We are concerned that any marriage equality legislation that entrenches the unequal treatment of LGBTI couples undermines the point of providing for these couples to marry. Indeed, it cannot properly be called “marriage equality”. The many people who support marriage equality because it provides for equality would find it very difficult to support legislation that takes with one hand while giving with the other.

The submission

Just.equal is a national LGBTIQ lobbying, advocacy and campaign group with a focus on anti-discrimination protections and on marriage equality. Our mandate comes from the extensive and exhaustive research we conduct on the views of LGBTIQ Australians.

Definitions

In this submission “same-sex couples” refers all those adult couples who the meet the criteria for marriage except they are not male and female. We will use “marriage equality” to refer to laws that allow them to marry.

Our position

We support marriage equality in principle, including the intent of the Marriage Amendment (Same-Sex Marriage) Bill.

We support allowing ministers of religious to refuse service to any couple whose relationship does not conform to their religious views.

We oppose all provisions that specifically allow same-sex couples to be refused service by marriage-related service providers including civil celebrants and businesses owned and operated by religious organisations.

We believe the Marriage Amendment (Same-Sex Marriage) Bill should be fully inclusive regardless of sex, gender or sexual orientation.

Reasons for supporting marriage equality

The case for marriage equality has been made consistently and well over many years, including to several parliamentary inquiries. We will not give a detailed exposition on the need for marriage equality except to remind the inquiry that:

a) marriage equality is based on values of legal equality, personal freedom, inclusion and respect

b) there is significant evidence that marriage equality boosts the health and wellbeing of LGBTIQ people and their families, as well as strengthening their relationships and the institution of marriage

c) there is no evidence that marriage equality has undermined marriage as an institution, the wellbeing of children or religious freedoms anywhere it has been enacted.

We are more than happy to provide extra information, including empirical research, in regard to any of these points if it is required by the Committee.

Reasons for opposing provisions that allow refusal of service to same-sex couples.

As stated above, we support the current provision of the Marriage Act that allows religious ministers to refuse to marry any couple based on the minister’s beliefs.

We oppose all other provisions of the Marriage Amendment (Same-Sex Marriage) Bill that allows refusal of service to same-sex couples who intend to marry. First we deal with concerns specific to particular provisions, then general concerns.

Religious ministers

It is unnecessary to provide ministers of religious with an additional legal right to refuse service to same-sex couples when they already have this right for all couples.

Civil celebrants

Civil celebrants are delegated by the government to perform a government duty, much like justices of the peace. They are also private business owners who provide a commercial service. On both counts, they should not be able to refuse service to anyone on the basis of their relationship status, sexual orientation or gender identity. We are not aware of any organised call or demonstrated need for civil celebrants to be able to discriminate against same-sex couples.

Religious organisations

Religious organisations provide commercial services that could be relevant to marriages.

These commercial services should be subject to the same laws as all commercial services.

That means they should not be able to refuse service to anyone on the basis of their relationships status or sexual orientation.

General concerns

Stigma

We are concerned that the proposed provisions are specific to same-sex couples. This means same-sex relationships will continue to be stigmatised as second-rate and less worthy than heterosexual relationships. One of the main reasons for allowing same-sex couples to marry is to challenge the deep, historical stigma and prejudice against same-sex relationships. We oppose the proposed provisions because they will perpetuate this stigma.

Access to services

We are concerned that couples in rural and regional areas may find it difficult to access wedding services under the proposed provisions. One of the main reasons we support marriage equality is to allow couples to celebrate their love and commitment with friends and family in those places that mean the most to them, for example, in the communities they grew up in. Denial of wedding services can limit the choices same-sex couples make about where to celebrate their marriages.

Not equality

We are concerned that any marriage equality legislation that entrenches the unequal treatment of same-sex couples undermines the point of allowing same-sex couples to marry. Indeed, it cannot properly be called “marriage equality”. The many people who support marriage equality because it provides for equality would find it very difficult to support legislation that takes with one hand while giving with the other.

Anti-discrimination principles

We are concerned the proposed provisions undermine Australian anti-discrimination law.

Protections that currently exist under some state laws will be lost. The principle that there should be no discrimination on the grounds of relationship status or sexual orientation will be infringed. The fundamental principle of discrimination law - that everyone should have equal access to the same opportunities in life - will also be violated.

The slippery slope

We are concerned by the precedent the proposed provisions will set. If this parliament accepts that same-sex couples can be discriminated against because of the religious beliefs of service providers, what stops a future parliament allowing discrimination against inter-racial partners, inter-faith partners, civil union partners, or any partners who don’t conform to a particular religious doctrine? Indeed, what stops parliament accepting any form of discrimination that can be justified by holy texts? We note that in the United States a religious freedom bill before that Kentucky state legislature has prompted concerns from those people who feel it is broad enough to encompass couples other than the same-sex couples it explicitly targets.

International precedents

We are concerned that Australia would be defying the trend in comparable jurisdictions if the proposed provisions were passed. The legislation that achieved marriage equality in the UK, New Zealand, Canada and Ireland did not contain any provisions allowing for the refusal of services (other than by ministers of religion). There is no evidence that religious freedoms have been undermined in those countries. If those countries can pass true marriage equality, Australia should be able to as well.

Debasement of religious values and freedoms

We are concerned that the proposed provisions debase religious values and freedoms.

Because the provisions we object to allow refusal of service only to same-sex couples they are clearly not about genuine religious values, they are about permitting prejudice. If they were about the former, they would encompass all couples whose relationships might violate religious tenets. Associating religious values with prejudice in this way debases the very concept of religious values and diminishes the reputation of religious institutions in the eyes of everyday Australians. This is why so many people of faith object to the offending provisions. The same goes for religious freedom. There is an unconditional freedom to hold a religious view. But there is not an unconditional freedom to impose religious values on others, or harm or disadvantage others through the practise of these values. To make a claim to the latter freedom devalues the suffering of those religious minorities around the world who are experiencing genuine infringements of their religious freedom.

Personal conscience

We are concerned that the proposed provisions allow “conscientious beliefs” to be the basis for refusing service. This is an ill-defined term that conceivably encompasses all forms or personal prejudice. We oppose “religious beliefs” being a legitimate basis for refusing service, as much as we oppose “conscientious beliefs”. Both terms allow discrimination against LGBTIQ people in the provision of government and commercial services. However, at least there is a body of jurisprudence that sets limits on “religious beliefs”. This is much less the case with “conscientious beliefs”.

Ensuring full inclusion

Most marriage equality legislation that has been proposed makes it clear that marriage is between two people regardless of sex, gender or sexual orientation. This helps ensure marriage equality is fully inclusive of transgender and intersex people. We believe the Marriage Amendment (Same-Sex Marriage) Bill should do the same.

The views of the LGBTIQ community

As stated at the outset, just.equal takes its mandate from comprehensive and exhaustive research on the attitudes of LGBTIQ Australians. Together with groups such as Parents and Friends of Lesbians and Gays, just.equal has commissioned research on the issue of refusal of service. The research is currently underway. We ask the Committee’s permission to be able to present a report of the survey when it is completed.

(the survey report is now available here)