The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has now handed down its formal Report (15 Feb 2017). I have referred previously to my evidence to the Committee and my response to the remarks of one of the other witnesses: see Why proposed same-sex marriage balancing clauses would be constitutional and right (29 Jan 2017).

The Report contains no major surprises, perhaps to be expected from an area which is so contentious and in which positions of the Committee members and the various witnesses are so far apart on basic presuppositions. But overall it is a well-balanced document which fairly presents the different points of view. As the Committee itself notes, its deliberations are really only relevant for the future, if Parliament chooses to revisit this area. At the moment the current Government’s preferred option, a plebiscite, has been rejected by the Parliament, and the Government has indicated that in line with its election commitments, it will not be moving to a vote in Parliament on the issue.

Nevertheless, it is worth noting some areas of consensus, and flagging the issues on which there still remains substantial disagreement.

Consensus

The major issues considered by the Report revolve around the protection to be provided to religious freedom of individuals and organisations should same-sex marriage be introduced into Australia.

In broad terms, the Report agrees on what all commentators have previously affirmed, that there should be “appropriate” protection of religious freedom, and that this at least means that ministers of religion should not be required to conduct same-sex weddings (see eg the summary at p x).

There is also, however, general agreement by the Committee with some propositions that may not find such general community assent.

One is the view that the Exposure Draft Bill “unnecessarily singles out” same-sex couples by specifically targeting its provisions to situations involving weddings that “are not the union of a man and a woman” (again, p x). With respect to the Committee, I disagree. The need for the religious balancing clauses is created by the precise change of law to allow “same-sex marriages”. While it is certainly true that important issues are raised by the situation of transgender persons and true intersex situations, those cases are not what the legislation is aimed at, and to include those situations into this Bill will create additional and unnecessary complexity. As I noted in my previous comment mentioned above, Parliaments in the UK and Canada have seen no problem in framing religious freedom balancing clauses by specific reference to same-sex marriages. The Report of the Committee fails to persuade that there is anything inappropriate about explicitly mentioning religious objections to same-sex marriage as a ground for these provisions.

A second issue which is said to be a matter of consensus is that it may be inappropriate to continue to refer to provisions protecting religious freedom in this context as “exemptions” to an otherwise applicable broad principle. With this proposition I heartily agree, and I trust that the Committee’s willingness to accept the criticism of “exemption” language will be persuasive with other bodies in the future. (For my comments on why the terminology “balancing clause” is more appropriate, see the journal article linked in my comment “Freedom of Religion and Balancing Clauses in Discrimination Legislation“, Oct 30, 2016).

Areas for further discussion

The Committee politely identifies matters on which its members, and many of its witnesses, fundamentally disagree as areas for “further discussion”. These are very broad, and in effect cover (with the single exception of ministers of religion) the whole area of how religious believers are treated under the proposed Bill. So there is no consensus on

• protection of private celebrants who are not ministers of religion;
• protection for registry officers who may have a religious objection to solemnising same sex marriage;
• protection of the ability of religious groups not to offer their premises for use in same-sex weddings;
• protection of business owners in the “wedding industries” such as florists, photographers and bakers, who do not want to be forced to devote their artistic talents to support ceremonies celebrating a sexual relationship which they see as contrary to God’s will.

For my comments on these issues, I refer the interested reader to my formal submission to the Committee (linked here: submission-53-associate-professor-neil-foster ), which  is quoted a few times in the Report (along with some of my oral testimony).

One comment that the Committee makes early on is perhaps worth special note. The Committee says, at p xi:

The essential nature of marriage and its role in society is a philosophical discussion and goes to the core of one’s identity.

This I think is very telling. Many religious commentators, myself included, would disagree with the view that the “nature of marriage”, “goes to the core of one’s identity”. It is hard to pin down precisely what the Committee means here. Insofar as it suggests that one cannot have a fully-orbed “human identity” without being married, it seems clearly wrong. Christianity, for example, sees marriage between a man and a woman as an important institution with some significant purposes, but it has never placed it as an essential part of “humanity”. It could hardly do so when its founder, Jesus Christ, and one of its first major apostles, Paul of Tarsus, both seem to have never married. Both men at different places note that the single, unmarried, life may have an important value in particular contexts (see Matthew 19:12, 1 Corinthians 7:27-35). Jesus indeed notes that in the new creation, there will be no such thing as marriage (Luke 20:34-36).

It may be that the Committee is suggesting that sexual orientation is in some sense a “core” element of human identity. This would be consistent with the view expressed in the UK Supreme Court decision in Bull & Bull v Hall & Preddy [2014] 1 WLR 3741 where Lady Hale at [52] said:

Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

In brief, this would also be a proposition that is rejected by most mainstream religious groups. For Christianity, creation “in the image of God” implies much about connection with God the Creator, and moral behaviour, and a mission that involves telling of God’s glory to others. But sexual orientation would not be a foundational feature of identity. Indeed, it seems that this is one of those presuppositional gaps which separate those who see same-sex marriage as a “human right” and those who do not.

In fact, on this issue the Chair of the Committee in his foreword to the Report highlights an important strand of evidence presented by a number of witnesses:

Evidence before the committee confirmed that Australia is not required to make a change to the definition of marriage under jurisprudence in international law, but nor is there an impediment to it doing so. The United Nations Human Rights Committee has made it clear that so long as a nation state has legislation to recognise and protect same-sex relationships—as Australia has—then the right to freedom from discrimination and equality before the law is fulfilled because under the International Covenant on Civil and Political Rights, marriage is defined as being between a man and a woman (Article 23). The European Court of Human Rights has made a number of judgements in recent years supporting this approach. (at p vii)

Since this passage has not found its way into the “Executive Summary” it may be that it could not be described as a “consensus” view among Committee members. But the status of the relevant UN decision holding that there is no obligation to recognise same-sex marriage under international law, the Joslin case, is discussed extensively in the Report, and the views presented represent the highly contested academic and legal debate on the correctness and current validity of that decision: see eg the discussion at paras 3.6-3.18 of the Report. My own view, of course, is that Joslin is still authoritative and correct.

Conclusion

The Report canvasses many important issues, and its footnotes (and the many submissions made to the Committee) are a rich source for those wanting to explore the issues on all sides of this important debate. it provides on pp xiii-xv a helpful summary of “issues requiring careful consideration”, without itself resolving most of these.

But it is worth finally noting that one important matter seems to have been a subject of general agreement. The Committee conclude their summary of issues in this way, at p xv:

In the short term, the evidence supported the need to enhance current protections for religious freedom. The committee suggests that this could most appropriately be achieved through the inclusion of ‘religious belief’ as a protected attribute in federal anti-discrimination law. However, in future, the committee considers that the concept of a ‘no detriment’ clause could be further examined.

This is a very sensible position. I have noted often on this blog how patchy the general protection of religious freedom is in Australia at the moment. In fact, I have made another submission recently, to a Joint Select Committee of the Federal Parliament which is still deliberating on religious freedom in general. Let me conclude by quoting part of my submission to that body:

[I]t is past time for consideration to be given at the Commonwealth level for protection of religious freedom to be the subject of specific legislation. The Commonwealth has undertaken to provide serious religious freedom protection by acceding to the ICCPR and under art 18 in particular. It would be appropriate that this commitment be translated into law. Apart from other sources of Commonwealth power, it would seem fairly clear that the external affairs power would support implementation of the international human right to free exercise of religion, limited in the specific ways provided under art 18 but not in other ways that currently narrow its scope.

In the past, ironically, religious groups have been some of the strongest voices resisting formal protection of religious freedom through statute. But it seems likely that many of those concerns can be met by adoption of clear guidelines for judicial decision-making (rather than leaving open-ended discretions to judges), by legislating clear and workable “balancing clauses” to ensure that the religious freedoms of different groups are reasonably accommodated, and by fully (not partially) implementing the narrow “limitations” provisions of art 18(3) ICCPR. The challenge of formulating principles for such legislation should be put to a law reform body in the near future.