What next on the march to marriage equality?

Today demonstrated once again that an overwhelming majority of Australians support equality.

79.5% of Australians participated in the non-binding, non-compulsory postal survey with 61.6% saying YES to the question, “Should the law be changed to allow same-sex couples to marry?

Amidst the very well deserved relief and celebrations – it’s important to note the campaign is far from over, and marriage equality has not been achieved.

So will the result of the non-binding, non-compulsory postal survey merely result in replacing the words “a man and a woman” with “two people” within the Marriage Act?

Unfortunately there remain determined efforts to make this issue appear more complicated than it need be, with many claiming that religious freedom is under threat as a result of community values surpassing those of some faith-based organisations.

It seems that many are unaware that religious exemptions to Australia’s anti-discrimination already exist.

Ministers of religion, and religious marriage celebrants within churches, can legally refuse to conduct marriages at their own discretion. This is how, for example, Catholic churches can refuse to marry non-catholics or divorcees.

Exemptions to anti-discrimination law in regard to ‘religious bodies’ and ‘educational institutions established for religious purposes’ are found within Sections 37 and 38 of the Sex Discrimination Act.

Such exemptions allow religious organisations to discriminate against a person on the basis of their sexuality provided that the discrimination is in:

… good faith in order to avoid injury to the religious susceptibilities of adherents of that religion.

These organisations are not churches – they are hospitals, charity groups, nursing homes, employment services and schools – all of which can legally threaten the employment of staff who identify as LGBTI and deny support to those to whom a duty is owed.

Two bills have been proposed by the Liberal Party so far.

The Smith bill:

Liberal MP Dean Smith has proposed a bill with the goal:

to allow equal access to marriage while protecting religious freedom in relation to marriage.”

The Smith bill makes the above mentioned change to the definition of marriage within the Marriage Act, but also seeks to amend the Sex Discrimination Act 1984 (Cth) to permit ministers of religion, and religious marriage celebrants the right to refuse to solemnise marriages.

The Smith bill also allows for a body established for religious purposes to “refuse to make a facility available, or refuse to provide goods and services, for the purposes of the solemnisation of a marriage”.

The Patterson bill:

A rival bill drafted by Liberal Party Senator James Paterson, further seeks to override existing state, territory and federal anti-discrimination laws by permitting objectors to refuse to participate in a wedding if participation would go against their religious or “conscientious” beliefs.

These conscientious beliefs include that “the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society”; sexual relations should only occur between a man and a woman within a marriage or “the gender difference and complementarity of men and women is an inherent and fundamental feature of human society”.

This Conscientious belief objection is entirely inconsistent with the Senate Select Committee’s report , which noted that:

  1. Allowing conscientious belief to be used to allow discrimination against a class of persons would be unprecedented under Australian law.
  2. Conscientious belief as a term “lacked definition and could potentially have an unlimited scope”.
  3. Same-sex couples should not be unnecessarily singled out under any marriage equality bill.
  4. The ability to refuse a good or service based on conscientious belief is “controversial”.
  5. The Committee is disinclined to disturb decades of anti-discrimination law and practice in Australia.

The Paterson bill goes further by allowing religious and civil celebrants to decide if a person is “a man or a woman.”  This would allow religious and civil celebrants and their organisations to disregard the legal status of an intersex or transgender person. Holding the belief that gender is binary and fixed at birth would grant special protections and celebrants may disregard a person’s legal status based on their belief about what the person’s sex or gender is

The Law Council of Australia president Fiona McLeod SC said Senator Paterson’s bill would allow people to refuse to provide goods and services on the grounds of “belief, thought and conscience”.

“You could potentially see a situation where a hire car company could leave their customers stranded on the way to a marriage ceremony simply because the driver held a thought or belief against it. This is even if the belief had nothing to do with religion.”

Equality Campaign director Tiernan Brady called the Patterson bill “a rebuke to the Australian people”.

“It literally is the opposite of what the people will have voted for,” he said. “We’re not going back to a time when we have signs on windows saying certain people can’t apply or certain people won’t be served. That is precisely what the bill does.”

Attorney-General George Brandis told the Nine Network on 14/11/2017:

“If it’s legally and morally wrong to discriminate against one gay person, I don’t know how it becomes right to discriminate against two”.

The result of the non-binding, non-compulsory postal survey is gratifying for those of us who value equality and human rights. However until the legislation is passed, same-sex marriage remains non-existent, and further threats to equality are clear and present.

Senator James Paterson has pulled the plug on his planned bill.


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