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.

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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.