Still no easy pathway to marriage equality

The massive victory march down Oxford St, Sydney, after the Yes vote was announced.
November 17, 2017

Thousands of people gathered around Australia on November 15 to hear the results of the Australian Marriage Law Postal Survey.

While the survey delivered the result that was hoped for by these crowds, there has been a growing awareness that a majority Yes response in the survey does not necessarily deliver an easy pathway to the legislation that would deliver marriage equality. Instead, a new battle is looming, to win not just the legislation that a clear majority of Australians support, but to defend anti-discrimination protections for LGBTI people.

The past four months have been difficult for the LGBTI community. As expected, right-wing homophobic organisations have used every opportunity to mobilise every tangential homophobic, transphobic and misogynist argument they can think of to support their campaign against equal marriage. At the same time as they constructed an increasingly violent and hostile atmosphere, they sought, with the aid of the mainstream media, to paint themselves as the real victims in the debate.

Despite this effort by the right, participation in the survey at 79.5% was far higher than anyone expected and it helped to deliver a very strong Yes response in the survey, with 7,817,247 people, or 61.6% of respondents saying Yes. This has created an understandable desire for parliament to deliver quickly and pass an amendment to the Marriage Act so that it provides for marriage equality.

This was reflected in the thunderous cheer at the Melbourne Marriage Survey Announcement rally to Opposition Leader Bill Shorten's call: "Today we celebrate, tomorrow we legislate". Indeed, parliament has moved quickly, with the Senate agreeing on November 15 to begin the debate on WA Liberal Senator Dean Smith’s private members bill to amend the Marriage Act. Based on the current schedule, it could be passed before Christmas.

Dean Smith’s bill

The Smith bill is seen as the consensus cross-party bill. On October 16, Labor’s parliamentary caucus endorsed the bill, arguing it “strikes an acceptable compromise” between marriage equality and religious freedoms. The Greens, who have historically opposed the inclusion of religious exemptions in the Marriage Act, have also endorsed the Smith bill. Greens leader Richard Di Natale was reported by The Guardian as saying the Greens would push for cross party changes to the bill, but would “not do anything to jeopardise” the bill if those changes were not supported.

However, the Smith bill is flawed, as it maintains the existing exemptions for religious organisations from the Sex Discrimination Act. These allow religious ministers to refuse to marry two people of the same sex or gender, if that is consistent with the beliefs of their church, and allows religious organisations to refuse to hire their venues. Also, as Catholic Archbishop of Melbourne Denis Hart told Fairfax Media on August 20, it would allow the Catholic Church and any other religious organisation to sack any of their employees who marries a partner of the same gender.

It would also extend an exemption to civil marriage celebrants via the creation of a new category of "religious marriage celebrants". Celebrants would be able to register as religious marriage celebrants and be able to lawfully refuse to perform marriage ceremonies on the basis of people's sexuality.

The problem with these exemptions is that they elevate the right of churches and religious individuals to hold their views above the right of LGBTI people to live their lives openly and exercise rights that the rest of the community takes for granted.

As bad as this legislation is, it could get worse as a consequence of efforts to further amend it. It has been very clear that opponents of marriage equality were not going accept the results of the survey if it did not go their way. It was always a cynical manoeuvre. Throughout the survey, the Australian Christian Lobby and other right-wing groups have sought to paint themselves as the real victims in the campaign and as the people in need of protection. The religious exemptions in the Smith bill are not seen as going far enough by more conservative forces both inside and outside of parliament, who have been threatening to move more than 100 amendments to the bill.

James Paterson’s bill

A glimpse of the types of amendments that could be moved was provided by Victorian Liberal Senator and former deputy executive director of the Institute of Public Affairs James Paterson. On November 13, Paterson announced his own bill to amend the Marriage Act – a bill that was described by Anna Brown from the Human Rights Law Centre as "a Trojan Horse, which would allow unprecedented discrimination".

Paterson's bill went much further than the Smith bill in creating "religious exemptions". It also created two categories of marriage — "traditional marriage" between a "man and a woman" and "marriage" between "two people".

The protections proposed by Paterson would have extended the right to refuse goods and services relating to marriage to any person holding a "religious belief" or "conscientious" belief not just about the nature of marriage, but about having children out of wedlock or the existence of trans or intersex people.

The bill would also have provided wide protections against discrimination for people advocating and holding views regarding the character of "traditional marriage" and provided binding directives to schools regarding the delivery of the Safe Schools or similar programs.

While the Patterson bill was seen as having no prospect of success, it was designed, as Brown put it, as "a blatant attempt to punch holes in discrimination law and introduce special privileges for religious conservatives".

On November 15, Paterson announced he would be withdrawing his bill, saying: “It is clear the majority of Senators believe my colleague Senator Dean Smith's bill is where we should start. I will now work constructively with my parliamentary colleagues over the coming weeks on amendments to ensure that the strongest possible protections for the freedoms of all Australians are enshrined in the final legislation.”

Amendments

Attorney General George Brandis indicated on November 15 he would introduce an amendment to extend the right to conscientious objection to performing a marriage to all civil celebrants.

The Australian reported on November 16 that Treasurer Scott Morrison is leading efforts to incorporate into the Smith Bill Paterson's proposed protections for advocates of "traditional marriage" and for guaranteed "parental protections". These would require schools to inform parents of any discussions that might be expected to occur in class, "which parents might reasonably object to", about marriage, sexuality and gender, and enshrine the right for parents to withdraw their children from these classes.

While there are clearly the numbers in parliament to pass the Smith bill as it is, it seems odd, after a 13-year campaign to end discrimination in marriage and a survey that showed the majority of Australian voters support doing so, that the campaign would settle for legislation that not only accepts existing religious exemptions to anti-discrimination laws but goes further — without an attempt to push for a reduction in these exemptions.

More importantly, failing to maintain the pressure allows the most conservative forces inside and outside the Liberal Party to push for amendments that will dramatically expand the right of religious bigots to discriminate against the LGBTI community. They are using the threat of blowing up the party, a threat that contributed to the survey being held in the first place, to help build the numbers to pass these amendments.

Conservatives will also rely heavily on arguments that they are seeking to protect the rights of the 40% of the population who opposed any change to the Marriage Act. It is important that we continue to be in the streets to remind parliament that the overwhelming majority of Australians support real marriage equality.

[Lisbeth Latham is a member of the Socialist Alliance.]

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