Will churches ALWAYS be free to decline to marry homosexuals? States could say NO!
The first article, by Robyn J Whitaker, “If Australia says ‘yes’, churches are still free to say ‘no’ to marrying same-sex couples” (The Conversation, Oct 2, 2017), reassures churches that they currently enjoy freedom to decline to marry those who ask to be married by them, and that this will continue.
The article is a fair summary of the current law- under the Marriage Act 1961 (Cth), s 47(a)relevantly provides:
Nothing in this Part (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…
This provisions protects all ministers of religion (even those from denominations not “proclaimed” under s 26 of the Act) from being required, purely by virtue of the authority that they may have under Part IV of the Marriage Act (“this Part” referred to in s 47), to solemnise a marriage that is contrary to their religious beliefs.
However, there are two important qualifications that ought to have been provided by the author of the Conversation article.
The first is that, if same-sex marriage were authorised without any further amendments to the Marriage Act, then it is not clear whether or not s 47 as it currently stands would protect a minister of religion from an action under State anti-discrimination law. An action complaining about an act of “sexual orientation discrimination” would not be an action under the Marriage Act itself, and if that Act allowed same-sex marriages to be solemnised, a State discrimination claim might very well succeed.
It may be that current “balancing clauses” under most State laws would exempt a minister of religion from such an action at the moment- although even there, there is some doubt whether a provision which applies to protect a religious “body” can always be relied on by an individual minister of religion. In fact, as described in the paper just linked, in Tasmania there is no religious balancing clause governing sexual orientation discrimination, and so there would be no defence at the moment under that State’s law. But in any case, if the Commonwealth has not legislated on the matter, nothing would stop any other State or Territory from extending their legislation to penalise ministers of religion for refusing to conduct a same-sex ceremony.
Of course, most proponents of same-sex marriage in Australia at the moment have agreed that clergy will be able to decline to solemnise such marriages. (For comments on the most recent draft Bills put forward in this area, one by the Attorney-General in preparation for a possible plebiscite, one by a Liberal supporter of same-sex marriage, see my previous posts here and here.) But we do not know what legislation Parliament may choose to enact if the outcome of the current postal survey is a “Yes” vote. The people of Australia are being asked to vote on the change in this fundamental social institution with no idea of exactly how Parliament will implement the change. They are being assured by the Prime Minister and the Leader of the Opposition that religious freedom rights will be protected, and in effect being told, “Trust us to get it right”. That has never gone wrong, of course.
The second qualification that needs to be attached to any assurances that clergy can decline to solemnise such marriages is the observable outcome of same-sex marriage laws overseas. In Sweden, where same-sex marriage was introduced in 2009 with an exemption for clergy, the Prime Minister has recently expressed his view that all clergy should be required to solemnise such marriages: see “‘All priests should wed same-sex couples’: Swedish PM” (The Local 23 June 2017). Closer to our traditional source of legal doctrine, the UK (where the law was changed in 2013 with strong religious freedom protections for clergy), the Speaker of the UK House of Commons, John Bercow, was recently reported as expressing a similar view: see “Speaker John Bercow: Gay couples should have right to Church of England weddings” (Pink News, 4 July 2017). He said:
in marriage terms there will only really be complete legal equality when it is permissible for a gay couple to marry as a matter of right in a church.
Now of course these are personal opinions, not yet Government policy, but they are expressed by senior political figures who are likely to be highly influential in future debates. We may accept that protection of this sort will be provided for the moment, but once the change has been made the pressure for removal of any “balancing clauses” of the sort currently present in discrimination legislation will be very strong.
