, and their right to do so, is not the same as respecting that belief itself.

This freedom of religion is a peaceful coexistence. It is healthy and worth celebrating; it is, however, very unlike the contemporary USA narrative of “religious freedoms” that has unfortunately been imported into this country by a variety of extremist lobbyists and reactionary politicians and media.

This US narrative involves two new features. In the first place its proponents seek to enlarge the meaning of “religious observance” to cover many aspects of daily life, far beyond the rules or canons of conduct and dress that adherents of a religion may choose to adopt as part of their belief system. The second novelty is to claim that any such rules of conduct that their religion requires are not only above the law but may in effect be imposed on people who do not believe in or consent to them. When they have or claim power they seek to impose their rules on others. Needless to say, this is a profoundly undemocratic program.

The US-style claim that beliefs of their religion are paramount is automatically a denial of freedom of religion for all those who believe something else. Freedom of religion is, under this claim, to be morphed into religious privilege: euphemistically called “religious freedoms.”

The notion that the “religious freedoms” brigade pursued about marriage was a classic example. Because some of them had religious qualms about couples they disapproved of getting married they sought in 2004 to change the law to interfere with those couples’ access to the law, and they fought subsequently to prevent the law being changed again to permit marriages equally to all couples with a commitment to a shared life. A rule of their own religion must be imposed on others, and the secular law can be used as an instrument of their religious superiority? That is not what freedom of religion means.

What’s more, to call for ending unjustifiably discriminatory provisions of a general law was, it seems, a persecution at which they, and supposedly their adherents, trembled in their boots. To disagree with their pronouncements was censorship—an attack on their freedom of speech—as they lamented loudly—albeit deaf to irony— through numerous and prominent news outlets.

It was clear from the outcome of the “postal survey,” however, that the “religious freedoms” brigade did not speak for most people of faith after all.

This crusade against marriage equality, supposedly to “save marriage,” was all the more peculiar given that marriage in Australia, unlike in Saudi Arabia or Tudor England, say, is not a religious institution in law and never has been: it is a civil ceremony, a civil union, a creature of Australian law. The crusade comes, ironically, at the same time as the involvement in the Marriage Act of religious officials—priests, imams, pastors, rabbis and the like—is small and steadily declining. Fewer than one in four Australian marriages is now conducted in a religious ceremony. This proportion declines every year.1

That religious bodies may perform the civil marriage formalities in the context of their religious observance is a privilege granted by the Marriage Act 1961, not a fact of nature. This privilege, somewhat of a historical anomaly, persists from the days when marriage in Australian law—well, English law actually, and which had already changed by 1788 anyway—was in fact a religious rite only. It would perhaps be better, now that the issue has been so widely canvassed, to move to the French system where the civil process comes first, and if a married couple want a religious ceremony later, that is their business. Given the uniform trend against religious ceremonies recorded by the Bureau of Statistics, that outcome seems ever more attractive.

A fresh 100 days

To make good on Labor’s earlier marriage equality promises, reiterated by ALP Leader Bill Shorten in answer to a questioner at a public forum2, more needs to be done. As he promised then, Labor must repeal the expanded religious exceptions that the questioner anticipated, and which Labor did indeed oppose in 2017. And there is more to do in that spirit.

A renewed 100 Days promise for the coming election must be to amend the Marriage Act to bring about a full and uncompromised equality. What follows below presents an outline of what is needed.

Object of the Marriage Act

Acts of Parliament sometimes have a section or “objects clause” which states succinctly the purpose or objects of the Act. To begin with, the Marriage Act 1961 did not have an “objects clause” when first enacted; it does not need one now. The 2017 amendments gave it one; it sits very oddly as a time-bound reminder of the tussle to overcome the false belief that “religious freedom” needed to be “protected” from marriage equality, and in a way that seems to want to perpetuate that belief.

If anything, a new objects clause to record the change in the Act in 2017 should refer to equality and non-discrimination, rather than writing into the statute a reference to the false narrative of “religious freedoms.” The 2017 clause should be repealed.

Defining marriage

Next it must be recalled that there was no “definition” of marriage in the Act before 2004: its meaning was a “common law” matter. This means that it had its ordinary meaning, but refined over the years by judges needing to resolve cases in which a precise boundary between “marriage” and “not marriage” needed to be drawn. This also means that when a court considers the meaning it is bound to follow the meanings established in years past, unless new circumstances make it clear that those no longer suit the case before it. Higher courts—and in Australia the High Court gets the last word—have greater freedom to reconsider, and change, the old boundaries.

At the time that the Australian Constitution gave the Commonwealth Parliament power over “marriage,” in 1901 (and hence left the High Court to rule if it needed to on what that word included), the legal meaning of marriage was taken to be what Lord Penzance, the judge in an English case called Hyde v Hyde and Woodmansee, had said in 1866: “marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

The High Court unanimously ruled in 2013 that the word was not now restricted to this narrow meaning, and the Parliament could indeed legislate for marriage equality. When other countries, beginning with the Netherlands in 2001, then others such as Canada in 2003 and many more, began recognizing marriages without gender or sex discrimination it became possible for Australian couples, married in such countries, to argue that their marriages should be recognized back home, and there was by then a strong possibility the courts would agree.

The first statutory definition of marriage was only inserted in the Marriage Act 1961 by the 2004 Howard/Ruddock amendment, specifically to prevent the Court from acknowledging that the common law definition of marriage was now capable of including homosexual couples. Two Australian couples, married in Canada, had approached the Family Court to seek a declaration that their marriages were recognised in Australian law. It seems likely the Howard Government had legal advice that the couples were likely to win, and so Prime Minister Howard and Attorney-General Ruddock rushed in legislation to cut them off.

To properly undo the Howard/Ruddock amendment it is necessary to restore and update the original position by repealing the (new) definition. For safety’s sake it would be sensible to also insert a section abolishing any common law rule that suggests marriage is confined to “one man and one woman.” This should also confirm “for the avoidance of doubt” (as the lawyers say) that the parties to a marriage may be of any sex or gender, without discrimination.

Authorised celebrants

A major role of the Marriage Act 1961 was and is to specify who could be authorised to celebrate marriages in Australia, and under what conditions and with what qualifications and supervision. There were essentially four classes of “authorised celebrant.” These were ministers of religion of a “recognised denomination” (as set out in a Declaration of the Governor-General from time to time), the State and Territory Registrars of Births, Deaths and Marriages and their authorized officers, “marriage celebrants” (“civil celebrants” in common usage), and Defence Force chaplains.

The third category of authorized celebrant is the best known and most used, accounting for over three out of four marriages now. Known commonly as civil celebrants, they are subject to strict rules of integrity, training and competence, both for initial appointment and for continuing in office.

The Act does not apply the same standards to ministers of religion of recognised denominations, presumably on the old assumption of respect accorded to them. In the light of the revelations of the Royal Commission into Institutional Responses to Child Sexual Abuse this assumption is inappropriate. This category of authorised celebrant should be made subject to the same safety standards as are civil celebrants, including at least a Working With Children check. Such an amendment was not included in the 2017 changes, but should now be made. (Other ministers of religion, those who are not of “recognised denominations” but can and do enrol as marriage/civil celebrants, are already subject to the same standards as are all in that category. This has not been a problem for them, it seems.)

An unnecessary category

The 2017 amendments included adding a new category of “religious marriage celebrants.” This was a complicated addition, a consequence of the false narrative of “religious freedom,” when a simpler alternative could have achieved the particular result intended.

Noting that some ministers of religion who were not of a “recognised denomination” had become, in the Act’s terms, marriage celebrants, it was wanted to ensure they had the same privileges of unfettered choice of whom to marry as are accorded to those of such a denomination, and to make it clear to the public that they did. Some simple amendments would have sufficed.

The Act could require a marriage celebrant who is a minister of religion, but not of a recognised denomination, to notify the Registrar. The Registrar would enter this fact in the Register and the celebrant would have to include it in all publicity and other materials. It would also confirm, as was anyway the case, that such a celebrant came within the purview of the religious privilege provisions. (In particular, these provide that a minister of religion has unfettered discretion over whom to marry, which is probably required by section 116 of the Constitution anyway.) Transparency would be much simpler than a whole new category.

Since the 2017 amendments also permitted a celebrant who was not a minister of religion at all to be treated as one, if they made an election under s.39DD(2) within 90 days after the amending Act came into force, a grandfather clause would now be needed to deem such a person to be a minister of religion just for the purposes of the Act. With these simple amendments made the unnecessary new category of “religious marriage celebrants” could then be repealed.

Fiddling with discrimination law

One of the oddest manifestations of the ill-informed media campaign on supposed infringements of religious freedoms was the insertion into the Marriage Act 1961 of provisions superfluously having the same effect as provisions of the Sex Discrimination Act 1984. Such duplication or redundancy is undesirable in general, and all the more so when its purpose is simply to please those lobbyists and members of parliament who opposed the enacting of marriage equality in general. The offending provision, section 47B, should thus be repealed. (The cognate exemption in the Sex Discrimination Act 1984—section 37 in particular, and also the related section 38—should also be narrowed or repealed, but this is a topic for another conversation.)

Another undesirable effect of the amending of the Marriage Act, from 9 December 2017, is to add a section 40(2A) to the Sex Discrimination Act 1984. This authorises discrimination on the grounds of sexual orientation, gender identity, intersex status or relationship status when done “in direct compliance with the Marriage Act 1961.” This section should be repealed, both on principle and because it appears redundant once s.47B is repealed as proposed above.

Not imposing religious observance

Before the 2017 amendments were made the Marriage Act had a relatively simple statement, in section 47, to the effect that ministers of religion were “not bound to solemnise marriage etc,” meaning they had complete discretion as to whom they would marry. This section was probably a requirement of section 116 of the Constitution, since marriages by ministers of religion are conducted as part of a religious observance and s.116 forbids “imposing any religious observance.” The new, amended s.47 repeats the point, at length, to no additional effect, merely emphasising—and legitimising—discriminatory impulses of some politicians. The new s.47 should be repealed and the original s.47 reinstated, together perhaps with a legislative note to the effect that section 116 of the Constitution states, ‘The Commonwealth shall not make any law for … imposing any religious observance, or for prohibiting the free exercise of any religion …’ and s.47 makes this explicit for the particular religious observance involved in a marriage ceremony conducted by a minister of religion.

Recognising other couples

In the intensely difficult political atmosphere in which the 2017 amendments were negotiated, several significant additional measures failed to be included, though earlier, albeit unsuccessful, marriage equality bills had included some. In particular the Marriage Act should provide for couples registered under State or Territory or municipal relationship registration schemes to be recognised, should they wish, as married.

In addition, couples whose pre-2018 commitment ceremonies satisfied the basic eligibility requirements (unmarried, unrelated, of marriageable age, etc) and formalities (voluntary, mutual commitment to a shared life, with two adult witnesses) should also have the option to be recognised as married. They should need only to satisfy a marriage celebrant of these facts in order to have a marriage certificate issued, and registered, acknowledging the date of the original commitment.

Avoiding harmful consequences

As with any law with retrospective effect, these catch-up recognitions could have awkward side-effects. It would be necessary, therefore, to avoid undesirable consequences.

Consider, for example, a couple who were barred from marrying in Australia and had therefore married in New Zealand, in 2015 say. They may, for instance, have had occasion to give their marital status on some official form in 2016. The 2004 Howard/Ruddock amendment specifically forbade the recognition of foreign samesex marriages, so they would have had to say they were not married, to avoid perjuring themselves under the law at the time. Yet with the welcome recognition of their 2015 NZ marriage under the 2017 reform they could become retrospectively guilty of perjury: this must be prevented!

In particular provisions would have to be inserted to ensure that conduct that was lawful, nor in breach of any contract, regulation or other instrument, before the day the Marriage Act change took effect is not rendered unlawful or in such breach by the retrospective recognition of a marriage. A similar proviso should have been included in the 2017 amendments to safeguard couples whose foreign marriages became recognised automatically on 9 December 2017, and must be added now.

Final observations

There may well be other necessary or convenient consequential amendments which this discussion has glossed over or missed, whether to the Marriage Act 1961 or to other laws or regulations. They should be sought out and enacted.

Although this discussion is focussed on laws, the need for other reforms continues. Education and training, the practices of government and private enterprises, all need to be reviewed and changed to secure the cultural changes that true equality requires. The focus on one obstacle to equality, the Marriage Act, was essential, but has also taken eyes off the other manifestations of inequality and prejudice that harm the lives of lesbians and gay men, bisexual, transgender, gender diverse and intersex people of every age and colour and ability and class. There are still powerful, or at least loud, forces of prejudice lining up against LGBTI equality, and focussing their manipulative and misleading propaganda on the most vulnerable. There is ever more to be done, working together, in solidarity.

  • Jamie Gardiner

10 September 2018

A short edited version of this appeared in the Star Observer “Luxe” section, and is republished here in full with the author’s permission.

                                             

1

Australian Bureau of Statistics, 28 November 2017, 3310.0 – Marriages and Divorces, Australia, 2016 !

2      “At the [31 March 2016] Guardian Australia/Australian Marriage Equality ‘Why Knot?’ forum in Sydney, [Alastair Lawrie] had the opportunity to ask Opposition Leader Bill Shorten the following:  ‘There is a real risk that, when Malcolm Turnbull finally gets around to drafting it, his Marriage Amendment Bill will seek to include new special rights for civil celebrants and other wedding business-providers to discriminate against LGBTI couples. Just to get it on the record: Mr Shorten, will you commit the Labor Party to voting against any attempt to expand religious exceptions beyond existing provisions and, if they do somehow end up being passed and polluting the Marriage Act, will you seek to repeal them at the earliest available opportunity?’

“Mr Shorten’s answer was unexpectedly strong, and reassuring: ‘Yes, and yes.’”

(See https://alastairlawrie.net/2016/04/17/in-the-battle-for-marriage-equality-we-must-notforget-to-fight-against-religious-exceptions/#_ednref12 accessed 29/7/2018)