Two pieces in the Australian online forum “The Conversation” today make misleading statements about the possible impacts of the recognition of same-sex marriage in Australia, and warrant some response. One article suggests that there is no doubt that churches will still be able to decline to solemnise same-sex marriages. The other is a “fact check” on assertions about the mandatory nature of “safe schools” programs following such a change.  In my view both pieces are likely to mislead.

Will churches always be free to decline to solemnise same-sex weddings?

The first article, by Robyn J Whitaker, “If Australia says ‘yes’, churches are still free to say ‘no’ to marrying same-sex couples” (The Conversation, Oct 2, 2017), reassures churches that they currently enjoy freedom to decline to marry those who ask to be married by them, and that this will continue.

The article is a fair summary of the current law- under the Marriage Act 1961 (Cth), s 47(a) relevantly provides:

Nothing in this Part (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…

This provisions protects all ministers of religion (even those from denominations not “proclaimed” under s 26 of the Act) from being required, purely by virtue of the authority that they may have under Part IV of the Marriage Act (“this Part” referred to in s 47), to solemnise a marriage that is contrary to their religious beliefs.

However, there are two important qualifications that ought to have been provided by the author of the Conversation article.

The first is that, if same-sex marriage were authorised without any further amendments to the Marriage Act, then it is not clear whether or not s 47 as it currently stands would protect a minister of religion from an action under State anti-discrimination law. An action complaining about an act of “sexual orientation discrimination” would not be an action under the Marriage Act itself, and if that Act allowed same-sex marriages to be solemnised,  a State discrimination claim might very well succeed.

It may be that current “balancing clauses” under most State laws would exempt a minister of religion from such an action at the moment- although even there, there is some doubt whether a provision which applies to protect a religious “body” can always be relied on by an individual minister of religion. In fact, as described in the paper just linked, in Tasmania there is no religious balancing clause governing sexual orientation discrimination, and so there would be no defence at the moment under that State’s law. But in any case, if the Commonwealth has not legislated on the matter, nothing would stop any other State or Territory from extending their legislation to penalise ministers of religion for refusing to conduct a same-sex ceremony.

Of course, most proponents of same-sex marriage in Australia at the moment have agreed that clergy will be able to decline to solemnise such marriages. (For comments on the most recent draft Bills put forward in this area, one by the Attorney-General in preparation for a possible plebiscite, one by a Liberal supporter of same-sex marriage, see my previous posts here and here.) But we do not know what legislation Parliament may choose to enact if the outcome of the current postal survey is a “Yes” vote. The people of Australia are being asked to vote on the change in this fundamental social institution with no idea of exactly how Parliament will implement the change. They are being assured by the Prime Minister and the Leader of the Opposition that religious freedom rights will be protected, and in effect being told, “Trust us to get it right”. That has never gone wrong, of course.

The second qualification that needs to be attached to any assurances that clergy can decline to solemnise such marriages is the observable outcome of same-sex marriage laws overseas. In Sweden, where same-sex marriage was introduced in 2009 with an exemption for clergy, the Prime Minister has recently expressed his view that all clergy should be required to solemnise such marriages: see “‘All priests should wed same-sex couples’: Swedish PM” (The Local 23 June 2017). Closer to our traditional source of legal doctrine, the UK (where the law was changed in 2013 with strong religious freedom protections for clergy), the Speaker of the UK House of Commons, John Bercow, was recently reported as expressing a similar view: see “Speaker John Bercow: Gay couples should have right to Church of England weddings” (Pink News, 4 July 2017). He said:

in marriage terms there will only really be complete legal equality when it is permissible for a gay couple to marry as a matter of right in a church.

Now of course these are personal opinions, not yet Government policy, but they are expressed by senior political figures who are likely to be highly influential in future debates. We may accept that protection of this sort will be provided for the moment, but once the change has been made the pressure for removal of any “balancing clauses” of the sort currently present in discrimination legislation will be very strong.

Will mandatory “Safe Schools” programs follow the introduction of same-sex marriage?

The other Conversation article today was one by Emeritus Professor Bill Louden, “FactCheck: will Safe Schools be ‘mandatory’ if same-sex marriage is legalised?” (The Conversation, Oct 2, 2017). This was in response to a claim made on advertising issued by the Australian Conservatives:

If same-sex marriage is legalised, Safe Schools and others like it will be mandatory in schools.

It is worth noting, of course, that Professor Louden, as the Conversation makes clear:

was previously on the board of the Australian Curriculum, Assessment and Reporting Authority (ACARA). In 2016, Bill Louden was commissioned by Education Minister Simon Birmingham to conduct an independent review into the appropriateness and efficacy of the Safe Schools Coalition Australia program resource.

The result of Professor Louden’s previous, very quick, review was that the Turnbull Government withdrew some of its support for the “Safe Schools” program, although not immediately and not completely (and some jurisdictions have announced they will proceed with it themselves). So Professor Louden is not an unabashed advocate for the program, and his views need to be taken very seriously. For comments on the outcome of the previous report see here; and for a detailed and carefully researched critique of the Program by an expert in law and child safety, see the paper by Professor Patrick Parkinson from the University of Sydney Law School, “The Controversy over the Safe Schools Program – Finding the Sensible Centre” (September 14, 2016; Sydney Law School Research Paper No. 16/83.)

So, is the claim made in the pamphlet incorrect or not? From the black-letter legal perspective, yes; proposals for changing the law to allow same sex couples to marry have not included any direct authorisation of the Safe Schools agenda. However, the claim needs to be seen in its context. The Australian Conservatives pamphlet was issued in the midst of a political debate where what is at stake is not simply the immediate change to the law, but the pragmatic question of what will follow from this change. The view being put is that it will be a consequence of changing the definition of marriage to make gender no longer relevant in marriage, that there will be increased support in government circles for a school program which stresses the irrelevance (and “fluidity”) of gender in all aspects of life. Put in that way, I think the claim is one that has some validity.

Indeed, one can in fact see this consequence again in the UK. Recently the UK Minister for Equality, Justine Greening, announced wide-reaching changes to “streamline” processes by which a person can register a change in their sex without medical advice. In doing so she is said to have commented that this was a result of a movement which included the change to marriage in 2013:

Justine Greening, the UK minister for women and equalities, called the move to give more rights to transgender people the third great “step forward” after equality for women and the legalisation of same-sex marriage in 2013.

These changes around the area of “gender fluidity” are clearly closely connected to educational changes requiring children to be taught from a young age that there is no such thing as a “real” gender, an underpinning of the Safe Schools program. (For commentary on these issues from the UK in response to these announcements, see here.)

The other aspect of the statement which is critiqued in Professor Louden’s Fact-Check is that in no States or Territories is it said that the Safe Schools material (even where it will continue to be offered by individual jurisdictions) will be “compulsory”, in the sense of it being required by the Government that it be offered at every school. This is true, but there is an interesting caveat offered by one of the Fact-Check’s “fact-checkers”, Murray Print, Professor of Education at the University of Sydney:

There is one clarification regarding the term “curriculum”. Many people argue that the school curriculum is the list of school subjects that are taught to students. Safe Schools is not required as a school subject, or within a school subject.

Others claim “curriculum” consists of all the planned learning offered to students. Using this definition, if an individual school or state required Safe Schools to be part of the student learning experience, then it would become a mandatory part of a school curriculum. Even in such cases, the engagement with any program would be the responsibility of individual schools. Again, this has no relation to the outcome of the postal survey, or any subsequent legislation.

While not challenging the overall thrust of Professor Louden’s comments, Professor Print makes the important point that, even if no jurisdiction makes the material compulsory for all schools, from the perspective of a concerned parent, if the school their child attends decides to adopt the material, at that point it will be “mandatory” for that child. (And no doubt the political pressure on schools to offer this material will be very strong.)

These are important caveats that, with respect, I think ought to have been made very clear. Reasonable minds may differ on whether, as a pragmatic political outcome, support among educational authorities for the Safe Schools program will be increased by a “Yes” vote for same-sex marriage. For a child whose school has adopted the material if there is such an increase in support, it will become “mandatory”, and there is no guarantee that parents will be allowed to object to their children being taught this material. In these senses the claim made in the advertising, while debatable, has not been clearly shown to be “incorrect”.

Conclusion

Concerns over religious freedom and the consequences of a change to the fundamental nature of marriage are genuine concerns that, in my view, constitute good reasons for the Australian public to be very cautious about making this change, particularly in the absence of any clear indications as how religious and parental freedoms will be protected. In my view these (as well as other reasons I have set out previously) are good reasons for voting “No” in the current survey.

In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Neil Foster, of Newcastle, NSW.