The Marriage Amendment (Same-Sex Marriage) Bill released by Attorney-General George Brandis earlier this year is the first marriage equality amendment released by a sitting government, and is a promising step forward. But it does contain exemptions that would allow discrimination against same-sex couples.
Starting with the core purpose — achieving marriage equality — the proposed bill will change the definition of marriage from being between ‘a man and a woman’ to ‘two people’ regardless of their gender. Even though the title of the Bill says ‘same-sex marriage’, transgender and gender diverse people will be able to marry their partner as well. The Bill will also recognise same-sex couples who have married overseas, including those previously married before the Bill becomes law.
Currently, ministers of religion can refuse to marry a couple for any reason, subject to anti-discrimination laws (for example, a minister cannot refuse to marry an interracial couple). The proposed bill explicitly states that a refusal to marry a couple because they are not a man and a woman can be based on the minister’s religious doctrines, tenets or beliefs or to ‘avoid injury’ to the religious beliefs of followers of the minister’s faith. This religious exemption is in line with current religious exemptions in the Sex Discrimination Act and is reasonable to protect the religious freedom of ministers of religion.
However, we do prefer the wording in the current Marriage Act or previous proposed Bills, because they do not single out same-sex couples as a target for discrimination and are a neater and simpler way of achieving the same outcome.
The proposed bill states that civil celebrants can also refuse to marry a couple because of their religious beliefs. While a religious exemption for ministers of religion can be justified and is in line with existing legislation, this exemption cannot be supported for civil celebrants who are authorised to play a secular role by the state in marrying couples. Internationally, very few of the countries who have introduced marriage equality have allowed a religious exemption for civil celebrants based on their personal religious beliefs.
The Bill would also allow for religious bodies and organisations to refuse to provide facilities, goods and services ‘for the purposes of’ or ‘reasonably incidental to’ a marriage. This means that a religious body or organisation could refuse to provide a church hall for a reception following a wedding between a same-sex couple.
However, the Bill does not define ‘religious body or organisation’, so it is unclear how broad this exemption would be. But the current wording could potentially have a much broader application than just the church hall. We have been unable to find a single country that, when legislating for marriage equality, has created a new exemption for religious bodies and organisations to discriminate in this way.
Australian federal law already allows bodies "established for religious purposes" to discriminate when it accords with their religious doctrines, tenants or beliefs or it is necessary to avoid injury to the susceptibilities of adherents to that religion. This means this additional clause in the Bill is unnecessary and adds additional complexity to the law for no reason.
However, the Bill would not allow for individuals who have an objection to same-sex marriage on religious grounds to refuse to provide facilities, goods or services (for example, individual bakers or photographers). It also does not allow general commercial businesses or other non-religious organisations to discriminate. This aspect of the Bill is positive, because this type of provision would have unwound existing protections against discrimination for LGBT people and placed Australia in the dubious position of being the only country to have achieved marriage equality that also enacted this level of discrimination for wedding services like florists, bakers or caterers.
The proposed bill would also allow ministers of religion and civil celebrants to refuse to marry a couple because of their ‘conscientious belief’. This is a new form of exemption that is not currently included in anti-discrimination laws and is not defined in the Bill.
In practice, this would allow for a civil celebrant who does not support two men marrying each other to refuse to marry them when this is based on a ‘conscientious’ belief that is not based on a religious belief i.e. a moral view against homosexuality based simply on prejudice rather than religious doctrine.
These exemptions would set a new and dangerous precedent that undermines long-established principles of Australian discrimination law. They would also create significant uncertainty for couples who would not know whether a minister of religion in a church that supports marriage equality or a civil celebrant advertised on a website for a peak body that supports marriage equality may nonetheless refuse to marry a couple. Experiencing this kind of discrimination at a time when a couple is trying to celebrate their love and commitment to each other has the potential to mar the joy they should feel in entering into a marriage together.
At a broader level, these kinds of exemptions risk undermining the spirit and purpose of the reform — that is, achieving equality in law for all couples.