Luke Beck

BY LUKE BECK

The debate on marriage equality looks like stepping up a gear with the re-elected Turnbull Government reaffirming its intention to hold a plebiscite on the issue. As the as-yet-unconfirmed date for the plebiscite approaches, we can expect to hear more from those opposed to marriage equality and their arguments that marriage equality poses some sort of threat to religious freedom.

This post looks at three questions concerning the relationship between marriage equality, religion and the Australian Constitution:

(a) Is religion relevant to defining the concept of ‘marriage?

(b) Is marriage equality a threat to religious freedom?

(b) Conversely, is a lack of marriage equality a threat to religious freedom?

Constitutional religious freedom in Australia

Unusually in a constitution largely bereft of rights protections, the Australian Constitution provides a narrow measure of protection for religious freedom in Australia by limiting the powers of the federal parliament with respect to religion. Section 116 provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

There are very few High Court cases on the provision, and those that have considered it have taken a relatively narrow view of the protections it offers against federal laws. It does not provide a limitation on the powers of the States.

Is religion relevant to defining the concept of ‘marriage’?

Section 51(xxi) gives the federal parliament power to make laws with respect to ‘marriage’. In the past, there were arguments that the word ‘marriage’ in s 51(xxi) was incapable of referring to same-sex unions, in which case, the federal parliament would have no power to introduce laws providing for marriage equality. These arguments often rested on religious views about the institution of marriage.

The Australian Christian Lobby (ACL) is probably the most prominent group leading opposition to proposals for marriage equality in Australia. The ACL believes that marriage is, by definition, only capable of referring to male-female relationships. In a submission to a Senate inquiry in 2012, the ACL wrote:

Marriage is a unique male-female relationship. This has been the position of all Christians, and indeed of all civilisations, throughout history …

Similarly, in response to a survey about same-sex marriage on Malcolm Turnbull’s personal website, a respondent called Mark expressed the view that a union of two people of the same sex cannot be labelled a marriage:

The concept of ‘marriage’ is so deeply entrenched in such long-standing and diverse religious and cultural traditions that it seems to me that such a concept cannot be said to reflect a same-sex union.

While such positions may continue to reflect certain religious and personal views in the community, the constitutional position has been clarified in the ACT Same Sex Marriage Case in 2013. In that case, the High Court considered that this sort of reasoning was unpersuasive and that the word ‘marriage’ in s 51(xxi) extended to same-sex unions. It is interesting to highlight the role religion played (or, rather, did not play) in the High Court’s reasoning.

The High Court could have adopted a religiously informed definition of ‘marriage’. It referred to two such definitions: one offered by John Quick and Robert Garran in their influential 1901 text The Annotated Constitution of the Commonwealth of Australia and one by Lord Penzance in old case law:

Quick and Garran said that … ‘[a]ccording to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognized throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of one man and one woman, (4) to the exclusion of all others.’ Reference might also have been made (and now commonly is made) to the earlier decision of Lord Penzance in Hyde v Hyde and Woodmansee and the statement that ‘marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others’.

The High Court was clear that religion cannot offer a definition of ‘marriage’ for Australian constitutional purposes. The High Court explained:

It is not now possible (if it ever was) to decide what the juristic concept of marriage includes by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage ‘should’ be. More particularly, the nineteenth century use of terms of approval, like ‘marriages throughout Christendom’ or marriages according to the law of ‘Christian states’, or terms of disapproval, like ‘marriages among infidel nations’, served only to obscure circularity of reasoning. Each was a term which sought to mask the adoption of a premise which begged the question of what ‘marriage’ means.

In the end, the High Court accepted that the word ‘marriage’ can extend to same-sex unions. Religious definitions of ‘marriage’ do not control the constitutional meaning. It follows that federal parliament has power to introduce marriage equality.

Would marriage equality threaten religious freedom?

The ACL has also claimed that marriage equality would threaten religious freedom. In the same Senate inquiry submission, the ACL wrote:

[M]any Christians remain concerned that threats to religious freedom are inevitable [as a consequence of same-sex marriage]. Around the world, those who believe in [male-female only] marriage are increasingly subject to ridicule, abuse, and even legal persecution.

A letter to former Prime Minister Tony Abbott in June 2015 signed by 41 religious leaders of various affiliations expressed similar concerns.

Would marriage equality really threaten the free exercise of religion as it is protected by s 116 of the Constitution? I propose to explore the answer to this question by reference to two key examples that tend to be raised when people express fears about marriage equality and religious freedom:

  • the position of ministers of religion; and
  • the issue of gay wedding cakes.

Ministers of religion and same-sex weddings

One area of concern for the ACL is the position of ministers of religion. The ACL fears that over time ministers of religion may be forced to solemnise same-sex marriages contrary to the religious teachings of their faith tradition. This concern, to be blunt, is a furphy.

As it currently stands, section 47 of the Marriage Act 1961 (‘Marriage Act‘) provides that ministers of religion who are authorised under the Act to solemnise marriages are under no obligation to solemnise any marriage. This provision is probably both a constitutional and a political necessity. To compel a minister of religion to solemnise a marriage that is contrary to the teachings of his or her religion quite likely would be a breach of section 116 of the Constitution.

The High Court’s case law on the free exercise clause is underdeveloped and thus offers little in the way of clear guidance on this question. In Krygger v Williams in 1912, the High Court held that compulsory military training for teenage boys did not prohibit the free exercise of religion. That was so, even if a boy held a sincere religious belief against taking human life that extended to objections to participating in anything connected with the taking of human life such as military training.

In Krygger, the High Court said the training had ‘nothing at all to do with religion’, but did not explain why it had nothing to do with religion. From the boy’s perspective, the training had a lot to do with religion and he was prepared to suffer imprisonment rather than violate his religious beliefs.

In the Jehovah’s Witnesses Case in 1943, the High Court held that the free exercise of religion was not absolute. It held that section 116 did not protect activities seriously prejudicing the war effort even if performed in the exercise of some religion. The Jehovah’s Witnesses Case was an easy case: the war effort was at stake. However, it tells us very little about what the limits of the ‘free exercise of religion’ might be or how we are to apply those limits in less obvious cases.

While the case law leaves the extent of the free exercise clause unsatisfactorily underdeveloped, it would be strongly arguable that compelling a religious minister in the course of their religious functions would be a more direct assault on the free exercise of religion than the compulsion involved in Krygger. A minister of religion performing a marriage ceremony could certainly not be dismissed as having ‘nothing at all to do with religion’. And there is no question of religious freedom having to be played off against national security.

Even leaving the constitutional question to one side, politically there are no serious suggestions for any change to this protection for ministers of religion.

Gay wedding cakes

Another area of concern for the ACL and others relates to people such as florists and bakers who provide goods and services to weddings. The religious leaders’ letter to former Prime Minister Abbott referred to fears of fines for bakers who refuse to bake cakes for same-sex weddings or wedding photographers who refuse to provide services for same-sex weddings. The Catholic Archbishop of Sydney, Anthony Fraser, expressed similar concerns in a 2015 lecture.

This concern is partly a furphy and partly an issue of potential constitutional controversy.

The concern is partly a furphy because State and federal anti-discrimination laws already prohibit discrimination against same-sex couples in the provision of goods and services (with some limited exemptions). For example, Part 4C of the NSW Anti-Discrimination Act 1977 makes it unlawful to discriminate against a person in the provision of goods or services or the provision of accommodation on the ground of the person’s homosexuality. Part II of the federal Sex Discrimination Act 1984 also makes it unlawful to discriminate against a person in the provision of goods or services or the provision of accommodation on the ground of a person’s sexual orientation. Section 37 even states that aged care facilities run by religious groups are not exempt from this prohibition against discrimination.

There is a very interesting, and potentially quite controversial, constitutional dimension to this issue. Does requiring a business owner with religious objections to same-sex marriage to provide goods or services to a same-sex wedding breach the free exercise clause of section 116 of the Constitution?

In other words, would the combined operation of an amendment to the Marriage Act allowing for same-sex marriage and existing anti-discrimination laws violate freedom of religion? This is a big question. It is thrown up particularly acutely in the marriage equality debate, but all the arguments for and against could be made now where individuals have religious objections to same-sex couples. (Identical arguments could also be made by people who have religious objections to interracial marriages and couples).

The answer is not at all clear. Some people genuinely hold religious objections to homosexuality. Some people genuinely hold religious objections to same-sex marriage. Those people may choose to refuse to provide goods and service to same-sex weddings, or other similar events such as celebrations of overseas same-sex weddings or a party celebrating a same-sex couple’s relationship anniversary. Those people are likely to justify their actions as a way of avoiding acting contrary to their religious beliefs. Such a refusal to provide goods or services might be seen as a manifestation of religious belief.

On the basis of Krygger, does baking a cake have ‘nothing at all to do with religion’ in the same way participating in military training has ‘nothing at all to do with religion’? On the basis of Jehovah’s Witnesses, is requiring a person to cease engaging in religiously motivated discrimination constitutionally acceptable in the same way requiring a person to cease engaging in religiously motivated activities prejudicial to a war effort is constitutionally acceptable? The reasoning in these two cases appears fundamentally insufficient to resolve this issue.

A gay wedding cake case might well prove fertile ground for a clearer articulation of the scope and limitations of the free exercise clause of section 116.

Is the absence of marriage equality a threat to religious freedom?

 In the final part of this post I want to consider a counter argument, that it is actually marriage inequality that is a threat to religious freedom.

At present, the Marriage Act provides that two categories of people may lawfully solemnise marriages: ministers of religion and civil celebrants. Section 45 of the Marriage Act provides that when a minister of religion performs a marriage ceremony he or she may use ‘any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister’. This provision gives a kind of legal status to religious rituals because the completion of those rituals has legal consequences (namely, two people have become married in the eyes of Australian law).

The Marriage Act treats different religions in a discriminatory manner. Some religions embrace same-sex unions and same-sex couples may properly be married in the eyes of their God/Gods. The ministers of those religions may well wish to be able to solemnise the marriages of members of their congregations who are in same-sex relationships. The Marriage Act denies those ministers the ability to do so.

In this way, is the Marriage Act denying those ministers full scope to exercise their religion? The religious rituals concerning marriage of one religion (which does not embrace same-sex marriage) are given full legal effect. Yet, the religious rituals concerning marriage of another religion (which does embrace same-sex marriage) are given only partial legal effect (in their application to opposite-sex marriages).

A second, more troubling, issue is that performing a religious marriage ceremony for a same-sex couple may constitute a criminal offence. Section 101 of the Marriage Act states: ‘A person shall not solemnise a marriage, or purport to solemnise a marriage, at a place in Australia or under Part V unless the person is authorised by or under this Act to solemnise marriages at that place or under that Part, as the case may be.’ A minister of religion is not authorised to solemnise a same-sex marriage. In addition, section 113 prohibits a separate religious marriage ceremony unless the parties have first been legally married, which is obviously not possible for a same-sex couple.

In the absence of marriage equality in Australia, it is a crime for a minister of religion to perform a religious marriage ceremony for a same-sex couple. The penalty is a $500 fine or imprisonment for 6 months.

There is no obvious justification for criminalising a religious ceremony that everyone knows has no legal effect but which may have important religious significance for the participants.

Conclusion

The Constitution may well have more to say about marriage equality and marriage inequality than the simple question of whether the federal parliament has power to introduce marriage equality. Arguments about religious freedom are available to those on both sides of the debate. Resolving the constitutional issues involved will be no piece of (gay wedding) cake.

Dr Luke Beck is a lecturer at Western Sydney University.

Suggested citation:  Luke Beck, ‘Marriage Equality/Inequality, Religion and the Constitution’ on AUSPUBLAW (18 August 2016) <https://auspublaw.org/2016/08/marriage-equality/>