A law can be designed to protect the rights of all and avoid a distracting and divisive debate on marriage for same-sex couples.
There are two fundamental human rights that could be affected by any change: equality before the law and religious freedom.
During the recent National Press Club debate senator Cory Bernardi argued “marriage is not a right”. He is partly correct.
For as long as government licenses marriage the basic liberal and conservative human rights principle of equality before the law strongly supports inclusion of same-sex couples. Doing so is also supported by 72 per cent of Australians. The alternative is for government to license civil unions and leave marriage to churches.
There is also plenty of research that concludes people view civil unions as inferior to marriage. Considering 73 per cent of marriages are held outside a church, it is unlikely heterosexual couples will warm to the idea of getting civil unions.
In advancing equality before the law, religious freedom must also be preserved. Doing so will ensure any reform does not become a Trojan horse for legally enforced anti-religious secularism. Some people wrongly argue that religious freedom ends at the temple door. It doesn’t, in the same way sexual orientation doesn’t end at the bedroom door.
But a necessary precondition for your rights being respected is that you must respect the rights of others. If religious Australians want the law to preserve religious marriage and be free to act consistent with their conscience, then they can’t concurrently deny same-sex couples a civil marriage.
That there can be an impact on religious freedom is not an argument against change. It is an argument to be mindful of the potential impact on religious freedom when parliament changes the law. It can be done.
Challenges in preserving religious freedom occur because we all look at the institution of marriage differently. Marriage has civil and religious importance. Conflicts have arisen in other countries because of the divergence between a reformed civil definition and the existing definition that aligns closely with the religious definition.
Last month I proposed a potential solution (“Defend religious freedom”, Commentary, July 6) by structurally separating the religious and civil definitions of marriage in the Marriage Act but treating them equally in law.
A civil marriage then could be defined as a union of two people, while a religious marriage could be defined as a union between a man and a woman, unless specified otherwise by a faith. Changing the act this way ensures any future advocacy of a religious position is consistent with the law. But there are other challenges.
Everyone agrees that ministers of religion should not be compelled to solemnise a marriage that acts against their faith’s teachings. That isn’t the end of the discussion.
There are many others who are not being considered in proposals for reform: civil celebrants and registrars, owners of wedding venues and those who ordinarily provide goods and services to weddings. The degree that their liberty can be infringed by being compelled to support a wedding against their religion or conscience sits on a scale.
At the end closest to ministers of religion are civil celebrants. They are licensed by government to provide a public service, but they are still capable of having private faith. The relationship between the marrying couple and the celebrant is clear and intimate.
In the middle are service providers such as wedding venues and photographers. They can choose to provide services in the private market and have a private faith. Their relationship to the marrying couple is still close.
At the other end are those who ordinarily provide services to weddings, such as bakers and florists. Their relationship is distant.
Understandably, many people believe anti-discrimination law should apply for all of these examples. After all, anti-discrimination law applies in all other circumstances, why should weddings between same-sex couples be different?
Yet when same-sex couples are asked whether they want to buy goods and services from providers that disagree with their marriage the resolute and consistent answer is “no”.
Senator Penny Wong argued at the Press Club that “the market will probably resolve most of it. I suspect that gay and lesbian couples are unlikely to go to bakers who really don’t like gays and lesbians, so I suspect we’d probably work it out”. She is partly right. For the market to “resolve most of it”, it has to be legal for people to declare their biases. The law has to allow the market to work.
In my earlier proposal I recommended that wedding service providers should be exempt from anti-discrimination law so long as they only provide services to religious weddings consistent with their private faith.
Following the release of the proposal my office received overwhelming feedback, particularly from those of faith who felt their voices were being sidelined in the debate. But there was also criticism that the proposal too heavily narrowed the business opportunities of those of faith who had no religious objection to supporting heterosexual civil marriages. Similarly, there was concern from reform advocates that the exemptions were too broad, could be selectively applied and would lead to couples feeling ostracised.
In response I have consulted many stakeholders. None has categorically ruled out a compromise in preference for a protracted and potentially divisive debate.
A slightly refined proposal still would structurally separate civil and religious marriage in the act. Civil marriage would be defined as a union between two people voluntarily entered into for life and could be solemnised only by a civil celebrant.
If a civil celebrant had a pre-registered religious or conscientious objection to marrying same-sex couples then they could not be forced to act against their will. But when it occurred at a government registry it would be the responsibility of the government to ensure that an alternative civil celebrant was available.
Religious marriage would be defined as between a man and a woman unless an individual faith decided otherwise; and would be solemnised only by a registered minister of religion.
The present act gives the government minister the power to grant funding, from time to time, to promote marriage. Funding would need to be allocated to individuals or groups regardless of the tradition they advocated.
A provision also would need to be included to ensure no one faced unnecessary discrimination in areas such as employment or accommodation on the basis of seeking to preserve their religious or conscientious definition. Doing so would close off the risk an employee in a business that provided wedding services wouldn’t face discrimination because they held strong faith, such as a waiter at a reception centre who asked not to be rostered for some weddings. Such a protection would set the tone that our society legally, not just rhetorically, valued pluralism.
The most debatable proposal is whether an owner of a small business ordinarily engaged in providing wedding goods and services should be able to seek an exemption from anti-discrimination laws for marriage inconsistent with their genuinely held faith or conscience. Exemptions along these lines already exist. The Victorian Equal Opportunity Act includes options for an exemption that is used by women-only gyms to exclude men, or gay and lesbian bars and venues to selectively decide patronage.
Exemptions wouldn’t be revolutionary but would have to be very narrow. They could apply only to wedding-specific services for businesses ordinarily engaged in providing such services, excluding pizza shops, coffee chains or hotel accommodation and the like. An exemption would be a reflection of individual religious conscience so only the owner of a small business could apply.
An ongoing application would require the owner to act consistently with the exemption. Failure to do so would see it revoked. Exempted small businesses would also be required to refer customers on to alternatives.
Securing an exemption would need to be supported by documentary evidence, such as a supporting letter from a minister of religion or a statutory declaration of a person’s conscientious objection. It would be a punishable offence to advertise any differential treatment of same-sex couples. Guidelines would have to be developed for the businesses that sought them to communicate the exemptions respectfully.
In practice, few exemptions would be applied for. Culturally, religious people are more relaxed than the attitudes of those in a faith’s hierarchy. The generational nature of this debate also means they are likely to be used less across time.
This proposal gives neither side everything they want. That’s because accommodating competing human rights isn’t a zero-sum game.
Instead, same-sex couples would be able to marry and others would be free to define marriage according to their faith or conscience without fear of legal retribution. It also would allow the law to fulfil its purpose in a liberal democracy by enlarging the freedom for all and establish the strongest protection for freedom of conscience in the world.
Some may say this process is unnecessarily complicated; however, the alternative is an unnecessarily protracted and divisive debate that will end where public opinion already rests. The nation can put this issue to rest, and we can all walk down our respective aisles a winner.
Tim Wilson is Australia’s Human Rights Commissioner.