A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law.
The Victorian Government has introduced a Bill, the Births Deaths and Marriages Registration Amendment Bill 2016, to amend its law on birth certificates to allow changing the gender on the certificate to be made easier. (The Bill was approved by the Lower House on 15 Sept 2016 and is awaiting consideration by the Legislative Council.) There are many problems with the policy represented by this legislation (see a good summary from Murray Campbell, “Victorian Government and Birth Certificates” Oct 26, 2016)). But what I want to focus on here is the interaction of the new law with the law on marriage. In my view the law will create a host of legal uncertainties at best, and is quite likely to be unable to achieve its apparent aim of allowing Victorians born in one sex to live for all purposes as if they were of the other sex.
A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal- at .
The latest decision in the long-running Trinity Western University law school saga, from the Court of Appeal for British Columbia, is an encouraging development for religious freedom in Canada. In Trinity Western University v. The Law Society of British Columbia,
2016 BCCA 423 (1 Nov 2016) the Court of Appeal held that the decision of the Law Society of British Columbia to refuse accreditation to practice law in the Province, to graduates of a new proposed TWU law school, was unlawful. That decision had been based on the “Community Covenant” required of all students at the confessionally evangelical TWU, to (among other things) “abstain from… sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Court held that the Law Society had failed to give proper consideration to the impact on the religious freedom of TWU students and graduates in making its decision.
An article of mine on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) Oxford Journal of Law and Religion, doi: 10.1093/ojlr/rww045, has just become available. Those who are interested can download it from the Oxford website here.
The law moves quickly in this area- the article notes the Ashers Bakers case but when it was written the appeal had not been handed down. For those who want an update on that decision it is available in my previous post, “The Ashers “Gay Cake” appeal- one of these things is not like the others” (Oct 25, 2016). The criticisms of the trial decision I make in the article are still applicable to the unsatisfactory appeal decision, which I hope will be overturned if taken on further appeal.
When our children were watching Sesame Street one of the regular clips featured the song “one of these things is not like the others“, training children to look carefully and make distinctions where things are different. In a case involving Bert and Ernie from Sesame Street, the Northern Ireland Court of Appeal has shown that it is not very good at making distinctions between things that are different.
The case is Lee v McArthur, McArthur & Ashers Baking Co Ltd  NICA (24 October 2016). (Thanks to the always helpful Law and Religion UK blog for the link to the official report. There is an “official summary” available here which is a bit shorter.) In the decision the Court of Appeal equates the decision of Christian bakers not to supply a cake, the sole purpose of which was to bear a message which they disagreed with on religious grounds, with a decision of a business to discriminate against persons on the grounds of their sexual orientation. In my view they have confused things which are quite different to each other.
I was privileged today to present a paper on issues from a Christian perspective raised by the possible introduction of same sex marriage, at a seminar on the topic held at the Lower Mountains Anglican Parish centre at Glenbrook. For those who are interested (and the paper is of particular relevance to Christians, so others may not find it so helpful), the longish paper can be downloaded from the seminar website here. I understand there may be a video of the presentations available at a later stage on the same website. The other speaker I was honoured to share the platform with was Dr Peter Jensen, who gave a terrific overview of marriage as a social phenomenon and the Bible’s view of marriage.
Today the Federal Attorney-General, Senator the Hon George Brandis QC, released an Exposure Draft of the legislation that would, if it were to pass the Federal Parliament, introduce same sex marriage to Australia- the Marriage Amendment (Same-Sex Marriage) Bill. There is a good summary of the provisions of the legislation in a press release issued by the Attorney-General. This follows the introduction on 14 September 2016 of an enabling Bill to allow a plebiscite, a popular vote, on the matter to be put to the Australian public, the Plebiscite (Same-Sex Marriage) Bill 2016. That Bill has not yet received any substantive consideration by the Parliament.
Earlier today the leader of the Australian Labour Party Opposition, Bill Shorten, announced that his Party would be voting against the enabling Plebiscite Bill when it reaches the Senate: see “Same-sex marriage: Plebiscite would harm gay and lesbian people, Bill Shorten says” (ABC News). It seems clear, at least if all the cross-bench members who have indicated their intentions maintain those intentions, that the Bill will be defeated in the Senate.
The ALP and the Greens will presumably now be urging the Government to put its legislation directly to a Parliamentary vote. The Government, however, has steadfastly maintained that it went to the recent Federal election with a promised plebiscite as the only route to introduction of same sex marriage, and that if there is no plebiscite, the matter will have to be dealt with by some future Government after the next Federal election.