Religious freedom and same-sex marriage need not be incompatible

Religious freedom isn’t sufficiently protected in any of the bills before the parliament to allow same-sex couples to marry.

Last week the leader of the government in the Senate, Eric Abetz, raised concern that those of faith might suffer legal consequences if they continue opposing marriage for same-sex couples following a change in the law.

There’s no need for that to be the case. The human right of religious freedom is equally important in this debate. There should be protections for it.

Australia will always struggle to resolve the debate around whether same-sex couples should be able to marry so long as we are seeking a one-size-fits-all solution.

Marriage is about religion, law and has cultural power.

As former Liberal prime minister John Gorton argued in debating the introduction of the Marriage Act in 1961, “marriage, of course, can mean a number of things … it can mean a religious ceremony; it can mean a civil ceremony; and it can mean a form of living together”.

So long as we, pardon the pun, marry all these traditions in one institution there will be angst about the nature of the law. If the law excludes same-sex couples, there will be injustice. If people of faith are forced to act against their conscience, their human rights will also be breached.

This problem can be resolved. The proposition is simple: we separate the civil and religious traditions of marriage, but treat them equally in law.

In practice it works along these lines. The Marriage Act would recognise civil marriages. A civil marriage is defined as a union between two people voluntarily entered into for life and can be solemnised by a licensed civil celebrant. The act will also recognise religious marriages in different religious traditions in a different section of the text.

As things stand, a minister of a religious faith can solemnise a marriage based on their faith’s prescription. So a priest could only solemnise a marriage between a man and a woman based on the prescriptions of that faith. The spirit of this tradition can already be found in other countries, such as Britain, with different religious communities.

Government wouldn’t be establishing a different legal tradition but merely be separately respecting religious tradition in law, as it already does. It would fulfil the need of religious communities that have always argued for relationship recognition that is “separate but equal”.

Many people oppose change to the law on the basis of religion. Despite popular representations, they are not bigots, and their genuine beliefs should not be slurred as such. Preserving religious freedom is greater than exempting religious celebrants, such as priests, rabbis and imams, from being bound to marry all couples.

It can also require that some people of faith are not forced to act against their conscience and participate in a marriage they disagree with, from hosting a ceremony to providing services.

Their rights are just as important as those of same-sex couples seeking to marry.

Yet advocates for reform of marriage laws also don’t want commercial service providers being allowed to unjustly discriminate simply because a marriage is between couples of the same sex.

There needs to be mutual respect on both sides.

By separating civil and religious marriage we can design a law that removes the risk that anyone’s religious freedom need be violated, while avoiding unjust discrimination against same-sex couples. The law would simply require that any wedding service provider announces up-front the marriage tradition or traditions for which they provide services.

So a florist could advertise they only spruce up Sikh weddings. But if that’s what they advertise, that is all they can do.

This proposal is not radical. There are precedents. Currently if you ask a kosher caterer to cater a non-kosher event, there is no discrimination if they decline. They advertised their service up-front. They simply don’t supply what you demand.

It’s not uncommon for a service provider’s values to inform their product offerings, such as “fair trade” products.

The trade-off is that if a person believes marriage is a religious tradition they have to accept that the market will be narrowed for them to fulfil the purity of their conscience, unless they want to fall foul of anti-discrimination law.

If those same providers want to profit from civil marriages they won’t be allowed to discriminate. Doing so would be having your wedding cake and eating it too.

Tim Wilson is Australia’s Human Rights Commissioner.