It seems like we’ve reached that time of year yet again when the Coalition decides to implode over marriage equality. Prime Minister Malcolm Turnbull has called an emergency party room meeting on Monday to discuss the path forward for his party’s marriage equality policy: namely, the failed plebiscite plan. Some MPs have threatened to cross the floor on the issue, while others have threatened to leave the party.
While this vitriolic infighting has been the focus of the media in reporting on marriage equality in recent times, little has been said about the proposed Bill that Parliament must pass for marriage equality to become a reality – whether that is through a free vote, a plebiscite, or a postal plebiscite (would the new Australia Post CEO’s annual salary of “only” $2.8 million really justify all that work?). While any new law would obviously need to change the definition of marriage as between a ‘man and a woman’ to ‘two people’, there has been hardly any focus on other proposed changes to the Marriage Act.
What could those changes be? Well, the Coalition, and even Senator Dean Smith through his private member’s bill, have indicated that any legislation they put forward in future would be similar to the Bill they put forward in 2016 under their plebiscite plan – of course, with the exception that there may not be a plebiscite.
That very Bill proposed significant new religious and conscientious objector exemptions to discrimination laws (meaning, people can discriminate against others and not be liable for it) as the trade-off for allowing marriage between persons of the same sex. Religious exemptions are nothing new: they are contained in most anti-discrimination laws in Australia, and religious organisations are (in certain circumstances, where their religious beliefs are objectively ascertainable) able to discriminate against LGBTI+ people in every jurisdiction in Australia except for Tasmania.
Whatever one’s views on religious exemptions, they do at the very least have some rational basis in law: section 116 of our Constitution restricts the Commonwealth from prohibiting the free exercise of religion, while Article 18 of the International Covenant of Civil and Political Rights grants the right to freely manifest and practice one’s religious beliefs. These must of course be balanced with rights to equality and non-discrimination, but similar to the fact that many churches will not marry a couple if neither person is a member of that church, exemptions applying to churches seem to draw little controversy in who they choose to marry or offer their services to.
However, the government’s proposed Marriage Bill adds a conscientious objector exemption to allow both religious ministers and civil celebrants to refuse to marry a couple, which would apply where:
(a) the refusal is because the marriage is not the union of a man and a woman; and
(b) the minister’s or celebrant’s conscientious beliefs do not allow them to solemnise the marriage.
There are two significant issues with the ‘conscientious objector’ aspect of the proposed clause, beyond the fact that no-one knows what ‘conscientious beliefs’ means – presumably, any beliefs anyone holds because they choose to hold them (mmmm, love that objectivity).
1. They create incredibly complex constitutional issues
The proposed Coalition Bill would insert exemptions to discrimination against same-sex couples wishing to wed in the Marriage Act: a Commonwealth law. However every state and territory in Australia has anti-discrimination legislation that protects discrimination against persons by reason of their sexual orientation in the provision of goods and services, except for in limited circumstances (such as religious exemptions). None of those laws contain conscientious objector exemptions.
‘But what about section 109?!’, I hear my former self asking from a dark corner of a Constitutional Law lecture (that’s a joke…I never went to my Constitutional Law lectures). For those playing at home, section 109 of the Constitution renders any state law that is inconsistent with a Commonwealth law invalid to the extent of the inconsistency. Well, the Commonwealth’s anti-discrimination law concerning sexual orientation states that it is, ‘not intended to exclude or limit the operation of a State or Territory that is capable of operating concurrently with this Act’. This can be, and has been, interpreted to mean that where state anti-discrimination laws conflict with Commonwealth anti-discrimination laws, the state laws are not rendered inoperative – the person who has been discriminated against must simply choose to go through one jurisdiction or the other.
Adding an anti-discrimination clause to the Marriage Act (rather than the far more logical step of putting it into the actual anti-discrimination laws we already have…duh) only confuses this further. This could potentially mean that a civil celebrant who refuses to marry a same-sex couple on the basis of their own conscientious (what does that even mean) beliefs would be liable if an action was brought under a state anti-discrimination law, but not liable if an action was brought under the Commonwealth anti-discrimination/marriage laws. LOGICAL.
2. They are stupid
The second issue is far less complicated but equally important: conscientious objector clauses are stupid. Unbelievably stupid. We have anti-discrimination laws that prohibit discrimination on certain grounds, unless there are objectively ascertainable and rationally grounded exemptions that apply. A conscientious objector exemption is neither objectively ascertainable nor rationally grounded. It allows any person to simply say ‘I don’t like this law because REASONS, so I’m not going to abide by it’. Wouldn’t it be funny if we applied conscientious objector clauses to murder laws, such that anyone could murder someone else if they held beliefs that meant they thought murdering people was OK? No, it wouldn’t be.
The Senate Committee tasked with investigating proposed changes to the Marriage Act to allow for marriage equality even said, earlier this year, that a conscientious objector clause would be a stupid idea:
‘The committee is guided by the limited legal usage of ‘conscientious belief’ but observes that it would be unprecedented to allow ‘conscientious belief’ to be used to discriminate against a class of persons. The committee is not inclined to disturb established anti-discrimination law and practice.’
It would be fantastic if marriage equality passes in this term of government (since we are about a decade late to the party already), but we must be wary of conscientious objector clauses that can undermine the entire promise of equality. Dressing up a disliking of same-sex couples as a ‘conscientious belief’ is not a valid excuse to discriminate against same-sex couples – not in marriage, not anywhere.