Is denying same sex marriage unconstitutional?

An article in The Conversation on 30 August 2016,  “Marriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional” by academic Dr Luke Beck, Lecturer in Constitutional Law at Western Sydney University, suggests that, far from proposals to redefine marriage to include same sex couples being a threat to religious freedom, the current law (which does not recognize such relationships) is itself in breach of free exercise of religion principles.

Dr Beck, it has to be said, is one of Australia’s foremost legal experts on s 116 of the Constitution (I regularly cite his many articles on the topic to my students in the “Law and Religion” course I teach.) So it is with some hesitation that I have to say I disagree with his view on this issue. But disagree I do.

As I understand his argument, it proceeds in this way:

  • Section 116 of the Constitution prevents the Federal Parliament from enacting a law that “interfere[s] improperly with religious freedom.”
  • Under s 47 of the Marriage Act 1961 as it now stands, a minister of religion may decline to solemnize any marriage, for any reason whatsoever. [Controversially, Dr Beck suggests that this would even allow a religious celebrant to decline to solemnize a marriage between a couple of different races, if he or she so chose. With respect, as we lawyers say, I am not quite so sure about this. The opening words of s 47 are “Nothing in this Part…(a) imposes an obligation…”. That is, no rule otherwise laid down by Part IV of the Marriage Act 1961 imposes such an obligation. But there is surely an argument that, for example, another valid piece of Commonwealth law, such as the Racial Discrimination Act 1975 s 13, forbidding a refusal to supply “services” to a person on race-based grounds, would make such an action unlawful?]
  • This provision, s 47, then, will prevent ministers of religion being required to solemnise same sex marriages, should such be introduced. “Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages.” [For avoidance of doubt, as noted above, s 47 should probably be expanded to refer to “other laws” not having such an effect, as well as negating the operation of Part IV.]
  • But there are some ministers of religion who would like to solemnise same sex marriages at the moment.
  • However, the current Act prevents this happening. Dr Beck refers by way of a link to s 101 of the Act (which refers to persons solemnising marriages who are unauthorised to do so), but I would like to suggest his case would be stronger if he referred to s 100:

“A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.”

  • There is an interesting technical debate about whether a purported “marriage” under the current law between two parties of the same sex would be “void” or not (or a “nullity”), but I think one could pretty clearly say there was a “legal impediment” to the purported marriage. Section 5 of the Act currently contains a very clear definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
  • Dr Beck then adds that, even if a couple wanted a solely “religious” marriage ceremony, which was not to be regarded as a legally valid one, the law would prevent this happening. He says: “a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple.” Indeed, he points out that the same penalty is applicable for a minister who purports to conduct a religious ceremony for an opposite sex couple, without them having been through a civil ceremony.
  • On this issue, I think he is correct. The law of Australia has been established as it is, to discourage persons entering so-called “marriages” which are not actually recognized as such by the legal system. One obvious example is where a religious group might consider it within their system to marry a 14-year-old girl, for example. If the law allowed an “apparent” marriage of this sort to take place, it would be confusing for the parties and others, and likely to lead people to think the marriage was valid under Australian law, when it is not. For this reason all purely religious ceremonies that purport to “marry” are forbidden, except where the parties concerned have gone through a prior valid civil ceremony.
  • Indeed, the present Chief Justice of the High Court, French CJ, when he was a trial judge in the Federal Court, commented on this matter in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) when he noted that the religious freedom of “non-recognised” religious groups was preserved by the provisions of s 113 allowing a minister of such a group to conduct a religious ceremony:

    “the provisions of s 113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister” (at [14]).

However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

My main reason is that (as Dr Beck would no doubt agree) a person’s religious commitment is not an automatic “trump card” when other principles arise. Not every law that is contrary to a person’s private religious commitments is an “undue” restriction on religious freedom. A law that prevented a revived Aztec priesthood from conducting ritual human sacrifices at noon would be perfectly valid. The law currently forbids marriage under religious law of 14 year olds. It does so for a valid public policy reason concerning child protection. The law currently forbids a celebrant from purporting to solemnise a same sex “marriage”. Agree with that law or not, it does so for public policy reasons related to the support for the traditional view of marriage as between a man and a woman. That is a public policy stance which was articulated with clarity in Federal Parliament by the bi-partisan support for an amendment in 2004 inserting a clarifying definition of marriage into the Act to make it clear that same sex unions celebrated outside Australia would not be recognized as “marriages” within Australia, despite our otherwise generous recognition rules for such marriages. (This 2004 amendment, of course, did not effect a fundamental change in the Australia law, as is sometimes suggested. The definition of marriage as between a “man and a woman” was already contained in another part of the Marriage Act 1961 itself when first enacted, in s 46; and it was later enacted as part of the Family Law Act 1975, s 43.)

To again quote from the decision of French J (as his Honour then was) in Nelson v Fish, at [13]:

“The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution – Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is “subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order” (p 155 per Starke J. – see also 132 per Latham C.J.).”

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

Dr Beck comments that: “There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants.” But the very same logic would justify allowing a polygamous marriage ceremony to take place, or an under-age ceremony, or one where the parties are not both fully consenting, under religious views. Australian law has long taken the view that, in the interests of maintaining clarity about who is married to whom, religious marriage ceremonies may not be conducted where there has been no prior civil ceremony. Community confusion will be bound to be created in these cases, even if (as would by no means always be the case) all the parties who were present were completely clear about the non-binding nature of the ceremony. (I have commented on these issues in a previous paper on the question of whether churches who disagree with the introduction of same sex marriage ought to withdraw from the marriage system if it is introduced.)

There may also be some doubts about the fairly wide view of the operation of s 116 which Dr Beck impliedly supports. On this issue in fact I tend to think he is correct, that the provision ought to allow a challenge to Commonwealth legislation when it “interfere[s] improperly” (to use Dr Beck’s phrase) with religious freedom; or when it amounts to an “undue infringement” of the right to free exercise of religion, as it was put by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 128. There are, however, some authorities which suggest a much narrower scope to the s 116 protection of religious freedom: that it would only prevent a law the main aim or purpose of which was to impair religious freedom: see eg some of the comments in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, esp per Brennan J at 40; more recently Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) at [145]-[150]. I think, however, as Dr Beck seems to suggest, that there is a sound case to be made that the prohibition on interference with free exercise of religion operates more broadly. For example, I would certainly want to maintain that a law recognizing same sex marriage, which required all ministers of religion to celebrate such marriages, would be unlawful under s 116. And my view is s 116 may in fact also operate to protect other religious participants in the “wedding industries” from being required under other Commonwealth laws to provide their artistic services in the celebration of same sex unions.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

Despite Dr Beck’s optimism that the introduction of same sex marriage will not “presage an attack on religious freedom and people of faith in the Australian community”, unless careful consideration is given to these issues, this is likely, in fact, to be the outcome. Of course the freedom of religious groups to allow their ministers to conduct same sex weddings ought to be protected, if the institution of marriage is to change in the way proposed. But it is not those religious groups who find themselves under regular attack from media and politicians alike as “bigots” and “homophobic”. To quote Sir John Latham again, from the landmark Jehovah’s Witness case:

“such a provision as 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).”

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