Religious freedom could be seriously compromised if a referendum were held on whether same-sex couples were allowed to marry.
Following the events of the week numerous people have talked up a referendum, not a plebiscite, as the “public vote” on whether same-sex couples should be able to legally marry.
Referendums are for changing the Constitution, not testing public will.
A plebiscite is a simple test of public will and requires only a simple majority of 50 per cent, plus one, votes; although widespread acceptance for the result would require a result slightly greater.
Neither is necessary. Whether the federal parliament has the power to legislate was clarified in the case that overturned the ACT’s legislation that attempted to allow same-sex couples to marry.
The High Court unanimously ruled “the federal parliament has power under the Australian Constitution to legislate with respect to same-sex marriage, and … whether same-sex marriage should be provided for by law is a matter for the federal parliament”.
No ifs, no buts. The High Court’s view is black and white. The federal parliament has the power to legislate.
The parliament may choose to put a plebiscite to the people to help inform its thinking.
If the public votes for reform, the parliament can still consider any proposal and its implications. That would include balancing the competing human rights objectives of equality before the law and preserving religious freedom.
The tension between these two important human rights following any legislative change is complex and real. They should be approached with nuance.
A successful referendum that defined marriage as between two people wouldn’t leave the parliament as free to protect religious freedom. There would be two significant problems.
First, all laws would be subservient to the new provision that constitutionally imposes a secularist definition of marriage. The Constitution presently provides for its existence but doesn’t define it.
Second, it could seriously limit religious freedom and give significant power to the courts to decide its limits.
Interpreting whether law appropriately balances the tension between a new secularist marriage definition and existing religious freedom protection would be left to the High Court.
Doing so would create a legal minefield for religious institutions. They would be free to recognise a religious tradition, but may become legally bound to acknowledge the secular one.
The parliament doesn’t need a plebiscite, but if it decides to have one it keeps a free hand to legislate. A referendum restrains its hand at the expense of religious freedom.
Tim Wilson is Australia’s Human Rights Commissioner.