Senator David Fawcett
Chair
Select Committee on the Exposure Draft of the
Marriage Amendment (Same-Sex Marriage) Bill
Department of the Senate
PO Box 6100
Canberra ACT 2600 By email: mailto:samesex.marriage.sen@aph.gov.au
Dear Senator Fawcett
Thank you for your invitation to provide a submission addressing the Select Committee’s inquiry into the Commonwealth Government’s exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill (“the Bill”).
Civil Liberties Australia (CLA) supports amendment of the Marriage Act (“the Act”) to provide for same-sex marriage in Australia. This submission does not set out the reasons for this support. Instead, as requested in your letter of invitation, we have specifically addressed below the terms of reference of the Select Committee’s inquiry.
Suffice it to say, however, that CLA cannot see any convincing argument for Australian law to maintain a discrimination against same-sex couples in relation to marriage. CLA urges the Parliament to amend the Act without delay and without recourse to an unnecessary and expensive (and potentially divisive) national plebiscite.
Religious freedom
The terms of reference for this inquiry suggest that the proposed new exemptions in the Bill are designed to “prevent encroachment” on religious freedom as a result of same-sex marriages. CLA’s purpose is to stand up for the fundamental rights and liberties of Australians – and religious freedom is one of these core liberties. However, CLA does not accept that same-sex marriage presents any risk of encroaching on religious freedom.
As such, CLA does not support the exemptions as proposed in the draft Bill.
CLA is a strong supporter of religious liberty as it has been traditionally understood and widely accepted. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) summarises this freedom as:
- the ability to believe in the God or Gods of one’s own choice, or in no God whatsoever, without interference or risk of persecution, and
- an ability to practise the core tenets of that religion, either individually or together with others holding similar beliefs.
We do not accept that the marriage of same-sex couples in any way encroaches upon the religious freedom of another person. Put simply, the marriage of a same-sex couple does not affect anyone else’s ability to hold their beliefs or practice their religion.
There has been an argument – mostly put forward in the context of the same-sex marriage debate – to radically expand the meaning of religious freedom. Under this argument, religious freedom requires the secular law of the land (and commercial practice) to bend to accommodate religiously-inspired prejudices or codes of conduct even where those laws do not in any way affect religious beliefs or practices.
Thus, so the argument goes, business operators must be given special dispensation to operate businesses in ways that conform to their interpretation of the doctrine of their particular religion, even though operating a business has nothing to do with belief in a god or the performance of rituals.
This argument goes against the ICCPR which explicitly states that freedom to manifest one’s religion or beliefs may be limited by law where this is necessary to protect the fundamental rights and freedoms of others or to achieve other public policy objectives. CLA strongly believes that laws against discrimination on the basis of sexual orientation fall squarely within the realm of laws that are necessary in this regard.
It also goes against Australian practice where the High Court, for example in the Scientology case, said “canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion”. Unlike in theocracies such as Iran, in Australia religious doctrine does not dictate the secular law.
With these comments in mind, CLA believes the proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations are poorly thought out. They have the potential to lead to unforeseen negative consequences and take Australian law in directions that are contrary to our secular and non-discriminatory traditions.
We believe that the overall intent of the Australian Constitution is quite clear, and provides sound guidance for approaching any proposed law where the outcome could be discrimination against people undertaking same-sex marriage:
- The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Section 116 of the Constitution will not permit a new right, under the proposed law, which would impose “religious observance” as a barrier in commercial terms to the traditional rights of people planning to marry (re choice of apparel, cakes, limousines and other niceties of ceremony).
(1) Ministers of Religion
It is not clear why section 47 of the current Marriage Act requires amendment in the way proposed in the Bill. The current sub-section 47(a) already allows ministers of religion to refuse to solemnise any marriage.
This section presumably allows ministers of religion to refuse, for example, to solemnise marriages on the basis of the religion (or lack of religion) of the couple intending to marry. Thus, Catholic priests would be under no legal compulsion to officiate at the weddings of Protestant or Muslim couples.
There is no justification therefore for singling out same-sex marriage for a special exemption as per the proposed new sub-section 47(3) of the Bill.
The purpose of amending the Marriage Act with this Bill should be to confer equal rights on same-sex couples as are currently enjoyed by other couples. In addition, it should provide for equal dignity of same-sex couples – a dignity that has been too long denied in this country by the Marriage Act and historically by other laws and regulations at the state and federal level.
It would be a perverse outcome if the language of the amendment explicitly singled out same-sex marriage because of supposed “injury to religious susceptibilities” of others.
(2) Marriage celebrant
The effect of the proposed new sub-sections 47A(1) and 47A(2) of the Bill is that marriage celebrants would be able to refuse to solemnise any marriage and for any reason. It is not clear why such a wide new exemption is necessary. Leaving aside the question of same-sex marriage, CLA is not aware of instances where marriage celebrants are being forced by the current Marriage Act to participate in marriage ceremonies where they would rather not. And, if such a wide exemption is being proposed, what then is the justification for specifically singling out same-sex marriage in sub-sections 47A(1)(a) and 47A(1)(b)?
If the Parliament decides that marriage celebrants should be allowed to refuse to solemnise any marriages as and when they please in line with the proposed sub-section 47A(2), there is no reason to single out same-sex marriages for a special exemption. CLA therefore recommends that sub-sections 47A(1)(a) and 47A(1)(b) be deleted. As per our comments above, singling out same-sex marriages in this way detracts from the equal dignity of these relationships and therefore defeats one of the central purposes of the Bill.
Furthermore, in the event that the broad exemption set out in the proposed section 47A is established, CLA recommends that the law makes clear that any public official acting as a marriage celebrant as part of his or her official duties should not be entitled to this exemption. The role of a public official is to implement the law, not to pick and choose which laws they will implement.
Australia does not need to follow in the path of the United States where, in the name of religious freedom, some argued that an official in the state of Kentucky, Kim Davis, could hold an official position and draw a salary from the public but still pick and choose which laws she would implement and for which people.
(3) Religious bodies and organisations
CLA does not accept that the exemption proposed in section 47B of the Bill is warranted.
For example, CLA is not aware that religious bodies like churches, temples or mosques have been obliged under current law to make their facilities available to persons, or for the purposes of ceremonies, that do not conform to the religious principles of that body. For example, are churches required by law to make their church halls available for Hindu weddings or other Hindu ceremonies?
Why then is a special exemption required for same-sex marriages?
If the Parliament decides that churches, temples, mosques or other religious facilities require specific exemption in law to allow them to refuse to make their premises available for ceremonies that do not accord with their faiths, this can be provided for in the proposed new sub-section 47(B)(3). With this wide exemption, there is no need to single out same-sex marriages for a special exemption as per the proposed new sub-section 47B(1). As per our comments above, singling out same-sex marriages in this way detracts from the equal dignity of these relationships and therefore defeats one of the central purposes of the Bill.
Furthermore, it is not clear from the Bill what definition will apply to “religious bodies or organisations”. CLA strongly recommends that any such exemption apply narrowly to churches, temples, mosques and other institutions that specifically exist as a venue for worship and religious teachings and ceremonies.
As set out above, CLA rejects suggestions that businesses should be entitled to some form of religious exemption. Again, CLA holds the traditional view that religious freedom applies to one’s religious beliefs and practices, not to the operation of businesses. It does not entitle a person to expect that the law of the land applying to business practices or other public activities will bend to accommodate their religious doctrines where the rights and welfare of other people are affected.
Australia has a lamentable history in taking away people’s rights and dignity based on the colour of their skin, their race, their religion and their sexual orientation. In providing for marriage equality, CLA urges the Select Committee and the Parliament not to establish new grounds for discrimination.
Yours Truly
Dr Kristine Klugman OAM Tuesday 10 January 2017
President
Lead author: Rajan Venkataraman; associate author: Bill Rowlings