By Terence Mills
What has become known as WA Liberal Senator Dean Smith’s draft of amendments to the Marriage Act 1961 appear to be the preferred basis for legislative change should the postal opinion poll return a positive result.
Extracts from the explanatory memorandum relating to the draft legislation include:
Ministers of religion will be able to refuse to solemnise a marriage in conformity with their religion’s doctrine, their religious beliefs or in order to avoid injury to the susceptibilities of their religious community (e.g. marriages of same-sex, previously divorced or inter-faith couples) much as is the case under existing legislation (Marriage Act 1961 s.47 … Ministers of religion not bound to solemnise marriage etc).
A new category of religious marriage celebrants will be able to refuse to solemnise a marriage where their religious beliefs do not allow them to do so, bodies established for religious purposes will be able to refuse to provide facilities, goods or services consistent with their religion’s doctrine or if this refusal conforms with religious doctrine, tenets or beliefs or is necessary to avoid injury to the feelings of their religious communities.
This is consistent with existing religious exemptions in section 37 of the Sex Discrimination Act 1984 (Cth).
Bodies established for religious purposes will be able refuse to provide facilities, goods and services where this is required to protect their freedom of religion. This is balanced with ensuring that people are not unfairly discriminated against where there is only a distant or tenuous connection between the facility, good or service and the solemnisation of a marriage. For example, hires of church halls, premises or catering providers, owned by bodies established for religious purposes, would be able to lawfully refuse the use of the church hall or premises or to provide catering for both a wedding ceremony and a wedding reception.
The Bill does not propose any new carve-outs from discrimination law for individuals in relation to lesbian, gay, bisexual, transgender or intersex people. For example, a taxi driver, florist, baker or photographer who does not work for a body established for religious purposes cannot lawfully refuse to drive a person to a wedding reception, provide flowers, prepare a wedding cake or take photographs at a wedding ceremony on the basis of their religious or other beliefs about marriage.
This is consistent with existing anti-discrimination laws which do not allow refusals of service (e.g. for a commitment ceremony for a same-sex couple or a wedding of an inter-racial couple).
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You can read the draft legislation and explanatory memorandum here:
Marriage Amendment (Same Sex Marriage) Bill 201X
Marriage Amendment (Definition and Religious Freedoms) Bill 2017 Explanatory Memorandum
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These changes appear to this observer to be reasonably balanced and certainly provide ample religious protection without getting too paranoid. But there is a move by a right-wing conservative group to call for more protections and exemptions, as many as one hundred such amendments according to some sources.
The outcome of the postal opinion poll will be declared on Wednesday and Dean Smith hopes to introduce his Bill during the first sitting of the Senate, then it goes to the House of Representatives who won’t be sitting until 27 November.
We shall see!
