Marriage equality does not justify new exemptions to anti-discrimination laws

Marriage equality does not justify new exemptions to anti-discrimination laws

The Australian Government should allow for marriage equality without introducing new carve-outs from Australia’s anti-discrimination protections, said the Human Rights Law Centre today in its submission to a senate inquiry into the Government’s exposure draft Same-Sex Marriage Bill (the Draft Bill).

The Human Rights Law Centre welcomed the inquiry into the Draft Bill and key aspects of the proposed legislation. The senate inquiry is an opportunity to progress the debate on marriage equality and decide on what exemptions, if any, should be included if marriage equality laws are passed.

The Human Rights Law Centre has also made 15 recommendations to improve the Bill, including amendments to better balance freedom of religion with freedom from discrimination.

“The bill is a positive step forward for achieving marriage equality but the introduction of unprecedented and unnecessary exemptions for civil celebrants and religious organisations is deeply concerning and should be addressed by this inquiry,’ said the HRLC’s Director of Advocacy Anna Brown.

‘We strongly support religious freedom but it’s important to realise that the law already contains broad carve outs that allow religious bodies to discriminate. Like other jurisdictions that have achieved marriage equality, we need to ensure that this reform is achieved in a balanced manner without winding back existing anti-discrimination protections,’ added Ms Brown.

Ministers of religion
“We strongly believe that ministers of religion should be free to conduct marriages ceremonies in accordance with the doctrines, tenets and beliefs of their faith. However, the bill should not single out same-sex couples and should use the same legal test already set out in federal anti-discrimination laws,” said Ms Brown.

Civil celebrants
The HRLC opposes exemptions in the Draft Bill that would allow civil celebrants to refuse to marry a same-sex couple based on the civil celebrant’s religious or conscientious beliefs.

"Civil celebrants were introduced to provide a dignified secular alternative to religious marriage ceremonies and now conduct around 75% of marriages in Australia. Unlike ministers of religion, civil celebrants are appointed to perform a secular function on behalf of the state. There is no place for discrimination in these ceremonies," said Ms Brown. “The majority of countries which have passed marriage equality have not allowed civil celebrants to discriminate against same-sex couples.”

Religious organisations
The Draft Bill proposes a new exemption to allow religious bodies or organisations to lawfully refuse to make facilities available or to provide goods or services for same-sex couples for a wedding ceremony, reception or incidental purposes – a measure not supported by the HRLC.  

“The bill introduces a new and unnecessary exemption for religious bodies, which can already take advantage of broad religious exemptions in the Sex Discrimination Act 1984 (Cth) and we should be working to reduce discrimination rather than entrenching it further” said Ms Brown.

Conscientious belief
The HRLC strongly opposes proposals to allow ministers of religion and civil celebrants to refuse to conduct ceremonies for same-sex couples based on a ‘conscientious belief’ that marriage should be between a man and a woman.

“An individual’s personal moral view should not legally justify discrimination. The purpose of discrimination law is to protect people from unfair treatment on the basis of a particular view of them as inferior or less worthy because of an inalienable attribute, whether that be sex, race or sexual orientation,” said Ms Brown. “Unlike religious belief, conscientious belief – a personal moral view – should not be available as a defence to discriminate against same-sex couples.”

Military chaplains
The bill also allows non-denominational military chaplains to refuse to marry a same-sex couple of an Australian Defence Force member serving overseas for religious reasons. The HRLC recommends that this exemption be removed or that an alternative means of accessing marriage should be provided to same-sex couples serving in the military.

“It’s only fair that those putting their lives at risk for their country should be able to marry to the person they love without fear of discrimination. A LGBTI person serving in the Australian Defence Force overseas is unlikely to have an alternative way to marry if the military chaplain refuses and would be denied the same opportunity as other couples,” said Ms Brown.

Senate hearings
The Senate Select Committee will hold hearings in Sydney, Melbourne and Canberra starting today and will release its report on the bill on 13 February 2017.

A copy of the submission can be found here.