17 Nov We have the will, now for a way forward on same-sex bill
The will of the Australian people on the question of marriage is clear. The question now for our legislators is this — what are the means by which it will be effected?
The starting place is the Dean Smith bill. Senator James Paterson has declared his intention to seek a series of amendments. His proposals are the most complete presentation of the concerns expressed in the public debate that we have seen to date.
What will ultimately make it through the Senate and then the House will likely be an amalgam of the two. Considering their chief distinctions gives the best insight into the possible outcome.
The first difference is foundational, and one that has been missed in the coverage so far: Paterson’s proposal redefines marriage to include both the current and the new definition.
Smith’s bill says marriage is the “union of two people”. This ignores the fact that almost four in 10 Australians are of the view marriage is between a man and a woman. Smith’s bill does not adequately reflect the diversity of the concern of Australians. Paterson clarifies that both views are legitimately held.
Second, expressive rights. As acknowledged by the US Supreme Court majority in the 2015 decision that recognised a constitutional right to same-sex marriage, the view that marriage ‘‘is by its nature a gender-differentiated union of man and woman … long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world’’.
Paterson, an agnostic, but a firm believer in free speech, does not shy from the fact that a booklet outlining the Catholic position on same-sex marriage was held by the Tasmanian anti-discrimination commissioner to be a possible violation of anti-vilification law.
Paterson seeks to overturn state anti-vilification laws that would prohibit such an expression. His proposal does not permit threatening or harassing expression. To paraphrase Attorney-General George Brandis, there is no right to be a bigot here.
Third, Paterson relies on the external affairs power extensively, particularly the religious freedom protection at Article 18 of the International Covenant on Civil and Political Rights.
On close scrutiny of Paterson’s 35,000-word explanatory memorandum, it becomes clear his proposals provide greater protections to human rights than Smith’s bill.
The analysis accompanying his bill discussing when international law will permit a human right to be limited is incorrect. He thus runs the risk of reaching inaccurate conclusions as to when religious freedom can be limited.
Fourth, Smith’s bill fails to acquit certain unanimous recommendations of the February Senate select committee. The most notable recommendation Smith fails to follow is that celebrants who are not ministers should be able to act consistently with their religious convictions.
Fifth, the amendment likely to be the most contested is that concerning bakers and florists. Paterson’s justification is international law on religious freedom protects individuals, not just churches.
Sixth, Paterson offers a “shield” to persons who hold a traditional marriage belief from unfavourable treatment by government. For this, he relies upon the Senate select committee’s conclusion that “the evidence supported the need to enhance current protections for religious freedom” and its identification of an anti-detriment clause as one of the “various potential remedies” available. The committee made these comments in response to evidence of detrimental treatment internationally.
Paterson’s anti-detriment clause will not permit discrimination against same-sex couples. It will operate only where the person seeking protection is not themselves discriminating.
Seventh, Paterson seeks to give parents a right to withdraw children from classes that conflict with their moral or religious beliefs.
Again, he relies on international human rights, namely Article 18(4) of the ICCPR: “the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions”.
Finally, Paterson wants to ensure faith-based organisations will not lose their charitable status if they hold a traditional view of marriage. In August, the New Zealand Charities Board deregistered Family First because its view of traditional marriage “cannot be determined to be in the public benefit in a way previously accepted as charitable”.
Smith’s bill does not engage with the eight matters I have outlined, all of which have been comprehensively raised for the consideration of the electorate during the course of the postal survey.
This article was originally published in The Australian.