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.

I should start by acknowledging, as I have said before in disagreeing with Dr Beck on another point (see “Is denying same sex marriage unconstitutional?” Aug 30,2016), that I have the greatest of respect for his general scholarship on s 116 of the Constitution. However, I cannot agree with the view he expresses in this article (and in his verbal submission to the Select Committee, though these issues were not canvassed in this formal written submission.)

In the article in The Age he suggests that the Bill as currently drafted, which provides that ministers of religion from groups which regard homosexual unions as contrary to God’s will will not be required to solemnise such marriages, may contravene the prohibition in s 116 of the Commonwealth Constitution on “establishing” a religion. It does this, he says, because it “play(s) favourites among different religious groups”.

I would like to briefly comment on the suggestion also made in the article that the provisions of the Bill are not “really” about religious freedom, and then to note why in any event they do not contravene the prohibition on “establishment” in s 116.

A. Are the provisions of the Bill “really” about religious freedom?

I have no doubt at all in saying that the specific provisions of the Bill allowing ministers of religion, civil celebrants and religious organisations not to offer services in relation to solemnisation of same sex marriages, are really about religious freedom. But the argument put forward by Dr Beck seems to be that this cannot be the case, as the provisions as drafted do not refer to other objections that such persons or organisations may have to solemnising a marriage. To quote the article:

However, the exemptions aren’t really about religious freedom. There is no exemption in the case of a conscientious religious objection to any other types of marriage, such as marriages involving a divorcee or a couple of different faiths. If the bill was really about religious freedom, the exemptions would not be limited to religious objections to same-sex marriages.

The logic of this argument seems to be as follows:

  1. A bill protecting religious freedom in any respect, must always protect religious freedom in all respects.
  2. This bill does not protect religious freedom in all respects.
  3. Hence this bill is not genuinely protecting religious freedom.

But proposition (1) above seems unpersuasive. While one may have a general religious freedom protection bill, it does not seem plausible that every attempt to protect religious freedom must deal with every possible issue.

Indeed, we already have many examples of other “balancing clauses” (a term I prefer to “exemptions” for reasons outlined in the article linked here) in discrimination laws. Under the Sex Discrimination Act 1984 (Cth), for example, sections 37 and 38 provide that actions that would otherwise contravene the legislation do not do so if done in pursuance of religious belief by religious bodies or educational bodies “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed”. Those provisions only operate within the sphere of behaviour otherwise addressed by the sex discrimination legislation. They do not address possible religious freedom issues that might arise in other contexts, such as hiring out a church hall to a body from a different religious persuasion. Yet it seems impossible to deny that these provisions are included to provide balancing in the interests of religious freedom, and the fact that they do not do so comprehensively does not mean that they do not do so genuinely.

The balancing clauses in the Exposure Draft Bill are genuinely described as religious freedom provisions. Is it then true then, as Dr Beck suggests elsewhere in his article, that the Bill “singles out same-sex couples for different and lesser protection by Australian law”? I would argue not. It is true that a condition of the operation of the balancing clause in proposed s 47(3)(a) is that a minister has refused to solemnise a marriage “because the marriage is not the union of a man and a woman”. But the reason this provision is there is clear: the Bill will radically change the Australian law on marriage to extend that status to same sex couples. All the mainstream religious traditions around the world have had centuries-long teaching to the effect that homosexual sex does not represent God’s will for mankind. In recognition of that, and of the fact that ministers of religion have played a key role in solemnising marriages for centuries, the Bill requires that ministers not be obliged by the operation of the Marriage Act or of discrimination law to solemnise such marriages.

Dr Beck uses in passing the example of other possible objections which might be made by ministers which are not dealt with by this amendment:

There is no exemption in the case of a conscientious religious objection to any other types of marriage, such as marriages involving a divorcee or a couple of different faiths.

But while in theory there may be legal issues raised in these cases, in practice they have not proved to be an issue. Yes, “divorced” is a marital status under the SDA 1984, and in theory a couple turned away by a minister of religion because one was divorced might be able to complain about “marital status” discrimination, which is prohibited by the SDA. (Similarly it might be possible that a couple denied a wedding ceremony because of a difference in religious faith may in theory be able to complain under State discrimination law where such law forbids religious discrimination, although there is no such ground under Commonwealth law.) These objections might be made despite the fact that currently s 47 of the Marriage Act says that nothing in Part IV of the Act obliges a minister of religion to solemnise a marriage; because those anti-discrimination provisions are not contained in Part IV of the Marriage Act.

But at the moment the SDA contains the broad balancing clauses in ss 37 and 38 for religious bodies, which would probably be able to be relied on by a minister. And more pragmatically, there are no recorded complaints that I am aware of against ministers for declining to celebrate marriages in these circumstances. Perhaps, in the case of a divorced person, this is because “divorcee” is not a status seen as a fundamental part of a person’s identity, which they celebrate.

By contrast, in relation to same sex marriage, there is a mounting body of evidence which shows that persons who are denied the benefits of a wedding for their same sex relationship are willing to take legal action against those who have politely declined to take part in the ceremony. (See for example some of my previous posts here and here about “wedding industry participants” sued overseas. Examples could be multiplied.) In that context, and even though there may be some argument that the current Commonwealth SDA s 37 would protect ministers against a claim of discrimination, it seems perfectly sensible to explicitly provide for that protection in the very legislation which is making the change which might generate such claims.

In any case, internationally, where same sex marriage has been implemented by legislation, explicit balancing clauses for ministers of religion have been included without those provisions being seen as somehow denigrating same sex couples. (For a general review of these provisions in New Zealand, Canada and the UK see Rex Ahdar “Solemnisation of Same-sex Marriage and Religious Freedom” (2014) Ecclesiastical Law Journal, 16, pp 283-305.)

The provisions protecting religious freedom under the UK Marriage (Same Sex Couples) Act 2013, for example, are very carefully drafted. In a helpful document produced by the UK-based Christian Institute, they summarise these protections as follows at p 8:

1. The legislation states that no religious organisation or minister can be compelled by any means to marry same-sex couples or permit same-sex marriages on their premises;

2. The Equality Act 2010 has been amended so that no discrimination claims can be successfully brought against religious organisations or ministers for refusing to marry a same-sex couple;

3. There is an ‘opt-in’ system for those who want to carry out same-sex marriages, so that they can only take place where both the church’s governing body and the trustees of the particular church building have opted in;

4. The Church of England cannot opt in under the terms of the 2013 Act.

As the Christian Institute says at p6,

the Act recognises that people disagree with same-sex marriage in that it does not compel any religious body to perform same-sex weddings. The law effectively recognises that some people believe that same-sex marriage is right, while other people do not.

In Canada, the Civil Marriage Act 2005 contains the following provisions:

3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. 3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom. (emphasis added)

It seems that some of the current objections to the draft Bill in Australia are based on a refusal to recognise that people of good will can disagree on this issue, and perhaps a view that religious freedom must not be allowed where a view opposing the morality of homosexual relationships is held. I respectfully disagree with that view. In any event, if Australia is to allow same sex marriage, a provision such as s 47(3) in the current Bill seems eminently sensible.

B. Do the provisions of the Bill breach the s 116 prohibition on “establishment”?

To come then to the main point made by Dr Beck in his article, he quotes a very early commentary on the meaning of “establishment” under s 116, the commentators Quick & Garran:

“By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others.”

These comments, made in 1901 just after Federation, are of course worthy of great respect. But there are number of serious legal problems with simply moving from Quick & Garran’s comments to claim that providing religious freedom balancing clauses would amount to the “establishment” of a religion. In brief, this claim (1) contradicts the clear authority of the High Court of Australia on the meaning of “establishment”; (2) contradicts a decision of the former Chief Justice of the High Court on a very similar claim; (3) contradicts Dr Beck’s own written submission to the Select Committee by ignoring the “free exercise” clause of s 116. I will only comment briefly on each.

(1) The High Court view on “establishment”

We do not need to go back to the early days of Federation to search for the legal meaning of “establishment” in s 116. A definitive ruling on the meaning of the term was provided in the 1981 case sometimes called the DOGS case. In a previous post dealing with a more recent attempted application of the provision, “Establishing Religion and Islamic schools in NSW” (July 7, 2016) I summarised this as follows:

[T]he important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.

The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools.

The authority of the DOGS case was reaffirmed in the decision of the NSW Court of Appeal in  Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016), holding similarly that funding to an Islamic school does not breach the prohibition on “establishment”. For a number of reasons it seems clear that this would rule out any wide view of “establishment” which would somehow “establish” a church (or a group of churches or religious bodies?) simply by extending religious freedom protection to that church or group. A law dealing with same sex marriage as its primary purpose is clearly not a law “for” establishing a State church.

In any event, s 116 contains both a prohibition on establishment, and also a prohibition on undue interference with “free exercise” of religion. Since both principles are present together, it surely cannot be the case that a law which simply accommodates the religious freedom of a group, of itself amounts to unlawfully “establishing” that group. Suppose a law that allowed Sikh motorbike riders to not wear helmets as their religion required them to wear a turban. That would not of itself “establish” the Sikh religion over other religions, simply because Hindus and Christians and Muslims would be required to wear helmets. It would simply be a reasonable accommodation of specific religious beliefs, held by Sikhs and not held by other bodies.

(2) The view contradicts the decision in Nelson v Fish

A decision of the former Chief Justice, Justice Robert French, when his Honour was a trial judge in the Federal Court of Australia, also illustrates the point. The decision is Nelson v Fish [1990] FCA 28 (9 February 1990). In brief, a gentleman, Mr Nelson, who described himself as “High Priest of a religious organisation called ‘Gods Kingdom Managed by his
Priest and Lord'”, had applied for his organisation to be proclaimed by the Governor-General under s 26 of the Marriage Act 1961 as a “recognised denomination”. His organisation did not meet the criteria set up the Attorney-General’s Department for such recommendations to be made, especially since it seemed to consist of only one “congregation”.

Mr Nelson appealed the refusal of the Department to recommend that his organisation be proclaimed, claiming that the provisions of the Act which gave “recognised” status to some, and not other, religious groups amounted to the “establishment” of the recognised groups contrary to s 116. His claim was rejected. French J cited the very words of Quick & Garran which are referred to by Dr Beck, but said that these administrative arrangements did not breach the establishment clause. His Honour said:

10. The question whether a law is one for establishing a religion may, as Gibbs J. observed, be one of degree. Assuming that the legislation under attack in the Schools case had the effect not only of giving aid to those religions conducting schools in the various States but more aid to one than to another, it still did not follow that any religion was established by the legislation (at p 604). That is not to say that a certain level of statutory discrimination could not amount to establishment in the prohibited sense. Quick and Garran included in their definition of the establishment of religion “…the concession of special favours, titles and advantages to one church which are denied to another” – Annotated Constitution of the Australian Commonwealth p 951. But the judgment which is to be made in this regard cannot be divorced from a consideration of the content of the power under which the impugned legislation is enacted. And in that regard the scope of the constitutional power conferred on the Commonwealth to make laws with respect to marriage “should receive no narrow or restrictive construction” – Attorney General (Vic) v The Commonwealth [1962] HCA 37;  (1962) 107 CLR 529 at p 543 (Dixon C.J.). As Professor Harrison-Moore observed in a passage cited by Dixon C.J. in the same judgment “it enables the Commonwealth to determine what marriages shall be recognised in the Commonwealth (and) the forms for the celebration of marriage…” – The Constitution of the Commonwealth of Australia 2nd Ed. (1910) p 474.

11. The assessment to be made of the legislation in this case is, in a sense, one of degree and in my opinion is not difficult. Having regard to the constitutional responsibility of the Commonwealth with respect to marriage a provision for the designation of particular religious denominations as bodies whose ministers may be registered to perform marriages could not reasonably be said to constitute the establishment of those bodies as religions within the meaning of s.116. That is not to say that the legislation could validly authorise a monopoly in religious marriages in favour of one particular denomination. But there is nothing in the applicant’s complaints to suggest it is so applied and the criteria for recognition adverted to in the material submitted by him are evidence to the contrary.

In essence the power to regulate marriages allowed the Commonwealth to make decisions about which religious bodies would best conduct those marriages under their own procedures, and which would require further supervision (there was, and still is, provision for ministers of religion from non-recognised denominations to be authorised to solemnise marriages under the “celebrant” scheme). Where there is differentiation between organisations on relevant grounds, then there is no unlawful “monopoly” (which is in effect a shorthand way of referring to what “establishment” means.) Under the Exposure Draft Bill, relevant considerations are whether the religious beliefs of an organisation or minister prevent them solemnising same sex marriages. Where they do, this is able to be recognised in the law without giving them any undue State support or making them a “State church”.

(3) Section 116 also forbids undue impairment of “free exercise”

In his written submission to the Select Committee (included in downloads for 24 January 2017 on this page), Dr Beck says this:

I agree that ministers of religion should not in their capacity as ministers of religion be required to solemnise a marriage contrary to the teachings of their religion. Indeed, s 116 of the Constitution, which provides that the Commonwealth ‘shall not make any law … for prohibiting the free exercise of religion’, would probably invalidate any law that purported to compel a minister of religion in their capacity as a minister of religion to solemnise a marriage contrary to the teachings of their religion.

I agree. But the argument that Dr Beck then puts in his opinion piece, if taken to its logical conclusion, would be that providing religious freedom balancing clauses here would be “playing favourites”:

The bill says to people that if your religion objects to same-sex marriage then you get a special exemption from the ordinary legal rules about non-discrimination. If your religion is fine with same-sex marriage but objects to other types of marriage then tough luck, no special exemption for you.

I just point out that the logic of this comment implies no exemptions for ministers of religion, let alone celebrants or religious organisations hiring out property. But as noted above, in my view the argument is misconceived. Religious freedom provisions in relation to same sex marriage (and not in relation to other possible problematic grounds of decision making) are being provided in this Bill because that is what the Bill itself is dealing with (it is not a Bill concerning the status of divorced persons or a general bill about religious freedom overall.) And those provisions are important because the rhetoric and overseas experience of the same sex marriage debates both suggest that the question of solemnisation of same sex unions is likely to be an area where litigation is possible, and it is best to be clear on the matter to avoid this as much as possible.

In conclusion, balancing clauses protecting the religious freedom of those involved in solemnising and celebrating same sex marriages must be an important part of any legislation introducing same sex marriage into Australia. Far from being unconstitutional, the provisions of the current Exposure Draft are, so far as they go, a reasonable attempt to do so. In my own view, spelled out in more detail here (see submission-53-associate-professor-neil-foster), more protections are needed. I hope Parliament will consider these issues very carefully if such legislation is introduced in the future.

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