The Australian parliament has passed legislation to permit same-sex marriage.
The Marriage Amendment (Definition and Religious Freedoms) Bill passed the Senate on November 28. It was then passed in the House of Representatives on Thursday by an overwhelming majority: around 130 MPs voted in favour, just four voted against, and a small number abstained.
Attorney-General George Brandis has said that same-sex marriages will be permitted from January 9, taking into account the one-month notice period required under the Marriage Act.
Origins of the reform
Thursday’s lower house vote followed a drawn-out debate in parliament. But prior to the bill being introduced to parliament, the government arranged for the Australian Bureau of Statistics to conduct the Australian Marriage Law Postal Survey.
This voluntary, non-binding expression of opinion came at a cost of around A$100 million. The survey results, released on November 15, showed 61.6% of respondents supported changing the law to allow same-sex marriage.
That evening, Brandis moved a private member’s bill in the Senate to begin the necessary legislative reform.
Liberal senator Dean Smith was the key proponent of this bill. It emerged from a cross-party Senate inquiry which concluded that legislation to permit same-sex marriage should also ensure some protection for religious freedoms.
The substance of the act
The new law changes the definition of marriage in the Marriage Act by removing the words “a man and a woman” and replacing them with “2 people”. This was the minimum required reform to enable same-sex marriage.
However, the bill goes beyond that minimalist change. It will insert a section into the act that reads:
It is an object of this act to create a legal framework:
a) to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and
b) to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and
c) to allow equal access to marriage while protecting religious freedom in relation to marriage.
There are three main features of the marriage reform law that attempt to balance marriage equality with religious freedoms.
First, some gain the capacity to be identified as “religious marriage celebrants”. To meet this definition, a person must be both a registered marriage celebrant and a minister of religion. This category covers people who are not ministers of religion of a recognised denomination, but regardless identify as ministers of religion.
An exceptional case is also permitted for people to identify as religious marriage celebrants even if they are not ministers of religion. The criteria for this case require a person to:
be already registered as a marriage celebrant;
give notice within 90 days of the new law’s assent that they wish to be identified as a religious marriage celebrant;
confirm that this wish is based on their religious beliefs.
Second, the law sets out circumstances in which ministers of religion and religious marriage celebrants can refuse to solemnise marriages. Although the grounds for refusal are not limited to same-sex marriages, these provisions have been included in the bill so that ministers and religious celebrants cannot be required to solemnise same-sex marriages.
Ministers of religion may refuse to solemnise a marriage where any of the following conditions apply:
a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;
b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
c) the minister’s religious beliefs do not allow the minister to solemnise the marriage.
Religious marriage celebrants may refuse to solemnise a marriage “if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage”.
There is a parallel exception for armed forces officers who are authorised to conduct marriage ceremonies.
Third, the law permits bodies established for religious purposes to refuse to make facilities available or provide goods and services in relation to the solemnisation of marriages. The circumstances in which this applies are if the refusal:
a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
So, for example, a same-sex couple could be refused the use of a church or church hall for their wedding ceremony, if that refusal meets the above conditions.
The marriage reform law also makes amendments to the Sex Discrimination Act. These changes ensure that no complaints of unlawful discrimination can be made in relation to refusals to solemnise marriages that are permitted under the Marriage Act.
Soon after the survey results were announced, Treasurer Scott Morrison said that more than 4 million “no” voters were coming to terms with being a minority on the question of same-sex marriage. But, as parliament has recognised, a law serving all Australians did not require elevating the rights of a minority over the rights of all.
A state-recognised institution – marriage – was closed to some members of the population on discriminatory grounds. In attending to that problem, there was no sense in arguing for multiple new forms of discrimination.
It was fortunate that parliament had a well-established bill to consider following the postal survey outcome. This meant that various amendments seeking to extend “protections” for religious freedom did not gain majority support, because most MPs were already satisfied with the Smith bill.
As it is, the new law already goes well beyond what was necessary to permit same-sex marriage. It would have been unconscionable to amend the bill in ways that privileged religious freedom over rights to equality and non-discrimination.
Nevertheless, the debate about the protection of religious freedom will persist. Prior to the passage of the marriage reform bill, Prime Minister Malcolm Turnbull announced an inquiry into “religious freedom protection in Australia”. Chaired by former MP Philip Ruddock, the inquiry is due to report by March 31 next year.
Authors: Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle