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. I have previously commented on the options of plebiscite or referendum, and suggested that my own view is that the matter requires a formal Constitutional amendment, rather than a simple majority plebiscite vote. Other commentators (see eg here) have recently also suggested that a referendum is the only way to be sure, if one wants to make this change, that it is constitutionally valid. Still, this is very much a minority view, and at the moment the Government believes that the change can be made by the Parliament, while honouring its promise to the Australian people to put the matter to a plebiscite first.

I have also suggested that there are rational reasons why one might think that same sex marriage is not a good policy, even apart from its impact on religious believers. However, there is no doubt that among the reasons the change has been opposed by believers, are legitimate concerns about the implications of the change for religious freedom. Religious freedom concerns range across a number of issues. The most obvious is whether ministers of religion, who are currently authorised to celebrate marriages under Australian law, will be obliged to celebrate same sex marriages. But other issues include:

• the right of other, civil, celebrants to decline to celebrate a same sex marriage, including not only “private” celebrants but also Government registry officers;
• whether individual businesses involved in the “wedding industry” will be able to decline to offer their artistic support for services for same sex ceremonies;
• whether religious organisations who offer their premises for weddings will be able to decline to offer them for such ceremonies;
• whether religious schools will be able to teach their pupils the views of their religious traditions about marriage, once same sex marriage is lawful;
• whether financial support currently offered to religious organisations who provide important services to the community will be conditioned on support for same sex marriage;
• whether there will be further pressure on those who think that same sex marriage is a bad idea to not be able to put forward their views in public under “vilification” or similar laws.

None of these issues are imaginary, all have been raised by similar changes that have taken place overseas. In the rest of this post I want to comment briefly on the ways that the Exposure Draft Same-Sex Marriage Bill deals with these matters, and to suggest that it needs to deal with some that are not so far addressed.

On the one hand- there are some good protections

First, it has to be said that there are some sensible provisions in the Bill supporting religious freedom.

Protection of ministers of religion as celebrants

The Bill makes it quite clear that ministers of religion will not be obliged to celebrate same sex marriages. A redrafted section 47, which already provides a general principle that ministers may decline to solemnise marriages, explicitly deals with the new situation in proposed s 47(3):

(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:

(a)  the refusal is because the marriage is not the union of a man and a woman; and

(b)  any of the following applies:

(i)  the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

(ii)  the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(iii)  the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.

It is important to note that this provision allows refusal of a same sex marriage “despite any law”. This means that as well as the Marriage Act 1961 not imposting an obligation to solemnise such a union, this provision will over-ride other Commonwealth law that might have been argued to impose such an obligation, as well as competing State or Territory laws.

The main relevant Commonwealth law that might have been argued to oblige a minister of religion to solemnise a same sex union would be the Sex Discrimination Act 1984 (Cth) (“SDA”), which since 2013 makes it unlawful to discriminate against persons in the provision of “services” on the basis of sexual orientation (see s 22 of that Act). But the new s 47(3) will over-ride that provision. To make this completely clear the Bill in Schedule 1, Part 2 amends s 40(2A) of the SDA (which already says that decisions taken in “direct compliance with” the Marriage Act are not viewed as unlawful) to clarify that decisions taken which are “authorised by” the Marriage Act will not be unlawful.

State and Territory laws also make sexual orientation discrimination unlawful. The wording of s 47(3) will make it clear that permission given by the Commonwealth Parliament to a minister of religion not to solemnise a same sex union will over-ride any conflicting subordinate laws (through operation of s 109 of the Constitution or else similar provisions governing Territories.) It seems apparent that the “marriage” power under the Constitution would authorise this type of direct over-riding of State law if necessary to implement Commonwealth marriage law.

It is also worth noting that s 47(3)(b)(iii) is a good provision which will protect the consciences of ministers of religion who may be more theologically “conservative” than the denominations to which they belong- their own “conscientious or religious belief” will authorise a refusal to solemnise even if their broader group supports same sex marriage. (This is a problem that had been identified by Professor Rex Ahdar in relation to the analogous New Zealand legislation: see Rex Ahdar “Solemnisation of Same-sex Marriage and Religious Freedom” (2014) 16/3 Ecclesiastical Law Journal 283 – 305 at 285.)

Protection of private civil celebrants

Another important protection provided for religious freedom is that private civil celebrants, appointed in accordance with the provisions of Subdivision C of Division 1 of Part IV of the Marriage Act. will be able to decline to solemnise same sex marriages if they have a “conscientious or religious” objection to doing so- see proposed new s 47A. (Some of the celebrants appointed under this part of the Act are ministers of religion of smaller religious groups, but they will be protected under the amended s 47 already noted.)

Protection of religious groups providing facilities

Proposed new s 47B is also a good provision, allowing religious groups or organisations who make halls or other facilities available for weddings, to decline to do so on conscientious or religious grounds:

47B Religious bodies and organisations may refuse to make facilities available or provide goods or services

(1)  A religious body or a religious organisation may, despite any law (including this Part), refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if:

(a)  the refusal is because the marriage is not the union of a man and a woman; and

(b)  the refusal:

(i)  conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or

(ii)  is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

This principle, that requiring a religious group to provide facilities for a celebration of a relationship which they regard as fundamentally contrary to their moral views, seems sensible and was reflected previously in Canada in the decision of the British Columbia Human Rights Tribunal in Smith v. Knights of Columbus 2005 CarswellBC 3654, 2005 BCHRT 544.

On the other hand- the protections do not go far enough

There are, however, significant areas where the religious freedom protections offered by the Bill do not go far enough. I will mention a few of them here.

No protection for public service registry officers

While there is sensible provision made for recognising religious freedom rights of ministers of religion and civil celebrants, no such provision is made for public servants (usually employed by the States and Territories) who are authorised to solemnise marriages under s 39 of the Marriage Act.

This is a topic which of course has been controversial. In the UK the case of the late Lillian Ladele, a marriage registration offical with Islington in London who did not wish to register same sex “civil partnerships”, went all the way on appeal to the European Court of Human Rights. The Court ruled that her religious freedom had been impaired by the Council’s insistence that she register such partnerships, despite the ease with which her conscientious objection could have been accommodated by rostering on other employees. However, the Court then ruled that the Council were entitled to dismiss her in the interests of supporting “diversity”. (See my paper here commenting on this case in more detail, with links to earlier discussion.)

In the United States of America, similar issues were raised in the case of Kim Davis, registrar from Kentucky, who declined to solemnise same sex marriages where, by local law, her name had to appear on the marriage certificates that were issued. Again, there were easy ways to accomodate her beliefs, which had not been implemented. It may be worth repeating a couple of comments I made in my post on her case:

1.  Religious freedom is about more than the right to hold certain beliefs internally, however; it is about a right of “free exercise” of religion which will mean that a person will live out their religious beliefs in everyday life. Indeed, it is a fair criticism of someone who claims to be a believer that their life does not match their claimed religious beliefs. All of us are grateful when people with deep religious beliefs live out those beliefs in caring for the poor and marginalised, in generous giving to worthy causes, and in looking after people in their local communities. So we need to resist the occasional “reframing” of religious freedom in terms of “a right to worship”; it is much more than that.
2. Do these same principles apply, then, to a public servant? Or must we require all public servants to park their fundamental religious freedom rights at home when coming to work? The answer is that public servants do have, and should be allowed to exercise, religious freedom. It is not a question, as some have put it in recent days, of a public servant being “allowed to disobey the law”. The law should contain, and in most Western countries does contain, recognition of religious freedom rights, and relying on such a provision means that one would not be disobeying the law, one would be acting within the law.

In recognition of the fact that religious freedom as a principle applies to all Australians, even public servants, there should be a similar provision to proposed s 47A which extends to registry officials. Arrangements can no doubt be made to ensure that adequate services to meet the needs of same sex couples are available in each registry office.

No protection provided for small businesses in the wedding industry

Again, there are a number of small business operators who service the wedding industry- bakers, florists, photographers, stationary designers, wedding organisers- who may have conscientious or religious objections to being required to devote their artistic and other talents to the celebration of a relationship they see as contrary to God’s purposes for humanity. These are not theoretical issues, there a number of cases from overseas that have already seen people in these circumstances fined for illegal discrimination- see my previous posts here and here and here.

It cannot be stressed too strongly that those who suggest some allowance should be made for such cases are not saying that there should be some general exemption from all laws aimed at preventing discrimination on irrelevant grounds against same sex attracted persons. No-one sensible is suggesting – I am not suggesting- that bakers should be able to decline to provide pavlovas or pizzas to gay people, or that they should not be served in a florist’s shop simply on the ground of their sexual orientation. Many of the cases overseas have involved businesses who were perfectly happy to serve gay customers generally. But when it comes to a specific ceremony the sole aim of which is to celebrate and rejoice over the entry into a long-lasting same sex relationship, which is contrary to the moral teaching of most mainstream religious groups: then these people have simply wanted to be able to politely decline to be dragooned into providing their support.

In Australia we have balancing clauses in discrimination law protecting religious organisations (such as proposed s 47B to be introduced by the Bill); bur we also have some laws protecting the rights of individual believers. In Victoria s 84 of the Equal Opportunity Act 2010 provides:

Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious beliefor activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

This sort of provision, interpreted to recognise the serious importance of the internationally recognised right to religious freedom of all Australians, should be included into the proposed Bill. Parliament could include, for example, s 47C providing that:

A person may, despite any law, refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the refusal conforms with the doctrines, beliefs or principles of their religion.

Conclusion

As can be seen from the list of possible religious freedom issues noted above, this post has only dealt with some. There are no doubt others that will need to be discussed, especially free speech issues and whether religious schools can continue to teach the doctrines of their faith.

It may be that this proposed Bill will not be presented to Parliament, if the proposed plebiscite does not proceed. But if Parliament comes back to the question, it is to be hoped that, as well as the sensible religious freedom protections provided in the current version, other protections will be adopted to allow Australians with deep religious convictions to live out their religious beliefs in their life and work in the community.