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