In late 2016 the Australian Senate established a committee to inquire into the Marriage Amendment (Same-Sex Marriage) Bill. The committee called for submissions exploring:

  1. the proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations to refuse to conduct or solemnise marriages, and the extent to which those exemptions prevent encroachment upon religious freedoms;
  2. the nature and effect of the proposed amendment to the Sex Discrimination Act 1984;
  3. whether there should be any consequential amendments to this bill, or any other Act, and, if so, the nature and effect of those consequential amendments.

In January, 2017 ICS made the following submission to the committee:

Institute for Civil Society

ABN: 46 611 668 243 13 January 2017
www.i4cs.com.au
contact@i4cs.com.au

SUBMISSION TO THE SENATE SELECT COMMITTEE ON THE EXPOSURE DRAFT OF THE MARRIAGE AMENDMENT (SAME-SEX MARRIAGE) BILL

About the Institute for Civil Society

The Institute for Civil Society is a social policy think tank which seeks to:

  • Promote recognition and respect for the institutions of civil society which sit between the individual and the State such as clubs and associations, schools, religious bodies, charities and NGOs.
  • Promote recognition and protection of traditional rights and freedoms such as freedom of association, freedom of expression and freedom of conscience and religion.
  • Promote a sensible and civil discussion about how to balance competing rights and freedoms.
Terms of Reference of the Inquiry

The Committee is established to inquire into and report on, by 13 February 2017, the Commonwealth Government’s exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill, with particular reference to:

  • the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions;
  • the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it;
  • potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate; and
  • whether there are to be any consequential amendments, and, if so, the nature and effect of those consequential amendments, and the Commonwealth Government’s justification for them.
Summary of Submission

This submission does not take a position for or against the provisions of the Bill which legalise marriage between two persons of the same gender. Instead it focusses on the adequacy of the Bill’s proposed protections of freedom of religion and conscience and proposes amendments to improve these protections.
The debate over the issue of same sex marriage has been marred by polemic and intimidation. Whatever the outcome there will be a substantial proportion of the population which opposes the outcome. Whatever the outcome, we all have to live together and it would be better to do so with civility and respectful acceptance of the right of people to hold and express a view different to our own.
This submission is concerned with the need to reduce, as far as possible, current and foreseeable legal conflicts between those in favour of same sex marriage and those whose conscientious or religious belief is that marriage is between one man and one woman and to foster a climate for debate without intimidation. This goal can be advanced by:
Significantly improving the Bill’s protection of the freedoms of religion, conscience, expression and association for those whose conscientious or religious belief is that marriage is between one man and one woman.1

Creating a better climate for debate by introducing:

  • a new broad anti-detriment provision (which can be included in the Bill or in another standalone Bill), which prohibits government and private sector organisations from acting detrimentally against a person or organisation simply because they hold or express or have an association with a group that holds or expresses a view that marriage is between one man and one woman; and
  • a limited and nuanced protection of persons from a discrimination or vilification complaint and action brought against them but only to the extent that the complained of conduct was purely the expression or manifestation of their religious or conscientious belief about marriage being between a man and a woman.

These proposed changes would be carefully balanced with the interests of gay and lesbian Australians and would not authorise discrimination against gay and lesbian Australians on the grounds of their sexual orientation, but would permit a limited freedom to discriminate in relation to same sex marriage contexts on the grounds of a genuine religious or conscientious objection to same sex marriage. (This is what proposed sections 47A and 47B do but the changes proposed in this submission would apply the freedom to a wider class of persons and organisations).
The current and foreseeable conflicts arising from the same sex marriage debate and the proposed legalisation of same sex marriage go far beyond whether ministers of religion or civil celebrants who have a religious or conscientious objection can refuse to solemnise a same sex marriage. The Bill’s proposed exemptions (in sections 47A and 47B) for ministers of religion, marriage celebrants and religious bodies and organisations providing facilities or goods and services incidental to the solemnisation of a marriage, are too narrow to prevent encroachment upon religious freedoms and freedom of conscience and need to be substantially broadened.
This is because the institution of marriage is fundamental to many laws and the proposed change to the definition of marriage in the Marriage Act will automatically lead to many substantial flow on effects in the operation and application of other Federal, State and Territory laws such as anti-discrimination laws, succession laws and charity law. The Bill’s provisions regarding protection of freedom of religion and of conscience do not adequately consider and address these flow on effects.

The nature of religious freedom and its protection in international law

Freedom of religion is protected in two ways in international law:

  • as a stand-alone fundamental right
  • as a protected attribute which attracts the right to equal treatment or non-discrimination

In international law, religious freedom as a standalone right extends beyond freedom of belief and worship to include the right to manifest the religious belief in practice – acting in accordance with religious beliefs in all aspects of a person’s life in public and in private.
The International Covenant on Civil and Political Rights (ICCPR) Article 18 provides:

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Freedom to manifest religious belief may be subject to limitations but only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
There is no international human right to same sex marriage. As Mark Fowler has demonstrated in his submission to this inquiry both the UN Human Rights Committee in Joslin v New Zealand interpreting the ICCPR and the European Court of Human Rights in its decisions on the European Covenant on Human Rights establish that a state is not obliged by the equality rights in those instruments to introduce same sex marriage.2
Freedom of religion is individual and associational – it applies to both an individual and to an organisation or association formed to advance the religion.
The freedom of religion does not conceive of religion as monolithic but recognises that there may be a diversity of religious doctrines, beliefs and practices within a broader religious movement e.g. Christianity, Judaism, Islam, Hinduism, and that an individual adherent may not adhere to all the doctrines of the religion to which they belong.
Freedom of religion overlaps with freedom of conscience in relation to the freedom to act on convictions derived from religious belief or conscience. In each case, the individual or the organisation has a conviction that a certain attitude or course of conduct is required or prohibited by the religion or the principle of conscience which must be followed as a matter of duty. The duty is owed through prior commitment to God or to gods or to an accepted principle of conscience. To fail to fulfil the duty (or do all that can be done to fulfil it) causes major internal conflict and perhaps a sense of failure and shame.
Persons with a strong religious or conscientious duty will act contrary to their self-interest, economic and physical security and pleasure to fulfil the duty.
The nature of a conviction of religion or conscience as imposing a significant duty is not much articulated in modern society where it is often diluted by being treated in the same way as any preference. Failing to fulfil such a duty is much costlier than giving up a preference.

The level of protection of religious freedom in Australian law

In Australian law religious freedom as a standalone right is recognised by the common law (but is subject to derogation by any statute) and some forms of religious freedom are protected from Commonwealth statutory interference by s.116 of the Constitution.
Unlike other countries Australia has no statutory expression of a standalone right to religious freedom.
Some Australian jurisdictions include religious belief and activity as a protected attribute in their anti-discrimination legislation but there is no statutory protection against discrimination on the ground of religion in federal law, NSW law and very little in South Australian law.4 Whereas discrimination on the grounds of sexual orientation is prohibited in all Australian jurisdictions. Thus there is a significantly greater coverage of discrimination law protection of sexual orientation than of religious belief and activity.5

Inadequate Protection of Freedom of Religion and Conscience, Expression and Association in clause 6 of the Bill

We provide an analysis of some of the gaps in coverage of the proposed exceptions in section 47 and 47B for ministers6 of religion and religious bodies.
We also respectfully adopt the analysis and comments of Mark Fowler in his submission7 on the inadequate coverage of proposed sections 47, 47A and 47B as regards:

  • individual dissenting ministers in a religious organization
  • dissenting ministers within a religious body that supports same sex marriage
  • religious freedom rights of celebrants
  • facilities goods and services suppliers
  • charities
The Need for a General Anti-Detriment Provision to Protect People and Organisations with a Religious or Conscience Conviction that Marriage is between a man and a woman

Experience in Australia, Europe, Canada, New Zealand and the US is that the debate about legalising same sex marriage and the legalisation of same sex marriage has led to increased adverse action and discriminatory treatment by government and private sector organisations against persons whose conscientious or religious belief is that marriage is between a man and a woman and against organisations (including religious organisations) which operate on that same conscientious or religious belief.

Examples of this adverse action include:

  • increased discrimination complaints and lawsuits under existing anti-discrimination laws against such persons and organisations including religious bodies, such as the complaint against Bishop Porteous and all Australian Catholic Bishops. The Bishops published a booklet Don’t Mess with Marriage to parents of Catholic school students which contained a statement of orthodox Catholic teaching that sexual relations should occur between a man and a woman within marriage. Rodney Croome of Marriage Equality called for complaints to be made and a complaint was made against Bishop Porteous by a non-Catholic transgender person under s.17 of the Anti-Discrimination Act 1998 Tasmania which provides:
    1. A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of a specified attribute [including sexual orientation but excluding religious belief or practice] in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

    The Commissioner considered the complaint disclosed a prima facie breach and the Bishops had a case to answer. After 7 months and several attempts at conciliation the complainant dropped the complaint.

  • Religious ministers and bodies being forced to conduct same sex marriages:
    In 2012 Denmark amended its law on recognising same sex relationships by compelling churches to conduct same sex marriages. If a particular minister of religion has a conscientious objection the bishop must find one who doesn’t.8
    In 2014 city officials in Idaho enforced an ordinance against Christian pastors telling them that if they refuse to marry homosexuals, they will face jail time and fines9
  • government de-funding of such persons and organisations
  • Facebook’s censorship of thoughtful posts in favour of traditional marriage and opposed to same sex marriage to uphold its community standards10
  • removal of charitable status of religious organisations which operate on a traditional view of marriage (UK Charities Commission removed the charitable status of Catholic adoption and foster agencies because they preferred not to adopt or foster to same sex married couples),
  • denial of professional accreditation to teaching graduates and law graduates from a university which adopted a traditional view of marriage so that graduates from that university were prevented from practising their profession simply because they graduated from an institution which had a stated opposition to same sex marriage (Canada – the Trinity Western teacher accreditation case and now the multi-province lawyer accreditation cases),
  • private sector individual and collective refusals to do business with same sex marriage dissenting individuals and firms (e.g. supplier and landlord and local government actions against current and proposed Chick-fil-A franchises in the USA when Chick-fil-A made donations to groups opposed to same sex marriage – see Attachment A)
  • termination of employment in a commercial enterprise because the employee was opposed to same sex marriage11
  • persons being forced to resign from organisations opposed to same sex marriage or lose their jobs in a commercial organisation12.
  • Businesses being threatened with violent protests endangering their staff if they host events opposed to same sex marriage13

Some of these examples and others are expanded on in Attachment A.
We submit that this climate of adverse action and intimidation is unhelpful to holding a civil debate and to the unity of Australian society once a decision is made on same sex marriage. While this is in part a problem of culture needing better community leadership as to how our society can be truly tolerant of different positions, it could also be remedied in part by introducing a broad federal anti-detriment provision prohibiting government and private sector organisations from acting detrimentally towards a person or organisation because they hold or express or have an association with a group that holds or expresses a view that marriage is between one man and one woman. Similar protections already exist for gay and lesbian Australians in relation to actions taken based on their sexual orientation. But there is no corresponding legal protection for persons who have a religious or conscientious conviction that marriage is between a man and a woman.
Such legal protections would retard the risk of and fear of adverse actions against those persons and send a message that the adverse actions are not acceptable. It is the same reasoning that led to anti-discrimination laws protecting gay and lesbian people. Legal protections are not a complete solution to cultural intolerance but they help practically and in shaping the culture. If those tempted to engage in intimidatory tactics on both sides of the debate have legal restraints on them, both the debate and life after the debate are more likely to be free and civil.
A broad anti-detriment provision should be included in this Bill or any other Bill to legalise same sex marriage (or could be included in a standalone Bill not legalising same sex marriage in order to set the conditions for the ongoing debate and plebiscite if that occurs14).
We suggest that a broad anti-detriment provision could be enacted in federal law based on the external affairs power and the marriage power. It would bind the States and Territories and the Commonwealth. One option would be to create a new form of unlawful discrimination which is based on a person or organisation holding or expressing or acting on a genuine conscientious or religious belief that marriage is between one man and one woman. Such discrimination could be made unlawful under the Human Right and Equal Opportunity Commission Act and be subject to complaint to the AHRC and the processes of conciliation and if that failed determination in federal court.

Adding a limited protection of persons from a discrimination or vilification complaint and action brought against them only to the extent that the complained of conduct was the expression of their religious or conscientious belief about marriage being between a man and a woman

As a complement to a broad anti-detriment provision, a more limited and nuanced provision would be needed to limit discrimination and vilification complaints and actions against persons solely on the grounds that they express or act on their religious or conscientious belief that marriage is between a man and a woman is a discrimination or vilification complaint. This can be dealt with in several ways.
First, a federal law could provide that the simple expression of a religious or conscientious belief that marriage is between a man and a woman cannot of itself amount to discrimination or vilification of persons. However, if the expression of the religious belief was accompanied by other expressions of contempt or hatred of the person those other expressions could be the subject of a complaint.
Second, a federal law could provide that an act of refusing to supply goods or services in relation to a same sex marriage or same sex married couple based on of a religious or conscientious belief that marriage is between a man and a woman (and not based on another protected attribute such as the sexual orientation or sexual activity of the couple) does not constitute prohibited discrimination.
This second and more limited anti-detriment provision should be drawn carefully to ensure it protected persons and organisations from government or private sector detrimental action based on their religious or conscientious belief that marriage is between a man and a woman but did not authorise such person or organisations to otherwise discriminate against gay or lesbian people simply because of their sexual orientation.
Thus the new anti-detriment provision would protect a person from adverse action in the form of a discrimination law complaint because the person refused to provide photography services to a same sex couple during their same sex marriage ceremony because of a religious conviction against supporting same sex marriage. But the provision would not protect the person if they refused to provide photography services to a gay or lesbian couple or person because they were gay or lesbian.
A possible objection to this proposal is that most federal, State and Territory anti-discrimination laws prohibiting discrimination on the grounds of marital status and sexual orientation contain a balancing provision that an action which conforms with the doctrines, beliefs or practices of a religion is not prohibited discrimination, and therefore a new anti-detriment provision is not needed.
That objection is not persuasive. In general, only religious bodies benefit from those balancing provisions. The balancing provisions do not benefit individuals (except in Victoria where the balancing provision has been read very narrowly15 ). And the balancing provisions do not benefits corporations or associations which are not religious bodies (eg businesses or associations which were not formed for religious purposes but which operate in accordance with religious principles because of the convictions of their owners or managers.(like Ashers Bakery – see Attachment)).

Indicative rough draft and foreign models

A rough first draft of the first aspect of the anti-detriment provision (which will need more work) is as follows:

  1. Notwithstanding anything in any other law or enactment (including any enactment of a State or Territory) it is unlawful for a person16 to treat or propose to treat another person unfavorably, or subject or propose to subject another person to any detriment or disadvantage or denial of any benefit, whether directly or indirectly, in relation to:
    1. employment
    2. engagement as a contractor
    3. academic, trade or professional qualifications or accreditation or licensing
    4. accommodation
    5. education
    6. provision of grants, funding or subsidies or other economic benefits
    7. provision or goods or services
    8. administration of Commonwealth, State, Territory or local government laws and programs including the allocation, limitation or denial of funding to entities pursuant to those laws or programs
    9. membership of any group
      because the other person:
    10. holds genuine religious or conscientious beliefs that marriage is between one man and one woman
    11. acts or refuses or omits to do any act in accordance with a genuinely held religious or conscientious belief that marriage is between one man and one woman
    12. expresses an opinion that accords with a genuine religious or conscientious belief that marriage is between one man and one woman.
  2. This section binds the Crown in right of the Commonwealth and of a State and Territory.
  3. [Add to the definition of “unlawful discrimination” in section 3 of the Australian Human Rights Commission Act 1986 any acts, omissions or practices that are unlawful under this section].

Many legislatures have enacted such anti-detriment protections for religious and conscientious objectors in their legislation for same sex marriage. Canada did so in its Civil Marriage Act17 (although its protections turned out to be too narrowly framed focusing only on detriment under a federal law and not detriment under provincial law or private action). The US States of Connecticut, District of Columbia, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington have also enacted religious exemptions as part of their legislation recognizing same-sex marriage and others are proposed. These laws should not be affected by the US Supreme Court decision in Obergefell v. Hodges which converts the statutory right to same sex marriage in those jurisdictions into a constitutional right but said nothing about anti-detriment provisions to protect religious conviction.
A group of US law professors (both for and against same sex marriage but agreeing on the need to minimise legal conflicts between same sex marriage and persons of contrary religious or conscientious belief) has proposed model legislation to forestall most such conflicts – see http://mirrorofjustice.blogs.com/files/hawaii-special-session-letter-10-17-13-1.pdf.

The Balance of Harms in Protecting Religious and Conscientious Objectors

It must be acknowledged that the refusal of goods or services to a same sex couple is likely to cause them some degree of dignitary and emotional pain. It is highly unlikely that permitting conscientious objectors to refuse to supply commercially available goods or services related to marriage to same sex couples who are to be married or are married would lead to an actual inability of such couples to access those commercial goods or services. It is difficult to imagine a case where there were no alternate commercial providers of such goods or services who could not undertake the supply.
The balancing of harms then comes down to balancing the dignitary and emotional harm to the same sex couple and the inconvenience of arranging an alternative supplier against the harm in forcing a conscientious objector to act against their religious or conscientious conviction or go out of business or pay damages or fines as well as possibly facing public protest and social media vilification. For the reasons given by Dr Greg Walsh in his forthcoming article in (2017) University of Tasmania Law Review, we consider that balance should be resolved in favour of protecting the religious conscientious objector.
“Cases like Klein and Strydom indicate that there is the potential for those in a same-sex relationship to suffer grave harm from acts of discrimination. However, it is likely that in the overwhelming number of cases the harm experienced by the same-sex couple from being refused services by a conscientious objector will be restricted to the dignitary and emotional harm from being told that the religious adherent does not supply services for same-sex marriages and the inconvenience of contacting another service provider who will provide the desired service.
The conscientious objector, however, who understands marriage as a divinely ordained institution between a man and woman will typically suffer much greater harm if the State fails to protect their conscientious objection. A decision to facilitate the same-sex marriage may cause them to suffer severe emotional distress from the violation of their religious commitments and possibly the impairment of their relationship with their faith community. Alternatively, a refusal may result in them being the subject of protests, boycotts and complaints to anti-discrimination tribunals with the frequent result that they will lose their job or be forced to close their business.64 In effect, a failure to provide significant protection for religious adherents may bar individuals with a conscientious objection to same-sex marriage from a whole range of professions that typically provide services for marriages. Such claims about the consequences of failing to protect conscientious objectors are not hypothetical as the range of examples discussed above demonstrates. On the gravity of the harm suffered by same-sex couples and religious adherents Berg emphasises that
[d]enials of service do affect gay couples by causing them disturbance, hurt, and offense. While acknowledging that harm, one must also acknowledge, I think, that the harm to the objector from legal sanctions is greater and more concrete. In most cases, the offended couple can go to the next entry in the phone book or the Google result. The individual or organization held liable for discrimination, by contrast, must either violate the tenets of her (its) faith or else exit the social service, profession, or livelihood in which she (it) has invested time, effort, and money. One simply has not given the religious dissenter’s interest significant weight if one finds that offense or disturbance from messages of disapproval are sufficient to override it.”65

Attachment A
Examples of detrimental action against persons and organisations on the basis of their religious or conscientious conviction that marriage is between a man and a woman
Archbishop Porteous18

In 2015, Catholic Archbishop of Hobart, Julian Porteous circulated a booklet to Catholic schools entitled Don’t Mess with Marriage which sought to explain the Catholic Church’s position on marriage. The booklet aimed to ‘engage with [the same-sex marriage] debate, present the Church’s teaching to the faithful, and explain the position of the Catholic faithful to the wider community.’ Despite being sent exclusively to parents at Catholic schools—voluntary members of an association— Rodney Croome urged people to complain and a Greens candidate who was not a parent who received the booklet complained to the Tasmanian Anti-Discrimination Commissioner that the statements about sex and marriage were offensive and demeaning. The Commissioner found that Porteous and all Catholic Bishops had a case to answer for a prima facie breach of s.17 of Tasmania’s Anti-Discrimination Act which prohibits ‘conduct that is offensive, intimidating, insulting or ridiculing’ on the basis of sexual orientation. Porteous’ breach was articulating moderately expressed orthodox Catholic doctrine on sex and marriage—in short, expressing his and his church’s religious views. After 7 months the complainant withdrew the complaint.

Trinity Western University19

Trinity Western University in British Columbia is a Canadian, Christian university. Students and staff at TWU must sign a community covenant as a condition of being at the school. That covenant includes a promise to abstain from sexual activity unless it is between a husband and wife.
Accreditation of Teaching Graduates refused based solely on the community covenant
Based on this position on marriage, the British Columbia Teachers Board voted to refuse accreditation to graduates of Trinity’s teacher college because they might discriminate against LGBTI students. After years of litigation the Supreme Court of Canada upheld Trinity graduates right to be accredited in 2001.
Accreditation of law graduates to practise law refused by Law Societies in 4 provinces based solely on the community covenant
In 2012 TWU applied to open a law school. In response to TWU’s community covenant, several deans of Canadian laws school, as well as the Canadian Bar Association, the Law Society of Upper Canada, and Nova Scotia Barristers’ Society called for the proposed law school not to receive accreditation. Four Provincial (State) Law societies voted not to accredit graduates from Trinity’s law school to practise in those Provinces. Cases are being litigated in 3 provinces’ appellate courts and are on the way to the Supreme Court of Canada.

Ashers Bakery—Northern Ireland20

In Norther Ireland, 2014, gay-rights activist Gareth Lee asked Ashers Bakery to produce a cake for him bearing the words: ‘Support gay marriage.’ The bakery refused, because they were unwilling to be seen to promote gay marriage that ran counter to their religious beliefs. They were taken to court. Ashers were found to have discriminated against Lee, based on his sexual orientation. Ashers’ general manager Daniel McArthur stated after the ruling:

We’ve said from the start that our issue was with the message on the cake, not the customer and we didn’t know what the sexual orientation of Mr Lee was, and it wasn’t relevant either. We’ve always been happy to serve any customers that come into our shops. The ruling suggests that all business owners will have to be willing to promote any cause or campaign no matter how much they disagree with it.

When the decision was appealed in 2016 by Ashers, the Court of Appeal also held in favour of Lee, stating that he had suffered discrimination based on his sexual orientation.

Hands on Originals—USA21

A similar case to Asher’s Bakery case, but not specifically regarding same-sex marriage, arose in 2012 when a Kentucky t-shirt company, Hands On Originals (HHO) refused to print garments for a local gay-pride festival, based on the message of support for homosexuality that the t-shirt would bear. The Gay and Lesbian Services Organization (GLSO) filed a complaint with the Lexington-Fayette Urban County Human Rights Commission, which found in their favour. However, the Fayette Circuit Court reversed the decision based on the fact that:

There is no evidence in this record that HOO or its owners refused to print the t-shirts in question based upon the sexual orientation of GLSO or its members or representatives that contacted HOO. Rather, it is clear beyond dispute that HOO and its owners declined to print the t-shirts in question because of the message advocating sexual activity outside of a marriage between one man and one woman.

Chick-fil-A22

Chick-fil-A (a national sandwich franchise) made corporate donations supporting groups opposed to same sex marriage. Its chief operating officer made a number of statements supporting traditional marriage. It was subjected to consumer boycotts and some universities refused to let it open franchises on their campuses. Three cities moved to block planning permission for new franchise stores. The Jim Henson Company, which had entered its Pajanimals in a kids’ meal toy licensing arrangement in 2011, said that it would cease its business relationship with Chick-fil-A, and donate payment for the brand to Gay & Lesbian Alliance Against Defamation (GLAAD). Citing safety concerns, Chick-fil-A stopped distributing the toys.
Other suppliers backed Chick-fil-A and Chick-fil-A stopped the donations to groups opposed to same sex marriage.

Family First—New Zealand23

In 2013, New Zealand lobby group, Family First was notified by the Charities Registration Board that their charitable status was to be rescinded, which, according to Director Bob McCoskrie, was in part due to the group’s advocacy against same sex marriage. Family First appealed the decision, and in a 2015 High Court decision, regained its charitable status.

Pemberton v Inwood—UK24

In 2014, Church of England priest, Canon Jeremy Pemberton married his partner Laurence Cunnington. As a result, Bishop Richard Inwood revoked Pemberton’s license, which resulted in Pemberton being ineligible for a chaplaincy position in a NHS Trust. As a result, Pemberton brought a claim in the Employment Tribunal, arguing that Inwood had caused:

Unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation.

The tribunal did not agree, and found that Inwood had not unlawfully discriminated against Pemberton, who has since appealed the decision.

Sweet Cakes by Melissa—USA25

In Oregon in 2013, lesbian couple Rachel and Laurel Bowman-Cryer aske Sweet Cakes by Mellissa bakery to make them a wedding cake to celebrate their wedding. According to Rachel Bowman-Cryer, co-owner Aaron Klein, after being informed that the cake order was for a same sex marriage, stated:

Well, I’m sorry, but we don’t do same-sex weddings here.

The Oregon Bureau of Labour and Industries, once the case had been referred to then found that the bakery had unlawfully discriminated against the Bowman-Cryers and ruled that the Kleins owed the couple up to $150,000 in damages.

Gifford v McCarthy, Erwin—USA26

In 2012, couple Jennifer McCarthy and Melisa Erwin contacted Cynthia and Robert Gifford to arrange their wedding ceremony at their Liberty Ridge Farm estate, New York. After learning that it would be a same-sex marriage ceremony, the Giffords declined to host the event. After complaining of unlawful practice, the McCarthy and Erwin were awarded $13,000 in damages by the New York State Division of Human Rights, based on its findings that the Giffords had committed ‘sexual orientation discrimination.’ For their part, the Giffords insisted that their decision to refuse to host the ceremony was based on the event, not the sexual orientation of the individuals in question. The court brief stated that:

The Giffords serve everyone, including individuals who identify as gay and lesbian … In fact, the Giffords will gladly host myriad events, including wedding receptions, for same-sex couples. It is only same-sex wedding ceremonies that the Giffords cannot host or participate in.

Despite this, the ‘expressive endorsement’ argument forwarded by the Giffords was discounted, based on a perceived inextricability between sexual orientation and practice, in this case marriage.

Brendan Eich—Mozilla27

Co-founder of the Mozilla Corporation—best known for its browser, Firefox—Brendan Eich was appointed chief executive of the company in 2014. It quickly emerged, however, that he had made a $1,000 donation in support of Californian anti-gay marriage law Proposition 8, in 2008. A social media outcry quickly ensued. Furthermore, online dating website OkCupid posted a message to its users, asking them to boycott Mozilla by using an alternative browser when accessing their website:

“Hello there, Mozilla Firefox user. Pardon this interruption of your OkCupid experience. Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.”

Eich quickly stepped down from his new position. The executive chairwoman of Mozilla stated afterwards:

Mozilla prides itself on being held to a different standard and, this past week, we didn’t live up to it … We know why people are hurt and angry, and they are right: it’s because we haven’t stayed true to ourselves.

Damian Goddard—Canada28

Rogers Sportsnet TV host Damian Goddard was fired after he tweeted in support of traditional marriage in 2014, as a response to a tweet by sports agent Todd Reynolds. Reynold’s tweet, which in turn was answer a statement by NHL player Sean Avery’s support for same sex marriage was:

Very sad to read Sean Avery’s misguided support of same-gender ‘marriage’. Legal or not, it will always be wrong.

Goddard posted on his private Twitter account:

I completely and whole-heartedly support Todd Reynolds and his support for the traditional and true meaning of marriage.

Goddard’s employment with Rogers Sportsnet was terminated within 24 hours of his tweet. Sportsnet director Dave Rashford stated that ‘it had become clear that [Goddard] is not the right fit for our organization.’

Mercure Hotel—Sydney29

A related incident in Sydney in 2016, saw a planned gathering at the Mercure Sydney Airport Hotel targeted for their beliefs. The function, consisting of various Australian Christian groups and organizations, was aiming to form a strategy in the event of a same-sex marriage plebiscite being held. An online campaign to have the function banned threatened violent protests such that the safety of staff could not be guaranteed. The hotel cancelled the event. According to a hotel spokeswoman, the decision to cancel was based on fears for the ‘safety and security of our hotel guests and staff.’

Corporates boycotts: Georgia—USA30

In 2016 numerous companies threatened to boycott the US state of Georgia, after legislation was tabled seeking to expand religious freedom exceptions regarding same sex marriage, including allowing clergy to refuse to officiate in same-sex weddings. The companies involved included Disney, Intel, Coca Cola, Unilever, and others; as well as threats from the NFL and NBA that there would be negative consequences, in terms of match scheduling, if the laws were passed. Disney released a statement saying:

We will plan to take our business elsewhere should any legislation allowing discriminatory practices be signed into state law.

Attachment B – The exemptions for ministers of religion and religious bodies in proposed sections 47 and 47B

The exemptions in proposed ss 47A and 47B are inadequate to prevent encroachment upon religious freedoms on the grounds that:

  • By relegating freedom of religion to an exemption, they underestimate the importance of the freedom;
  • although conferring considerable protection on ministers of religion, the proposed exemptions fail to adequately protect the array of other persons or organisations who might object to same sex marriage on religious grounds; and
  • they are confined to the conduct of same sex ceremonies and do not address other religious rites or services that might be sought by same sex couples.

Each of these points will be elaborated.

Underplay the importance of freedom of religion

First, the protection that is conferred on ministers of religion in this exposure draft, permitting them to refuse to officiate at same sex marriages, puts the ‘cart before the horse’. A minister’s refusal to conduct a same sex marriage is an exercise of his or her freedom of religion, yet it is couched as a concession that the legislature has chosen to confer and which might just as easily be removed or whittled down by a future parliament with less concern for religious freedom. Given that same sex marriage is not a human right, whereas freedom of religion is clearly recognised as such, the positioning of ministers’ freedom as an exemption downplays its true significance.

Failure to adequately protect persons or organisations who might object to same sex marriage on religious grounds

Three parties are involved in, or affected by, a decision to marry a same sex couple in a church, synagogue, mosque etc. They are: person who is asked to solemnise the marriage (referred to in s 47 as the minister), the religious body or organisation to which the minister belongs (in the case of churches, this would be the particular denomination) and the members of the particular church, synagogue, mosque etc in which the marriage ceremony is to take place. We argue that the proposed exemptions in ss 47 and 47B do not adequately accommodate the potential objections of all three parties. To that end we will identify three scenarios and assess how they would fare under the proposed exemptions: For ease of reference, these scenarios refer only to churches, but the same or similar comments and concerns could be made about other faiths.
We note at the outset that the exceptions in the exposure draft proceed on the basis that there is a distinction between the religious body/ organisation and its adherents. This is clearly the case in churches that do not have complete congregational rule. These include churches which have adopted episcopal or Presbyterian forms of government. However, in independent churches, there is no true distinction between the two. We foresee that there might be definitional issues in applying the terms of the exemption in light of these differences.

Scenario One

The denomination and particular congregation agree that same sex marriages should be conducted in a church using the church’s facilities, but the minister of that local congregation disagrees and does not wish to solemnise such marriages.
Section 47 clearly protects the minister’s refusal to solemnise the marriage on the basis that his or her conscientious or religious beliefs do not allow him or her to do so, despite what his or her denomination and congregation believe31. Of course, to refuse to marry a same sex couple in these circumstances would put the Minister at odds with his or her denomination and congregation and this may have repercussions for the Minister under his or her terms of employment. While the exemption means that the denomination cannot force the minister to conduct the marriage, it raises an interesting question of the forms of action that a denomination can take against one of its ministers as a direct result of their refusal to do so. This may well depend on whether some of the other protections urged in this submission are implemented.

Scenario Two

The denomination and minister both agree that same sex marriages should be conducted in a church using the church’s facilities, but the local church congregation objects.32
This scenario is more complex. How might s 47 apply to this scenario?
Section 47(3) permits a minister of religion to refuse to solemnise a marriage, despite any law, if the refusal is made on the basis that the marriage is not the union of a man and a woman, and, in addition, any one of three considerations applies. The consideration that is pertinent to this scenario is where the refusal is necessary ‘to avoid injury to the religious susceptibilities of adherents of that religion’. However, the power of refusal is vested solely in the Minister. That is, it is left to the Minister to decide whether to proceed to conduct the marriage in spite of the congregation’s objections, or to refuse to do so not due to personal conviction, but due to a desire to avoid injuring their religious susceptibilities.
(Incidentally, we note that the term ‘susceptibilities’ is less than ideal. It generally refers to the state of being liable to be influenced or harmed by a particular thing, or to a person’s feelings or emotions. Objections to same sex marriage on religious grounds are based on doctrinal convictions, not on feelings and those who object are not seeking to avoid influence or harm to themselves, but, rather, are seeking to live in obedience to God. It is also unclear what ‘injury’ would be taken to mean in this context.)
We argue that this proposed section leaves the local congregation with insufficient power to control what occurs in their church. This is particularly important where a church follows a system of congregational rule. The most distinctive feature of a congregational system of church governance is that each local church is completely independent and autonomous; there is no organisational structure outside or above the church itself. This does not preclude such churches from fellowshipping with other churches or being affiliated with other associations, but any decision to do so is a matter for each local church and any such arrangements are voluntary and informal. Baptist churches are a prime example. Local Baptist congregations are ‘influenced and resourced’ by the Baptist Union, but are not under its control.33 Accordingly, it is possible that the Baptist Union might hold a public position that supports same sex marriage, which stance might be supported by some Baptist ministers, but the local congregation does not. It may be the case that an independent congregation is the religious body or organisation for the purposes of the exemption.
Does proposed s 47B have any application in this situation?
A refusal of facilities or goods and services for a same sex marriage, if normally made available for weddings and receptions, would ordinarily be contrary to federal, state and territory anti-discrimination laws. However, s 47B would permit a religious body or a religious organisation to refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, whether for payment or not, if the refusal is because the marriage is not the union of a man and a woman and the refusal conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.34 The problem for the congregation is that the power to refuse facilities and services is vested in the religious body or organisation. Where same sex marriage is not at odds with the tenets or beliefs of the religious body or organisation, the local congregation’s objections will only prevail if the religious body or organisation is prepared to use this exemption to avoid injuring the congregation’s religious susceptibilities. There is no obligation on it to do so.
A situation might also arise in which particular members of a congregation are asked to have some involvement in a same sex marriage but decline on the basis that they have religious objections to same sex marriage. One can envisage a church pianist being asked to play at a wedding, a church member being asked to do the flowers or usher guests to their seats or a church administrator being asked to prepare an order of service. It would appear from the wording of the section that these people are reliant on their religious organisation or body to decline on their behalf, as they are given no personal protection under the proposed legislation.

Scenario Three

The minister has no objection to a same sex marriage being solemnised in his or her church using the church’s facilities, but the denomination does not support same sex marriage.
In this case, the Minister is faced with a choice. He or she could refuse to solemnise the marriage, not out of personal conviction, but in order to conform to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation. Proposed s 47 protects a minister who refuses on this ground. Alternatively, the minister might proceed to solemnise the marriage in defiance of the denomination’s stance. While there may be repercussions for a Minister who opts to do so (in terms of his or her employment), the denominational stance is given no recognition under s 47. In short, s 47 protects the minister but not the religious body or organisation under which he or she operates.

Restriction to same sex marriage ceremonies

Finally, the exemptions in ss 47 and 47B are seriously deficient in so far as they apply only to participation in the same sex marriage ceremony and do not extend to related religious rites and observances that might be sought by a married same sex couple. For example, a married same sex couple might seek to renew their marriage vows, celebrate an anniversary, seek an annulment of their marriage or baptise a child in the church. We would argue that the exemptions should extend beyond the performance of the marriage to encompass the right to refuse to recognise, authorise or celebrate a same sex marriage in any of these contexts. If religious objections entitle a person to refuse to conduct or facilitate a same sex marriage then they should equally entitle a person to refuse to be involved in other church rites that arise out of the marriage.

Suggested exemptions

We suggest that the government adopt robust protections along the lines of those afforded to religious organisations, congregations and ministers of religion in the United Kingdom Marriage (Same Sex Couples) Act 2013. The UK provides a “quadruple lock” for religious bodies and ministers of religion. This quadruple lock:

  1. Makes clear that a religious marriage ceremony of a same sex couple will only be possible if:
    1. the governing body of the religious organisation has opted in by giving explicit consent to marriages of same sex couples; and
    2. the individual minister is willing to conduct the marriage, and
    3. if the ceremony takes place in a place of worship, those premises have been registered for marriages of same sex couples.
  2. Explicitly states that no religious organisation can be compelled by any means to opt in to marry same sex couples or to permit this to happen on their premises; and no religious organisation or representative can be compelled by any means to conduct religious ceremonies for same sex couples.
  3. Amends the Equality Act 2010 to make clear that it is not unlawful discrimination for a religious organisation or representative to refuse to marry a same sex couple.
  4. Ensures that the common law legal duty on the clergy of the Church of England and the Church in Wales to marry parishioners does not extend to same sex couples. It also protects the Church of England’s Canon law, which says that marriage is the union of one man with one woman, so that it does not conflict with civil law. (This fourth part of the lock is obviously not relevant in Australia.)

We suggest that the exemptions should give a separate and independent veto for:
the denomination; and

  • if the denomination approves SSM, for individual congregations regarding use of their facilities and staff; and
  • if the denomination and local congregation approves SSM, for individual ministers within the denomination.

This will address the shortcomings of the proposed legislation that are identified above.
Since a refusal of facilities for a same sex marriage – if normally made available for weddings and receptions – would contravene federal, state and territory anti-discrimination laws, it would be prudent to insert an exemption into the federal legislation affirming that such an exemption exists.

1 We endorse the submission and proposals by Mark Fowler in this regard.
2 Submission by Mark Fowler to this Inquiry pp 7-10.
3 ACT, Northern Territory, Queensland, Tasmania, Victoria and Western Australia –see https://www.humanrights.gov.au/quick-guide/12091
4 South Australia has a very limited protection – discrimination on the basis of religious dress or appearance in work or study can be unlawful. Ibid.
5 Likewise, more jurisdictions have laws prohibiting vilification of people on the grounds of sexual orientation than on the grounds of religion. This is not to argue for more vilification laws, which chill freedom of expression. It is to note that there is much more legal protection across the country for vilification on the grounds of sexual orientation than on the grounds of religious belief.
6 The term is used to include all religions and so covers Imams, rabbis, priests and other religious leaders who might solemnise a marriage.
7 Submission by Mark Fowler pp 12-20.
8 The Danish government Minister said “I think it’s very important to give all members of the church the possibility to get married. Today, it’s only heterosexual couples.” http://www.telegraph.co.uk/news/worldnews/europe/denmark/9317447/Gay-Danish-couples-win-right-to-marry-in-church.html
9 http://www.washingtontimes.com/news/2014/oct/20/idaho-citys-ordinance-tells-pastors-to-marry-gays-/
10 http://www.biblesociety.org.au/news/john-dickson-facebook-post-on-same-sex-marriage-taken-down-then-reinstated
11 See Attachment – Sportsnet TV host Damian Goddard in Canada in 2014 and Brendan Eich CEO Mozilla in California in 2014 who was pressured to resign because he donated his own money to a political campaign to preserve traditional marriage. I am aware of a number of similar Australian cases but not authorised to provide names.
12 Mark Allaby of PWC pressured to resign from ACL Board https://www.crikey.com.au/2016/03/01/pwc-exec-leaves-australian-christian-lobby-board/
13 Online threats of violent protests against the Mercure Hotel re its providing a venue for an ACL meeting regarding same sex marriage leading to exclusion of ACL because of fears for staff safety.
14 The national debate may yet take some time if the Senate and the government maintain their current positions or if the Senate changes its position and a plebiscite is held. To facilitate an open and honest debate and avoid intimidation it would be far better if all persons had legal protections against detrimental action being taken against them because they hold or express or have an association with a group that holds or expresses a view that marriage is between one man and one woman.
15 Christian Youth Camps Ltd v COBAW Community Health Services Ltd [2014] VSCA 75
16 “Person” will need to be defined broadly to cover individuals, corporations and governments
17 WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;
s. 3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom
18 Dennis Shanahan, 12 November, 2015. The Australian. http://www.theaustralian.com.au/national-affairs/state-politics/catholic-bishops-called-to-answer-in-antidiscrimination-test-case/news-story/b98439693f2f4aa17aca9b46c7bda776
19 Gary Johns, 28 July, 2016. The Australian. http://www.theaustralian.com.au/opinion/columnists/gary-johns/leftist-politics-and-damned-outcomes-on-matters-of-principle/news-story/ff73798276afdfdcff69a35e04d0bcb9
20 Henry McDonald, 24 October, 2016. The Guardian. https://www.theguardian.com/uk-news/2016/oct/24/born-again-christian-ashers-bakery-lose-court-appeal-in-gay-cake-row; 19 May, 2015. The Guardian. https://www.theguardian.com/society/2015/may/19/northern-ireland-ashers-baking-company-guilty-discrimination-gay-marriage-cake
21 Justin Wm. Moyer, 28 April, 2015. The Washington Post: https://www.washingtonpost.com/news/morning-mix/wp/2015/04/28/christian-t-shirt-company-doesnt-have-to-print-gay-pride-festival-shirts-court-says/?utm_term=.d678a8a29594 Fayette Circuit Court: https://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2015/04/HandsOnOriginals.pdf; Eugene Volokh, 27 April, 2015. The Washington Post: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/27/printing-business-has-first-amendment-and-rfra-right-to-refuse-to-print-gay-pride-festival-t-shirts/?utm_term=.5a3414d30a73
22 https://en.wikipedia.org/wiki/Chick-fil-A_same-sex_marriage_controversy
23 Heather McCracken, 6 May, 2013. New Zealand Herald. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10881782; http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11473926; High Court of New Zealand judgment: https://www.familyfirst.org.nz/wp-content/uploads/2015/06/aaaa-Decision-of-the-High-Court.pdf
24 Ben Quinn, 16 June, 2015. The Guardian. https://www.theguardian.com/uk-news/2015/jun/16/canon-jeremy-pemberton-first-priest-marry-same-sex-partner-sues-church-of-England; Employment Appeal Tribunal: http://www.bailii.org/uk/cases/UKEAT/2016/0072_16_0712.html
25 Curtis M. Wong, 4 February, 2015. Huffington Post. http://www.huffingtonpost.com.au/entry/sweet-cakes-by-melissa-violation-_n_6604526; http://www.huffingtonpost.com.au/entry/lesbian-couple-sweet-cakes_us_55b7adf5e4b0074ba5a64be7
26 Valerie Richardson, 28 June, 2015. The Washington Times. http://www.washingtontimes.com/news/2015/jun/28/christian-farm-family-penalized-in-gay-wedding-ref/
27 Dave Lee, 4 April 2014. BBC News. http://www.bbc.com/news/technology-26868536; https://www.twu.ca/proposed-school-law/timeline
28 23 June, 2011. The Huffington Post. http://www.huffingtonpost.ca/2011/06/23/damian-goddard-sportsnet-human-rights-same-sex_n_883589.html; Linda Nguyen, 23 June, 2011. National Post. http://news.nationalpost.com/sports/nhl/broadcaster-fired-controversial-tweet-tweet-files-human-rights-complaint
29 David Crowe, 17 September, 2016. The Australian. http://www.theaustralian.com.au/news/nation/samesex-marriage-event-off-threats-to-hotel-staff/news-story/d45bd0f9e9a774fc3e3d0741f176da13
30 24 March, 2016, CBS News. http://www.cbsnews.com/news/georgia-religious-liberty-bill-proposal-companies-warn-of-boycott-for-lgbt-discrimination/; Anna Fields, 23 March, 2016. Forbes. http://www.forbes.com/sites/annafields/2016/03/23/disney-is-boycotting-homophobes-and-so-should-you/#5ce13503206a
31 Proposed s 47A confers the same right on a marriage celebrant.
32 How a congregation expresses its disagreement will vary according to the type of church governance that is in place in that denomination. It may be by a majority vote; it may that the church’s eldership objects on behalf of the congregation.
33 Brian Winslade, Understanding Congregational Government in the 21st Century
http://www.baptist.org.au/site/DefaultSite/filesystem/documents/Articles_Oct2010/Understanding_Congregational_Government.pdf
34 Section 47B is expressed not to limit the grounds on which a religious body or a religious organisation may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental thereto.
35 This may need to be adjusted to account for circumstances where a denomination is simply a loose association of churches, each of which is completely independent of the others and not subject to control by a central governing body in matters of faith and practice.