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…But Some Are More Equal Than Others

It’s a Yes! Australia has spoken, and the majority has voiced its support for marriage equality. Now all we have to do is get Parliament to agree on it. But competing bills could, at best, delays the marriage-equality argument a few days, but potentially add significant capacity for increased, legal discrimination against LGBTIA people.

We finally have a decision, and it’s the decision that basically every newspaper and public poll has been predicting for the last eight years. Never mind that the postal survey cost $100 million (the ABS was extremely proud to point out that they came in under budget), when we could have got the results a year ago from Newspoll just by spending $2.70 on that day’s Australian. In fact, for the originally quoted cost of $122 million, we could get every MP and Senator subscriptions to the Oz, the Sydney Morning Herald, The Guardian and even Foxtel, both to Parliament House and to their home electorate office, for the next 144 years. Even longer if we don’t insist on getting the relevant print versions delivered and just pay for digital subs.

From here, the question now is: how do we get from an opinion poll- a very comprehensive, if expensive one- to legislation?

The more well-known proposal, and the one tabled last night by nine Senators representing a variety of political parties, is from Western Australian Senator Dean Smith, and is officially the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. (Updated 21:39 AEST- the link now goes to the bill tabled before the Senate.)

A second proposal this week came from fellow Western Australian (and fellow Coalition) Senator James Paterson. His bill- the Marriage Amendment (Definition and Protection of Freedoms) Bill 2017– is available for viewing on his web site. The bill has already been dismissed by Prime Minister Malcolm Turnbull, who believes the Paterson bill has no chance of passing. And with good reason; it significantly expands on private individuals’ ability to discriminate against LGBTIA people, potentially adds penalties for anyone who speaks out against that discrimination, and introduces some unworkable provisions by making the additional discrimination legal… but only as it relates to wedding ceremonies.

The Paterson bill would amend the Marriage Act 1961 so that there are two definitions for marriage:

  • (a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
  • (b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.

Let’s refer to the new class as “non-traditional marriages” for the purposes of this article, partially so I don’t fall into the trap of using gendered language. The Paterson proposal would seem to be redundant- after all, (b) basically includes (a)- but the distinction becomes important later on, because it creates a second class of marriages that do not have the same protections as traditional man-and-woman unions.

For reference, the Smith bill only has one definition of marriage- replacing “a man and a woman” with “2 people”.

The bill goes on to modify section 47 of the Marriage Act to specify that a minister of religion may refuse to solemnise a marriage if “…the refusal is consistent with the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation”. (Senator Smith’s bill also expands on s47.) But the Act as it stands already allows for ministers of religion to refuse to perform ceremonies, and doesn’t require the minister to state any particular belief.

Both proposals also include a provision that civil celebrants can also refuse to solemnise non-traditional marriages. Both proposed bills create a second tier of marriage celebrants- a ‘traditional marriage celebrant’, which is exactly what it sounds like- but they must register with the Commonwealth as ‘traditional’ celebrants and have that noted on the registry.

So far, so good- kind of- but the religious-freedom expansions in the Paterson bill are likely to be the sticking points in Parliament over the next few weeks. The Smith bill includes a religious-freedom provision that allows “bodies established for religious purposes” to refuse to provide goods or services, rather than just any person or entity.

The Paterson bill, however, goes much further. It adds a definition of “relevant marriage belief” (proposed new section 5AB of the Marriage Act), which includes a “genuine religious or conscientious belief that marriage is the union of one man or one woman…” (basically the first definition mentioned above). It also allows for a combination of beliefs, including that

  • “a marriage that is not a union of a man or a woman is not consistent with… the teachings of the religion or the conscience of the person”;
  • “the family structure of a man and a woman… with their children is a fundamental building block of human society”; and, among other things,
  • “sexual relations should only occur within a marriage” (the first definition of “marriage”, natch, not that icky second one).

Part VAA in the Paterson bill goes even further and for mine is extremely objectionable. 88JA says that a person or entity (‘entity’ meaning a business or organisation, essentially, as defined in tax law) has the right to freedom of belief, which seems fine… assuming that companies can have beliefs, which in itself is an interesting argument.

But then section 88M says that (my emphasis):

a person or entity holding a ‘relevant marriage belief’ may, despite any law, refuse to do an act including

  • making a facility available;
  • providing goods, services or accommodation;
  • providing an advantage or a privilege;
  • registering a marriage that is not the union of a man and a woman on a register of marriages

…basically making it legal to discriminate against a non-traditional marriage- or at least, against the ceremony itself- by obstructing the associated arrangements.

Exactly how this would work in practice is unclear. Can one just order a wedding cake with no figurines, and supply one’s own? And note that it is legal for these entities to discriminate against straight people, if the goods or services they request are linked to a non-traditional marriage ceremony. If I’m late for church and a cabbie refuses to take me, then what do I do? (And yes, of course I’m taking a cab. It’s a wedding, I’m still single, of course I’m drinking.)

Not only that, but while 88M makes it legal for a business to refuse to provide services to a non-traditional couple for the purposes of their wedding ceremony, it could potentially be illegal for that couple to then tell their friends to shop somewhere else. Proposed section 88T provides for civil action if a person “suffers loss or damage or whose rights are interfered with, because another person contravenes… a provision of Part VAA.”

“I don’t want to see florists have their business ruined because they decline to offer flowers to a gay wedding,” Senator Paterson told The Guardian.

“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.”

But does the clause go too far in the other direction? Could one be sued for proposing a boycott of a business that discriminates? After all, is one “subjecting a person or entity to detriment” by saying “Hey, the baker down the street is fine with putting two grooms on a cake, so maybe shop there instead”? Senator Paterson’s provisions, regardless of his intentions, seem more likely, not less, to see these kinds of arguments headed for the courts.

In a statement on the Human Rights Law Centre web site, Anna Brown, the HRLC’s Director of Legal Advocacy, also points out that a business could not sanction an employee for doing things detrimental to the business (ie turning away clients). “This Bill would also be completely unworkable and impractical. An employee at a florist could refuse to sell flowers for a same-sex wedding and the owner could not take any action against their employee if they wanted their small business to serve all customers equally and without discrimination.

“This is not a Bill about equality – 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.”

Not only that, but 88KA says that, again, “despite any law”, engaging in an act, or refusing to engage in an act, is not an offence against a law prohibiting discrimination or vilification, providing the person’s conduct is because they “genuinely believes that the conduct is consistent with the relevant marriage belief”.

Lane Sainty from Buzzfeed noted that the provision could theoretically protect a Kim Davis– a public servant refusing to register a marriage because of their beliefs- but the Australian Public Service is supposed to be apolitical and neutral, and “comply with all applicable Australian laws” and “any lawful and reasonable direction”. Would such a refusal violate the APS’ code of conduct?

Interestingly, the phrase “despite any law” appears repeatedly in the Paterson bill, which seems to grant it far-reaching implications just in case some other existing legislation is in the way. In other words, existing discrimination provisions are overridden, and your ‘genuinely-held religious beliefs’ are protected in law… providing your genuinely-held belief is in a traditional definition of marriage. Meanwhile, a genuinely-held belief that marriage should be for everyone is specifically excluded from protection under the Paterson bill- even if that belief is enshrined in your religion.

It gets worse. The Paterson bill proposes to modify the Sex Discrimination Act 1984 to reiterate that it is legal for a minister of religion to refuse to solemnise a marriage- again, a seemingly unnecessary change given that the current Sex Discrimination Act already says this is fine if the Marriage Act says so (s40(2A)) – and then specifically makes it legal for…

…a person or entity to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, intersex status, marital or relationship status or family responsibilities if the discrimination is permitted under Part VAA of the Marriage Act 1961.

But, of course, the Commonwealth is prevented from discriminating against these organisations when it comes to funding or grants, or allocating charitable status under the Charities Act 2013. (Proposed sections 88N and 88O.) And never mind that religious organisations remain free to fire people who don’t follow their beliefs, even if that firing would be illegal if done by another organisation.

Legal discrimination. The proposed bill even includes the words ‘permitted discrimination’ to describe it. This is not ‘equality’. This is some religions having protections that others do not.

(The Smith bill allows for a minister or celebrant to refuse to solemnise a marriage (again, consistent with existing legislation), but does not add these additional provisions.)

Finally, in an attempt to pander to the crowd that (somehow) still believe the Marriage Act influences state education curricula, the Paterson bill introduces a new section (88R) that allows a parent or guardian with a ‘relevant marriage belief’ to withdraw their children from class if material taught in class is not consistent with that belief. The principal in that school must comply if they are satisfied that the parent holds that belief (88R(4)) and provide for supervision of that child during that period (88R(5)), with no exceptions provided in law.

It is possible that all of this will come to nothing, and the Smith bill will pass unhindered; the ABC projects that a palatable marriage equality bill will have a comfortable majority in both Houses. It may be that there are no businesses that even want the question to come up; small businesses in particular seem incredibly unlikely to turn away paying customers, let alone risk the Facebook backlash that would follow such a refusal. (Okay, there was that one musician on Q&A a few weeks back, but he might be the exception that proves the rule.) We might be just a matter of weeks from having this whole sorry saga behind us; in which case, I’ll need a few months’ notice of your weddings so that I can drop a few kilos and fit into my nice suit once more.

But the price of liberty is eternal vigilance. Especially when that liberty hasn’t yet been achieved. And there is still a lot of “I think…” and “I believe…” before anyone gets to say “I do”.


 

Update at 9:25pm AEST- Senator Paterson’s bill appears to have been shelved in favour of debating Senator Smith’s bill, according to the ABC. Senator Paterson is quoted as saying, “It is clear the majority of senators believe my colleague Senator Dean Smith’s bill is where we should start.”

Derek Nielsen was admitted to the Basketball Hall of Fame in 2010. It’s not that complicated, you just buy a ticket at the door. Follow him on Twitter at @ozhoopsdrek.