With the commencement of the legislation adopting same-sex marriage for Australia today, 9 December, it seems worthwhile to note some more implications, following my initial comments on the change. The two I would like to address here are the changes to the “monitum”, the summary of Australian marriage law required to be recited by some celebrants; and the possible issues surrounding what I will call “rogue priests”, clergy in one of the mainstream Christian denominations who may wish to solemnise same-sex marriages when their denomination adheres to the historic Christian position that marriage is only between a man and a woman.
Legislation re-defining marriage to include same sex couples passed its final third reading stage in the Commonwealth House of Representatives this evening Australian time, December 7. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will soon become law when it receives the Royal Assent. In this post I want to start exploring some immediate implications for religious freedom and other “law and religion” issues.
Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.
Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)
I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.
An academic colleague suggested the other day that it would be good to post some recommendations for academic commentary on the same-sex marriage issues, for those who are interested in reading that goes a bit more in-depth than a standard blog post or opinion piece.
I thought this was a great idea. I have compiled the following list of reading from recommendations of legal colleagues who, like me, have serious concerns about the proposal to introduce same-sex marriage. In that sense it is not a ‘balanced’ list. Those who want to find enthusiastic academic support for introducing the reform will not find it hard to do so elsewhere. But some of these pieces may not be so widely read, and deserve to be better known. Some are quite recent.
Australia is involved in a debate about whether same sex marriage should be introduced. The question is being put to the electors in the form of a voluntary postal survey, the question in which is simply: “Should the law be changed to allow same sex couples to marry?”
The original intention of the current Government had been to put this question to the people of Australia in a compulsory plebiscite. This option being defeated twice in Parliament, the postal survey has been designed to be run without explicit authorising legislation. However, once it was decided that the survey would proceed, concerns were expressed that the debate might contain misleading and deceptive advertising, which would usually have been dealt with under the electoral laws (but since the survey was not being run under those laws, no such protections applied for the survey.) In addition, concerns were expressed about hateful and harmful speech on both side of the debate.
In response to these concerns, the Commonwealth Parliament today (in a rare example of swift bipartisan action) saw the introduction and enactment of the Marriage Law Survey (Additional Safeguards) Act 2017 (which has now received the Royal Assent, and become Act No 96 of 2017). The Act will come into operation on Thursday 14 September, 2017 (tomorrow, as I write.)
In the ongoing debates about same sex marriage in Australia (shortly to be the subject of a voluntary postal survey conducted by the Australia Bureau of Statistics, if it survives a High Court challenge), a number of professional organisations have decided to weigh in, in support of the “Yes” vote. The most recent such statement was issued by a combination of lawyers and doctors (see a press report of August 19 here, and the full text of the joint statement, by the NSW Bar Association president Arthur Moses, president of the Law Society of NSW Pauline Wright, and president of the NSW division of the Australian Medical Association Brad Frankum, is here.)
A number of lawyers around Australia, myself included, were concerned that this statement was not made after consultation with members of the various organisations, and in fact was misleading precisely at the point where one would expect a statement from lawyers to be accurate, in its statements about the law. The “Wilberforce Foundation”, an informal coalition of practising lawyers and legal academics committed to the preservation and advancement of common law values, rights and freedoms, has issued a press release expressing our concerns about the combined statement. The essence of the concerns are summarised in this press report of August 31. For those interested in the full text of the statement, it can be found here: Wilberforce Foundation Media Release .
It should be noted that the Australian Medical Association also issued a similar statement of support for the “Yes” case, which has also been subsequently challenged by a number of senior medical professionals as wrong on its assertions about a lack of peer-reviewed research on outcomes for children of same sex couples. As with the combined medico-legal statement, this AMA statement was not issued after consultation with members.
Finally, speaking of a lack of consultation, as I prepare this post I see that WordPress seems to have decided to add a “rainbow banner” to the top of my page, without asking me if I would like such. This of course is currently seen as a symbol of support for same sex marriage. As would be well-known to regular readers, that is not a cause I support. I trust others will not be confused by the banner (I am not sure whether it will appear on platforms on which the blog is read or not.)
The main event associated with the rainbow in the Bible, of course, was God’s judgement on humanity for its rebellion against his will (Genesis 6-9), and offer of salvation to those who chose to join themselves to his chosen Saviour. That is a message I am very happy to support, and so while it is imposed on me, that is the message I will choose to see in the rainbow.