Month: January 2017

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Why proposed same-sex marriage balancing clauses would be constitutional and right

Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)

While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.

I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.

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Overseas Muslim marriages and Australian law

Two cases involving purported marriages under Islamic law, entered into overseas by Australian residents, have received recent press coverage. The decisions of the courts involved seem to be clearly correct, and they helpfully illustrate some important principles of Australian law. A person whose home is Australia cannot legally travel outside this country and enter into a valid marriage with a minor, or enter into a second marriage when already lawfully married under Australian law. While Australian law generally supports religious freedom, the interests of children and women are legitimately seen to over-ride the religious freedom to enter into underage or polygamous marriages.

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Religious Freedom, transgender issues and abortion- overruling the US Health Department

The recent (31 Dec 2016) decision of US Federal District Court Judge O’Connor in Franciscan Alliance Inc v Burwell (ND TX, Case 7:16-cv-00108-O; Dec. 31, 2016) (thanks to “Religion Clause” for the report and information) is a significant one. In short, the Obama administration had used the prohibition on “sex discrimination” in US Federal law to enact an administrative regulation requiring Christian health care providers (and some State governments) to provide transgender “transition” procedures, and abortions, to all patients, arguing that denying this coverage amounted to sex discrimination.

This highly questionable interpretation has now been overturned by this very significant decision; even though only a Federal district court judge, it seems to be binding across the whole of the US unless overturned.

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