The postal sur­vey is launched and the bat­tle is joined, writes Natasha Bita

The Sunday Times - - NEWS -

CATCH­ING wild bulls in Queens­land’s Gulf coun­try was hard yakka, so a young War­ren Entsch looked for­ward to a beer with his mates af­ter work. One bloke stood out from the rest.

“The more grog I got into him the more fem­i­nine he be­came,” Entsch re­calls.

“I used to tell him to stop act­ing like a sheila.”

Years later, Entsch spot­ted his drink­ing mate in an out­back beer gar­den, wear­ing “shorts and a boob tube” af­ter a sex-change op­er­a­tion. His trans­gen­der friend even­tu­ally moved to Mel­bourne and trained to be a doc­tor.

“My mate be­came a woman,” Entsch tells The Sun­day Times.

“I of­ten re­flected how hard it must have been for her liv­ing in that en­vi­ron­ment, and the courage it took for her to do what she did.”

The ex­pe­ri­ence changed Entsch’s views about ho­mo­sex­ual and trans­gen­der Aus­tralians. Forty years later, the Lib­eral Party MP from cow­boy coun­try in far north Queens­land is spon­sor­ing a pri­vate mem­ber’s Bill with West Aus­tralian Se­na­tor Dean Smith to le­galise same-sex marriage in Aus­tralia. If Aus­tralians vote “yes” for marriage equal­ity in the postal sur­vey that be­gan this week, the Bill will be de­bated in Fed­eral Par­lia­ment.

The sur­vey is more than a mea­sure of Aus­tralia’s so­cial mores.

It is a po­lit­i­cal and le­gal mine­field, pit­ting “rain­bow ac­tivists” against re­li­gious groups and rup­tur­ing the con­ser­va­tive side of pol­i­tics.

The Aus­tralian Bu­reau of Sta­tis­tics sur­vey is a vol­un­tary and non-bind­ing al­ter­na­tive to the Turn­bull Gov­ern­ment’s promised plebiscite, which was blocked in the Se­nate last year. The $122 mil­lion opin­ion poll has whipped up a fu­ri­ous de­bate over dis­crim­i­na­tion, free speech and re­li­gious free­dom. It has pro­voked public dis­cus­sion of sex, re­li­gion and pol­i­tics — the very three top­ics con­sid­ered taboo for po­lite con­ver­sa­tion.

Gay rights ac­tivist Ben­jamin Law set the tone this week by tweet­ing: “Some­times find my­self won­der­ing if I’d hate-f. . . all the anti-gay MPs in Par­lia­ment if it meant they got the ho­mo­pho­bia out of their sys­tem.”

Kevin Rudd, the for­mer La­bor prime min­is­ter, then tweeted a photo of his god­son Sean Foster, bleed­ing from a gash on his fore­head.

The 19-year-old mu­si­cian told po­lice he was bashed for con­fronting a man tak­ing down rain­bow flags in Bris­bane.

The vit­riol and vi­o­lence prompted Fed­eral Par­lia­ment to pass tem­po­rary emer­gency leg­is­la­tion this week. Any­one who vil­i­fies, in­tim­i­dates or threat­ens to harm other peo­ple based on their re­li­gious con­vic­tion, sex­ual ori­en­ta­tion or gen­der iden­tity dur­ing the seven-week sur­vey pe­riod will risk a $12,600 fine.

Con­ser­va­tive Lib­eral se­na­tor Eric Abetz, who op­poses same-sex marriage, says “bul­ly­ing” from the “yes” camp is a har­bin­ger of how the les­bian, gay, bi­sex­ual, trans­sex­ual and in­ter­sex lobby will cam­paign against re­li­gious groups once same-sex marriage is le­galised.

“The vit­riol has very much been one-way traf­fic — we’re not the ones call­ing peo­ple names like ‘ho­mo­phobe’ and ‘bigot’,” he says. “Peo­ple should be free to say if they’re vot­ing ‘yes’ or ‘no’.

“I un­der­stand there are peo­ple who will be minded to vote ‘yes’, but who are rightly con­cerned about free­dom of speech and free­dom of re­li­gion and parental rights.

If a child has the ben­e­fit of both par­ents, and a male and fe­male role model, that will be bet­ter.

“But if the law is changed, would we still be al­lowed to say we be­lieve marriage should be between a man and a woman? Peo­ple are telling me that would be seen as vil­i­fi­ca­tion and fall­ing foul of anti-dis­crim­i­na­tion laws.”

The “no” camp fears prece­dents set over­seas.

In 2012, a gay cou­ple took le­gal ac­tion against a Chris­tian baker in Colorado who said he would not make cakes for same-sex wed­dings, based on his be­liefs. Five years later, the case is headed for a US Supreme Court hear­ing. The Trump ad­min­is­tra­tion is back­ing the baker.

Af­ter Ire­land le­galised same-sex marriage in 2015, an evan­gel­i­cal Chris­tian baker in Belfast was fined for dis­crim­i­na­tion on the grounds of sex­ual ori­en­ta­tion, af­ter he re­fused to dec­o­rate a cake with the slo­gan “Sup­port Gay Marriage”. In Wash­ing­ton, a florist is be­ing sued for dis­crim­i­na­tion af­ter re­fus­ing to pre­pare flow­ers for the wed­ding of a gay cus­tomer.

Entsch’s Bill sets out pro­tec­tions for re­li­gious free­dom by stat­ing that min­is­ters of re­li­gion can refuse to solem­nise a same-sex marriage if the re­li­gion only al­lows het­ero­sex­ual cou­ples to marry. Civil cel­e­brants who reg­is­ter as “re­li­gious marriage cel­e­brants” may also refuse to marry gay cou­ples.

The loop­hole ex­tends to busi­nesses owned by re­li­gious groups such as schools, halls or cater­ing fa­cil­i­ties.

In line with ex­ist­ing anti-dis­crim­i­na­tion law, any re­fusal must con­form to the “doc­trines, tenets or be­liefs” of the re­li­gion and be nec­es­sary to “avoid in­jury to the re­li­gious sus­cep­ti­bil­i­ties of the ad­her­ents of that re­li­gion”.

It stops short of shield­ing other busi­nesses from an anti-dis­crim­i­na­tion claim if they refuse to serve same-sex cou­ples on the grounds of a “con­sci­en­tious ob­jec­tion”.

Entsch — a mar­ried fa­ther-of-four who has worked as a croc­o­dile farmer, min­ing fit­ter and turner and real es­tate sales­man — in­sists busi­nesses should not be al­lowed to dis­crim­i­nate on any grounds.

“You can’t say, ‘I won’t bake a cake for a black­fella or a Jew’,” he says. “If they did that to­day, they’d be done for dis­crim­i­na­tion. Any­way, the next big surge will be gay wed­dings — wed­ding plan­ners and cake-mak­ers will be fight­ing to get that mar­ket.”

The “yes” side ap­pears to be win­ning pop­u­lar sup­port. Tens of thou­sands of gay marriage sup­port­ers ral­lied in Syd­ney last Sun­day. Cricket Aus­tralia, the Foot­ball Fed­er­a­tion, the ARU and the NRL have all taken a public stand for marriage equal­ity. Hun­dreds of busi­nesses have thrown their sup­port be­hind the “yes” cam­paign, in­clud­ing Kmart, Lendlease, Ap­ple, West­pac, the Com­mon­wealth Bank, Op­tus and Tel­stra. Qan­tas chief ex­ec­u­tive Alan Joyce put his money where his mouth is, do­nat­ing $1 mil­lion of his own cash to the “yes” cam­paign.

Church groups are bear­ing the flag for the “no” cam­paign by back­ing the Coali­tion for Marriage, which in­sists “chang­ing the law on marriage af­fects ev­ery­one”. It claims a “yes” vote would “give li­cence to ac­tivists who will weaponise anti-dis­crim­i­na­tion laws” to tar­get peo­ple who be­lieve marriage should be the union of a man and a woman and the foun­da­tion for fam­i­lies.

The Aus­tralian Chris­tian Lobby is host­ing “cam­paign train­ing ses­sions” for sup­port­ers to “get the train­ing you need to con­fi­dently speak to friends, fam­ily and neigh­bours.” It views same-sex marriage as a threat to “tra­di­tional marriage” and to nu­clear fam­i­lies.

But Lib­eral Party pres­i­dent and for­mer NSW premier Nick Greiner re­gards marriage as “the con­ser­va­tive ideal”, ar­gu­ing that ex­tend­ing the in­sti­tu­tion of marriage to same-sex cou­ples will “de­liver stronger fam­i­lies and com­mu­ni­ties”.

In this bat­tle, marriage is the fi­nal fron­tier.

In the past nine years, 84 Com­mon­wealth laws have been amended to stop dis­crim­i­na­tion against cou­ples on the grounds of their sex­u­al­ity — across fam­ily law, so­cial se­cu­rity entitlements, im­mi­gra­tion and tax laws.

But State laws dif­fer, so le­gal recog­ni­tion of same-sex marriage would give gay cou­ples the same le­gal rights as ev­ery other mar­ried cou­ple, re­gard­less of where they live.

Un­der WA’s Fam­ily Court Act, same-sex cou­ples and het­ero­sex­ual de facto cou­ples have sim­i­lar prop­erty rights as mar­ried cou­ples do un­der the Fed­eral Fam­ily Law Act if they have been liv­ing to­gether. Same-sex cou­ples have the right to adopt chil­dren in ev­ery State and the ACT — only the North­ern Ter­ri­tory pro­hibits same-sex adop­tion.

In March, the NSW Supreme Court let a les­bian cou­ple adopt a four-year-old girl de­spite op­po­si­tion from her Catholic birth par­ents.

The baby had been taken from her mother four days af­ter birth. The mother had a long his­tory of drug ad­dic­tion and had been con­victed over the death of her baby son seven months ear­lier from drug poi­son­ing.

The judge let the les­bian cou­ple, who had been car­ing for the girl since she was a baby, adopt her af­ter they agreed to send her to scrip­ture classes and read sto­ries from the Bible.

If the “yes” vote suc­ceeds, any changes to the Marriage Act will re­quire a ma­jor­ity vote in Fed­eral Par­lia­ment.

The law has been changed 20 times, most re­cently in 2004 when for­mer prime min­is­ter John Howard in­serted the words “man and woman” to pre­vent gay cou­ples hav­ing their over­seas mar­riages recog­nised in Aus­tralia.

Prime Min­is­ter Mal­colm Turn­bull has an­nounced the Gov­ern­ment will not in­tro­duce its own leg­is­la­tion, but will ask MPs to vote on a pri­vate mem­ber’s Bill — most prob­a­bly the one by Entsch and four fel­low Lib­er­als.

Howard sav­aged Turn­bull on Thurs­day, ac­cus­ing him of jeop­ar­dis­ing Aus­tralians’ right to free­dom of re­li­gion and speech. He said Turn­bull should first spell out the “pro­tec­tions” for peo­ple who boy­cott same-sex mar­riages on con­sci­en­tious grounds.

“If a ‘yes’ vote is recorded there will be over­whelm­ing pres­sure to move on, leg­is­late as quickly as pos­si­ble, and then put the is­sue be­hind Par­lia­ment,” he said.

Leg­is­lat­ing for marriage equal­ity will not be as sim­ple as re­mov­ing the words “man and woman” from the Marriage Act. The Fed­eral At­tor­ney-Gen­eral’s De­part­ment es­ti­mates that 25 pieces of Com­mon­wealth leg­is­la­tion will re­quire up to 60 in­di­vid­ual amend­ments.

The postal vote closes on Novem­ber 7. A week later the re­sults will be made public, and it will be clear whether con­ser­vatism has rained on the same-sex wed­ding party.

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