Mar­riage equal­ity's next fight: is free­dom to dis­crim­i­nate a right worth pro­tect­ing?

The Guardian Australia - - News - Gay Al­corn

Should a civil mar­riage cel­e­brant who holds an ortho­dox Is­lamic view op­pos­ing same-sex mar­riage have the right to refuse to of­fi­ci­ate at a wed­ding be­tween two men?

Should an athe­ist baker whose opin­ion is that mar­riage should only be be­tween a man and a woman be re­quired to bake a wed­ding cake for a same-sex cou­ple? What about a chauf­feur booked to trans­port a cou­ple to church?

Or a Catholic ho­tel owner? Could a ho­tel de­cline to host a re­cep­tion, or to rent a hon­ey­moon suite to mar­ried women?

Aus­tralia’s tor­tu­ous same-sex mar­riage de­bate has come down to squab­bling about bak­ers and florists but at heart it’s about this: the ten­sion be­tween the rights of LGBTI Aus­tralians to have their mar­riages treated the same as any­one else’s once same-sex mar­riage is le­gal, and the rights of the re­li­gious not only to hold a tra­di­tional view of mar­riage, but to dis­crim­i­nate against gay and les­bian peo­ple ow­ing to their faith or con­science.

When the re­sults of the same­sex mar­riage sur­vey are re­leased on Wed­nes­day at 10am, with most ex­pect­ing a yes vote, the ar­gu­ments about where that bal­ance lies are likely to be­come more ur­gent. Mal­colm Turn­bull has said par­lia­ment will re­solve the is­sue be­fore Christ­mas and a bill is likely to be in­tro­duced into the Se­nate this week.

But which bill? The sur­vey ques­tion was sim­ple: “Should the law be changed to al­low same-sex cou­ples to marry?” Yes or no. The de­tails were left un­til af­ter the re­sult, and it is the de­tails that re­veal Aus­tralia’s cul­tural fault lines, the fears of LGBTI peo­ple that their equal­ity is pro­vi­sional, and the fears of the deeply re­li­gious that the sands have shifted, that tol­er­ance of their views, es­pe­cially on sex­u­al­ity, has lim­its in an in­creas­ingly sec­u­lar coun­try.

The start­ing point is the bill drafted by the Western Aus­tralian Lib­eral senator Dean Smith, backed by Lib­eral co-spon­sors Trent Zim­mer­man, War­ren Entsch, Trevor Evans and Tim Wilson. La­bor sup­ports it, as does the ad­vo­cacy group the Equal­ity Cam­paign, which says it’s an “in­cred­i­ble con­sen­sus” that pro­vides a path to fi­nally le­galise same-sex mar­riage.

Some LGBTI groups and the Greens worry that it al­lows too many re­li­gious ex­emp­tions, but for many it gets the bal­ance about right. Smith’s bill has been dis­cussed since midyear but, as the re­sults of the sur­vey draw near, there has been a dra­matic push­back. Those op­posed to mar­riage equal­ity say the pro­posed pro­tec­tions for re­li­gious free­dom are too nar­row.

The Vic­to­rian senator James Pater­son, a Lib­eral with a long­stand­ing in­ter­est in in­di­vid­ual lib­er­ties and who voted yes in the sur­vey, has re­leased a ri­val bill. It would give sweep­ing rights to those with a re­li­gious or even a con­sci­en­tious ob­jec­tion to same-sex mar­riage to refuse to par­tic­i­pate, over-rid­ing laws that makes dis­crim­i­na­tion on the grounds of sex­u­al­ity un­law­ful.

It has in­fu­ri­ated LGBTI groups and many lawyers. “This is not a bill about equal­ity,” says Anna Brown, co-chair of the Equal­ity cam­paign and the di­rec­tor of le­gal ad­vo­cacy at the Hu­man Rights Law Cen­tre. “It is a bla­tant at­tempt to punch holes in dis­crim­i­na­tion law and in­tro­duce spe­cial priv­i­leges for re­li­gious con­ser­va­tives, who want to be able to say and do what­ever they want with im­punity.”

Pater­son is seek­ing a meet­ing with Smith, and says he is “open minded about the ex­act path for­ward”. He hasn’t de­cided whether he would be sat­is­fied if the Smith bill was amended to strengthen re­li­gious ex­emp­tions, or whether he will push ahead with his own bill.

The gov­ern­ment will fa­cil­i­tate a pri­vate mem­ber’s bill be­ing in­tro­duced to par­lia­ment, but leave it to MPs to ar­gue about amend­ments. Min­is­ters in­clud­ing Matt Cana­van and Michael Sukkar – as well as the for­mer prime min­is­ter Tony Ab­bott – are sup­port­ing key el­e­ments of Pater­son’s bill. “The right to free­dom of be­lief is held by ev­ery Aus­tralian, not just those di­rectly in­volved in church ac­tiv­i­ties,” Cana­van told the Aus­tralian.

At this point, Turn­bull’s con­fi­dence that same-sex mar­riage bill would “sail through the par­lia­ment” if the sur­vey re­turned a yes vote seems op­ti­mistic.

The ri­val bills are a po­lit­i­cal headache for the gov­ern­ment, re­veal­ing again its ide­o­log­i­cal fault lines, but it is also a philo­soph­i­cal one about the bal­ance be­tween the rights of dif­fer­ent peo­ple. The bal­ance is never per­fect, and is al­ways shift­ing.

“We have a clas­sic ten­sion be­tween two com­pet­ing rights – the equal­ity right and the re­li­gious free­dom right. They are both im­por­tant,” says Prof Carolyn Evans, an ex­pert in re­li­gion and law at the Univer­sity of Mel­bourne.

The cross-party Se­nate com­mit­tee that ex­am­ined the im­pact of same-sex mar­riage on re­li­gious free­dom noted in its re­port this year that there was no stand-alone fed­eral law pro­tect­ing re­li­gious be­lief, and “the ev­i­dence sup­ports the need for cur­rent pro­tec­tions for re­li­gious free­dom to be en­hanced”. It sug­gested this could be done by adding “re­li­gious be­lief” to fed­eral anti-dis­crim­i­na­tion law.

Smith and his sup­port­ers would like to go down that path, and deal with the is­sue of pro­tect­ing re­li­gious free­dom sep­a­rately, rather than within a same-sex mar­riage bill as Pater­son’s does.

Brown has no prob­lem with that idea, ei­ther – the cen­tre where she works has con­sis­tently ar­gued for it, par­tic­u­larly to pro­tect re­li­gious mi­nor­ity groups from dis­crim­i­na­tion. She agrees re­li­gious free­dom pro­tec­tions are a “patch­work” – state anti-dis­crim­i­na­tion laws do pro­tect re­li­gious be­lief, al­though pro­tec­tion is limited in South Aus­tralia and lack­ing in New South Wales.

Yet Brown doesn’t think a gen­eral re­li­gious free­dom pro­tec­tion would mean much in the same-sex mar­riage con­text. Em­ploy­ment law al­ready pro­tects peo­ple from dis­crim­i­na­tion at work on the ba­sis of their

re­li­gious views. There are broad an­tidis­crim­i­na­tion ex­emp­tions for re­li­gious or­gan­i­sa­tions in state and fed­eral law – re­li­gious schools can sack teach­ers for be­ing gay, for in­stance, or a sin­gle woman for get­ting preg­nant. Re­li­gious or­gan­i­sa­tions will be able to dis­crim­i­nate against mar­ried same-sex cou­ples if they choose to do so.

Evans says that by in­ter­na­tional stan­dards, Aus­tralia’s ex­emp­tions on re­li­gious grounds are gen­er­ous. Coun­tries in­clud­ing the UK and New Zealand in­clude re­li­gious be­lief in a char­ter or bill of rights, but that has been re­sisted here.

“Many re­li­gious groups have op­posed a com­pre­hen­sive bill of rights and in­stead now are ar­gu­ing for spe­cific pro­tec­tion for just re­li­gious groups,” Evans says. “I think that’s prob­lem­atic – it’s only one right and it comes into ten­sion with other rights.”

Smith’s bill has been around since mid-year and be­gins with the non­con­tro­ver­sial. A min­is­ter of re­li­gion of a recog­nised de­nom­i­na­tion has the right to refuse to solem­nise a mar­riage if the re­fusal “con­forms to the doc­trines, tenets or be­liefs” of the re­li­gion.

That right al­ready ex­ists in the Mar­riage Act. A re­li­gious min­is­ter can refuse to solem­nise any mar­riage they choose. A Catholic priest, for in­stance, has a right to refuse to con­duct a cer­e­mony if one of the cou­ple is di­vorced.

Re­li­gious bod­ies will also be able to refuse to pro­vide fa­cil­i­ties, goods or ser­vices for a same-sex mar­riage if it con­flicts with their re­li­gious doc­trine, tenets or be­liefs or if it is “to avoid in­jury to the feel­ings of their re­li­gious com­mu­ni­ties”. That ex­emp­tion is con­sis­tent with fed­eral anti-dis­crim­i­na­tion law now. It’s not only limited to hir­ing out church halls, but would cover all wed­din­gre­lated goods and ser­vices, even if they are nor­mally hired out com­mer­cially.

Smith’s bill goes fur­ther still. It cre­ates a new cat­e­gory of “re­li­gious mar­riage cel­e­brants” who can refuse to solem­nise a mar­riage if it con­flicts with their re­li­gious be­liefs. This is mainly to cap­ture min­is­ters of emerg­ing and in­de­pen­dent churches that now marry peo­ple as civil cel­e­brants. As well, ex­ist­ing civil cel­e­brants will be able to trans­fer to this cat­e­gory within 90 days of the same­sex mar­riage law com­ing into force. No fu­ture civil cel­e­brants will be able to do so and the re­li­gious cel­e­brants will need to ad­ver­tise as such so that same-sex cou­ples will know to avoid them.

Three-quar­ters of Aus­tralian mar­riages are con­ducted by civil cel­e­brants, with just a quar­ter of cou­ples choos­ing a re­li­gious cer­e­mony. Civil cel­e­brants would con­tinue as they do now, act­ing on be­half of the state and up­hold­ing com­mon­wealth law. They can­not, for in­stance, refuse to marry a di­vorced cou­ple under cur­rent law, and they would not be al­lowed to refuse to marry a same-sex cou­ple.

It may be that Smith’s pro­posal has sub­stan­tial back­ing in par­lia­ment, and that the con­ser­va­tives who want un­prece­dented al­lowance for re­li­gious groups and in­di­vid­u­als to dis­crim­i­nate will strug­gle for sup­port. Per­haps Pater­son’s bill is an am­bit claim – but it is the start­ing point to chip away at Smith’s draft, to broaden the right to dis­crim­i­nate against LGBTI peo­ple when it comes to mar­riage.

Pater­son’s pro­posal has qual­i­fied sup­port from con­ser­va­tives op­posed to mar­riage equal­ity. It has dis­mayed LGBTI groups and dis­crim­i­na­tion lawyers be­cause they say it’s about more than a tus­sle over the de­tails of – it is part of a deep con­ser­va­tive at­tack on dis­crim­i­na­tion law and the rights of mi­nor­ity groups, an “op­por­tunis­tic at­tempt by con­ser­va­tives to undo the so­cial progress of the last 50 years”, ac­cord­ing to Brown.

Pater­son’s draft would not merely al­low min­is­ters of re­li­gion to de­cline to solem­nise a same-sex mar­riage, but any civil cel­e­brant who had a “gen­uine re­li­gious or con­sci­en­tious be­lief” on the is­sue. “Con­sci­en­tious be­lief ” means that a per­son may not be re­li­gious at all, but sim­ply hold a tra­di­tional view that a mar­riage should be be­tween a man or a woman. Evans says “that’s one is­sue on which rea­son­able minds could dif­fer” – a cel­e­brant has to be di­rectly in­volved in the cer­e­mony and there is at least an ar­gu­ment that they should not be forced to act against their strongly held re­li­gious or moral views.

Evans says any­one more re­moved than that should not be ex­cused from dis­crim­i­na­tion laws. Yet Pater­son’s draft would per­mit any per­son with a re­li­gious or con­sci­en­tious op­po­si­tion to same-sex mar­riage to refuse to sup­ply “goods, ser­vices, ac­com­mo­da­tion and fa­cil­i­ties” for such a mar­riage.

At the mo­ment, com­mer­cial busi­nesses can­not dis­crim­i­nate against peo­ple when they pro­vide goods or a ser­vice – they can­not refuse to hire a per­son be­cause he is black, they can­not refuse to serve a Mus­lim.

Pater­son’s pro­posal gets messy. He says the re­fusal to sup­ply or­di­nary com­mer­cial goods and ser­vices would need to be “di­rectly con­nected” to a wed­ding. So, a baker could not refuse to bake a birth­day cake for a gay per­son – that would be against dis­crim­i­na­tion law. “But if a gay cou­ple went and said, ‘Can you sup­ply a wed­ding cake?’ the baker can say no, be­cause that’s ask­ing the baker to par­tic­i­pate in their wed­ding and if it’s against their val­ues we shouldn’t force them to.”

A taxi or Uber driver couldn’t refuse to take wed­ding guests to a same-sex cer­e­mony, but “a wed­ding driver who drives a clas­sic car and is a small busi­ness op­er­a­tor … shouldn’t be forced to take the cou­ple to and from the wed­ding”. A ho­tel owner could refuse to host a re­cep­tion but could not refuse to hire a room to a gay cou­ple on their hon­ey­moon.

It may be con­fus­ing but Pater­son’s bill does up­end es­tab­lished anti-dis­crim­i­na­tion law and no other coun­try with same-sex mar­riage has in­tro­duced sim­i­lar pro­vi­sions. Pater­son’s draft spec­i­fies that fed­eral law in this area would over­rule state and ter­ri­tory laws, too.

The ob­jec­tion is ob­vi­ous: we have out­lawed dis­crim­i­na­tion on the grounds of sex, age, race, dis­abil­ity and sex­u­al­ity. If we per­mit an in­di­vid­ual with a re­li­gious or even a non­re­li­gious ob­jec­tion to same-sex mar­riage to refuse to par­tic­i­pate, why shouldn’t some­one be per­mit­ted to refuse ser­vice to a Mus­lim, or only hire men, or sack a woman if she gets preg­nant if that ac­corded with their re­li­gious or moral views? The prin­ci­ple is the same and Pater­son’s bill would set a prece­dent.

Evans says Aus­tralia has tended to give re­li­gious ex­emp­tions to groups rather than in­di­vid­u­als, be­cause once an in­di­vid­ual can de­cide which laws are con­sis­tent with their per­sonal con­science or moral­ity, it means that “each in­di­vid­ual is a law unto them­selves”.

“It’s ba­si­cally giv­ing a right to say, ‘We don’t serve your type here.’ If we don’t feel com­fort­able about that in re­spect to race or re­li­gion or sex, then I don’t think we should feel com­fort­able about it in terms of same-sex mar­riage,” she says.

“If it is harm­ful to re­quire a florist to pro­vide flow­ers for a wed­ding if that of­fends his re­li­gious be­liefs, then log­i­cally it is prob­a­bly also rea­son­able to say that he does not have to em­ploy a woman if his re­li­gion says that women should re­main in the home and not hold a job.”

Pater­son “com­pletely un­der­stands” the ar­gu­ment that the prin­ci­ples in his bill, if ap­plied to other ar­eas, would mean wide­spread dis­crim­i­na­tion.

“This is a purely prag­matic and prac­ti­cal de­ci­sion re­flect­ing the re­al­ity that no one is call­ing for those sorts of ex­emp­tions [to other ar­eas of dis­crim­i­na­tion laws]. There is no gen­uine com­mu­nity de­mand for those kinds of pro­tec­tions. There is a sig­nif­i­cant com­mu­nity de­mand for pro­tec­tions on this is­sue.”

Pater­son’s es­ti­mates that be­tween 30% and 40% of vot­ers in the postal sur­vey will vote no, a sig­nif­i­cant mi­nor­ity. He points out, too, that opin­ion polls have in­di­cated sup­port for pro­tec­tions for re­li­gious free­dom if same-sex mar­riage is le­galised, in­clud­ing for com­mer­cial busi­nesses.

His bill dips into the Safe Schools de­bate, and would leg­is­late to al­low par­ents to re­move their chil­dren from classes that don’t re­flect their tra­di­tional mar­riage views. Charities would be pro­tected from hav­ing their funds re­moved if they op­posed same-sex mar­riage.

But his cen­tral goal is to stop ac­tivists su­ing peo­ple. “I don’t want to see florists have their busi­ness ru­ined be­cause they de­cline to of­fer flow­ers to a gay wed­ding,” Pater­son said.

“If we only pass a nar­row bill that doesn’t have these broad pro­tec­tions, then this is­sue will be fought out in the courts, for many years po­ten­tially, and it will make what should be a won­der­ful mo­ment for Aus­tralia and for gay cou­ples into some­thing that is ac­ri­mo­nious and fraught and I re­ally don’t want that.”

Pater­son and many con­ser­va­tives point to in­ci­dents over­seas – and here – where they say there have been at­tempts to force in­di­vid­u­als and groups to go against their con­science on same-sex mar­riage and where peo­ple have been in­tim­i­dated for hold­ing a tra­di­tional view of mar­riage.

Of­ten, these raise free speech is­sues. The fa­mous case of the Colorado baker who re­fused to cre­ate a wed­ding cake for a gay cou­ple will head to the US supreme court next month. In Aus­tralia there was a com­plaint to the Tas­ma­nian anti-dis­crim­i­na­tion com­mis­sioner af­ter the Catholic Arch­bishop of Ho­bart cir­cu­lated a book­let out­lin­ing the church’s po­si­tion on mar­riage in 2015. The ob­jec­tion was es­pe­cially about book­let’s ques­tion­ing same­sex cou­ple’s rais­ing of chil­dren, but the com­plaint was dropped be­fore the com­mis­sioner con­sid­ered it. Con­ser­va­tives are con­vinced such cases will be­come more com­mon once same-sex mar­riage is le­galised.

Evans’s view is that the Tas­ma­nian case was “mis­guided”. But she agrees such cases will con­tinue whether or not same-sex mar­riage be­comes law. The world is chang­ing, the bal­ance be­tween rights will keep shift­ing as they have al­ways done.

And, yes, some ac­tivists might push the bound­aries, she says, but that’s how progress is of­ten made.

“The same tac­tic was used by the civil rights move­ment in the US about racism. Peo­ple de­lib­er­ately went in and de­manded to be served on equal terms – we now see that as ad­mirable, even if at the time many saw it as provoca­tive.”

For some rea­son, she said, we don’t seem to take dis­crim­i­na­tion against LGBTI peo­ple as se­ri­ously as we do other forms of dis­crim­i­na­tion. Even if same-sex mar­riage be­comes en­shrined in Aus­tralian law, there’s a fair way to go.

A bla­tant at­tempt to punch holes in dis­crim­i­na­tion law and in­tro­duce spe­cial priv­i­leges for re­li­gious con­ser­va­tives

James Pater­son and Dean Smith have of­fered bills with dif­fer­ent pro­pos­als for pro­tect­ing the rights of mar­riage equal­ity op­po­nents. Pho­to­graph: Lukas Coch/AAP

A mock wed­ding at the State Li­brary of Vic­to­ria in Mel­bourne this year. The Smith bill pro­poses that re­li­gious min­is­ters have the right to refuse to solem­nise a mar­riage if the re­fusal ‘con­forms to the doc­trines, tenets or be­liefs’ of the re­li­gion. Pho­to­graph: Scott Bar­bour/ Getty Im­ages

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