We need more anal­y­sis and less emo­tion in the mar­riage equal­ity de­bate

The Guardian Australia - - News - Bede Har­ris

The de­bate on mar­riage equal­ity has been strong on emo­tion but short on prin­ci­pled anal­y­sis. What foun­da­tions should guide us in de­ter­min­ing this ques­tion?

First and fore­most is the prin­ci­ple of in­di­vid­ual au­ton­omy in re­la­tion to per­sonal choices, which is a value that lies – or ought to lie – at the foun­da­tion of a free so­ci­ety. This prin­ci­ple was fa­mously ap­plied more than 50 years ago in the United States in the de­ci­sion of Gris­wold v Con­necti­cut. In that case, the supreme court struck down the law pro­hibit­ing the sale of con­tra­cep­tives. The court said that peo­ple have a right to pri­vacy, in the sense of a “zone of au­ton­omy”, re­gard­ing in­ti­mate life choices. The court held that the more in­ti­mate the area, the less jus­ti­fi­ca­tion there was for the state to in­ter­fere. Clearly the choice of mar­riage part­ner is among the most in­ti­mate one can make, and in 2015 the court ap­plied the same prin­ci­ple to in­val­i­date laws re­strict­ing mar­riage to het­ero­sex­ual cou­ples.

Apart from in­trud­ing on au­ton­omy, the pro­hi­bi­tion on same-sex mar­riage dis­crim­i­nates on grounds of sex­ual ori­en­ta­tion. At its base, mar­riage is sim­ply a con­tract li­censed by the state. Dis­crim­i­na­tion on grounds of sex­ual ori­en­ta­tion in re­la­tion to whom one may marry is there­fore as of­fen­sive as would be dis­crim­i­na­tion on grounds of sex­ual ori­en­ta­tion in re­la­tion to reg­is­ter­ing a trans­fer of land. Or, to put it dif­fer­ently, what prin­ci­pled dif­fer­ence is there be­tween re­strict­ing whom one may marry on grounds of sex­ual ori­en­ta­tion and re­strict­ing choice of mar­riage part­ners on racial grounds, as un­der apartheid in South Africa?

What of the ar­gu­ments raised by op­po­nents of mar­riage equal­ity that its le­gal­i­sa­tion would cause harms or in­fringe other rights?

We can dis­miss the bizarre ar­gu­ment that by recog­nis­ing same-sex mar­riage the in­sti­tu­tion of het­ero­sex­ual mar­riage would be harmed. A ra­tio­nal ba­sis for this ar­gu­ment has never been pre­sented, and it is dif­fi­cult to see how it could be – un­less its pro­po­nents be­lieve that the op­por­tu­nity to con­tract a same-sex mar­riage would some­how en­tice peo­ple away from het­ero­sex­ual unions, a line of rea­son­ing which would be valid only if one be­lieved that sex­ual ori­en­ta­tion was cho­sen rather than in­nate.

The sec­ond cir­cum­stance which needs to be con­sid­ered is the ar­gu­ment that re­spect for free­dom of re­li­gion re­quires that busi­ness peo­ple be en­ti­tled to de­cline in­volve­ment in same-sex unions. Lib­eral (now Con­ser­va­tive) sen­a­tor Cory Bernardi said that all busi­nesses should be able to dis­crim­i­nate “for any or no rea­son” (in­clud­ing against same­sex cou­ples), while Lib­eral Na­tional MP, Ge­orge Chris­tensen, said that venue own­ers, bak­ers and pho­tog­ra­phers should have the right to refuse cus­tom to same-sex cou­ples. Does this ar­gu­ment have any va­lid­ity?

First, the free­dom of re­li­gion ar­gu­ment cuts both ways: Among the clauses in the free­dom of re­li­gion pro­vi­sions con­tained in s 116 of the con­sti­tu­tion is one pro­hibit­ing the es­tab­lish­ment of any re­li­gion. Com­pli­ance with this re­quires that the state be sec­u­lar in its ap­proach to pub­lic pol­icy. Re­strict­ing mar­riage to dif­fer­ent-sex cou­ples re­flects a par­tic­u­lar re­li­gious per­spec­tive, and thus im­poses a re­li­gious view on oth­ers, con­trary to s 116. It is there­fore the pro­hi­bi­tion of same-sex mar­riage, not its le­gal­i­sa­tion, which con­sti­tutes a de­nial of re­li­gious free­dom.

Leav­ing aside re­li­gious cel­e­brants, who would not be com­pelled to marry same-sex cou­ples un­der any of the bills pre­sented to par­lia­ment – what of the ar­gu­ment that re­li­gious free­dom re­quires that peo­ple be able to refuse ser­vices to same-sex cou­ples?

A case of this type re­cently arose in the United States: The owner of a wed­ding cake shop re­fused to make a cake for a same-sex cou­ple. The Colorado court found that the shop owner had breached state law which pro­hibits dis­crim­i­na­tion on grounds of sex­ual ori­en­ta­tion in places of “pub­lic ac­com­mo­da­tion” – broadly de­fined as any place where a busi­ness of­fers goods or ser­vices to the pub­lic.

The case has now been ap­pealed to the US supreme court, where it is likely to fail. This is be­cause, in a line of cases from the civil rights era, courts in the US have pointed the af­front to dig­nity that is caused by dis­crim­i­na­tion and have up­held laws mak­ing it un­law­ful for busi­nesses to dis­crim­i­nate on pro­hib­ited grounds such as race, gen­der, dis­abil­ity and sex­ual ori­en­ta­tion. The mere fact that th­ese cases in­volved con­trac­tual re­la­tion­ships did not im­mu­nise them from the reach of anti-dis­crim­i­na­tion law. In other words, al­though mu­tual agree­ment lies at the heart of con­tracts, which can there­fore be said to be “pri­vate” in na­ture, once a busi­ness of­fers goods or ser­vices to the pub­lic, it steps into the pub­lic arena and breaches equal­ity rights if it dis­crim­i­nates on a pro­hib­ited ground. For this rea­son, the ar­gu­ment that the re­li­gious be­liefs of a per­son en­gag­ing in pub­lic com­merce en­ti­tle them to dis­crim­i­nate on grounds of sex­ual ori­en­ta­tion has no more va­lid­ity than did the ar­gu­ment, also re­jected by the supreme court, that the right to hold seg­re­ga­tion­ist po­lit­i­cal be­liefs en­ti­tled busi­ness own­ers to refuse cus­tom to African Amer­i­cans in restau­rants or bus sta­tions.

In any event, the en­tire re­li­gious free­dom ar­gu­ment suf­fers from a fa­tal flaw: Un­like in the case of a re­li­gious cel­e­brant per­form­ing a sacra­ment, the sale of a cake is not a re­li­gious act. That is why non-re­li­gious mar­riage cel­e­brants, cake-mak­ers, pho­tog­ra­phers and limou­sine driv­ers ought not to be al­lowed to dis­crim­i­nate in the pro­vi­sion of what are sim­ply com­mer­cial ser­vices. Un­less a busi­ness were to of­fer its ser­vices only to mem­bers of a par­tic­u­lar re­li­gion, there is no con­sid­er­a­tion of con­science which log­i­cally jus­ti­fies dis­crim­i­na­tion against peo­ple on the ground of their sex­ual ori­en­ta­tion.

In Aus­tralia, anti-dis­crim­i­na­tion law pro­hibits dis­crim­i­na­tion on grounds of sex­ual ori­en­ta­tion as well as on grounds of mar­i­tal and re­la­tion­ship sta­tus. It also pro­hibits dis­crim­i­na­tion in the pro­vi­sion of goods, ser­vices and fa­cil­i­ties and so would pro­hibit busi­nesses from en­gag­ing in dis­crim­i­na­tion against same-sex cou­ples. This is as it should be – and this is what op­po­nents of mar­riage equal­ity are try­ing to re­verse.

Bede Har­ri­sis se­nior lec­turer in law at Charles Sturt Univer­sity

Pho­to­graph: Rui Vieira/PA

‘In any event, the en­tire re­li­gious free­dom ar­gu­ment suf­fers from a fa­tal flaw: Un­like in the case of a re­li­gious cel­e­brant per­form­ing a sacra­ment, the sale of a cake is not a re­li­gious act.’

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