Better, but we’re still not there yet.
There’s grocery chain called NQR – Not Quite Right. It specialises in out of date stock, production overruns, products that flopped, and strange brands of frozen, dried canned and packet goods that would probably still be edible – if not especially palatable – after a nuclear holocaust.
The long awaited Senate report into the Same-Sex Marriage Bill Exposure Draft – the bill that might have been if only we hadn’t stood on our dignity and refused to be paraded in public to be insulted and ridiculed in a plebiscite campaign – might well have come from an NQR branch.
It’s a decent first attempt at a compromise between the warring parties, and we do have a few wins. For example, the opening of marriage to not just same-sex couples but any two adults, knocking over discrimination against transgender and intersex persons.
But in the end, the report fails, because it ducks the central issue: the law should not treat people differently on the basis of their innate characteristics. Because of who they are.
It wasn’t always so. In the past we happily harboured and acted on all manner of irrational prejudices. Left-handedness was vigorously suppressed by the Roman Catholic Church throughout the medieval era. Southpaws were routinely accused of consorting with the devil, and sometimes executed as witches. In the 17th and 18th century, left-handed children were beaten for using the ‘wrong’ hand, or had it tied behind their chair so they couldn’t use it. In the 19th century criminologists identified left-handedness with pathological behaviour, savagery and criminality.
Nowadays we recognise all that as unscientific superstitious rubbish. The law now acknowledges that everyone should be treated equally: even Catholic priests no longer strap people for writing left-handed. But while most of us no longer regard lefties as devil-worshippers, society still has its suspicions about sex and gender minorities.
The report makes a noble attempt to tackle this, but makes a fatal mistake, treating religious belief like sexuality, intersex status, or gender identity: as if it were an innate characteristic. But it’s not. Faith may be acquired, or lost. The brand of faith can be changed. Religion is a matter of choice. As the sad and tragic history of ‘conversion’ therapy shows, sexuality, like left-handedness, is not.
Religion is therefore a lesser class of attribute than sexuality, and should command a lower level of protection. Beliefs, no matter how deeply held, do not trump innate characteristics. Otherwise we should be have legislation permitting discriminating against, say, Italians, based on what some religion believed about the evils of pasta. Where religion and an innate characteristic collide, religion must always gracefully give way. The failure to acknowledge and accept this mars this report.
For example, the report says civil celebrants shouldn’t be able to discriminate, and then goes out of its way to create a whole new class of ‘religious’ civil celebrant, solely to give them the privilege of discriminating, penalty-free.
The committee, like the rest of us, baulked at the notion of prejudiced dressmakers, bakers, venue owners and florists safely refusing service to LGBTI. That would be as unacceptable as refusing service to the left-handed or the red-haired (or Italians), simply because your religion taught that they were devil-spawn.
So why the need to create a new sub class of specially protected civil celebrants – which is also, essentially, a wedding related commercial business – with the privilege of discriminating against us without penalty? This could be a dangerous Trojan horse.
It is in relation to “wedding service providers” (whatever they exactly are isn’t clear) that the committee really comes a cropper, again because of religion. Instead of creating robust anti-discrimination provisions, they fall back on the existing Sex Discrimination Act.
I understand they didn’t want to create different standards of discrimination in different acts, but this could and should be addressed through consequential amendments to the SDA. At present that act does contain some rather feeble LGBTI protection, but lacks simple and robust investigation and enforcement mechanisms. Worse, it is shot through with special privileges allowing the soi-disant religious to evade it. The opportunity to correct this should have been grasped.
As Felicity Marlowe of Rainbow Families Victoria says:
“The time for equality is now, but not at the cost of allowing even a little bit of discrimination to exist in any proposed Marriage Bill… We will not accept a watered-down solution.”
And any bill based on this report, in its present form, is likely to be exactly that: watered down. Somewhat past its use-by date. A dodgy brand. A Not Quite Right Marriage Bill. And we deserve better. We deserve the best.