Is denying same sex marriage unconstitutional?

An article in The Conversation on 30 August 2016,  “Marriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional” by academic Dr Luke Beck, Lecturer in Constitutional Law at Western Sydney University, suggests that, far from proposals to redefine marriage to include same sex couples being a threat to religious freedom, the current law (which does not recognize such relationships) is itself in breach of free exercise of religion principles.

Dr Beck, it has to be said, is one of Australia’s foremost legal experts on s 116 of the Constitution (I regularly cite his many articles on the topic to my students in the “Law and Religion” course I teach.) So it is with some hesitation that I have to say I disagree with his view on this issue. But disagree I do.

As I understand his argument, it proceeds in this way:

  • Section 116 of the Constitution prevents the Federal Parliament from enacting a law that “interfere[s] improperly with religious freedom.”
  • Under s 47 of the Marriage Act 1961 as it now stands, a minister of religion may decline to solemnize any marriage, for any reason whatsoever. [Controversially, Dr Beck suggests that this would even allow a religious celebrant to decline to solemnize a marriage between a couple of different races, if he or she so chose. With respect, as we lawyers say, I am not quite so sure about this. The opening words of s 47 are “Nothing in this Part…(a) imposes an obligation…”. That is, no rule otherwise laid down by Part IV of the Marriage Act 1961 imposes such an obligation. But there is surely an argument that, for example, another valid piece of Commonwealth law, such as the Racial Discrimination Act 1975 s 13, forbidding a refusal to supply “services” to a person on race-based grounds, would make such an action unlawful?]
  • This provision, s 47, then, will prevent ministers of religion being required to solemnise same sex marriages, should such be introduced. “Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages.” [For avoidance of doubt, as noted above, s 47 should probably be expanded to refer to “other laws” not having such an effect, as well as negating the operation of Part IV.]
  • But there are some ministers of religion who would like to solemnise same sex marriages at the moment.
  • However, the current Act prevents this happening. Dr Beck refers by way of a link to s 101 of the Act (which refers to persons solemnising marriages who are unauthorised to do so), but I would like to suggest his case would be stronger if he referred to s 100:

“A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.”

  • There is an interesting technical debate about whether a purported “marriage” under the current law between two parties of the same sex would be “void” or not (or a “nullity”), but I think one could pretty clearly say there was a “legal impediment” to the purported marriage. Section 5 of the Act currently contains a very clear definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
  • Dr Beck then adds that, even if a couple wanted a solely “religious” marriage ceremony, which was not to be regarded as a legally valid one, the law would prevent this happening. He says: “a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple.” Indeed, he points out that the same penalty is applicable for a minister who purports to conduct a religious ceremony for an opposite sex couple, without them having been through a civil ceremony.
  • On this issue, I think he is correct. The law of Australia has been established as it is, to discourage persons entering so-called “marriages” which are not actually recognized as such by the legal system. One obvious example is where a religious group might consider it within their system to marry a 14-year-old girl, for example. If the law allowed an “apparent” marriage of this sort to take place, it would be confusing for the parties and others, and likely to lead people to think the marriage was valid under Australian law, when it is not. For this reason all purely religious ceremonies that purport to “marry” are forbidden, except where the parties concerned have gone through a prior valid civil ceremony.
  • Indeed, the present Chief Justice of the High Court, French CJ, when he was a trial judge in the Federal Court, commented on this matter in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) when he noted that the religious freedom of “non-recognised” religious groups was preserved by the provisions of s 113 allowing a minister of such a group to conduct a religious ceremony:

    “the provisions of s 113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister” (at [14]).

However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

My main reason is that (as Dr Beck would no doubt agree) a person’s religious commitment is not an automatic “trump card” when other principles arise. Not every law that is contrary to a person’s private religious commitments is an “undue” restriction on religious freedom. A law that prevented a revived Aztec priesthood from conducting ritual human sacrifices at noon would be perfectly valid. The law currently forbids marriage under religious law of 14 year olds. It does so for a valid public policy reason concerning child protection. The law currently forbids a celebrant from purporting to solemnise a same sex “marriage”. Agree with that law or not, it does so for public policy reasons related to the support for the traditional view of marriage as between a man and a woman. That is a public policy stance which was articulated with clarity in Federal Parliament by the bi-partisan support for an amendment in 2004 inserting a clarifying definition of marriage into the Act to make it clear that same sex unions celebrated outside Australia would not be recognized as “marriages” within Australia, despite our otherwise generous recognition rules for such marriages. (This 2004 amendment, of course, did not effect a fundamental change in the Australia law, as is sometimes suggested. The definition of marriage as between a “man and a woman” was already contained in another part of the Marriage Act 1961 itself when first enacted, in s 46; and it was later enacted as part of the Family Law Act 1975, s 43.)

To again quote from the decision of French J (as his Honour then was) in Nelson v Fish, at [13]:

“The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution – Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is “subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order” (p 155 per Starke J. – see also 132 per Latham C.J.).”

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

Dr Beck comments that: “There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants.” But the very same logic would justify allowing a polygamous marriage ceremony to take place, or an under-age ceremony, or one where the parties are not both fully consenting, under religious views. Australian law has long taken the view that, in the interests of maintaining clarity about who is married to whom, religious marriage ceremonies may not be conducted where there has been no prior civil ceremony. Community confusion will be bound to be created in these cases, even if (as would by no means always be the case) all the parties who were present were completely clear about the non-binding nature of the ceremony. (I have commented on these issues in a previous paper on the question of whether churches who disagree with the introduction of same sex marriage ought to withdraw from the marriage system if it is introduced.)

There may also be some doubts about the fairly wide view of the operation of s 116 which Dr Beck impliedly supports. On this issue in fact I tend to think he is correct, that the provision ought to allow a challenge to Commonwealth legislation when it “interfere[s] improperly” (to use Dr Beck’s phrase) with religious freedom; or when it amounts to an “undue infringement” of the right to free exercise of religion, as it was put by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 128. There are, however, some authorities which suggest a much narrower scope to the s 116 protection of religious freedom: that it would only prevent a law the main aim or purpose of which was to impair religious freedom: see eg some of the comments in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, esp per Brennan J at 40; more recently Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) at [145]-[150]. I think, however, as Dr Beck seems to suggest, that there is a sound case to be made that the prohibition on interference with free exercise of religion operates more broadly. For example, I would certainly want to maintain that a law recognizing same sex marriage, which required all ministers of religion to celebrate such marriages, would be unlawful under s 116. And my view is s 116 may in fact also operate to protect other religious participants in the “wedding industries” from being required under other Commonwealth laws to provide their artistic services in the celebration of same sex unions.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

Despite Dr Beck’s optimism that the introduction of same sex marriage will not “presage an attack on religious freedom and people of faith in the Australian community”, unless careful consideration is given to these issues, this is likely, in fact, to be the outcome. Of course the freedom of religious groups to allow their ministers to conduct same sex weddings ought to be protected, if the institution of marriage is to change in the way proposed. But it is not those religious groups who find themselves under regular attack from media and politicians alike as “bigots” and “homophobic”. To quote Sir John Latham again, from the landmark Jehovah’s Witness case:

“such a provision as 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).”

Heartbreak, Humiliation and a Death Certificate

“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

Continue reading

Religious Freedom conference presentation- video available

It seems that our “Religious Freedom in a Multicultural World” went well. I certainly enjoyed the day and was very grateful for the top class speakers we had. For those who are interested, the video of my presentation on the day is now available. The paper which goes along with the talk can be downloaded here. It was entitled “How should religious marriage celebrants respond if same sex marriage is introduced in Australia?” Regular readers of this blog will notice that it combines some discussion from previous blog posts on the issue, but also adds some extra material setting the scene at the beginning.

Paper on churches withdrawing from marriage if same sex marriage is introduced

We had what seemed to be a very well-received conference on Religious Freedom in a Multicultural World on Friday; we hope to make audio and possibly some video available soon, which I will mention here. In the meantime, for those who are interested, the paper I presented is available here. I hasten to add that regular readers of this blog will experience, as the recently deceased Yogi Berra used to say, “deja vu all over again”, because much of the content was taken from some blog posts and interaction with my friend John McClean. But I have added some more material at the beginning setting the scene, and hopefully bringing it all together into one spot will be useful.

Religious Freedom in the Newcastle Herald

Today I had an opinion piece in the Newcastle Herald entitled “Free to live by one’s beliefs“. The issues raised here are among those to be discussed at the Religious Freedom in a Multicultural World conference to be held at Newcastle University this Friday September 25. If you would like to come, see the website here for details and a link to register. (By the way, if you are a pensioner or in receipt of Government assistance generally, you can register at the Student rate of $25 rather than the full rate!)

After the conference I will be posting the paper I am presenting on this blog, and I hope that the other talks will be recorded so we can share them more generally.

Same sex marriage: referendum or plebiscite?

The debate on same sex marriage in Australia has changed dramatically in recent days. The current Liberal and National Party Coalition Government went into the last Federal election promising to maintain the definition of marriage as between a man and a woman. Subsequently some members of the Liberal Party indicated that they were personally in favour of recognising same sex marriage. (As previously noted here, in Australia at the moment it is clear that change in this area will have to come from the Federal Parliament in some way, as the High Court of Australia has made it clear that States and Territories cannot over-ride the Federal law on the matter, and that court is not at all likely to find an “implied constitutional right” to same sex marriage as was done recently by the US Supreme Court in the Obergefell decision.)

In response to pressure from the members of his own party, the Prime Minister, Tony Abbott, who has long signalled his desire to maintain traditional marriage, called a meeting of the party room to discuss whether or not members of the Coalition should be given a “conscience vote” on the issue. (In the Australian version of the Westminster system, party members almost always vote with their party on legislation in Parliament. Conscience votes, where members are free to express their own view without facing party censure in any way, are rare, and mostly reserved for the traditionally difficult “life or death” issues such as abortion and euthanasia. On the other side of politics, the opposition Australian Labor Party currently has a policy allowing its Parliamentary members such a vote on this issue; but at its most recent annual conference, it put in place a policy which means that support for same sex marriage will be a platform of the party from 2019, and at that point any ALP member of Parliament who disagrees will have to resign from the party.)

The result of the recent Coalition party meeting was that, by a 2/3 majority, the meeting voted to maintain support for traditional marriage as formal part of party policy. This means that, in theory, an individual Coalition MP or Senator could choose to “cross the floor” to support same sex marriage, but if they did so they would be unlikely to receive further advancement within the Government. In addition, members of the Cabinet are now bound to support traditional marriage, and if they wish to depart from that policy will have to resign their posts as Cabinet ministers.

Following the meeting, however, the Prime Minister announced that, at some stage in the future, the Coalition would undertake to hold a broad public vote to determine the extent of support for change in the Australian community. Some matters are still unclear, however. The timing of such a vote is uncertain: would it be prior to the next Federal election? Held at the same time? Following the election? In particular, there is ongoing debate over the legal form such a vote would take. The main choices seem to be between a referendum and a “plebiscite”.

There are important differences between these two options. A referendum is the means by which the Australian Constitution is amended, under s 128. (As this excellent review piece by electoral commentator Anthony Green notes, the word “referendum” is not used in the Constitution, but the word, in the Federal sphere at least, has come to be applied to the s 128 process). Procedures for setting and arguing a referendum question are reasonably clear. Such a vote could only be successful if supported by a “double majority”: an absolute majority of the voters, and also by a majority of voters in a majority of States. On the other hand, a plebiscite is a more generic term which simply refers to a vote on an issue, which presumably (unless Parliament decided otherwise) would simply require a majority of voters to approve it. Anthony Green notes that historically there have been only three plebiscites held in Australia, two during World War I about conscription, and one to vote on a new national anthem.

What are the relevant issues needing to be resolved to choose between these options, should they proceed? (It should be said that the ALP has indicated that, if they are returned at the next election, they will immediately put the matter to the Parliament. So there may not need to be such a vote in that case. On the other hand, if this happens before 2019, and given that there are some ALP members of Parliament who are known to support traditional marriage, the proposal might once again not succeed. In which case the national vote might come back onto the agenda!)

Jeremy Gans in a brilliant piece in the “Opinions on High” blog from Melbourne Law School does a great job of summarising the options. Which one is preferred by any particular commentator will be partly affected by their view on the best outcome.

Referendum

There are at least two important questions about a referendum on this topic. Is it necessary? What would be the effect of the vote?

As to the necessity of a referendum, opinions differ. What is clear is that, in its decision in Commonweath v ACT [2013] HCA 55 (12 Dec 2013) (the Same Sex Marriage case), the 6 judges of the High Court of Australia who decided that case took the view that the word “marriage” in s 51(xxi) of the Constitution was broad enough to allow the Federal Parliament to enact a law conferring that status on a same sex couple. However, with respect to the court, I disagree, and I am not the only commentator to suggest that this aspect of the Court’s decision is open to challenge (see articles by Professor Twomey, “Same-Sex Marriage and Constitutional Interpretation” (2014) 88 Aust Law Jnl 613- 616 and Professors Parkinson and Aroney, “The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case” (2014) 28 Australian Journal of Family Law 160-192.)

The problem as I see it is that the 2013 case was not in essence about the power of the Federal Parliament. The issue in that case was whether the ACT legislature could pass its own legislation recognising same sex marriage, contrary to the clear words of the definition in s 5 of the Federal Marriage Act 1961 (Cth) providing that marriage is a relationship between a man and a woman. For reasons spelled out in my earlier paper (which I urge the reader to consult, if only for the opening cartoon!), I maintain that the Court’s decision on this main point, that the ACT law was invalid in light of the Federal law, was correct; but that it was not necessary for that decision for the Court to rule on the wider point as to whether such a Federal law would be within power. I appreciate that the Court itself took the view that this issue was necessary to decide; I am simply not persuaded that they were correct.

In the paper I use a somewhat far-fetched example about “bankruptcy”, mainly because it is also a specific head of Federal legislative power, and it is also a personal “status” which the law regulates, like “marriage’. I suggest that one may conclude that a State or Territory law declaring all red-headed persons to be “bankrupt” is invalid due to the “covering of the field” of bankruptcy by the Federal Parliament, without  also needing to conclude that the Federal Parliament’s power would entitle it in its turn to pass such a law. It may be that no legislature in Australia has the power to bankrupt persons on the basis of their hair colour. While such a result may seem odd for those committed to the most expansive possible definition of Parliamentary sovereignty, it seems consistent with the nature of our Federation that some matters may just not be capable of being legislated, at least as the Constitution currently stands.

Of course there is an ultimate sovereign Australian legislator who could enable such a law- it is the Australian people, acting through s 128 of the Constitution, who could provide the Federal Parliament with all the hair-colour-based bankruptcy powers they need. And so with same sex marriage: a referendum altering s 51(xxi) could allow a law to be passed to recognise a same sex relationship as a “marriage”.

In my view, if such a change were to be introduced into the Australian community, this is how it should be done. There is, after all, some lingering doubt that the comments of the High Court in the Same Sex Marriage case might be regarded as obiter dicta, which could be put to one side by a later bench squarely presented with the issue. (As I and others have pointed out, it is particularly unfortunate that these comments were made in a case where there was no “contradictor”, because the Commonwealth, for whatever reason, effectively conceded the issue without real arguments, and neither party had come prepared to argue the point in any detail.)

Jeremy Gans notes some of the consequences of a successful referendum:

One possibility is that the referendum will succeed, writing the view of six High Court judges in 2013 permanently into the Constitution. While that won’t change the law, it will have the effect of barring a future High Court from disagreeing with that particular holding. Specifically, it would remove the power to decide from four future High Court judges, for instance stopping Gageler, Nettle and Gordon JJ (none of whom participated in the 2013 decision) from getting together with French CJ’s successor sometime after 2017 to rule that the federal parliament lacks power to enact a same-sex marriage law (effectively putting the political ball in the court of state or territory parliaments.)

In other words, Gans concedes (though does not support) the possibility that at least 4 out of a future 7-member High Court bench might possibly conclude that the earlier decision was wrong. (Another possibility, of course, is that one of the members of the 2013 bench may be persuaded to change their mind.) For supporters of same sex marriage, that ought to encourage them to see the referendum as a positive step, especially if the oft-cited statistic of 64% of the Australian people supporting same sex marriage is correct.

It is important, however, to spell out the consequences of a referendum either way.

  1. A successful referendum changing the law

On the one hand, the referendum might succeed. But the result of such a vote would simply be to authorise the Federal Parliament to enact a law allowing same sex couples to marry. One may presume that a Government which had put the question to the people would, when confronted with a vote in favour, go ahead and implement the wishes of the people. (The current Prime Minister has given such an undertaking.) But there would be no mechanism requiring them to do so. Still, I think it can be assumed that even a Coalition Government faced with a successful referendum would enact a law on the topic.

However, one issue which has not been satisfactorily resolved is the question as to whether explicit protections are to be provided for religious freedom, once such a referendum had passed. A number of recent commentators, including the Human Rights Commissioner, Tim Wilson, a supporter of same sex marriage, have pointed out that such protection will be needed.

Interestingly, there is a precedent already for protection of competing rights to be provided for in a Constitutional referendum. Section 51(xxiiiA) was added to the Constitution in 1946, after World War 2, to allow the Commonwealth Government to continue to make payments of various pensions and benefits which it had been previously been making, but which had been found to be not supported by an existing Commonwealth head of power. It provides that the Commonwealth Parliament has power to legislate for:

“the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances”.

The meaning of the bracketed words, “but not so as to authorise any form of civil conscription”, has been the subject of some debate in subsequent decisions of the High Court (see British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (7 October 1949); General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532 (2 September 1980); Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 (2 February 2009)). However, at the very least they provide protection to doctors and dentists from being “drafted” into government service against their will.

If a referendum is to add a specific provision allowing same sex marriage, it would seem to be wise to include some such words of protection for religious freedom and conscientious objection. Such protection is required, in the face of increasing evidence from other parts of the world where same sex marriage has been introduced, that “wedding support” businesses are being penalised where the business owners object to being “conscripted” into celebration of unions which they find, for deeply held reasons of religion or conscience, unable to support. (See previous posts here and here dealing with some of these cases.) Perhaps some such wording as the following would be suitable for an amended s 51(xxi):

“(xxi) Marriage, including marriage of persons of the same sex (but in that case not so as to authorize undue interference with the free exercise of religion or belief by those asked to celebrate or provide creative support for the relevant ceremony).”

The reference to “creative support” here is intended to cover those who are asked to devote artistic talents to a ceremony, such as wedding cake makers, florists or wedding photographers, but not to include those simply asked to provide ordinary commercial services such as the provision of food or the hiring of secular premises. (The only danger of including such a specific provision is that it might be said that this precludes recognition of other circumstances where religious freedom ought to be recognised, but it should be made clear in the enacting law that this is not the intention. Where s 116 of the Constitution would generally require protection of “free exercise” of religion in other circumstances, it should continue to do so.)

2. A referendum which fails to change the law

Suppose, on the other hand, that a referendum were unsuccessful? In that case presumably the Government of the day would feel free not to proceed with proposals to change the law. But then what would happen should that Government be replaced by another with the Parliamentary power to enact same sex marriage legislation? Would the failure of the referendum mean that legislation could not be enacted?

It seems fairly clear that this would not be the case. In other words, even if a referendum to introduce same sex marriage were to fail, there would be nothing to stop a later Parliament from enacting a law, based on a view that the comments in the 2013 High Court decision in the Same Sex Marriage case were correct.

Jeremy Gans puts it this way:

But what about the other possibility (one presumably hoped for by many of the referendum’s current proponents), that the referendum will fail (either by failing to attract a majority of Australian voters, or failing to attract a majority of voters in at least four states)? That would leave the Constitution unchanged, but could it affect a future High Court’s willingness to revisit its earlier rulings (e.g. on the basis that the referendum signals that the Australian people disagree with the 2013 ruling?) In a 1997 case on whether territory governments could acquire property without just terms, Gaudron J and Kirby J split on whether the fact that a majority of ACT residents voted against a 1988 referendum on this issue could be taken into account. In 2006, a majority of the High Court firmly rejected relying on failed referenda in the decision upholding the Howard government’s workplace relations law… {quoting that case}.

Assuming a future court agrees, this ruling implies that a failed referendum on same-sex marriage would have no legal effect at all on how that issue is eventually resolved. Of course, the referendum could well have a political effect, not only on politicians, but also, perhaps, on the willingness of Australia’s judges to issue holdings that differ from a clearly expressed public vote.

So the failure of a referendum, while one might think that it should send a signal to politicians that the Australian people as a whole disagree with the change, might not mean that the change could not be attempted; and in those circumstances, the High Court would simply have to interpret the Constitution as it stands.

A plebiscite?

Would a plebiscite give any more certainty? Fairly clearly it would not. Even after a successful plebiscite on the issue, Parliament would not be obliged to pass such a law (though the political pressure would be strong.) And similarly, should the plebiscite fail, supporters of same sex marriage would, if they could command a majority in both Houses of Parliament on the issue, pass a same sex marriage law.

That is not to say that such a vote would not be useful. It would provide some resolution to the perpetual debate over polls which seem to offer widely differing results, depending on the question which is asked. “Do you favour marriage equality?”, for example, seems to be bound to receive a positive answer. “Do you think a child should wherever possible be raised by their biological mother and father?” is likely to also receive a positive answer, even if the person being surveyed does not realise that a positive answer to question 1, may preclude, or at least impact on, a positive answer to question 2. The framing of a plebiscite question is likely to be one of the most contentious debates in the area.

Referendum or plebiscite?

Finally, to come at last to the question posed by the title to this post, which is preferable? I ought to make clear what most regular readers of this blog will know already: my own view is that same sex marriage will be bad for the community, and so I would be opposing the change in any vote, and would continue to argue against such a change whatever the outcome.

But I maintain that I still have a right to have a view on the process to be followed, if such a change is to be made. And my view on balance is that a referendum is preferable. The cynical may suggest that this is because I know that referenda in Australia rarely succeed. But even if that were not so, I believe that a foundational and fundamental societal change of this sort ought not to be made without providing a clear basis for it in the document which forms the grundnorm of the Australian legal system. As noted previously, if there is no such change the question of the validity of Federal legislation on the topic will remain in some, even if slight, doubt. In addition, a binding referendum can provide, if framed as I suggest above, religious freedom protections which are carved into the bedrock of the change, rather than being subject to the winds of Parliamentary change. That, at any rate, is my view at the moment.

More on withdrawal of churches from solemnising marriage

My friend Dr John McClean has posted a thoughtful response to my previous post on this topic; John’s response can be read here. I will have my own response once I have had a chance to think it over, but in the meantime I recommend it to those who are interested in this “internal” debate among those concerned about the consequences of same sex marriage from a shared commitment to the truth of the Bible.

Should Christian churches withdraw from marrying if same sex marriage is introduced?

The above question has been raised in Australia by news that the Assembly of the Presbyterian Church in NSW has recommended to its national body that ministers of the Church should withdraw from performing legally recognised marriages should proposals for recognising same sex marriage proceed. (I have discussed previously the situation with same sex marriage in Australia, noting that at the moment it is generally regarded as a matter for the Federal Parliament to decide.)

Many Christians who take the Bible seriously take the view that homosexual practice is contrary to God’s will for humanity as expressed in the Bible. (See, for a recent clear and careful analysis of the Biblical position, this post from the Principal of Moore Theological College in Sydney.) But, despite an increasing trend to civil ceremonies, many marriages are still conducted by ministers of religion. Other churches and groups around the Western world have suggested, in light of the adoption or possible adoption of same sex marriage by their governments, that Christians who believe this is so ought to withdraw from the solemnisation of marriages altogether. The logic of many of these arguments was expressed by a spokesman for the NSW Presbyterian Church, Rev John McLean, as follows:

It would still be possible to form a life-long monogamous heterosexual union under a changed act. But the act, and the way Australian society will use it, will be so different from the classic Christian view that the rationale for the church sharing in the system will have gone. From the church’s point of view, a wonderful blessing from God would be largely emptied of its meaning and purpose. It might be better for us not to be part of a system which endorses that.

But does it follow that Christians who object to same sex marriage on Biblical grounds should withdraw from solemnising legally binding marriages? I would like to suggest that it does not, and that the arguments presented in favour of this view are flawed.

(Perhaps I should note that, while most of the material I post on this blog is relevant to the community generally, to some extent this debate is a “family discussion” within the Christian church, of which I am of course a part. Observers who are not involved may wish to move on at this point! But I would like to address these issues to fellow believers, as I think there are some dangers in the course of action being proposed.)

The arguments in favour of withdrawal

Many of those who argue for withdrawal from a system that recognises same sex marriages do so from a position somewhat similar to that noted above- that the “institution” of marriage would be so changed by this development that it would be no longer right for Christians to support it. We may call this the “institutional change” argument.

Others have put forward the argument in terms which suggest that they think it will contribute to religious freedom. Concerned at the prospect of clergy being forced to conduct same sex weddings, they argue that if the church stops conducting weddings at all, then there will be no legal grounds for such an action. This is the “clergy religious freedom” argument.

These seem to be the main two arguments that are presented in favour of withdrawal.

The current situation with religious celebrants

It seems best, before addressing these, to outline the current position of religious celebrants in Australia. Under s 51(xxi) of the Commonwealth Constitution, the Federal Parliament has a concurrent legislative power over the topic of “marriage”. Prior to 1963 the Federal Parliament had not exercised that power in any substantial way, but with the commencement of the Marriage Act 1961 (Cth) (the Act) it took over the whole area from the States. The Act regulates the whole topic of the celebration and validity of marriages in Australia.

There are currently four categories of persons authorised under the Act to solemnise legal marriages in Australia (“authorised celebrants”). They are (1) ministers of religion of “recognised denominations”- Part IV, Div 1, Sub-div A of the Act; (2) public servants who work at Registry offices- Part IV, Div 1, Sub-Div B; (3) persons appointed as “marriage celebrants” under Part IV, Div 1, Sub-Div C, who may be either “civil” celebrants, or (4) such persons who are ministers of religion but not associated with the major “recognised denominations”. The final category will then include ministers of small, independent churches, for example.

In the interesting decision of the present Chief Justice of the High Court, French J (as his Honour then was as a member of the Federal Court) in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) was asked to decide whether a “minister” of a group called “Gods Kingdom Managed by his Priest and Lord” should be recognised as a marriage celebrant. The case sets out the administrative guidelines used by the Attorney-General’s Department to determine whether or not a group is a “recognised denomination” under s 26 of the Act (see para [4] point 5), and whether or not someone should have been appointed as an independent “religious” celebrant under the provisions of s 39(2) of the Act as it then stood.

(Those who are interested in the history of the law relating to the need for the presence of a celebrant at the celebration of a valid marriage, and what that presence involves, may like to consult the fascinating case of W and T [1998] FamCA 49 (7 May 1998), holding that an authorised celebrant who was at the back of the church while promises were taken by someone else, was to be regarded for the purposes of the Act as “solemnising” the marriage.)

The list of “recognised denominations” for the purposes of s 26 of the Act may be found here. It includes, of course, the Presbyterian Church of Australia.

Withdrawal for celebrant religious freedom reasons

Would it be a good idea for a church to withdraw from a system that recognised same sex marriage to avoid ministers of that church being obliged to solemnise same sex marriages? In my view this would not be necessary under any plausible proposals for same sex marriage in Australia in the near future.

All proponents of the change have said that they would not require ministers of religion to perform same sex weddings. The most recent draft Bill introduced by the Leader of the Opposition on 1 June 2015, for example, provides, in Schedule 1 clauses 5 & 6, an amendment to s 47 of the Marriage Act1961 which says that that a minister of religion may not be obliged (by the Marriage Act or any other Act, such as a law prohibiting sexual orientation discrimination) to solemnise a same sex marriage. Protections of this sort were introduced in the UK when that country’s Marriage (Same Sex Couples) Act 2013 was introduced- see the complicated section 2 of the Act, accompanied by an amendment to the Equality Act 2010, s 25A, which explicitly provides that there is no breach of sexual orientation discrimination laws by a member of the clergy declining to be involved in a same sex wedding. (The complex nature of these provisions, however, seems to point to the need for much more careful drafting than the somewhat minimal s 47 amendments proposed in Australia at the moment.)

There is no denying, of course, that if same sex marriage is introduced there may be political pressure put on ministers of religion to solemnise same sex marriages. (See this report from the UK indicating that, even with the so-called “quadruple lock” protection for the Church of England under their legislation, two same sex activists were threatening to take the church before the European Court of Human Rights to enforce a right to be married in their local Church of England building.) However, it seems to me that that is a battle to be fought in the future. If the law were to change to require all marriage celebrants to solemnise same sex weddings, then consideration could be given at that stage to withdrawal from the system. (Although it would seem to be arguable that such a law would be so extreme that it might even breach the fairly minimal religious freedom protections provided by s 116 of the Constitution, and could be challenged on that basis. See my previous post for discussion of religious freedom protections in general in Australia at the moment.)

Withdrawal on “institutional change” grounds

A stronger argument can be made that the institution of marriage would be so fundamentally altered by introduction of same sex marriage that churches should no longer support it. But in my view, again, this argument is not convincing.

The fact is that marriage as practised in Australia today already falls short of Biblical ideals of life long faithfulness and commitment. But, justifiably, churches continue to solemnise marriages under the current law. Marriage is not a special custom for believers; it is generally recognised that it is what the older theologians called a “creation ordinance”, designed for the general good of mankind. While some examples of marriages take place where the Bible may suggest they ought not to, the good achieved by Christian churches in celebrating marriages generally seems to outweigh the examples of cases where people are being married wrongly. (To give an example, many Christians take seriously Jesus’ words that there are very limited grounds that justify divorce. Yet a person who may have obtained a divorce from a previous marriage in circumstances which would not fall within the category recognised by Jesus, may under our law be free to remarry. The fact that such marriages currently take place, despite them being contrary to God’s word, does not of itself mean that the institution of marriage as a whole should be abandoned.)

There are a number of important benefits, from a Christian perspective, in Christian ministers being willing to solemnise marriages as part of the general legal system. They will have the opportunity to serve members of the community who may have no other contact with a church, by not only celebrating a joyful occasion with them, but also by explaining a Biblical view of marriage. They will have a chance, too, if the couple are interested, to explain other aspects of the Christian gospel. They will make a connection that may see the couple come back, either for themselves or with children who may come along later. Many of these opportunities may be lost if churches decline to continue to solemnise marriages for members of the community at large.

What model of withdrawal is suggested?

The details of any proposed withdrawal from the general marriage system are not yet clear. Most proposals suggest that ministers of religion would no longer be “authorised celebrants” under the Act, with power to solemnise a legally effective marriage. Some suggest that churches might then say that they will conduct some sort of religious “blessing” ceremony after a couple has been to a registry office to celebrate their marriage there. Presumably this could be offered to both church members and to those outside the church if they were interested. It should be noted, however, that a decision to specifically decline to conduct “same sex blessing ceremonies” would still arguably be viewed as a decision which was discriminatory on the grounds of sexual orientation, if those ceremonies were freely available to heterosexual couples. Ironically, the church may then find itself, if not conducting “marriages”, liable for discrimination actions, unless they were able to rely on a “balancing clause” in relevant legislation. (See my previous discussion of balancing clauses in discrimination legislation, noting that courts in the past have given a very narrow reading of such clauses, even in the case of religious organisations.)

It might also be noted that at the moment s 113 of the Act already makes provision for a “religious” ceremony which is separate from a civil ceremony. Under s 113(5), where a couple have been through a legally recognised marriage ceremony, and they produce appropriate documentary proof of the fact, then they are allowed to go through a religious ceremony in front of a minister of religion, who does not need to be authorised to conduct marriages under Australian law. Any document issued by the minister, however, has to specify that the parties were already legally married. The provision seems to have been introduced to allow parties with strong religious convictions, but whose minister was not authorised under the Act, to have a specifically religious marriage ceremony. If an individual minister of religion chose to withdraw from the civil marriage system, they could presumably use the provisions of s 113 to conduct a religious ceremony after parties had been through a civil ceremony.

The detriments of withdrawal

Having briefly considered arguments in favour of withdrawal from the marriage system, let me outline a number of detriments which I see as flowing from such a decision. I have already noted the risk of losing contact with those outside the church who would no longer come where the churches were not providing the service of “marriage”.

Another set of problems arises from the simple fact that the legal system over many, many years has developed an interconnected set of doctrines and principles dealing with the status of marriage, its legal consequences, how it may be terminated in divorce or nullity, and the consequences of such termination for the rights of the parties, including property allocation and child custody issues. Yet if a church proposed to offer its members a form of “religious marriage” distinct from “civil marriage”, it would have to soon start to find ways of dealing with this multitude of issues. What if the parties who entered a “religious marriage” broke up? Would the church develop a “religious divorce” procedure? Presumably if it had separated itself from the “civil marriage” system, then it could not simply rely on “civil divorce”. What would happen if the religious rules would justify a divorce, but the civil rules would not (or vice versa?) Will all churches recognise “religious marriages” celebrated by other churches or religions? What criteria would be adopted for recognition? Who would make the decision?

In short, all the many and varied issues that our legal system has wrestled with for centuries in dealing with the status of marriage, would be up for grabs if churches pulled out of the civil system and started trying to regulate their own “religious marriages”.

Another pragmatic reason for resisting the change would be the possibility for confusion among persons who had been through ceremonies at a church, as to whether they were married or not. If all the paraphernalia of approved forms and registers are no longer used, one’s experience of life suggests that proper records may not be kept, that not all parties will have gone off and got the “civil” marriage before the religious one, and that there may be some serious consequences down the track.

Conclusions

In my view, the Bible takes a very pragmatic view of marriage. While there are clear principles set out for what marriage should be (a man and a woman, able to consent, committed to each other in the sight of the community, for life to the exclusion of all others), through the history recorded in the Bible these rules were not always followed. To summarise what needs to be a long argument (which I explore in slightly more detail here in a piece from a few years ago), it seems to me that in terms of what is needed to constitute a valid marriage, the Biblical view is that a marriage recognised as valid by the community in which one lives, is a valid marriage. For when we have rules forbidding adultery, we need to know who is married to whom with a high degree of certainty. The Bible, it seems to me, knows nothing of people being “married in God’s sight” but not in the view of the community.

Hence it seems to me a bad idea for churches to withdraw from celebrating marriages before the moment (if ever) when they literally have to do so because they are being told to disobey God’s word. Marriage is a good thing; as the letter to the Hebrews puts it: “Marriage should be honored by all” (Heb 13:4). Christians should keep on offering this good thing to the community for as long as they are able.

Prison for “husband” in under-age marriage

It has just been reported that a 27-year old man has been jailed here in Australia for 10 years after pleading guilty to “persistent sexual abuse of a child”. The man, from Lebanon, had seen a 12-year-old at his local Newcastle mosque and began “pursuing” her to marry her. The leaders of the mosque he attended quite rightly told him that they would not perform the ceremony, as it was illegal under Australian law, but he managed to find another self-described “cleric”, Sheikh Muhammad Tasawar, an Iranian based at a different mosque, who agreed to perform the “ceremony” at a local house. Disgracefully, the girl’s father agreed. The man took his “bride” to Sydney and had sex with her on a number of occasions.

I commented about this case in a press report in February 2014, when at the time it had been reported that the “groom” had been arrested but there was no mention of the liability of the “cleric”. I noted at the time:

Section 100 of the Marriage Act 1961 makes it an offence for a person to “purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.” Anyone who carried out a wedding ceremony involving a 12 year old girl in Australia would have “reason to believe” that the marriage would be void, as they would be aware of the age of the child. They should be aware because s 42 of the Act requires a “notice of intended marriage” to be provided, which must be accompanied by a birth certificate for each of the parties. Section 99 of the Act also makes it an offence for an “authorised celebrant” to solemnise a marriage without requiring such a notice.

As it turned out, even on the day my opinion piece was published (so that I can’t take credit for it!), the police had already arrested the cleric. The latest article notes that

In March 2014,  Tasawar, 35, pleaded guilty to the offence of solemnisation of a marriage by an unauthorised person. He was fined $500 and his religious leader visa was cancelled.

The sentence of the husband was not for his breach of the Marriage Act 1961, although as I noted he had indeed breached that Act. But it seems a sensible decision to charge him, as was done, with the more serious offence of sexual relations with a minor. Sadly the report notes that the 12 year old girl was later hospitalised with an ectopic pregnancy, and miscarried. It is good to see that the court handed down a serious sentence for this terrible behaviour.

I concluded my previous note as follows:

Is this an interference with the right to free exercise of religion? Yes, it is to some extent. The right to religious freedom is a fundamental and important right, recognised in international law under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. Religious freedom under Commonwealth law is also recognised by the important s 116 of our Constitution. But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.

The authorities in Australia should be concerned if any religious group is conducting “marriage ceremonies” leading to relationships that are not regarded as valid marriages under Australian law. Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought. Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct “looks like” a marriage service but cannot lead to a recognised marriage under the law of Australia. As well as the under-age “marriage” involved here, another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions to evade the Australian law.

It is good to see that leaders of the major Islamic organisations have unreservedly condemned the alleged “marriage”. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted to send a clear message about the law, and in the interests of the vulnerable children or women who may be harmed by entering what they think are marriages, but are not.