Politicians love compromises. A win-win.
Everyone gets part of what they want, and while they may not be happy, they’ll live with it.
Half a loaf is better than no bread, right? The Marriage Amendment Bill [full text here] put forward by Dean Smith and written by him and Australian Marriage Equality is more than that: maybe three-quarters. We get something, the self-styled devout get something, everybody happy, we’re singing, we’re dancing, right?
But what if there are maggots in the loaf?
AUSTRALIAN CHRISTIAN LOBBY
Lyle Shelton certainly thinks there are. Lots of them. His first reaction was this peculiar tweet, the meaning of which is, to say the least, opaque, if not actively deranged.
Try as I might, I have no idea what he’s talking about. There are more ‘queer theory provisions’ on my grocery list than in this Bill. He followed up with a couple of alarmist posts on the ACL website. I refuse to link to them, but here’s a sample:
“The so-called exemptions are extremely narrow and apply only to professional clergy or businesses which have a religious purpose… There has been no consultation with the Christian community and the Bill ignores the overwhelming majority of freedom concerns raised by the sector at the Senate inquiry and identified in its report earlier this year… There is no protection for Christian or religious schools who wish to teach children that marriage is exclusively heteronormative… There is no protection for a business owner who does not wish to violate his or her conscience about what marriage is.” [etc. etc. etc.]
If the ‘exemptions’ were designed to win the support of the religious lobby, they are a resounding failure. The ACL (and the Catholic Church) will clearly continue to scream and shout like a couple of spoilt toddlers forced to share their toys with their new LGBTI siblings. If these religious privileges don’t satisfy our opponents and won’t mitigate their opposition, is there any point in keeping them? Especially when they present ongoing dangers to LGBTI.
WHAT ARE ‘RELIGIOUS BODIES’?
I have no problem with existing celebrant businesses being given 90 days to register as religious to allow them to ignore anti-discrimination law. To do otherwise would throw them out of work, with little prospect of alternative employment. At the same time I welcome the proposal to limit this to pre-existing celebrant businesses, so no new discriminatory celebrants could be licenced in future. That’s a ‘win-win’ I can live with.
But I run aground on the proposals relating to “bodies established for religious purposes.” They seem to me a bridge too far. What are these bodies? And what are these nebulous “purposes reasonably incidental” to marriage?
Section 47B says ‘bodies established for religious purposes may refuse to make facilities available or provide goods or services’. It helpfully explains that a body established for religious purposes ‘has the same meaning as it has in section 37 of the Sex Discrimination Act 1984’. I have been unable to find exactly what that meaning might be (if you know, please enlighten me).
CHRISTIAN YOUTH CAMPS
The judgement in the case of Cobaw Community Health v Christian Youth Camp (CYC) at the Victorian Civil & Administrative Tribunal, however, provides some clues.
CYC (owned by extreme Christian sect the Christian Brethren) argued that they were allowed to refuse to rent their Philip Island ‘adventure resort’ to an LGBTI youth group under this religious exemption. The judge ruled that, although the Brethren were undoubtedly established for religious purposes, the camp was not, and so the exemption did not apply.
“The activities of CYC conducted at the adventure resort do not involve the spread or strengthening of spiritual teaching, the maintenance of the doctrines of the Christian Brethren religion or of the observances that promote or manifest it. The purposes of CYC, are not directly and immediately religious. They relate to the conduct of camping for both secular and religious groups. The religious groups are not confined to those who identify themselves as Christian Brethren. Although CYC has a relevant connection with a faith, church or denomination and the constitution of CYC declares that its establishment is considered to have a tendency beneficial to religion, or to a particular form of religion, that is clearly not sufficient.”
The Brethren appealed the decision, and lost.
“The Court dismissed the appeal by CYC and found that it had unlawfully discriminated against Cobaw and the group of same sex attracted young people on the basis of their sexual orientation. The decision considered the ‘religious freedom’ exemptions in sections 75 and 77 of the EOA 1995. In regard to s 75, the court held that CYC was not ‘a body established for religious purposes’ and therefore could not rely on the exemption. Even if CYC was such a body, the refusal was not ‘necessary’ to avoid injury to religious sensibilities. In regard to s 77, corporations cannot hold religious beliefs and therefore CYC could not rely on this exemption. Further, the refusal was not ‘necessary’ to comply with genuine religious beliefs or principles.”
This appears to provide a definition of a ‘religious body’: one which conducts ‘directly and immediately religious’ activities involving ‘the spread or strengthening of spiritual teaching, the maintenance of the doctrines of the… religion or of the observances that promote or manifest it.’ However, we may be assured that, should this bill become law, the Australian Christian Lobby will vigorously attempt to widen the definition through the courts and tribunals. Modelling themselves on the fabulously wealthy and extremely successful American anti-gay legal machine, the Alliance Defending Freedom. ACL have established their own local copy for exactly such purposes.
Not all judges will be as understanding or accommodating as in the CYC case. It is not unreasonable to imagine a piecemeal dismantling of this protection by the courts over time. Therefore we should not be providing this toehold for future attacks on our rights – even if it does merely replicate exemptions that already exist in other laws.We don’t need more special privileges. We need fewer.
PURPOSES REASONABLY INCIDENTAL
“Religious bodies” can refuse to provide goods, services or facilities if they are “reasonably incidental to the solemnisation of a marriage.” “Reasonably incidental” is defined as “intrinsic to, or directly associated with, the solemnisation of a marriage.” I have no idea what that all means in practice, but I have no doubt the ACL will mount court cases in an attempt to broaden the scope of these vague lawyerly phrases.
LET’S GET IT DONE AND REMOVE THE EXEMPTIONS LATER
WILL THAT BE 25 or 50 YEARS LATER?
I get it. We’re tired. Worn out. Frustrated. Angry. We just want it to be over. This is good enough. Let’s just do it and worry about the details later, eh? But the devil – or in this case, God – is in the details.
The problem with “fix it up later” is that it doesn’t get done for years and years. That’s what happened with decriminalisation in the U.K. We had little choice but to accept it, but it was partial, and actually led to an increase in the legal persecution of gay men. Full decriminalisation took from 1967-2013. 46 years.
How long did it take to get equalised age of consent in Queensland From 1991 till 2016. 25 years.
Do we really want to saddle the coming generations with a rather shaky and vulnerable version of not-quite-right-equality that could take up to 50 years to correct?
Once a flawed bill with exemptions is passed, it will be tremendously difficult, not to mention demeaning, to get it cleaned up.
“PLEASE SIR, CAN WE HAVE SOME MORE?”
It’s not hard to imagine the responses:
- “You’ve got 99% of what you wanted, why can’t you be satisfied with that? You’re just greedy.”
- “These queers have already caused irreparable damage to religion in this country, yet here they are, pulling on their pink jackboots again, to extinguish what remains of our religious freedom!”
- “Look, we know it matters to you, but Labor has a really big job to do, an economy to rebuild, homeless to house, you know, really important stuff. You’ll have to wait.
- How can we sell this to the electorate? We took enough of a hit getting marriage through in the first place. It’s too soon.”
The answer is not to build these religious privileges into the law in the first place, as Rodney Croome explains here ->. We must think not only of ourselves, but of the generations to come. Half a loaf – or even four fifths of one – may be better than no bread. But not when the bread has maggots in it.
This is not a matter of letting the perfect drive out the good: this bill has loopholes the ACL and their fellow travellers will drive a B-Double through. I know it’s incredibly hard, but we just have to keep fighting. As a first step the AME need to join forces with PFLAG and just.equal, to mount a united front to try to clean up this bill. And stop the postal plebiscite.
Not holding my breath.