The parliament is preparing to rush through anti-vilification legislation to apply during the postal ballot on same-sex marriage.
Under the bill a person must not vilify, intimidate or threaten another person because of their views, expressed or believed to be held, or because of their religious conviction, sexual orientation, gender identity or intersex status.
The safeguards bill will be introduced on Wednesday and passed before parliament rises on Thursday. It has a sunset provision that means it only lasts for the duration of the ballot, the result of which will be announced on November 15.
Civil penalties will apply, to a maximum of A$12,600. But the attorney-general, George Brandis, must consent to a person taking enforcement action under the vilification and related provisions.
People are also protected from being discriminated against – in employment or by being denied access to membership of a union, club or other body – for making a donation to the campaign.
The bill requires that broadcasters, if they give opportunities for one side to put their views, must provide the other side with reasonable opportunities.
The government negotiated the emergency legislation with the opposition over the last few days.
The bill also includes requirements for authorisation of advertising and other provisions that apply to ordinary elections but did not automatically cover this voluntary postal ballot.
In the Coalition partyroom meeting one person objected to the anti-vilification provisions. But Acting Special Minister of State Mathias Cormann gave an assurance that Brandis’ approach would have a “bias towards freedom of speech”.
Labor claimed credit for securing “important concessions from the government that prohibit vilification and hate speech” during the ballot. But opposition spokespeople Mark Dreyfus and Terri Butler said in a statement: “Let’s be clear – this safeguards bill does not in any way legitimise this survey process, which has been foisted upon Australians at a massive cost”.
This is clearly false considering the situation overseas and in Australia. If Australia is to redefine marriage, substantial protections should be provided for conscientious objectors.
Why do we need protections?
In countries where same-sex marriage is legal, people who have opposed it have been fired or forced to resign from their jobs.
Business owners such as florists, bakers and photographers have been forced to compromise their beliefs and provide their services or face legal sanctions. In one US case, this resulted in a $135,000 fine.
Religious organisations that have refused to allow their facilities to be used for same-sex marriages have been denied government benefits such as tax exemptions. Universities with more traditional positions on marriage and sexuality have been denied accreditation. Advocacy groups promoting the view that marriage is only between a man and a woman have lost their charitable status.
In Australia, where same-sex marriage has not been introduced, there are already many examples of individuals suffering from discrimination, intimidation, boycotts and legal action.
Hobart’s Catholic Archbishop Julian Porteous was required to appear before Tasmania’s anti-discrimination commissioner after distributing a letter defending traditional marriage. This followed a complaint that it violated anti-vilification laws. The complaint was withdrawn, but only after a substantial amount of time and money had been expended on the proceedings.
Governments have also been willing to donate to proponents of same-sex marriage and provide other benefits (such as flying rainbow flags) while denying any such support for opponents of change. This is despite 40% of the population supporting traditional marriage.
Importantly, supporters of change do not want to introduce same-sex marriage, but two-person marriage. This new definition will raise additional challenges for conscientious objectors.
Some of the issues relating to gender identity that have already arisen overseas include parents prevented from removing their children from programs encouraging students to consider their gender identity, religious schools threatened with closure if they do not address issues of sexuality and gender identity in a government-approved manner, and the possibility of parents losing custody of their children if they refuse to affirm their child’s chosen gender identity.
These are just a few examples that could be used to demonstrate the problems that may arise when marriage is redefined – especially when it has been redefined without providing substantial protections for conscientious objectors.
How to provide substantial protections
The importance of providing conscience protections is affirmed not just by opponents of change but also by advocates for same-sex marriage such as US law professor Douglas Laycock and Liberal MP Tim Wilson.
Their support indicates that conscience protections should not be seen as excusing bigotry. Rather, they are a legitimate means of best promoting everyone’s welfare.
These protections are particularly appropriate considering that a failure to adequately protect conscientious objectors violates the right to equality. This is the very right that advocates of change assert to be of such importance to the issue of marriage equality (despite international human rights law declaring that the right is not violated by a country deciding against introducing same-sex marriage).
A failure to protect conscientious objectors can be regarded as a violation of their right to equality. This is because it subjects them to discrimination based on their religion or political opinion.
The merits of providing such protections can also be supported on many other grounds. These include conscience rights, religious liberty, parental rights, privacy, freedom of association, the rights of children, and freedom of speech.
To provide effective protection to conscientious objectors, legislation redefining marriage should:
permit individuals, companies and religious bodies to decline to facilitate a same-sex marriage or related celebration;
protect the freedom of individuals to express their views about marriage;
ensure government action does not inappropriately undermine parental duties; and
prohibit discrimination by government bodies, companies and individuals against conscientious objectors.
Despite the importance of providing such protections, the failure of so many politicians to recognise that redefining marriage will cause Australians to suffer discrimination does not inspire confidence that these protections will be provided. If politicians won’t even recognise the potential for harm despite overwhelming evidence it is very unlikely that they will strongly advocate for comprehensive protections for conscientious objectors.
The probability of this outcome is indicated by the bills proposed this year and previously. These provided very limited protections for religious ministers, civil celebrants and religious organisations.
The failure of federal politicians to take seriously the legitimate concerns that people have about the consequences of changing our marriage laws may be one of the reasons why so many will be voting “no” at the upcoming postal ballot.
The High Court’s decision to allow exceptional government spending on the marriage postal survey makes way for the latest bizarre, but typical, episode in the history of political responses to changing social attitudes to marriage.
The voluntary postal survey is unique and bizarre, in that no government has yet conducted such a statistically unreliable exercise in gauging public opinion on a contentious social issue. Yet it is typical, in that political responses to social change in areas of sex and morality are usually slow, fiercely contested, ideologically confused, but nonetheless important.
Political change in response to changes in social values is slow
The slow and strange political processes in Australia over the political recognition of same-sex marriages are actually typical of those around the world. The legislative histories of many previous changes to marriage law have been far longer and more drawn out than the recognition of same-sex marriage in Australia is likely to be.
In an era of high maternal death and limited social welfare, it was common for deceased women’s sisters to marry their brothers-in-law and assume their sister’s role as wife and mother. The churches regarded such marriages as incestuous, and fiercely opposed law reform to legalise them. It took almost 70 years for this now forgotten reform to pass.
Reforms to permit divorce, interracial marriage and to administer traditional polygamous marriages were similarly contested and slow to be formed and reformed.
It should, therefore, not be a surprise that legislative reform in Australia to allow same-sex couples to marry is taking longer than a decade.
The complex relationship between religion, law and marriage
In some jurisdictions, in some times, religious institutions have legislated and adjudicated for marriage. This has never been the case in Australia. Between 1753 and 1836, the Church of England did enjoy sole political jurisdiction and administration of marriage in the British world.
However, from federation, Australian marriage law has always been secular. Religious organisations have made their own rulings about what marriage practices their own members should engage in. But while “churches, mosques or synagogues might bless nuptials, marriage itself is not a religious institution”.
Nor is it the law’s role in Australia to impose moral standards on society. Since at least 1971, when censorship law was reformed, lawmakers have sought to use legislation to enforce current community standards, rather than impose ideologically based absolutes.
The government’s ostensible rationale for the optional postal survey is actually in line with this norm: to assess community standards. Both proponents and – especially – opponents of change have been careful to frame their arguments in relation to shared community values.
Marriage equality is about more than marriage
The case for marriage law reform to allow same-sex couples to marry has been relatively simple and consistent around the world: a claim that to include same-sex couples in marriage will increase equality and social inclusion.
As this case has gained traction in the West, opponents of change have had to innovate in order to combat rapidly changing community standards.
As I have argued elsewhere, opponents of marriage law reform are primarily motivated by religious conviction. However, in a largely secular context, where moral values cannot easily be imposed on a population, “they are attempting to hide religious and moral arguments in the Trojan horse of health and human rights discourse”.
The “No” campaign has so far largely sidestepped the social justice argument of the “Yes” campaign. Instead, they have raised fears about children in rainbow families.
Conservatives have argued that children have a “right” to a mother and a father, and that same-sex parenting necessarily involves the “removal” of a child from one of its natural parents. These are innovative arguments.
Same-sex parenting is clearly not in contravention of the UN Convention on the Rights of the Child. The right to a mother and a father is a completely novel human right for children, and one that is impossible to guarantee. And research clearly shows that children raised by same-sex parents show no different health or wellbeing outcomes to children raised by opposite-sex parents.
Similarly, when donor assisted reproduction became popular and was debated 70 years ago, governments and churches considered it at length. However, the major objection raised in these historical debates was that donor assistance in reproduction was equivalent to adultery.
As the postal survey goes ahead, we can expect to see more of these novel arguments from the “no” campaign. But it’s important to remember that legal change around marriage is historically slow, and that this debate is not about religious values, but community values. Specifically, it is about how we value LGBTI people, their relationships, and their families.
Ahead of the postal plebiscite on marriage equality, much is being written about the relative chances of a “Yes” or “No” outcome, and the strategies both sides need to influence public opinion.
However, the bulk of the public debate seems to be based on intuitive or speculative perceptions of the traits of people who are likely to oppose or support marriage equality, or on anecdotal evidence.
In 2005, 2008, 2011 and 2015, the HILDA Survey asked its national panel to rate their degree of agreement with the statement “Homosexual couples should have the same rights as heterosexual couples do” on a scale from one (strongly disagree) to seven (strongly agree).
The HILDA data have strengths and weaknesses compared to recent poll data. The drawbacks are that they are relatively old (July 2015-February 2016), and do not collect information about views on same-sex marriage specifically.
However, they are collected with much more statistical rigour (probability sampling, population representativeness), feature sample sizes that dwarf those of opinion polls (>15,000 respondents), and encompass rich demographic information.
Degree of support
We find a pronounced trend between 2005 and 2015 in the degree to which Australians agree with the notion of same-sex couples having the same rights as different-sex couples.
As seen below, the percentage of people who “strongly agree” (the highest point in the scale) rose from 19.2% in 2005 to 46.3% in 2015. In contrast, the percentage of people who “strongly disagree” (the lowest point) fell markedly from 26.7% in 2005 to 12.9% in 2015.
The percentage of people who chose any of the five intermediate responses either remained stable, or decreased slightly.
About 12.4% of the 2015 HILDA Survey respondents selected the mid-point of the seven-category response scale when reporting on their agreement with the rights of same-sex couples.
This is an important portion of the Australian population. They represent those who may be swayed in either direction.
Examining their traits reveals these respondents were more likely to be men, heterosexual, older than 40, religious, to have below-year-12 education or professional qualifications, from a non-English-speaking background, in the bottom quartile of the income distribution, and from regional/remote areas of Australia.
The longitudinal nature of the HILDA Survey data enabled us to compare trends over time in support for the rights of same-sex couples between population segments.
Between 2005 and 2015, support rates increased across all of the population subgroups under scrutiny. This was even the case among groups that expressed the lowest levels of support.
For the most part, the group differences in support rates reported before remain reasonably constant over time. Interesting exceptions included a reduced “support premium” associated with holding university-level qualifications, and increasing religious disparities.
The figures reveal an overwhelming tide of support toward the rights of same-sex couples within Australian society.
However, certain population groups are clearly lagging behind in their support. This includes male, older, and religious Australians, and those from non-English-speaking backgrounds. These same traits are also predictive of being undecided on the issue. This implies campaigners for a Yes vote should redouble efforts in putting forward arguments that appeal to these groups.
Even with a favourable outcome, the moral scrutiny to which the LGBT community is being subjected will likely have long-term negative consequences. Social friction and debates about the rights of same-sex couples are unlikely to disappear after the plebiscite. Our results point toward population groups that will need further convincing.
I was not particularly surprised by the Supreme Court’s decision last Friday. Nor do I feel alarmist about it. Some Christians are responding to it in doomsday tones, but to my mind that attitude is at odds with the basic tenor of the gospel. Panic and pessimism are out of order for a worldview anchored in belief in an omnipotent God, irresistible grace, and an eternal heaven.
On the other hand, how a society defines the institution of marriage is important. For me, it is too important to remain silent—particularly because so many Christians I know are joining in to celebrate the Court’s ruling. My Facebook news feed has been lit up over the last several days with two basic types of articles, coming from various different circles of friends that Esther and I have made over the years: some disappointed and basically asking “now what?”; others exultant and proclaiming…
The current ‘marriage equality’ debate, is really a debate about a redefining of what marriage is. From a Christian perspective there is no debate as the Bible is clear on the issue and so for Christians there is no change no matter what may or may not happen around us. What happens in the world happens there and that is not something the church has a say over in real terms. Certainly God does have something to say about it and he has said it through the Scriptures to the world today. Whatever happens in that world outside of Christianity, the Christian definition of marriage will never change, regardless of the pressure that may or may not be brought to bear upon it and/or the church of Christ.
It would seem to me that the next logical step – the next progression for relationships in the civil marriage/relationship space, but not necessarily with those seeking same-sex civil marriage legality, would be the polyamory culture that appears to be growing out there in the world.