On 15 February the Senate Select Committee handed down its report on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.1

Key points 

The Senate Select Committee stated in its report that:

  • in the short term there is a need to enhance current protections for religious freedom generally.
  • there was broad agreement that any future legislation to amend the Marriage Act should ensure religious freedoms are appropriately protected when considering changes that extend access to marriage to all adult couples.

Background: The Exposure Draft and Senate Committee

In late 2016 in preparation for the federal government’s proposed plebiscite on same-sex marriage, the government released an Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill showing the changes it proposed to make to the Marriage Act and the protections it would provide for religious freedom. The Bill was not formally approved by Cabinet or the party room – it was an exposure draft for discussion.

It is widely known that the plebiscite legislation was blocked in the Senate. There is currently a stalemate as to whether there will be a plebiscite, a parliamentary vote or no action on same-sex marriage until after the next election.

A Senate Select Committee was formed in late 2016 to examine the exposure draft, with particular reference to the adequacy of its religious freedom protections. ICS made a written submission to the Committee (see here). Institute representatives Simon Kennedy and Sharon Rodrick appeared in person at the Committee’s public hearing in Melbourne on 23 January 2017.2 Several questions from Committee members were put on notice, and ICS provided written answers to them in due course (see here).

The arguments in ICS’s submission focussed on:

  • the centrality of religious conviction and conscience to personhood and the cost to a person of being forced by law to act against such conviction;
  • the experience of many individuals and organisations suffering detriment and discrimination because of their religious or conscientious conviction in favour of traditional marriage (e.g. discrimination against individuals in employment and government appointments; commercial supplier boycotts of organisations and businesses; and refusal to accredit graduates to practise their profession because their colleges had a position against same-sex marriage);
  • the need for improved legal protections for such individuals and organisations to protect their freedom of religion and conscience (as well as much better community and political leadership in the way the debate is conducted to avoid the labelling and abuse of opponents and their arguments);
  • particular protection mechanisms, such as broader religious freedom protection legislation or an anti-detriment provision in federal legislation relating to same-sex marriage. This provision would make it unlawful for a person, business or government to impose a defined detriment on individuals and organisations because of their religious or conscientious conviction in favour of traditional marriage.

Senate Committee’s Report

Following public hearings and the acceptance of submissions, the Senate Select Committee agreed that there must be appropriate protections of freedom of religion if same-sex marriage is legalised, and that there were numerous complex issues to work through to determine these. As the Executive Summary states:

[T]here was consensus in the evidence received that the right to religious freedom should be positively protected. The nature of possible protections will continue to be debated. The committee heard of various potential remedies to this issue, such as an anti-detriment provision or a distinct legislative instrument to protect religious freedom.

The Committee also ‘observed considerable consensus for a continuation of exemptions for ministers of religion, and for religious celebrants involved in the solemnisation of same-sex marriages’. The Committee also highlighted a number of complex issues regarding religious freedom protections on which there is no consensus that must be worked through if same-sex marriage were to be enacted. One area of contention is whether the right to choose to provide services only for marriages between a man and a woman on the grounds of a religious or conscientious belief should be available to individuals as well as members of recognised religious groups.

The Committee has provided a very valuable public analysis as to whether there is an international human right to same-sex marriage requiring a state to enact it, concluding as follows:

The committee notes that evidence presented to the inquiry consistently recognises that, under current human rights instruments and jurisprudence, there have been no decisions that oblige Australia to legislate for same-sex marriage. That said, there has been no suggestion that there are any legal impediments to doing so.

The views of ICS were cited several times in the report. The Committee quoted our arguments about the strength of religious and conscientious conviction, the pain of being forced to act contrary to it, and the importance of protecting it:

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 … 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.

One of ICS’s key contributions was the recommendation of greater legislative protection of religious freedom, either through a Religious Freedom Protection Act, or an anti-detriment provision focussed on protecting people in relation to religious convictions about same-sex marriage. An anti-detriment provision would prohibit both governments and private sector organisations from acting detrimentally towards a person or organisation on the basis that they hold, express or have an association with a group that holds a view that marriage is between a man and a woman.

The Committee said:

In the short term, the evidence supported the need to enhance current protections for religious freedom. The committee suggests that this could most appropriately be achieved through the inclusion of ‘religious belief’ as a protected attribute in federal anti-discrimination law. However, in future, the committee considers that the concept of a ‘no detriment’ clause could be further examined.

ICS agrees with the need to enhance legislative protections of freedom of religion and conscience which are scant in Australian statute books. However, ICS does not agree with the Committee that the inclusion of religious belief as a protected attribute in anti-discrimination law is a sufficient solution to the problem. We said this in our Answers to Questions on Notice:

  • It is also very important to note that religion is not just protected in international law as a species of protected attribute under the equality right. It is a standalone liberty right like freedom of speech or freedom of association. No one would think those rights were adequately protected simply by making them into types of protected attributes under an equality right. A law which bans all free speech on a topic or the expression of all religious views on a topic (or all public worship of any type) by all persons regardless of their religious beliefs may be non-discriminatory but it tramples on freedom of speech and of religion. 
  • If the Committee were minded to recommend a broader protection of religious and conscientious belief, it should consider the US Religious Freedom Restoration Act of 1993, 107 Stat. 1488, codified at 42 U.S.C. § 2000bb which has led to a range of US State Religious Freedom Restoration Acts. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”] The law provided an exception if two conditions are both met.
  • First, the burden must be necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.

It is difficult to foretell where this debate will go from here. At the least, the Committee’s report and the submissions by ICS, Mark Fowler, Patrick Parkinson, Neil Foster, Nicholas Aroney and Joel Harrison, and numerous others, have put forward many well-argued cases for better legislative protections of freedom of religion and conscience on the public record. Especially, but not only, in the context of same-sex marriage.

For further reading, we recommend to readers Mark Fowler’s excellent summary of the Report, found here.

1  http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Same_Sex_Marriage/SameSexMarriage/Report

2 See Kennedy and Rodrick’s testimony at  http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommsen%2F4578eae5-3f42-4336-abc1-b2badd18a6d5%2F0004%22